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TMI Blog2012 (11) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petitioner and said Monohar Chandra Halder had entered into a partnership agreement. (I shall refer to them as AM and MH respectively later in this judgment.) A copy of this agreement has been produced before this Court at the time of hearing, and from this agreement, I find that one of the main objects of this firm was to participate in the business of storage and sale of permitted food and related items on the basis of licence issued by the Government. A vacancy for M.R. Distributorship was declared on or about 25 January 1984 by the Sub-Divisional Controller (SDC), Food and Supplies, Burdwan Sadar at Polempur under his zone. The petitioner along with MH as joint partners of said Damodar Enterprise applied for appointment as M.R. Distributor for this vacancy. Upon selection, a letter of appointment was issued in favour of "(1) Abdul Malek (2) Monohar Chandra Halder, prop. M/s DAMODAR ENTERPRISE" by the SDC. 2. The distributorship agreement was entered into by the State Government with the petitioner and MH on 30 July 1985. In this agreement also, the petitioner and MH were referred to as "prop." of the said firm. In this agreement, there is no specific reference to the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was being effected for amendment of some of the clauses of earlier deed of partnership. The intervenor's compliant addressed to the District Controller (DC) of Food & Supplies, Burdwan was first made on 1 September 2006. Substance of his complaint was that he was a partner of M/s. Damodar Enterprise along with Monohar Chandra Halder, Abdul Malek and Safi Wahuda Rasul, but the petitioner had applied for such licence in his individual name. Case of the intervenor before this Court is that the original partnership firm had been reconstituted, and all the four aforesaid individuals became partners of the firm. Fresh deed of partnership was executed for the purpose of carrying on the business of wholesale M.R. distributors of rice, wheat etc. but the license for the same was being surreptitiously obtained by the writ petitioner under the 2003 Control Order in the name of two partners only. 5. From the materials disclosed, there is no evidence of initiation of any formal proceeding by the authorities on the basis of that complaint. A report, copy of which has been Annexure "P6" to the writ petition, was made by the DC to the Director, District Distribution Procurement and Supply, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s joint reply with MH also referred to the earlier investigation of DC in respect of the same allegation. The DC however was not satisfied with such explanation and by a further memorandum issued on 20 April 2007, directed the petitioner and MH to appear for personal hearing. 8. This writ petition has been filed questioning legality of the notices to show cause dated 4 and 20 April 2008. At the motion stage of this proceeding, this Court was pleased to stay the operation of the said notice to show cause. One of the grounds on which the said notice was challenged was that under clause 26(c) of the Control Order, power to issue such notice vested in the SDC, but the impugned notice originated from the DC directly. Directions were given for filing affidavits by the respective parties. 9. Subsequent to filing of the writ petition, certain further developments took place in relation to the subject controversy, which were brought to the notice of this Court by way of filing supplementary affidavits. A supplementary affidavit has been filed by the petitioner affirmed on 27 April, 2007. On behalf of the State respondents a supplementary affidavit has been filed on 20 April 2011 affirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise and also by directing that parties shall comply with order passed by the Hon'ble High Court in the writ petition WP No. 552 of 2007 which is still pending in the Hon'ble Court." 10. Another supplementary affidavit has been filed by the intervenor on 21 April 2011. In this affidavit it has been stated that licence had been issued under the West Bengal Rice and Paddy (Licensing and Control) Order, 1969 in connection with the said business in the trade name of the firm that is M/s. Damodar Enterprise. By filing this supplementary affidavit, the intervenor sought to establish that licence was being issued under the Control Order in favour of the partnership firm only, which on reconstitution, had four partners but the petitioner was suppressing this fact from the food and supplies authorities. Learned counsel for the intervenor has also drawn my attention to several allocation orders issued in favour of the firm, Damodar Enterprise, without specifically naming the partners. 11. An application has also been taken out by the intervenor, registered G.A. No. 1882 of 2007 in which he has prayed for sanction of this Court for prosecuting the writ petitioner for practising frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment of India Dept. of Supply directorate General of Supplies & Disposals (Vigilence dept.) reported in 78 CWN page 841. iv) K. R. Deb Vs. The Collector of Central Excise, Shillong. reported in AIR 1971 SC 1447. 14. It has also been asserted on behalf of the petitioner that the DC under the 2003 Control Order has no jurisdiction to issue notice to show cause on allegation of violation of condition of licence, as it is the sub-divisional controller who has been conferred with power under the statute to issue such notice. On merit, main submission of the petitioner is that the licence was issued under the 2003 Control Order directly in favour of the writ petitioner and Monohar Chandra Halder, joint partners of Damodar Enterprise. As regards impact of execution of the deed reconstituting the partnership, case of the petitioner is that the intervenor had been inducted as a "working business partner" only but he had no role to play so far as business of distributorship under the 2003 Control Order was concerned. Thus, there was no induction of any stranger into the business of distributorship, which continued as it did since the agreement was executed in the year 1985. In any event, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... censee in his business." 18. Mr. Ganguly, learned counsel appearing on behalf of the intervenor has supported the stand of the state respondents that the writ petition is premature. So far as the decision of the DC reflected in the memorandum dated 6 November 2006 is concerned, his submission is that this memorandum is only an interdepartmental memorandum which cannot constitute a final decision on the dispute raised by his client. The judgment relied on in support of his submission on this point is a decision of the Supreme Court in the case of Union of India & Ors. Vs. Vartak Labour Union reported in 2011 (2) Supreme 238. In this judgment it has been held:- "14. It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right." 19. The object which the intervenor seeks to achieve by raising complaint over the manner in which licence has been issued in favour of the petitioner is that his name ought to have been incorporated in the licence as a partner of Damodar Enterprise. On the question of delay in making his complaint, his defence is that all along the licence was being issued and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to continue. It was held in that judgment:- "5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally nonest in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 53) and Raghunandan Panda Vs. State of Orissa (AIR 1975 SC 434) were cited to contend that mere administrative action does not give rise to justiciable right. But in this case, the proceeding initiated has quasi-judicial character as the same can result in penal steps being taken against the petitioner. In any event, an administrative order having adverse civil consequence can give rise to justiciable right. These four decisions thus do not assist the respondents' case on this point. 22. Now I shall address the question as to whether the report of the DC submitted before the DDPS had finally set the controversy at rest, and the same issue can be resurrected again or not by the DC. A person cannot be required to undergo one enquiry after another on the same allegation. On behalf of the petitioner, a large body of authorities has been relied on to substantiate this point. As corollary, it has been urged that an authority cannot review its own decision unless statute specifically provides for such power to review. Referring to the opinion of the DC in the communication of 6 November 2006, it has been argued that the subsequent proceeding was for review of the earlier decision of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the concerned family was governed by the Mitakshara school, in exercise of the same statutory power. Initiation of proceeding for the second time on the same question was held to be impermissible, applying the principle of res judicata. In S. K. Sen Vs. Dir. Govt. Of India (supra), it has been held that a second enquiry is not permissible in law on identical allegations, when the disciplinary authority decides the allegations on merit. 23. In the factual context of this case, in my view the notice to show cause did not really seek to commence a reenquiry, after final decision was taken in the first enquiry. Substance of allegations against the petitioner and MH is that the firm of which they were partners was reconstituted, and the said fact was not brought to the notice of the authorities. In his report of 6 November 2006, the DC informed the DDPS that the agreement and licence were issued in favour of the petitioner and MH as partners of Damodar Enterprise, and no application was received for inclusion of any other partner in the licence. Sk. Ajimuddin was found to be an outsider, unknown to the office of the DC. But the question as to whether there was any violation of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder provides:- "26. Procedure for dealing with the irregularity of distribution - (a) Every distributor shall abide by the instructions as may be issued from time to time by an authority not below the rank of an Inspector working in the Department of Food and Supplies. He shall also abide by the terms and conditions of the appointment and licence as may be issued to him. (b) In the event of detecting any discrepancy of commodities or for violation of any order as may be issued by the competent authority and/or violation of any condition of appointment and licence the Sub- Divisional Controller, Department of Food and Supplies, shall issue a notice of showcause to the distributor asking for an explanation of the irregularity committed by the distributor, within 15 days from the date of detection of irregularity and/or any other misconduct and may also place the licence under suspension with the approval of the District Controller, Department of Food and Supplies till the disposal of the proceedings as may be drawn against the said distributor. (c) Upon receipt of the explanation as may be submitted by the distributor against the notice of show cause served upon by the Sub- Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Parishad along with his recommendation and the Zilla Parishad shall forward the same to the Regional Deputy Director for approval. (iii) If the Regional Deputy Director does not agree with the recommendation made by the District Controller or the Zilla Parishad, as the case may be, he shall refer the matter to the District Magistrate for his views and the views of the District Magistrate shall be final. After having approval from the Regional Deputy Director or District Magistrate, as the case may be, the District Controller, Department of Food and Supplies shall arrange for issue of appointment letter to the selected distributors within 15 days from the date of receipt of the said approval and shall arrange for issue of licence against an application made by the appointed distributor, in Form C. the distributor so appointed shall have to deposit a licence fee of Rs.500/- and the licence shall remain valid for two years. Thereafter, the licence shall be required to be renewed every year against a fee of Rs.200/- as may be deposited by the distributor along with the application for renewal of licence within a period of validity of licence. Besides the licence fee, the distributor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h explanation of the distributor and recommendation of the SDC and come to his own finding. Since the DC was the ultimate authority to come to a finding on the allegation of violation of condition of licence, the action of the DC was sought to be justified on the ground of being a mere irregularity, not being fatal to the proceeding. The judgments of the Supreme Court in the cases of The State Bank of Punjab Vs. Shamlal Murari (AIR 1976 SC 1177) and State Bank of Patiala Vs. S. K. Sharma (AIR 1996 SC 16669) were cited on behalf of the intervenor to sustain the notice, arguing that it was a mere procedural irregularity not having occasioned any prejudice to the petitioner. 29. The Control Order prescribes that in relation to an allegation of violation of condition of licence, the SDC is required to issue the notice to show cause. This implies that there should be prima facie satisfaction on the part of the SDC that there has been such violation, and then only notice seeking explanation shall be issued. Explanation is also required to be given to the SDC. He is to apply his mind over the explanation, give his own comments. The DC must have comments of the SDC before deciding the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such licence was issued in favour of the partnership firm only, disclosing the names of the partners. But this issue was clarified by the petitioner himself and in the pleadings he has referred to himself and MH as joint partners of the firm Damodar Enterprise. On behalf of the petitioner, business carried on by him and MH as distributor under the Control Order is sought to be segregated from other business, and it is submitted that the said business of distribution never involved the intervenor, and he cannot compel the food and supplies department to allow him to act as a licencee. On this point, I do not think the Writ Court would be the proper forum for adjudication. Various factual issues are required to be determined to arrive at final conclusion on these issues, and I choose not to give a decision on the point as to whether there was any violation of the Control Order or the conditions of licence by the petitioner and MH or not, vis-à-vis the allegations made in the impugned notice to show cause. It would be for the appropriate forum to adjudicate on such issue, should occasion arise. 32. I accept the argument of the petitioner that the intervenor cannot im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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