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2004 DIGILAW 514 (CAL)

JAI NARAYAN PRADHAN v. DISTRICT MAGISTRATE

2004-07-29

BHASKAR BHATTACHARYA

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BHASKAR BHATTACHARYA, J. ( 1 ) BY this writ application, the petitioner, an applicant for grant of M. R. Dealership for the Mirick area, in the District of Darjeeling has challenged memo dated 18th June, 2003 being Annexure "p-7" by which the concerned state respondent has appointed the private respondent No. 7 as the Dealer. ( 2 ) MR. Roy, the learned Counsel appearing on behalf of the private respondent has taken a preliminary objection as to the right of the writ petitioner to challenge the appointment of his client on the ground that the writ petitioner having no requisite qualification for the said dealership is not entitled to challenge the appointment. ( 3 ) MR. Bhattacharya, the learned Counsel appearing on behalf of the writ petitioner has, on the other hand, vehemently opposed the aforesaid preliminary objection and has contended that it would appear from the affidavit-in-opposition filed by the State respondent that while appointing the private respondent no. 7, the relevant Control Order was not adhered to and such appointment was made after consultation with the Chairman, Gorkha Hill Council, darjeeling. According to Mr. Bhattacharya, neither the Chairman, nor the darjeeling Gorkha Hill Council, has any right to be consulted while giving appointment of an M. R. Dealer. Mr. Bhattacharya submits that from the aforesaid affidavit affirmed by the State, it is clear that the appointment was illegal and thus on that ground alone, the order of appointment in favour of private respondent No. 7 should be quashed. Mr. Bhattacharya contends that once the High Court finds that the order impugned is illegal, the question of locus standi is immaterial. In other words, Mr. Bhattacharya contends that even if it appears that ultimately this Court cannot grant relief to the petitioner as he had no requisite qualification, in such a case, this Court should set aside the order impugned and direct the State respondent to make fresh appointment among other eligible candidates. In support of such proposition of law, Mr. Bhattacharya relies upon the following decisions of the Supreme Court: coca-Cola Export Corporation vs. Income Tax Officer and Anr. , reported in 1998 (4) SCC 166 paragraphs 15 and 16; K. Venkatachalam vs. A. Swamickan and Anr. , reported in 1999 (4) SCC 526 ; M. S. Jayarajvs. Commissioner of Excise, kerala and Ors. Bhattacharya relies upon the following decisions of the Supreme Court: coca-Cola Export Corporation vs. Income Tax Officer and Anr. , reported in 1998 (4) SCC 166 paragraphs 15 and 16; K. Venkatachalam vs. A. Swamickan and Anr. , reported in 1999 (4) SCC 526 ; M. S. Jayarajvs. Commissioner of Excise, kerala and Ors. reported in 2000 (7) SCC 552 paragraph 14; Surya Dev Rai vs. Ram Chanderrai and Ors. , reported In 2003 (6) SCC 675 ; Dwarka Prasad Agarwal and Anr. vs. B. D. Agarwal and Ors. 2003 (6) SCC 230 . ( 4 ) THEREFORE, the first question that arises for determination in this application is whether at the instance of the petitioner, the Court can set aside appointment in favour of private respondent, even if, the Court finds that the petitioner had no requisite qualification, ( 5 ) IT appears from the requisite qualifications for the aforesaid dealership, that the applicant must have a sum of Rs. 10 lac in Bank Account and from the application filed by the petitioner itself it is clear that the petitioner had no such amount in the Bank. There is no provision for relaxation of the aforesaid condition. Such being the position, the question is, even if this Court finds that the order of appointment was vitiated by the intervention of extra-statutory authority, whether this Court can set aside such order, when the Court is unable to give any relief to the petitioner. ( 6 ) THE law relating to exercise of jurisdiction under Article 226 of the constitution of India is now well-settled. Under the aforesaid provision, a person can approach this Court if any of his legal or fundamental rights has been infringed by the action or inaction of a "state" within the meaning of Article 12 of the Constitution of India. The exception to this principle is in case of writ in the nature of how is corpus, quo warranto and public interest litigation. [see state of Orissa vs. Ram Chandra, AIR 1964 SC 685 ; Pratap Singh vs. State of punjab, AIR 1964 SC 72 ; Calcutta Gas Companies vs. State of West Bengal, air 1962 SC 1044 (1047)]. The present case does not fall under either of the aforesaid three categories. Although Mr. [see state of Orissa vs. Ram Chandra, AIR 1964 SC 685 ; Pratap Singh vs. State of punjab, AIR 1964 SC 72 ; Calcutta Gas Companies vs. State of West Bengal, air 1962 SC 1044 (1047)]. The present case does not fall under either of the aforesaid three categories. Although Mr. Bhattacharya tried to impress upon this Court that jurisdiction of the High Court under article 226 of the constitution of India is wide enough to set right any illegality committed by the executives, I am not at all convinced by such submission. ( 7 ) IN case of exercise of power under Article 227 of the Constitution of India, a High Court has power of superintendence over all Courts and Tribunals situated in the territory over which it exercises jurisdiction and in appropriate cases, can even suo motu correct any illegal order, if such order has occasioned failure of justice. But a High Court has no such power under Article 226 to suo motu exercise such power for the purpose of correcting any illegal executive action or inaction, unless, the High Court has been approached by a person who is aggrieved or affected by such illegal action or inaction. A High Court, in such a situation, can pass appropriate order and direct the authority either to give relief to the petitioner whose right has been infringed or to consider his case in accordance with law. But if after entertaining a writ application the high Court finds that it is unable to give any relief to the petitioner, in such a case it will be a futile exercise of jurisdiction to investigate the illegal action or inaction of the State. ( 8 ) THE following example will make the position more clear: a person having no requisite educational qualification for becoming lecturer of a College applies for such post and ultimately being unsuccessful challenges the appointment of the persons who have been appointed on the ground that their appointments are not in conformity with the rules. In such a situation, a writ Court, even if it finds that the appointments were vitiated, cannot go into such question and set aside the orders of appointments in favour of others, because by such order, the writ petitioner would not be benefited as he can neither be appointed or nor can his case be considered. In such a situation, a writ Court, even if it finds that the appointments were vitiated, cannot go into such question and set aside the orders of appointments in favour of others, because by such order, the writ petitioner would not be benefited as he can neither be appointed or nor can his case be considered. ( 9 ) THE position, however, would have been different, if any person having similar disqualification of the writ petitioner is appointed. In such a case, the writ petitioner can legitimately complain that there has been infringement of equal protection of law, because a person similarly situated has been given appointment, whereas, the petitioner's case has not been considered. In such type of cases, the Writ Court can set aside the appointment of others, although the Court will not pass direction for appointment to the writ petitioner. ( 10 ) IN the case before us, it is not the case of the writ petitioner that the private respondent had also no such requisite qualification but he has been given appointment. His case was that he was a better candidate but subsequently, after the disclosure of affidavit-in-opposition of the State-respondent, he has come out with the case that extra-statutory procedure has been resorted to while appointing private respondent by consulting the Gorkha Hill Council. Such plea is available to other candidates who in spite of having requisite qualifications, have been unsuccessful. ( 11 ) I, thus, find that in the facts of the present case since the petitioner himself cannot by any means be favoured with any appointment and the respondent No. 7 had the requisite qualifications, his appointment cannot be challenged at the instance of the writ petitioner. ( 12 ) I now propose to deal with the decisions cited by Mr. Bhattacharya. ( 13 ) IN the case of Coca-Cola Export Corporation vs. Income Tax Officer and anr. (supra), the Supreme Court was hearing an appeal against order of the division Bench of Delhi High Court dismissing the writ petitions of the appellant by which the appellant had challenged notices issued under section 148 of the income-tax Act, 1961. Bhattacharya. ( 13 ) IN the case of Coca-Cola Export Corporation vs. Income Tax Officer and anr. (supra), the Supreme Court was hearing an appeal against order of the division Bench of Delhi High Court dismissing the writ petitions of the appellant by which the appellant had challenged notices issued under section 148 of the income-tax Act, 1961. ( 14 ) IT appears from paragraph 15 of the judgment that the High Court held that writ petitions insofar as they sought to quash and pre-empt the enquiry being made by the Income-tax Officer on the basis of two letters should be dismissed and it should be open to the Income-tax Officer to make enquiry whether the deduction which has been allowed and which were in excess of the limit fixed by those letters were legal or not. While dealing with such a case, the Supreme Court was of the view that the two letters were wholly irrelevant and could not be treated as an information to the Income-tax Officer to initiate reassessment procedure and was thus of the opinion that there was inherent lack of jurisdiction in the Income-tax Officer to issue notice under section 148 of the Act. I fail to understand how the said decision can be of any help to the writ petitioner in the present case. It is now settled position of law that if there is inherent lack of jurisdiction on the part of an authority in exercising an alleged power, the High Court can enter into the question if the same does not involve any disputed questions of fact and in such a case, alternative remedy is no bar in entertaining such writ application. The case before us is a totally a different one where on his own showing the writ petitioner has no requisite qualification to get the dealership but he wants to challenge the appointment of private respondent who has such requisite qualification. I, thus, find that the said decision is irrelevant in the facts of the present case. ( 15 ) IN the case of K. Venkatachalam vs. A. Swamickan and Anr. I, thus, find that the said decision is irrelevant in the facts of the present case. ( 15 ) IN the case of K. Venkatachalam vs. A. Swamickan and Anr. (supra), the question was whether a High Court can exercise jurisdiction by entertaining a writ application under Article 226 of the Constitution of India as regards entitlement of a member of Tamil Nadu Legislative Assembly to sit in the said assembly on the ground that he lacked the basic qualification under clause (c) of Article 173 of the Constitution of India read with section 5 of the representation of People Act which mandated that a person elected from an assembly Constituency is to be an elector of that Constituency. ( 16 ) THE High Court allowed such application. While dealing with such a case, the Supreme Court observed that Article 226 is couched in the widest possible terms and indicates that unless there is a clear bar to jurisdiction of the High Court, its power under Article 226 can be exercised when there is any act which is against the provision of law or violative of Constitutional provisions and when recourse cannot be had to the provisions of any statute for the appropriate relief. In the said case, the election of the elected candidate having been challenged by a defeated candidate, such candidate had the locus standi to maintain a writ application. In the present case, I have already pointed out that the present writ petitioner has not the basic qualification to be appointed as dealer and as such he cannot challenge the selection. In the case before supreme Court, the locus standi of the writ petitioner was not in dispute and as such the said decision cannot be of any help to the writ petitioner. ( 17 ) IN the case of M. S. Jayaraj vs. Commissioner of Excise, Kerala and Ors. (supra), a liquor vendor was permitted by Excise Commissioner to locate his shop in a range other than the one for which he had been given license. Another liquor vendor already doing business in that area challenged the validity of the order of the Excise Commissioner by filing a writ application. The respondent therein raised objection that the writ petitioner had no locus standi, but the division Bench of the High Court set aside the order of the Excise Commissioner on merit. Another liquor vendor already doing business in that area challenged the validity of the order of the Excise Commissioner by filing a writ application. The respondent therein raised objection that the writ petitioner had no locus standi, but the division Bench of the High Court set aside the order of the Excise Commissioner on merit. ( 18 ) IN appeal before the Supreme Court, while dealing with such a case, the supreme Court was of the view that the expanded concept of the locus standi in the recent decisions of the Supreme Court as compared to the earlier decisions having been changed and at the same time the High Court having held that the impugned order of the Excise Commissioner was illegal, the matter should be heard on merit. ( 19 ) IN my view, in the said decision the Supreme Court did not go into the question of locus standi at all as the order of the Excise Commissioner was found to be without jurisdiction. It is now settled position of law that if a person carries on any business on the basis of license granted by an authority having no jurisdiction, in such a case, another person carrying on business on the basis of valid license can legitimately come before the High Court for a direction upon the State for prohibiting the said person from carrying on the business without having any valid license. A citizen has right to complain before the high Court alleging inaction on the part of the State respondent in not preventing unauthorized person from doing similar type of business affecting his business without having a valid license. Therefore, in the said case, although the Supreme Court did not go into such question, the writ petitioner had right to maintain an application under Article 226 of the Constitution of India. ( 20 ) IN the case of Surya Dev Rai vs. Ram Chander and Ors. (supra), the question was whether after the amendment of the section 115 of the Code of civil Procedure by Act 46 of 1999 with effect from 1st July, 2002 power and jurisdiction of the High Court to entertain petition seeking writ of certiorari under Article 226 of the Constitution of India or invoking the power of superintendence under Article 227 of the Constitution as against similar order was barred. The Supreme Court answered the question in negative. The Supreme Court answered the question in negative. I have already pointed out that as regards order of Courts and Tribunals situated within the territory over which a High Court exercises jurisdiction, a High court can exercise power under Article 227 suo motu, but such suo motu power is not conferred upon the High Court for the correction of illegal order or inaction of the executives, and if the person aggrieved by such illegal order or inaction approaches the High Court, it can assume jurisdiction. Therefore, the said decision has no relevance. ( 21 ) IN the case of Dwarka Prasad Agarwal and Anr. vs. B. D. Agarwal and Ors. (supra), the question was whether the settlement of private dispute between the parties to writ petition is permissible in law. While answering such question, the Supreme Court was of the view that for granting permission to withdraw a suit, the Civil Court has to apply its own mind and cannot do so on a direction passed by High Court while deciding a totally different matter. In paragraph 28 of the said judgment, the Supreme Court held that a writ petition is filed in public Law Remedy and the High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of, an order passed by the State or a Statutory Authority. The remedy under Article 226 of the Constitution of India, the Supreme Court proceeded, cannot be invoked for resolving a private law dispute as contradistinguished from a dispute involving public law character. The said decision, therefore, does not lay down any law holding that a High Court can entertain a writ application at the instance of a person who is not at all affected by the order impugned. ( 22 ) THEREFORE, the decisions cited by Mr. Bhattacharya are of no avail to his client. I, thus, find that this writ application is not maintainable at the instance of the writ petitioner, who himself had no requisite qualification to get dealership. ( 23 ) THE writ application is, thus, dismissed on the ground that the petitioner has no right to maintain the writ application. Writ application dismissed.