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2012 DIGILAW 468 (CAL)

Somnath Seth v. Muktipada Seth

2012-05-16

Mrinal Kanti Chaudhuri, PINAKI CHANDRA GHOSE

body2012
Judgment : Dr. Chaudhuri, J. : This Mandamus Appeal is directed against the order dated 25th January, 2012 passed by Hon'ble Justice Jayanta Kumar Biswas in W. P. No. 31 of 2012. 2. The fact of the case in short is that, the father of the appellant namely Basudeb Seth had M.R. Distributorship Business as proprietor. Subsequently, said proprietor business was converted into partnership business after the death of the father of the appellant. The said firm was reconstituted admitting the appellant and the respondent Nos.1, 2 and 3 as partners by executing a deed of partnership dated 1st December, 2006. After the reconstitution of the firm, M.R. Distributorship licence in favour of the firm was granted on 14th June, 2007 which was valid up to 13th June, 2009 with condition that renewal has to be made every year. All the four partners of the firm M/s. Basudeb Seth submitted application for renewal of the licence on 24.12.2009 and 25.12.2010 and the licences were renewed fixing their validity date as 31.12.2010 and 31.12.2011 as per provision of Clause 23(iii) of West Bengal Public Distribution System (Maintenance & Contorl) Order, 2003. 3. The District Controller of Food and Supplies, Burdwan by memo dated 5th January, 2012 passed an order for tagging the service area of the firm with another distributor M/s. A.N. Dutta and Brothers. Sub-Divisional Controller of Food and Supply in pursuance with the said memo issued an order dated 9th January, 2012 and, therefore, he stopped the functioning of the firm. Therefore, respondent Nos.1, 2 and 3 filed the writ petition before the Hon'ble Single Judge being W.P. No. 31 of 2012. Hon'ble Single Judge admitted the writ petition and passed an interim order of stay of the operation of the tagging of the service area with another distributor and permitted the respondent Nos. 1, 2 and 3 to carryon business as distributorship till 13th June, 2012 until further order in the writ petition which is earlier. 4. Being aggrieved by and dissatisfied with the said order dated 25th January, 2012 of Hon'ble Single Judge, the appellant Somnath Seth has preferred this appeal. 5. This appeal is contested by respondent Nos. 1, 2 and 3 by filing affidavit-in-opposition. 4. Being aggrieved by and dissatisfied with the said order dated 25th January, 2012 of Hon'ble Single Judge, the appellant Somnath Seth has preferred this appeal. 5. This appeal is contested by respondent Nos. 1, 2 and 3 by filing affidavit-in-opposition. The respondent No.4 State of West Bengal, respondent No.5 Director, District Distribution, Procurement and Supply, Department of Food and Supplies, respondent No.6 Joint Director (licence), District Distribution, Procurement and Supply, respondent No.7 District Controller, Food and Supplies, respondent No.8 Sub-divisional Controller, Food and Supplies, Burdwan have also filed affidavit-in-opposition. 6. We have carefully heard the submissions of learned Counsels for the appellant and the respondents and perused the materials on record. The crucial point for consideration is whether the validity of licence expired on 31st December, 2011 or on 13th, June, 2012. Clause 23 sub-clause 3 of the control order, 2003 makes it crystal clear that "licence shall remain valid for two years from the date of issue. The licence therfore shall be required to be renewed every year.............." It appears from Annexure A-1 that the licence was issued on 14th June, 2007 and the licence shall remain valid up to 13.06.2009. In view of Clause 23 sub-clause 3 licence of the firm remained valid up to 13.06.2009 and thereafter licence shall be required to be renewed every year. According to Section 3(66) of the General Clauses Act, 1897, 'year' means a year recognised according to English calendar i.e. from 1st January of the year up to 31st December of the respective year. 7. Clause 12 of the licence (Annexure A-1) clearly denotes that unless an application for renewal of the licence is filed within the period of validity, it shall stand on revoked after the expiry of period of validity. Therefore, before the expiry of validity, renewal application for licence has to be filed and the said licence shall remain valid up to 31st December of respective year. It appears from Annexure R-2 that all the four partners of the firm M/s. Basudeb Seth submitted application for renewal on Form No. C dated 24th December, 2009. Similarly on the next year also all the four partners in form No. C submitted application for renewal on 25th December, 2010 i.e. before 31st December, 2010. Consequently the licence remained valid up to 31st December, 2011. The respondent Nos. Similarly on the next year also all the four partners in form No. C submitted application for renewal on 25th December, 2010 i.e. before 31st December, 2010. Consequently the licence remained valid up to 31st December, 2011. The respondent Nos. 1, 2 and 3 acted upon the said provision of law namely Clause 23 sub-clause 3 of the control order, 2003. By no stretch of imagination it can be held that the licence renewed on 25.12.2010 shall remain valid up to 13th June, 2012. By the very Act and conduct of the respondent Nos. 1, 2 and 3 it transpires that they submitted application for renewal of previous two years i.e. on 24.12.2009 and 25.12.2010 in accordance with law. But they did not file application for renewal containing signature of all the four partners within 31st December, 2011. Now, the question that cornes for consideration is whether can they take the plea that the licence remained valid up to 13th June, 2012 ? 8. It is needless to repeat that the respondent Nos. 1, 2 and 3 were well aware as to the period of validity in accordance with Clause 23(iii) of the Control Order, 2003. Moreover, they did not take such plea even on the application dated 10th January, 2012 submitted to District Control and Food and Supplies, Burdwan. They stated one of the partners namely the appellant Somnath Seth was reluctant to sign in the renewal form. Secondly, in both the years i.e. on 2009 and 2010 District Control of Food and Supplies issued notice by notice No. 2629/DCF & S/BDN/MR/09 dated 07.12.2009 and No. 2001/D.C.F. & S/BDN/M.R/10 dated 19.11.2010. Vide notice dated 07.12.2009 and notice dated 19.11.2010 District Control of Food and Supply, Burdwan informed that "validity of the licence issued to the M.R. Distributors under provision of WBPDS (M&C) Order, 2003 of the District will expire on and from 01.01.2010. All M.R. distributors of this district whose licences are due to expire on 31.12.2009 shall have to submit their renewal applications as per proforma duly filled in and signed by the licensee direct to this office positively within 31.12.2009". In the said notice it has been mentioned that application shall accompany the documents and in Column 8 it has clearly been mentioned that in case of partnership firm, all partners must sign on renewal application and copy of partnership deed must be furnished. 9. In the said notice it has been mentioned that application shall accompany the documents and in Column 8 it has clearly been mentioned that in case of partnership firm, all partners must sign on renewal application and copy of partnership deed must be furnished. 9. Similarly, in the notice dated 19th November, 2010 issued by District Control of Food and Supply, Burdwan it is stated "validity of the licence issued to the M.R. Distributors under provision of WBPDS (M&C) Order, 2003 of the District will expire on and from 01.01.2011. All M.R. distributors of this district whose licences are due to expire on 31.12.2010 shall have to submit their renewal applications as per proforma duly filled in and signed by the licensee direct to this office positively within 31.12.2010". In Column 8 it has also been mentioned that all the partners must sign in the renewal application and copy of partnership deed must be furnished. It has also been clearly stated in both the notices of 2009 and 2010 that no incomplete application shall be entertained and no renewal application after 31st December shall be accepted. 10. In compliance with the said notices the respondent Nos. 1, 2 and 3 submitted application for renewal on 24.12.2009 and 25.12.2010. Therefore, their licence remained valid up to 31.12.2011 and they were required to furnish renewal application in form No. C containing signature of all the partners within 31st December, 2011 but it was not done, although District Control of Food and Supply, Burdwan issued notice No. 1984/ D.C.F. & S./BDN/M.R./11 dated 16.11.2011 (Annexure A-6) stating that the "validity of licence issued to the M.R. Distributors under provision of WBPDS (M&C) Order, 2003 of the District will expire on and from 01.01.2012. All M.R. distributors of this district whose licences are due to expire on 31.12.2011 shall have to submit their renewal applications as per proforma duly filled in and signed by the licensee direct to this office positively within 31.12.2011" and in the same notice Column No.8 provides that in case of partnership firm, all the partners must sign on the renewal application and copy of the partnership deed must be furnished. 11. It is needless to repeat that in spite of the aforesaid notices, they did not submit application form for renewal in form No. C containing the signature of all the partners within the period of validity. 11. It is needless to repeat that in spite of the aforesaid notices, they did not submit application form for renewal in form No. C containing the signature of all the partners within the period of validity. Consequently, District controller of Food and Supplies, Burdwan passed an order on 5th January, 2012 instructing Sub-Divisional Controller, Food and Supplies to tag the service area of M/s. Basudeb Seth, M.R. distributor to a nearby distributor. Sub-Divisional Controller, Food and Supplies in compliance with the said instruction vide its order dated 09.01.2012 (Annexure A-8) tagged the service area of M/s. Basudeb Seth with M/s. A.N. Dutta and Brothers in the interest of smooth performance of public distribution system. 12. In the aforesaid facts and circumstances the respondent Nos. 1, 2 and 3 cannot take the plea that the period of validity of the licence remained up to 13.06.2012. They have taken the plea of mistake on the part of authority concerned. But the said plea of mistake was never taken on earlier two occasions i.e. on 2009 and 2010 when they submitted application in accordance with the provision of Clause 23(iii) of Control Order, 2003. When their licence (Annexure A) containing the validity up to 31.12.2009, 31.12.2010 and 31.12.2011 was signed on 10.05.2011 they did not lodge/raise any objection/protest as regards the validity date. Even in their application dated 10.01.2012 they did not take such plea of mistake on the part of the authority. Moreover, no document is produced on behalf of the' respondent Nos. 1, 2 and 3 to substantiate that the authority concerned admitted their mistake in the matter of validity of renewal and assured them to correct the same. So, aforesaid pleas are devoid of any merit. 13. Clause 9 of the form No. C provides that the licensee shall abide by any instruction as may be given to him by an authority not below the rank of Inspector under the Food and Supplies Department. District Control of Food and Supplies, Burdwan issued instruction on each and every year intimating the expiry of validity of licence and instructing to submit renewal application within the period of validity. Therefore, the licensee is under bouiiden duty to abide by the instruction of the authority concerned in compliance with Clause 9 of the form No. C (licence). District Control of Food and Supplies, Burdwan issued instruction on each and every year intimating the expiry of validity of licence and instructing to submit renewal application within the period of validity. Therefore, the licensee is under bouiiden duty to abide by the instruction of the authority concerned in compliance with Clause 9 of the form No. C (licence). In the present circumstances they are not entitled to say licence remained valid up to 13th June, 2012 which actually expired on 13th December, 2011 and no complete renewal application containing the signature of all partners was submitted within 31st December, 2011. The plea of mistake on the part of authority concerned was never taken before the expiry of period of validity. They filed writ petition taking the plea of mistake of validity date of the authority concerned. This plea is nothing but a lame excuse in order that the period of validity of licence may be extended up to 13th June, 2012. Consequently the respondent Nos. 1, 2 and 3 are not entitled to get any interim stay order dated 9th January, 2012 for tagging the service area of the firm with M/s. A.N. Dutta and Brothers. 14. Clause 12 of the licence in form No. C provides that in case of non-submission of application for renewal of licence within the period of validity, licence shall stand revoked after the expiry of period of validity and in the case a fresh licence may be granted by the licensing authority if he thinks the reason for non-renewal of the licence was beyond the control of the licensee. No step was taken by the respondent Nos. 1, 2 and 3 to issue fresh licence as licence stood revoked after the expiry of period of validity because of non-submission of application of renewal of licence within the period of validity. The official letter dated 5th January, 2012 (Annexure R-4) issued by District Controller, Food and Supplies, Burdwan to Sub-Divisional Controller, Food and Supplies, Burdwan reveals that as renewal application of M/s. Basudeb Seth observing due formalities and bearing the signature of all partners of the firm had not been received within the stipulated date i.e. 31.12.2011, the licence of the firm stands invalid and supply of ration commodities cannot be made in favour of the firm any longer. Therefore, Sub-Divisional Controller, Food and Supplies, Burdwan was instructed to tag the service area of the firm temporarily to a nearby distributor for smooth running of public distribution system. Similarly letter written by respondent No.3 Purushottam Seth dated 10.01.2012 (Annexure R-3) reveals that the three partners only sign in the renewal application but the fourth partner i.e. appellant Somnath Seth did not sign. A dispute between the appellant and the respondent Nos.1, 2 and 3 being the partners of the firm cropped up as it appears from letter of the appellant dated 09.12.2011 (Annexure A-2) addressed to the Director, District Distribution, Procurement & Supply, Food and Supplies Department as well as to the District Controller, Food and Supplies, Burdwan. The deed of partnership provides that in case of any disputes and differences among the partners the same shall be settled by arbitration. No such step was taken as per terms of partnership deed for resolving the dispute among the appellant and the respondent Nos. 1, 2 and 3 by way of arbitration. Licence, therefore, stood revoked due to non-submission of the renewal form containing the signature of all partners within the stipulated period of validity. 15. Some decisions of law have been cited from the end of the respondent Nos. 1, 2 and 3 namely (1) Nar Singh Pal v. Union of India and Ors., reported in (2000)3 SCC 588 . (2) Indian Oil Corporation Ltd. and Ors. v. Jharna Sarkar and Ors., reported in 2004 (2) CHN 606 . (3) Kolkata Municipal Corporation v. Netai Sundar Dutta and Anr., reported in 2004 (2) CHN 616 . (4) Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., reported in AIR 1986 SC 180 . The aforesaid decisions are distinguishable and cannot be made applicable in the present case. 16. Having regard to the facts and circumstances and position of law we are of considered view that the Hon'ble Single Judge should not have passed the interim order of stay. The interim order of stay passed by Hon'ble Single Judge vide order dated 25th January, 2012 in W.P. No. 31 of 2012 is set aside. The matter is remanded back to the learned trial Court for disposal of writ petition after filing of affidavit-in-opposition and reply, if any. 17. Therefore, the appeal succeeds and is allowed. No order as to costs. 18. The matter is remanded back to the learned trial Court for disposal of writ petition after filing of affidavit-in-opposition and reply, if any. 17. Therefore, the appeal succeeds and is allowed. No order as to costs. 18. Photostat certified copy of the judgement and order, if applied for, be made over to the parties on usual terms. Ghose, J.: I agree.