Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 85 (CAL)

Gopal Emporium v. State of West Bangal

2000-02-18

Amit Talukdar

body2000
Judgment Amit Talukdar, J. 1. Assailing the order No. DCG/Court/64/A97/ CG/ Koil/AG/B 1st/4/66 dated 14.8.97 passed by the respondent No. 2 - the Director of Consumer Goods of West Bengal the Food and Supplies Department thereby cancelling the Kerosene Oil Licence of the petitioners this Writ Application has been preferred on multifarious grounds. It has been mainly urged that before arriving at his decision and cancelling the licence of the petitioners no proper hearing was given. Next it was submitted that the gamut of the allegation that the petitioner could not produce licence for 1996-97 whereas in fact application was filed for renewal of the licence as it would appear in Annexure 'E' of the 'writ application. 2. It was further submitted that in his finding, which is the subjectmatter of challenge, the respondent No.2 has referred to "the performance report" but the said copy of the said report was not made available to the petitioners as such it prevented them from controverting the allegations made against them and the said report which was shut out from the petitioners was the basis for arriving at his finding by the respondent No.2. This according to Shri Chatterjee, learned Counsel appearing in support of the Writ Application has submitted was grossly illegal as the authority relying on a particular piece of document and drawing its conclusion thereform but denying access to the same to the petitioners deprives the petitioners from making an effective defence. 3. Shri Nazmul Houssain, learned counsel appearing on behalf of the State has opposed the submissions made by Shri Chatterjee and has submitted that the order, cancelling the Kerosene Licence of the petitioners were absolutely justifiable in the facts of the instant case. He has further submitted that the order passed by the respondent No. 2 which falls for determination before this Writ Court is an appealable order and as such no Writ lies against the same and accordingly pressed for dismissal of the case. 4. Before entering into the merits of the case, I take up the question of maintainability of this Writ Application on the ground that there being an alternative and viable remedy by way of an appeal as provided by the Control Order, will this Court exercise its writ jurisdiction and adjudicate the questions raised by the learned Counsel of the petitioners circumventing procedure established by law? 5. 5. Shri Chatterjee has tried to controvert the point raised by the learned lawyer appearing on behalf of the State that since the Writ Application was admitted by this court earlier and the point of jurisdiction did not stand in the way at this stage the said question cannot be gone into once the Writ Application has been admitted. 6. I am not one with Shri Chatterjee it appears from Annexure 'K' to the Writ Application which is the impugned order of suspension that the respondent No.2 had passed the order of suspension in exercise of the powers conferred under Clause 9 read with Clause 12 of the West Bengal Kerosene Control Order, 1968 (here-in-after referred to as the said Control Order). From a plain reading of section 10 of the said Control Order it appears that a person who is aggrieved by an order passed under paragraph 8 or paragraph 9 of the said order may within 30 days from the date of passing of the order prefer an appeal before the appropriate authorities mentioned in the said section. 7. In view of such provision staring at my face I am unable to persuade myself to the submissions of Shri Chatterjee that once the Writ Application was admitted and this question of jurisdiction was not considered at this stage the same cannot be gone into, since the statute provides for a particular mode to be followed and stipulates a provision for appeal I find that such being the position and an alternative remedy being available the Writ Court should not tread in and usurp the power of appeal as contemplated under paragraph 10 of the said Control Order. Reliance have been placed on the decision of the Supreme Court in the case of Ram and Shyam Company vs. State of Haryana & Ors. which is reported in (1985) 3 SCC 267 by Shri Chatterjee in support of his submission that the availability of an alternative remedy of appeal cannot debar the Writ Petitioner from preferring the Writ Application. Reliance have been placed on the decision of the Supreme Court in the case of Ram and Shyam Company vs. State of Haryana & Ors. which is reported in (1985) 3 SCC 267 by Shri Chatterjee in support of his submission that the availability of an alternative remedy of appeal cannot debar the Writ Petitioner from preferring the Writ Application. He has also cited another Supreme Court decision of L. Hirday Narain vs. Income Tax Officer, Bareilly as reported in AIR 1971 SC 33 to buttress his submission that when a Writ Petition has been filed instead of availing of the statutory remedy the High Court having entertained the Petition and hearing on merits cannot reject the said Writ Petition on the ground that the statutory remedy was not availed of. 8. The ratio of the decision as relied on by Shri Chatterjee cannot be applied in the facts and circumstances of the present case. In the case of Ram and Shyam Company vs. State of Haryana (supra) the Supreme Court held in the particular facts and circumstances of the case. An appeal in all case cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purposes by the Chief Minister of the State. The whom do you appeal in a State administration against the decision of the Chief Minister? The clitch of appeal from Ceasar to Ceasar's wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is pased at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. The High Court did not pose to itself the question, who would grant relief when the impugned order is pased at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister. There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court." However, in the case at hand the respondent No. 2 had passed an order who is an officer of the State Government and the statute provides for appeal to State. The ratio of the decision cannot in any manner be applied in the present case. The next decision relied upon by Shri Chatterjee of L. Hirday Narin vs. Income Tax Officer, Bareilly (supra) in support of his submission that once High Court had admitted the petition it was not opened at this stage to reject the same on the ground of availability of an alternate remedy also in my very humble opinion is not apposite in the facts of the present .case and cannot be applied correctly. The Supreme Court in the said decision of L. Hirday Narain vs. Income Tax Officer, Bareilly (supra) then Hon'ble Mr. Justice J. C. Shah (as his Lordship then was) the Speaking Voice for the Division Bench held : "An order under section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision because at the date on which the petition was moved the period prescribed by section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. The High Court observed that under section 35 of the Indian Income tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. The High Court observed that under section 35 of the Indian Income tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion the exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right-public or private-or a citizen." 9. In such view of the matter the principle laid down by their Lordships of the Supreme Court cannot be applied in this case. That apart I further find this Writ Application was filed on 18-9-97 and it was listed before P.K. Samanta, J. on 04.11.97 and since his Lordship does not have the determination to take up this matter it was released from the list. Again on 08.12.98 P.C. Ghosh, J. having no determination released the matter from his Lordship's List and directed it be placed before the appropriate Bench. On 17-9-99 V.K. Gupta, J. directed that the Affidavit-in-Opposition be filed one week from date and reply if any is to be filed one week thereafter and the matter appear in the list two weeks hence as Listed Motion. 10. The matter came in my List on January 14, 2000 when I directed that none appeared on behalf of the State fresh intimation be caused upon the respondents and adjourned the matter till 21-1-2000 on which date the matter was heard and the hearing was concluded. As such, I cannot persuade myself to the line of argument adopted by Shri Chatterjee the once the Writ Application was admitted at the time of hearing the question of jurisdiction cannot be taken. As such, I cannot persuade myself to the line of argument adopted by Shri Chatterjee the once the Writ Application was admitted at the time of hearing the question of jurisdiction cannot be taken. The preliminary question about jurisdiction was taken by Shri Nazmul Hussain learned lawyer appearing on behalf of the State on 21-1-2000 when the matter was formally heard and marked as C.A.V. As such the objection of Shri Chatterjee does not merit any consideration in this regard. That" apart in order to seek redressal before the Writ Court notwithstanding availability of an alternate remedy the Writ Petitioner will have onus to show that the alternate remedy is neither officacious nor adequate the said onus always shifts upon the Writ Petitioner and it also be further established that the statutory remedies available are ill-suited to meet the demands of an extraordinary situation. In this regard I am tempted to rely on the decision of the Supreme Court in (1995) 1 SCC 21 , u.P. Jal Nigam vs. Nareshwar. So in the light of what I discussed the question of alternate remedy being available stands as a bar to the petitioner in seeking redressal under Article 226 of the Constitution of India. 11. Now the question arises from the plain reading of section 10 of the said Control Order what is the mode of appeal in the present case the said Control Order provides for two different authorities; one in Calcutta and another for elsewhere. For profitable discussion the provisions of paragraph 10 of the said Control Order is set out: "10. Appeal. Now the question arises from the plain reading of section 10 of the said Control Order what is the mode of appeal in the present case the said Control Order provides for two different authorities; one in Calcutta and another for elsewhere. For profitable discussion the provisions of paragraph 10 of the said Control Order is set out: "10. Appeal. Any person aggrieved by an order passed under paragraph 8 or paragraph 9 of this order may within 30 days from the date of the order, prefer an appeal (a) In Calcutta (i) Where the order is passed by the Director of Consumer Goods, Department of Food and Supplies, to the State Government, (ii) Where the order is passed by any other officer authorised by the state Government under clause (d) of paragraph 3, to the Director of Consumer Goods, Department of Food and Supplies, and (b) elsewhere,(i) Where the order is passed by the District Magistrate or the Deputy Commissioner of District, to the State Government, (ii) Where the order is passed by any other officer authorised by the District Magistrate or the Deputy Commissioner of a District under clause (e) of paragraph 3, to the District Magistrate or the Deputy Commissioner, as the case may be, of the district." 12. From a close scrutiny of the said order it appears that the mode of appeal prescribed for Calcutta as set out in clause (a) sub-clause (i) of paragraph 10 is where the order is passed by the Director of Consumer Goods appeal will lie to the State Government. In sub-clause (ii) of clause(a) of section 10 it is further specified that if the order is passed any other officer authorised by the State Government under clause (d) of paragraph 3 then the Appeal will lie to the Director of Consumer Goods, Department of Food and Supplies. 13. In clause (b) sub-clause (i) it has been specified that an order passed by the District Magistrate or the Deputy Commissioner of the District the said order will be appealable before the State Government and sub-clause (ii) of clause (b) it is mentioned that an order passed by any other officer authorised by the District Magistrate or the Deputy Commissioner of the District under clause (e) of paragraph 3 appeal will lie to the District Magistrate or the Deputy Commissioner, as the case my be, of the District. 14. 14. An analysis of the provisions of the said paragraph 10 of the said Control Order shows that if in Calcutta the order is passed by the Director of Consumer Goods appeal will lie to the State Government but it is silent so far as it relates to an order passed by the Director of Consumer Goods elsewhere. 15. From a perusal of the said order it would appear that the said paragraph is completely, silent about the mode of appeal in connection of an order passed by the Director of Consumer Goods to a case relating to outside Calcutta. The said paragraph 10 exposes a grey area so far as it lays down the mode of appeal if it is passed by the Director of Consumer Goods in a matter pertaining outside Calcutta. 16. As such in the absence of any specific provision in paragraph 10 of the said Control Order with regard to appellate authority in a case of outside Calcutta where the order is passed by the Director of Consumer Goods the Court is to see the legislative intent and interpret the same. Had the plain reading of the said paragraph specified for the mode of appeal in a case where the order was passed by the Director of Consumer Goods outside Calcutta the Court would not interpret it in a different way than that has been specified in the section. 17. In such view of the matter, I embark on an investigation with regard to search for intention express or implicit in the aid statute. In the light of the provisions of paragraph 10 of the said Control Order that the legislature, although the said paragraph is rather vague with regard to the problem in hand, could not have a different intent with regard to the mode of appeal prescribed for Calcutta and another for outside Calcutta. The Court is caught in the horns of a dilemma where the words used by the Legislature do not bear a plain meaning and question may arise as to what the palin meaning is. 18. The Court is caught in the horns of a dilemma where the words used by the Legislature do not bear a plain meaning and question may arise as to what the palin meaning is. 18. I am tempted to refer to the decision of Arthus Hill vs. East and West India Dock Company, (1884) 9 AC 448 (HL), where Lord Cairns held: "I say that we must look to what the purpose is." I am also embolden by the decision of the Supreme Court in this regard as reported in the case of Smt. Kanta Goel vs. B.P. Pathak and Ors., as reported in AIR 1977 SC 1599 where his Lordship the Hon'ble Mr. Justice Krishna Iyer held: "The legislative project and purpose turn not on niceties of little verbalism but on the actuality of rugged realism, and so, the construction of section.....must be illumined by the goal though guided by the word." As such I am of the view that the Court while considering the import of a particular provision the Court should perceive the intention of the Legislature with the imagination of purpose behind the said intent and should be read as a whole in the background of the purpose of the Act itself. The provisions of a particular section should not be read as a geometrical theorem and objective answer to be sought for. 19. Before parting I can hardly resist myself from relying on a Division Bench judgment of our Court as reported in 1999 (4) SLR 661 (Ananta Kumar Bej vs. State of West Bengal and Ors.) where Satya Brata Sinha, J. speaking for the Division Bench by applying the doctrine of purposive construction held: "It is a well settled principles of law that despite absence of a rule, the Selection Committe is entitled to short list the candidates. Rule 9 (c) (ii) of the rules only gives a statutory recognition to the aforementioned service jurisprudence. In a case of this nature, therefore, the doctrine of purposive interpretation should be invoked, and in such a situation the word 'written test' must be held to be incorporated within the word 'interview'. The answer to the question posed in this appeal, thus in the opinion of this Court, should be rendered in affirmative as otherwise the word 'written examination' would become totally otiose. The answer to the question posed in this appeal, thus in the opinion of this Court, should be rendered in affirmative as otherwise the word 'written examination' would become totally otiose. Such a construction is permissible by taking recourse to the doctrine of strained construction as has been elaborately dealt in by Francis Bennion in his Statutory Interpretation. At section 304, of the treatise purposive construction, has been described in the following manner : "A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not ih accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." 20. Applying the said ratio of the principles laid down by Sinha, J. on behalf of the Division Bench, I find that there is an element of ambiguity in paragraph 10 of the said Control Order and the question arises as to whether the expression 'Calcutta' as used in paragraph 10 (a) implies the seat of the authority who passes the Original Order or relates to the jurisdiction in respect of which the order under paragraphs 8 and 9 of the said Control Order is passed. 21. If we accept that the expression 'Calcutta" would connote the seat of the Authority (Director in the present case) who passes the order notwithstanding the jurisdiction in connection with the impugned order the Statutory Appellate Forum would be retained. However, if the interpretation relating to jurisdiction in respect of which the order under paragraphs 8 and 9 of the said Control Order is passed it would entail the exclusion of any Appellate Forum whatsoever in cases the Director of Consumer Goods passes an order under the provisions of paragraphs 8 and 9 of the said Control Order in a case relating to outside Calcutta. 22. It is now well-settled that the Court cannot supply the missing links in a statute and certainly cannot insert words which the lawmakers did not choose to insert in a particular statute. 22. It is now well-settled that the Court cannot supply the missing links in a statute and certainly cannot insert words which the lawmakers did not choose to insert in a particular statute. However, in the event of the possibility of dual interpretation in respect of a statutory instrument the Court has a choice, the Judicial Committee of the Privy Council in the case of Shanon Realities Limited vs. Ville de St. Michel, (1924) AC 185, at page 192 held; "Where the words of statute are clear they must of course be followed, but in their Lordships' opinion, where alternative construction are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system." 23. From a plain reading of paragraph 10 of the said Control Order the Legislative intent of the framers of the said Control Order shows that persons aggrieved with orders passed under paragraphs 8 and 9 of the said Control Order must have a Statutory Appellate Forum before the State Government in connection with an order passed by the Director or the District Magistrate who exercises concurrent jurisdiction under paragraphs 8 and 9 of the said Control Order. A fantastic situation would emerge if one gives a new meaning of sub-clause (b) of paragraph 10 of the said Control Order if in a case where the Director of Consumer Goods passes an order relating to a jurisdiction outside Calcutta and the Appellate Forum is excluded in a similar situation a person aggrieved by the order of the District Magistrate can invoke the Appellate Jurisdiction of the State Government. This would give rise to an anomalous situation. Further, I am of the view that in the event of such an interpretation of statute it would lead to discremination between a person of Calcutta filing an appeal and a person filing an appeal 'elsewhere' aggrieved by an order gassed under paragraphs 8 and 9 of the said Control Order. This would give rise to an anomalous situation. Further, I am of the view that in the event of such an interpretation of statute it would lead to discremination between a person of Calcutta filing an appeal and a person filing an appeal 'elsewhere' aggrieved by an order gassed under paragraphs 8 and 9 of the said Control Order. If in our widest dream we conform to such an interpretation a person in Calcutta can file an appeal to the State Government but a person from the District would not be able to file such an appeal it would lead us to an incongruous situation. The accepted Rule of construction is that a statute must be interpreted in such a manner that it does not render the same constitutionally invalid and on the basis of such principle the Appellate Forum is to be retained for all equally placed persons, do apply in the instant case a different interpretation would make it assailable to an academic assault on Article 14 of the Constitution of India. Accordingly, it would be apposite that the subclause (b) of paragraph 10 which has been extracted here-in-above should be read as or the Director of Consumer Goods immediately after the .words "Deputy Commissioner of District" which would then make a wholesome impact on the Legislative intent. 24. I accordingly hold that the order passed by respondent No.2 is also an appealable order and appeal would lie against the impugned order, passed by him before the State Government. 25. In such view of the matter I do not wish to embark on meticulous analysis of the merit of the Writ Application as have been tried to be canvassed by Shri Chatterjee and dispose of the Writ Application on this score alone that the order impugned being appealable, the Writ is not maintainable. 26. I, however, give liberty to the petitioners to prefer an appeal before the Appropriate Authority against the impugned order complained of and the said Authority is directed to condone the delay under section 14 of the Limitation Act in preferring the Appeal and hear out the same in accordance with law and dispose it of with utmost despatch preferable within a period of two months from the date of filing of the Appeal. 27. 27. I, however, make it clear that I have not gone into the merits of the case and the petitioners would be absolutely free to agitate all the points taken in this Writ Application or any other points that may be available to them during the course of hearing of Appeal. I also, however, make it clear that any observation made here-in-above in the body of this Writ Application shall not be construed as expression of any opinion of this Court on the merit of the case. It is only for the purpose of disposal of this Writ Application which shall not be construed as an adjudication on merit. The Writ Application is accordingly disposed of. There will be no order as to costs. Writ Application disposed of