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2018 DIGILAW 21 (CAL)

Bodrul Alam Mallick v. State of West Bengal

2018-01-04

I.P.MUKERJI, MD.MUMTAZ KHAN

body2018
JUDGMENT : 1. The appellant was operating as a kerosene oil agent in Howrah. On 12th September, 2008, he was issued a showcase notice by the Joint Director (Agent of Consumer Goods, Government of West Bengal). He was charged with having illegally removed 24 kilo litres of kerosene oil from the godown. On 1st August, 2008. This show cause notice was issued. On 9th January, 2009, the Director of Consumer affairs suspended the licence of the appellant. 2. On 5th February, 2009, the Director of Consumer Goods adjudicating upon the show cause notice cancelled the Appellant's licence. He preferred an appeal before the appellate authority being the Principal Secretary, Food & Supplies Department and Commissioner of Food, which by its order dated 12th November, 2009 dismissed the appeal. Thereafter, the instant writ application was preferred in this Court. One of the points taken by the appellant/writ petitioner was that only the District Magistrate, Howrah, had the jurisdiction to hear the case. 3. On 9th October, 2013, this writ was dismissed by this Court. As far as the point of jurisdiction was concerned, this Court ruled that since the order was passed by a higher authority than the District Magistrate, the order could not be said to be without jurisdiction. 4. On an application (CAN 2719 of 2015) made by the appellant, this Court disposed of the same by expediting the appeal and by passing an order of injunction restraining the respondent State Authority from granting the self-same licence to a third party. On that day none appeared for the respondents. 5. Mr. Saha Roy, learned advocate for the appellant submits that after that order was passed the respondents were notified that the next date of hearing of the appeal was today. An affidavit of service on this behalf has been filed in this Court. Even today, none appears for the respondents. 6. Mr. Saha Roy has based his arguments in the appeal on a point of law only. He argues that the Director had no jurisdiction to pass the impugned order. 7. To establish this point, he took us through the various provisions of the West Bengal Kerosene Control Order, 1968. From the various paragraphs of this control order, he explained the definition of "Agent" "Calcutta" "Dealer" "Director" and "District Magistrate". 8. The various sub-paragraphs of paragraph 3 are set out below :- "3. Definitions. 7. To establish this point, he took us through the various provisions of the West Bengal Kerosene Control Order, 1968. From the various paragraphs of this control order, he explained the definition of "Agent" "Calcutta" "Dealer" "Director" and "District Magistrate". 8. The various sub-paragraphs of paragraph 3 are set out below :- "3. Definitions. - In this Order, unless there is anything repugnant to the subject or context,-- a. "agent" means a person who has been appointed as an agent of an oil distributing company by such company and has been granted a licence under paragraph 5 of this Order; b. "Calcutta" means the town of Calcutta and the adjoining areas within the jurisdiction of the Calcutta Municipal Corporation as amended in 1980 and includes Bidhan Nagar as notified under the West Bengal Government Township (Extension of Civic Amenities) Act, 1975; c. "dealer" means a person who has been granted a licence under paragraph 6 of this order authorising him to carry on trade in kerosene; d. "Director" means the Director of Consumer Goods, Department of Food and Supplies, Government of West Bengal and includes any person, not below the rank of Deputy Assistant Director, Consumer Goods, Department of Food and Supplies, Government of West Bengal, authorised by the State Government in this behalf to perform all or any of the functions of the Director under this Order; e. "District Magistrate" includes the Deputy Commissioner of a District and also includes any person not below the rank of a Sub-divisional Controller of Food and Supplies in the Department of Food and Supplies, Government of West Bengal, authorised by the District Magistrate or Deputy Commissioner, as the case may be, in writing to perform all or any of the functions of the District Magistrate under this order;" 9. Thereafter he placed the provisions regarding renewal of the licence in paragraphs 5, 7 and 8. Paragraph 5 says that the licence to an agent to carry on trade in kerosene would be granted by the Director, on such terms and conditions set by him. Paragraph 7, inter alia, lays down that every licence issued under paragraph 5 would be valid up to 31st December next and may at the discretion of the authority by which the licence was granted be renewed for successive periods of one year. Paragraphs 8 and 9 are most important. Paragraph 7, inter alia, lays down that every licence issued under paragraph 5 would be valid up to 31st December next and may at the discretion of the authority by which the licence was granted be renewed for successive periods of one year. Paragraphs 8 and 9 are most important. They say that renewal "5 of a licence or its cancellation or suspension could be ordered by the Director or the District Magistrate having jurisdiction. 10. Mr. Saha Roy submits that only in Kolkata and Bidhannagar the Director had the jurisdiction. His client's business was located in Howrah, where the District Magistrate had the jurisdiction. He argues and in our view correctly that although in paragraph 9, it is stated that the Director or the District Magistrate having jurisdiction could cancel a licence, the proper meaning that can be ascribed to the paragraph is that in places where there is no District Magistrate like Bidhannagar and Kolkata, the Director would exercise the jurisdiction and in a District, where the District Magistrate exercises the power he would have the sole jurisdiction to decide the question of suspension or cancellation of a licence. 11. Our view is supported by the provisions of Appeal in section 10. As pointed out by learned counsel for the appellant, the forum for an appeal was specified, considering whether the order was passed by the Director or the District Magistrate. This suggests that only one authority could exercise this jurisdiction in one area. If in a District, the Director and the District Magistrate had jurisdiction then the language of the appeal provision would likely to have been that all appeals would lie to a particular authority. 12. Therefore, it is absolutely plain that since the agency of the petitioner was in Howrah District, which had a District Magistrate, the Director had no jurisdiction to pass the order cancelling the licence. If the jurisdiction is vested in a particular person, only that person is to exercise the jurisdiction. It does not mean it can be entertained by a person of a higher authority or post. It depends on whether the authority passing the order had the power to do so. 13. In this case, the Director did not have the power to pass the initial order, just like an Appeal Court is not vested with the jurisdiction of a Trial Court and cannot proceed with the Trial. It depends on whether the authority passing the order had the power to do so. 13. In this case, the Director did not have the power to pass the initial order, just like an Appeal Court is not vested with the jurisdiction of a Trial Court and cannot proceed with the Trial. Therefore, the order passed on appeal suffers from the same infirmity. 14. For all these reasons, this appeal succeeds. 15. The Judgment and order dated 9th October, 2013 is set aside. The agency of the appellant on a temporary basis should be restored by 31st March, 2018. It will continue till December, 2018, when the case of renewal of the licence will be considered by the appropriate respondent authority in accordance with law. This temporary facility enjoyed by the appellant will be treated as a licence for the purpose of consideration of his case of renewal. Urgent certified photo copy of this order be given to learned advocates for the parties upon compliance of all requisite formalities.