Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 329 (CAL)

Lachmi Narayan Bhomroj v. STATE OF WEST BENGAL

2010-03-26

INDIRA BANERJEE

body2010
JUDGMENT 1. In this writ application, the petitioner has inter alia challenged an order dated 8th March, 2010 of the Principal Secretary to the Food and Supplies Department and Commissioner. Food allowing an appeal filed by the respondent No. 8 against an order dated 6th October, 2009 passed by the District Magistrate, Purulia pursuant to an order of the Division Bench of this Court in G.A. No. 2591 of 2009/APOT No. 367 of 2009 arising out of W.P. No. 899 of 2009. 2. The petitioner No.1, hereinafter referred to as the petitioner firm, which the petitioner Nos. 2 to 4 are partners, carries on business as agent of Super Kerosene Oil (SKO). 3. In 1969 a licence No. AGT/Puru/468 was issued to 'Purushottam Das Jhunjhunwala, since deceased, father of the petitioner Nos. 2 to 4 under the West Bengal Kerosene Control Order, 1968 hereinafter referred to as the Control Order, to carryon business as agent of SKO. The said Purushottam Das Jhunjhunwala carried on business under the name and style of M/s. Lachmi Narayan Bhomroj, as sole proprietor thereof. 4. On 13th June, 2003, the said Purushottam Das Jhunjhunwala died whereupon the quota of 168 kilo litres of SKO allocated to his dealership. M/s. Lachmi Narayan Bhomroj was temporarily allocated to the respondent No.8, so that smooth public distribution was not disrupted. 5. After the death of Purushottam Das Jhunjhunwala the petitioners formed the partnership firm being the petitioner No.1 and applied for SKO licence. 6. On or about 6th March, 2006, a fresh licence was issued to the partnership firm of which the petitioner Nos. 2 to 4, being the legal heirs of the said Purushottam Das Jhunjhunwala, are partners. According to the petitioners, the said licence was issued on compassionate ground. 7. The petitioner has alleged that even though the licence was issued on 6th March, 2006, no supply was effected. In response to the representations, that the petitioners were constrained to make, to the Director of Consumer Goods, Food and Supplies Department, Government of West Bengal and other authorities, the concerned respondents commenced supply of 72 kilo litres of SKO per month, as against the quota of 168 kilo litres per month allocated to their late father. 8. In response to the representations, that the petitioners were constrained to make, to the Director of Consumer Goods, Food and Supplies Department, Government of West Bengal and other authorities, the concerned respondents commenced supply of 72 kilo litres of SKO per month, as against the quota of 168 kilo litres per month allocated to their late father. 8. Contending that the allocation of late Purushottam Das Jhunjhunwala, that had temporarily been allocated to the respondent No.8 in order to maintain smooth public distribution, was liable to be restored to the petitioner firm, the petitioners made further representations to the concerned authorities. In response to the representations, the Director of Consumer Goods passed an order dated 12th August, 2009, restoring the quota of 168 kilo litres of SKO to the petitioner firm. There was a corresponding reduction in the allocation of the respondent No.8. 9. The respondent No.8 filed a writ petition being No. W.P. 899 of 2009 challenging the order dated 12th August, 2009 whereby his allocation was reduced. The said writ petition was disposed of by an order dated 4th September, 2009 of Tapen Sen, J. whereby His Lordship was pleased to direct the Joint Director of Consumer Goods to hear the matter and take a decision within a week from the date of receipt of the aforesaid order. 10. Being aggrieved by the aforesaid order dated 4th September, 2009, the petitioners filed an appeal being APOT 376 of 2009 along with an application for inter alia stay of the order under appeal being G.A. No. 2591 of 2009. The appeal and the application were disposed of by a judgment and order dated 16th September, 2009. 11. The Division Bench modified the order under appeal by directing the District Magistrate, Purulia being the authority under the Control Order, particularly, paragraph 11 to hear the concerned parties and pass an appropriate order. 12. In pursuance of the aforesaid order of the Division Bench, that the District Magistrate passed an order, the relevant part whereof is extracted hereinbelow:- "I am of the view that monthly quota of S.K. Oil allotted to respondent firm got increased only as a result of temporary tagging of quota which was erstwhile enjoyed by the firm under proprietorship of late Jhunjhunwala. Again, issuing a S.K. Oil Agency Licensee on compassionate ground without restoring its earlier quota falls to make any sense particularly when there is no evidence to establish that the new licensee lacks in required infrastructure to lift and distribute the allotted quota of S.K. Oil. Further, it is noted that there was no vacancy declared in the instant case after the death of Sri Jhunjhunwala and that the new licence has been accommodated as that had been constituted as a partnership with the legal heir of late Sri Jhunjhunwala. It is, therefore, found that the reallocation of monthly quota among the said agents, in the manner, as mentioned in the letter dated 12th August 2009 of the Director of Consumer Goods is not devoid of justification and the same may continue. This decision will be communicated to all concerned with a forwarding memo." 13. The respondent No.8 filed a writ petition being W.P. No. 1093 of 2009 challenging the said order of the District Magistrate. The writ petition was, however, dismissed as withdrawn, in view of the submission of Counsel appearing on behalf of the respondent No.8 that he had instructions to withdraw the writ petition to enable the writ petitioners to move departmentally. 14. Thereafter, the respondent No. 8 appealed to the Principal Secretary and Commissioner Food, Food and Supplies Department, Government of West Bengal whereupon the Principal Secretary and Commissioner Food, passed the impugned order setting aside the order of the District Magistrate and directing that supply of SKO to M/s Chai Champa Kerosene Dealer should immediately be restored to 192 KL per month and the supply of the petitioner be reduced to 72 KL per month. 15. The objection of the petitioners to the maintainability of the appeal was dealt with as hereunder:- "Regarding the question of maintainability of the appeal, the undersigned is of the opinion that the appeal is maintainable in this case, because the Hon'ble High Court accepted the prayer of M/s. Chai Champa Kerosene Dealer and granted liberty to move departmentally. So, the appeal made before the undersigned is quite justified and maintainable in the eyes of the law." 16. The main issue in this writ application is whether the Principal Secretary/ Commissioner, Food and Supplies could have set aside the order of the District Magistrate passed pursuant to the judgment and order of the Division Bench in APOT 376 of 2009. The main issue in this writ application is whether the Principal Secretary/ Commissioner, Food and Supplies could have set aside the order of the District Magistrate passed pursuant to the judgment and order of the Division Bench in APOT 376 of 2009. 17. Mr. Shakti Nath Mukherjee, learned Senior Advocate appearing on behalf of the petitioners submitted that the impugned order of the Principal Secretary was wholly without jurisdiction inasmuch as no appeal lay from the order of the District Magistrate. 18. Mr. Mukherjee referred to the judgment and order passed by the Division Bench on 16th September, 2009 in APOT 376 of 2009 whereby the Division Bench directed the District Magistrate to decide the matter, inter alia observing that the District Magistrate was the appropriate authority under the Kerosene Control Order, particularly paragraph 11 thereof. 19. Mr. Mukherjee referred to the provisions of the Control Order and in particular, the paragraphs 8, 9, 10 and 11 thereof, which are set out hereinbelow for convenience:- "8. Renewal to grant or renew licence.-The Director, or the District Magistrate having jurisdiction, may, after giving the agent or the dealer or hawker concerned an opportunity of stating his case in writing and for reasons to be recorded in writing, refuse to grant or renew a licence under this Order. 9. Cancellation or suspension of licence-If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this order or any condition of the licence or any direction given under paragraph 12 of this order, he may forthwith temporarily suspend the licence:- Provided that the agent or the dealer whose licence has been so suspended shall be given an opportunity of being heard before cancellation of the licence or revocation of the order of suspension of the licence finally by an order in writing to be made within 30 days from the date of suspension .of the licence. The order shall be passed ex parte if the dealer whose licence has been so suspended fails to appear at the hearing. 10. The order shall be passed ex parte if the dealer whose licence has been so suspended fails to appear at the hearing. 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 authorised by the State Government under clause (d) of paragraph 3, to the Director of Consumer Goods, Department of Food and Supplies. (b) Elsewhere:- (i) Where the order is passed by the District Magistrate or the Deputy Commissioner of a 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. 11. Issue of delivery order or permit:- (1) The Director or the District Magistrate having jurisdiction may issue a delivery order or permit requiring an agent within his jurisdiction to supply kerosene to:- (a) A dealer. (b) Other person or establishment requiring kerosene for his or its own consumption, in any particular area, if in the opinion of the Director or the District Magistrate, as the case may be, this is considered necessary. (c) An agent. (2) No person other than oil distributing company, an agent or a dealer shall transport kerosene or store kerosene or shall have in his possession kerosene exceeding ten litres at a time except under and in accordance with a permit issued by the Director or the District Magistrate having jurisdiction." 20. Mr. Mukherjee argued and rightly that no appeal lies to the Principal Secretary except from orders passed under paragraph 8 or paragraph 9 of the Control Order. 21. Mr. Ashok Banerjee, appearing on behalf of the respondent No.8 submitted that the order of the District Magistrate was not under paragraph 11 of the Control Order. 22. Mr. Banerjee argued that paragraph 11 of the Control Order empowered the Director or the District Magistrate having jurisdiction, to issue a delivery order or permit, requiring an agent within his jurisdiction to supply kerosene to a dealer. 22. Mr. Banerjee argued that paragraph 11 of the Control Order empowered the Director or the District Magistrate having jurisdiction, to issue a delivery order or permit, requiring an agent within his jurisdiction to supply kerosene to a dealer. Paragraph 11 did not empower the District Magistrate to fix the quantum of SKO to be supplied by an oil company to its agent. 23. Even assuming that the order of the District Magistrate was not under paragraph 11, even then the order is not appealable since an appeal only lies from an order under paragraph 8 or under paragraph 9 of the Control Order, neither of which is attracted in the instant case. There can be no inherent right of appeal as held by the Supreme Court in Ganga Bai vs. Vijay Kumar & Ors., reported in AIR 1974 SC 1126 , cited by Mr. Mukherjee. 24. Mr. Banerjee also conceded that the order of the District Magistrate was not appealable. Mr. Banerjee, however, submitted that the petitioner was entitled to make a representation to a higher authority. Even though the expression appeal had been used, the respondent No.8 had really made a representation to a higher authority. 25. Mr. Banerjee has not, however, able to pin point any provision of the Control Order or any other Government Order or notification, in terms whereof the Principal Secretary might review or revise an order passed by the District Magistrate. A higher authority does not have inherent power to interfere with, revise, modify or set aside an order passed by an inferior authority in exercise of powers conferred by statute and/or statutory rules, regulations and/or orders. 26. In fact, the Principal Secretary and Commissioner Food has also not held that he had inherent power, as higher authority to interfere with an order passed by the District Magistrate. The Principal Secretary and Commissioner Food proceeded on the basis, that the order dated 23rd December, 2009 of this Court in W.P. 1093 of 2009 empowered him to exercise appellate powers. 27. This Court merely dismissed the writ petition as withdrawn, recording the submission made on behalf of the respondent No.8 that the respondent No.8 wanted to withdraw the writ petition to enable the respondent No.8 to proceed departmentally. This Court has not given any finding with regard to the entitlement of the petitioner to proceed departmentally. 28. 27. This Court merely dismissed the writ petition as withdrawn, recording the submission made on behalf of the respondent No.8 that the respondent No.8 wanted to withdraw the writ petition to enable the respondent No.8 to proceed departmentally. This Court has not given any finding with regard to the entitlement of the petitioner to proceed departmentally. 28. The Division Bench directed the District Magistrate to consider the representation, upon specific reference to paragraph 11 of the Control Order. The reference to paragraph 11 is to be read in the context of the sentence, The Division Bench, in effect. IV held that allocation could be made in exercise of power under the Control Order and in particular paragraph 11 of the Control Order. 29. Mr. Banerjee submitted that where an authority lacked jurisdiction an order of Court could not confer jurisdiction. The Division Bench lacked jurisdiction to refer the dispute to the District Magistrate. The order being without jurisdiction was of no effect. 30. This Court is unable to accept the submission that the Division Bench lacked jurisdiction to pass order. The Division Bench had jurisdiction to entertain the appeal in which the order was passed. The judgment and order of the Division Bench had assumed finality there being no further appeal therefrom. 31. There is a difference between an order which is patently without jurisdiction and an erroneous order within jurisdiction. Even an erroneous order that has assumed finality is binding on the parties to the proceedings in which the order was passed. 32. The submission of Mr. Banerjee that the District Magistrate lacked jurisdiction to issue the order that has been set aside by the Principal Secretary and Commissioner Food, by, the order impugned, is difficult to sustain. 33. On a conjoint reading of paragraphs 11, 12 and 13 of the Control Order, the District Magistrate is empowered to fix the allocation of quantity for agents of SKO. 34. Mr. Mukherjee submitted that power to allocate SKO to agents is linked to the power of the District Magistrate under paragraph 11 of the Control Order to issue delivery order to an agent to supply kerosene to a dealer, since the quantum of allocation of an agent depends on the quantity that the agent is required to supply to dealers. 35. Paragraph 12 empowers the District Magistrate to issue general or special directions for agents, dealers and hawkers. 35. Paragraph 12 empowers the District Magistrate to issue general or special directions for agents, dealers and hawkers. Such directions might inter alia provide for regulation of distribution of kerosene as might be required in the exigencies or circumstances prevailing in a particular area at any time. The examples of the regulatory orders that the District Magistrate might pass, as given in the sub-paragraphs of paragraph 12(2)(b) of the Control Order are illustrative and not exhaustive. An order fixing the allocation of kerosene of an agent falls within the scope of regulatory order under paragraph 12 of the Control Order. 36. Moreover, paragraph 13 of the Control Order empowers the District, Magistrate to declare 'No Movement' zones and puts an embargo on movement of kerosene in such zones, except in accordance with a delivery order or permit issued by the Director or District Magistrate having jurisdiction, unless such movement is by or on behalf of a bona fide purchase of kerosene, for his own use or consumption in his own residence for cooking or illumination or both. The power of the District Magistrate to issue delivery orders and permits includes the power to fix the quantum in terms of the delivery orders and/or permits. 37. The Division Bench rightly referred the issue to the District Magistrate. The order of the District Magistrate is, as observed above, not appealable. Nor is the order revisable by the Principal Secretary. A higher authority does not have any inherent power to revise or even interfere with exercise of power by a subordinate authority, conferred by statute or any statutory rules, regulations and/or orders. 38. This Court does not deem it necessary to adjudicate the issue of whether the petitioners were entitled to restoration of the quantum allocated to their father or whether the agency was a new agency. The order of the District Magistrate not being appealable or revisable the same could not have been set aside by the Principal Secretary. 39. In fact, respondent No.8 filed a writ petition, but chose to withdraw the same. This Court only recorded the submission made on behalf of the respondent No.8 and dismissed the writ petition as withdrawn. The order of the learned Single Bench cannot be construed as conferring power on the Principal Secretary to set aside an order passed by the District Magistrate in exercise of powers under the Control Order. This Court only recorded the submission made on behalf of the respondent No.8 and dismissed the writ petition as withdrawn. The order of the learned Single Bench cannot be construed as conferring power on the Principal Secretary to set aside an order passed by the District Magistrate in exercise of powers under the Control Order. The writ application is thus allowed and the impugned order is set aside and quashed.