M/S. Sonai Food Marketing Pvt. ... vs State Of West Bengal & Ors
2021 Latest Caselaw 2044 Cal

                       IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE


BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur

                          W.P.A. NO.16713 of 2019
                                      with

                          W.P.A. NO.16013 of 2019
                     M/s. Sonai Food Marketing Pvt. Ltd. & Anr.

                                       -vs-

                            State of West Bengal & Ors.

For the petitioner        : Mr.   Kalyan Bandyopadhyay
                            Mr.   Ram Anad Agarwal
                            Mr.   Nibedita Pal
                            Mr.   Ramesh Dhara
                            Mr.   Anada Gopal Mukherjee

For the State             : Mr. Kishore Dutta, Ld. Advocate General
                            Mr. Susovan Sengupta
                            Mr. Subir Pal

For the Intervenor        : Mr. Dilip Kumar Samanta
Heard on                  : 18.01.2021, 27.01.2021
Judgment on               : 17.03.2021

Ravi Krishan Kapur, J.:

1. These two petitions are taken up for hearing together. In WPA No.16013

   of 2019, the petitioners seek its right to be considered as a potential

   distributor in respect of two separate vacancies notified by the State

   respondents. By two separate Notifications both dated 6 January, 2019

published in the Official Gazette, the respondent authorities invited

applications for engagement as a distributor in the Raghunathpur II area

and the Jaipur block area both in the district of Purulia. Both the notifications stipulated the eligibility criteria. The notifications also

stipulated the prescribed documents which are to be submitted by a

prospective applicant.

2. Subsequently by an order dated 7 August, 2019 the aforesaid vacancies

issued by the respondent authorities was sought to be withdrawn. The

order dated 7 August, 2019 is the subject matter of challenge in the writ

petition being WPA no. 16713 of 2019.

3. Pursuant to the vacancy notification dated 6 January, 2019 the

petitioners submitted two separate applications dated 1 April, 2019

respectively. There is nothing on record to demonstrate that the said two

applications filed by the petitioner have been considered or dealt with by

the respondent authorities. In the affidavit-in-opposition filed on behalf of

the respondents there are only two grounds which have been urged by

the State respondents (a) that the petitioner no.1 is a company and is not

entitled to a distributorship and (b) pursuant to the order dated 7

August, 2019, the vacancy in respect of the areas for which the

petitioners had applied have been duly cancelled for all the applicants.

4. It is submitted on behalf of the petitioners that there is no reason in law

to deprive the petitioner company from being considered as a potential

distributor merely on the ground that the petitioner no.1 is a company.

In this connection, reliance was placed on Section 2(j) of the West Bengal

Public Distribution System (Maintenance and Control) Order 2013 which

defines "distributor" and also on the statutory form no.1 under

paragraph-27 (1) of the Control order wherein a licence for distributorship is granted to Co-Operative society/ Self Help Group/

Company/partnership firm. Moreover, emphasis was also placed on the

definition of "a group of individuals as an entity". In support of their

contentions, the petitioners also rely on the decision reported in The

State Trading Corporation of India Ltd. and Ors. vs. The Commercial Tax

Officer, Visakhapatnam and Ors. (AIR 1963 SC 1811). It was also

submitted on behalf of the petitioner that the refund of the application

money and the encashment of the same does not create any estoppel

against the petitioners to challenge the action of the concerned

authorities. In support of this contention the petitioners also relied on

the decisions reported in Olga Tellis & Ors. Vs. Bombay Municipal

Corporation & Ors. AIR 1986 SC 180, Nar Singh Pal Vs. Union of India &

Ors. and Basheshar Nath Vs. Commissioner of Income Tax, Delhi &

Rajasthan & Anr. AIR 1959 SC 149.

5. On behalf of the State respondents it is contended that the fact that the

applicant should be a permanent resident of the concerned district as

stipulated in the eligibility criteria excludes the petitioner company from

the scope of consideration for the respective vacancies. It is also urged on

behalf of the State respondents that the subsequent fact that the

petitioners have been refunded the application money prevents them

from raising the impugned challenge.

6. I have considered the submissions made on behalf of the parties.

7. At the outset, I deal with the aspect of waiver and estoppel raised on

behalf of the State respondents. It is contended on behalf of the State respondents that since the petitioners have been refunded their

application money they are estopped from impugning the actions of the

respondent authorities. It appears from the records that the first writ

petition was filed on 14 August 2019. The cheque refunding the

application money to the petitioner company was issued by the

respondent authorities on 29 August 2019. Hence, it is an admitted

position that the refund of the application money had taken place

subsequent to the filing of the first petition. In any event, I am of the view

that the subsequent receipt of the cheque for the application fee by the

petitioners cannot prevent the petitioners from pursuing its

constitutional remedy. Ordinarily, there can be no waiver of any of the

fundamental rights guaranteed under Part III of the Constitution. (See

AIR 1986 SC 180 Olga Tellis and Others Vs. Bombay Municipal

Corporation and Others @ Para 29, AIR 1959 SC 149 Basheshar Nath Vs.

Commissioner of Income Tax Delhi & Rajasthan and Another @ Para 32). I

find that the refund of the application money to the petitioner and the

subsequent encashment of the same does not create any estoppel against

the petitioners nor does it amount to waiver of any of their rights.

Accordingly, this contention raised on behalf of the State respondent is

rejected.

8. On merits, I find that the petitioner company had applied for

distributorship in respect of the aforesaid two blocks pursuant to the

Notifications dated 16 January, 2019 which was published in the Official

Gazette on 29 July, 2019. In fact, the petitioner no.1 had submitted two separate applications dated April, 2019 respectively. I am of the view that

upon the submission of the said two applications a right of being at least

considered in accordance with law accrues in favour of the petitioners.

9. I am fully mindful that an applicant responding to a notice or making an

offer pursuant to an advertisement does not have a vested right to obtain

distributorship. But, such an applicant at least has a right to have its

application lawfully considered.

10. I also find that the order dated 7 August, 2019 cancelling the

notifications inviting offers for distributorship contains no lawful or

justifiable grounds justifying the cancellation of the impugned

notification. I am of the view that the State cannot cancel or withdraw

any notification once issued without citing any cogent ground especially

after accepting applications in terms thereof. There is no policy

instruction or order which has been cited by the State. An arbitrary,

irrational decision of the authority like the present one under challenge

cannot therefore be termed as a policy decision. Infact, the order dated 7

August, 2019 has been the subject matter of diverse litigation. In

different proceedings this Court has interfered with the order dated 7

August, 2019. [F.M.A. 913 of 2020 (M.A.T. 617 of 2020) with CAN 1 of

2020 (M/s. Kultali Food Marketing Private Limited & Anr. Versus State of

West Bengal & Ors.), WPO No.359 of 2020 and WPO No.360 of 2020 (M/s.

Sonai Food Marketing Pvt. Ltd. & Anr. Versus State of West Bengal & Ors.)

and WPO 362 of 2020 (M/s. Sonai Food Marketing Pvt. Ltd. & Anr. Versus

The State of West Bengal & Ors.). For the reasons aforesaid, the impugned order dated August 7 2019 insofar as it pertains to the

cancellation of distributorship in the Raghunathpur II area and the

Jaipur Block area in the District of Purulia does not appear to be justified

or proper.

11. Accordingly, I am of the view that the fact that the subsequent order

dated 7 August, 2019 seeks to cancel the vacancies cannot prejudice the

right of the petitioner company to be considered in accordance with law.

In any event, I for the aforesaid reasons have held the order dated 7

August, 2019 to be unjustified and improper. Accordingly, since there

has been no consideration at all of the applications of the petitioners, I

am of the view that the petitioner company has a right to be considered

in accordance with law.

12. For the foregoing reasons, I direct the petitioner company to deposit the

requisite application fees with respondent authorities within a week from

date. Upon such deposit being made the respondent authorities are

directed to consider the applications received by the petitioner no 1 for

distributorship in the Raghunathpur II area and the Jaipur block in the

district of Purulia respectively in accordance with law within a period of

four weeks from the date of deposit of the application fees. In

considering the applications of the petitioner no.1 company, the

respondent authorities are directed to give a right of hearing to petitioner

no.1 company. The respondent authorities will also give a right of hearing

to the concerned State respondents if it deems fit and necessary.

Thereafter, the respondent authorities are directed to give a reasoned order and communicate the same to the petitioners company forthwith.

Insofar as the merits of the applications filed by the petitioner company,

all points are left open to be decided by the respondent authorities in

accordance with law. With the aforesaid directions, WPA No.16713 of

2019 and WPA No.16013 of 2019 stand disposed off. However, there shall

be no order as to costs.

13. Urgent certified photocopy of this judgment, if applied for, be given to the

parties upon compliance with all the necessary formalities.

(Ravi Krishan Kapur, J.)