Calcutta High Court (Appellete Side)

M/S. Sonai Food Marketing Pvt. ... vs The State Of West Bengal & Ors on 21 April, 2022

                                       1


                   IN THE HIGH COURT AT CALCUTTA

                    (Constitutional Writ Jurisdiction)

                               APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                               WPA 6180 of 2021

               M/s. Sonai Food Marketing Pvt. Ltd. & Anr.

                                    Versus

                     The State of West Bengal & Ors.



            Mr. Kalyan Kumar Bandyopadhyay, Sr. Adv.
            Mr. Ram Anand Agarwal
            Ms. Nibedita Pal
            Mr. Ramesh Chandra Dhara
            Mr. Ananda Gopal Mukherjee
            Ms. Sonam Roy
                                                  .....For the Petitioner
            Mr. Susovan Sengupta
            Mr. Subir Pal
                                              .....For the State-respondents

Heard on                : 23.02.2022

Judgment on             : 21.04.2022

Krishna Rao, J.: This writ petition is directed against the Order passed by

the District Controller, Food and Supplies, Murshidabad dt. 29.01.2021

wherein the application of the petitioner for the Distributorship against the

vacancy Notification No. 2017/DCFS/MSD/2018 dt. 13.07.2018 at

Hariharpara (East) was rejected.

The District Controller, Food and Supplies, Murshidabad had invited

applications for filling up the vacancy of Distributorship in terms of Clause

26 (i) of the West Bengal Public Distribution System (Maintenance and

Control) Order, 2013 in Hariharpara Block, Hariharpara (East) at

Swaruppur, Murshidabad on 13.07.2018.

In terms of the said notification dt. 13.07.2018, the petitioner has

submitted an application on 20.08.2018 in Form "G" in the Office of the

District Controller, Food and Supplies, Murshidabad by enclosing all the

requisite documents along with application fee. After receipt of the

applications, the authorities have forwarded the same to the Sub-Divisional

Controller, Food and Supplies, Berhampore to cause enquiry. On

11.03.2019 notice was issued for spot inspection and on

14.03.2019/15.03.2019, spot enquiry and inspection was conducted and

have also taken the measurement of the godown of the petitioner. Inspite of

enquiry and inspection no decision was taken by the authorities and

accordingly, the petitioner had moved a writ application before this Court in

WP No. 15661 (W) of 2019 and the said writ petition was disposed of on

13.08.2019 by the Coordinate Bench of this Court, directing the Principal

Secretary to expedite and conclude the process within 2 months.

On 31.08.2019, the District Controller, Food and Supplies had sent a

cheque of Rs. 5,000/- to the petitioner stating that the payment made by the

petitioner for submission of application is refunded. Subsequently, the

petitioner came to know that many vacancies in different districts including

the vacancies at Hariharpara Block have been cancelled by the authorities

by an order dt. 07.08.2019 accordingly, the petitioner had again filed a writ

petition being WPO NO. 362 of 2020 challenging the order dt. 07.08.2019

and order dt. 22.11.2019. The writ petition was disposed of by the

Coordinate Bench of this Court on 22.12.2020 by directing the respondent

authorities to process the application of the petitioner for engagement of

distributor in the respective Block and to communicate the decision to the

petitioner within six weeks. After the order passed by the Coordinate Bench

of this Court, the District Controller, Food and Supplies had issued an order

on 29.01.2021 by rejecting the application of the petitioner on the following

reasons:-

"1) M/S Sonai Food Marketing Pvt. Ltd. is a Private Limited Company in nature which contravenes Para- 1 of the vacancy Notification No. 2017/DCFS/MSD/2018 dated 13.07.2018 and applications were invited only from the intending Self Help Group/ Registered Co-operative Societies/ Semi-Gov. bodies/Individuals/ Group of individuals as an entity.

It transpires that the address of the Registered office of M/S Sonai Food Marketing Pvt. Ltd. is 24/1, Bethun Row, Kolkata- 700006. Neither the company has any address nor any of the Directors of the Company has a permanent residential address in the district and thus the applicant contravenes eligibility criteria number 2 of the vacancy notification.

2) On examination of the application of M/s Sonai Food Marketing Pvt. Ltd. it is found that Sri Tamal Kundu, Director and authorized signatory of the company submitted application on 20.08.2018 enclosing most of the documents except Lease agreement and land conversion certificate which were supposed to be submitted alongwith the application as per the vacancy notification. Although, he submitted both the documents later as per provision of N.B. of the said application format.

3) Further, Sri Kundu, Director and authorized signatory of the company mentioned in application Form-G at para-12 the size of the

godown and nature of possession as rental. Accordingly, he submitted the column and structural layout plan of the godown and rent receipt from the owner of the godown alongwith the application which was submitted on 20.08.2018. But, the conversion certificate was issued by the Collector U/S 4C of WBLR Act, 1955 & SDL&LRO, Murshidabad Sadar on 19.09.2018 in favour of Nityahari Kundu, owner of the godown against his application dt. 31.07.2018. It is mentioned worthy here that conversion of land without permission is a cognizable offence as per Section 4D of the WBLR Act, 1955.

The provision is as follows:

"[4D, Offence and penalties.]-(1) Amy change, conversion or alteration in the area, character or mode of use of any land, except in accordance with the provisions of Section 4C, or any violation of the order of the Collector under sub-section (5) of section 4C, [Shall be a cognizable and non-bailable offence and shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to fifty thousand rupees or with both]".

So, without obtaining the permission of the competent authority the owner of the godown has converted the land and thereby violated law. Consequently, the structure of the godown is itself illegal and permission to set distributor's godown in such illegal structure may not be accorded.

4) On examination of the bank statement and certificate issued by Bandhan Bank it is found that he submitted bank statement from the date of 11.07.2017 to 10.08.2018 and bank balance certificate issued by Bandhan bank, Bidhan Sarani Branch at Kolkata on 13.08.2017. But, as per the eligibility criteria as mentioned at Sl. No.-5 in the said vacancy notification that "the applicant must be financially solvent so as to run the distributorship business successfully having bank balance of Rs. 50,00,000/- (Rupees Fifty Lakh only) as working capital as reflected on the day of application and one year preceding the date of application". It transpires that he has not fulfilled this eligible criteria."

Mr. Kalyan Kumar Bandyopadhyay, Senior Advocate representing the

petitioner submitted that on receipt of the application submitted by the

petitioner for appointment of M.R. Distributorship against the vacancy in

terms of the Notification dt. 13.07.2018, the office of the respondent

authorities satisfied with the statements made in the statutory Form "G"

and finding the petitioner is eligible to participate against the vacancy, the

application of the petitioner was forwarded to the concern authorities for

enquiry and accordingly, the enquiry was conducted and the godown was

also inspected. At the time of enquiry and inspection of godown it was found

that the petitioner has fulfilled all the criteria as mentioned in Form "G".

The Ld. Senior Counsel further contended that as the authorities have not

taken the decision on the application submitted by the petitioner for

appointment of M.R. Distributorship, the petitioner had approached this

Court and this Court has directed the Principal Secretary who is the highest

authority to process for appointment of Distributorship against the vacancy

and at that point of time also the respondent authorities have not raised any

objection with regard to the eligibility of the petitioner and the authorities

have accepted the order passed by this Court.

Ld. Senior Counsel submits that the Ground No. 1 of the impugned

order that the petitioner is a company and as such not eligible to apply for

Distributorship against the notification as applications were invited only

from Self Help Groups/ Registered Co-operative Societies/ Semi-

Government Bodies/Individuals/ Group of Individuals as an entity is

against the settled position of law. On the earlier occasion, the respondent

authorities have rejected the claim of the Company on the similar ground

and the petitioner has challenged the order before the Hon'ble High Court

and the matter went up to the Hon'ble Division Bench in an earlier

proceeding and the Hon'ble Court held that, "It is hence in comprehensible

that tender specifications should be designed in a manner construing a

group of individual as an entity has limited to eliminating the Appellants/

the Company. It is equally in comprehensible that the construction of

expression a group of individuals as an entity has been argued as limited to

natural persons whereas the legal groundnorms persuades this Court to

hold otherwise by purposively interpreting the expression to include within

its scope, ambit and meaning juristic entities constituted by a group of

individuals. To the mind of this Court such a condition in the tender status

out to be ex facie discriminatory and since such a tender condition fails to

provide a level plying field, the exclusion of the Appellants/Company is

liable to be struck down."

The Ld. Counsel relying upon the said judgment submitted that

ignoring the judgment passed by the Hon'ble Division Bench again the

respondent authorities have rejected the application of the petitioner on the

same ground.

The Ld. Senior Counsel for the respondent further submits that the

statutory application Form "G" provides for submission of land conversion

certificate and in case of hired godown, the Record of Rights, a registered

Rent Agreement for atleast a period of 10 years upon offer of the license of

the distributorship of the applicant. It is further submitted that the

petitioner has submitted all the documents along with the said form and

accordingly, the respondents have conducted enquiry and inspection of the

godown on the basis of documents submitted by the petitioner.

The Ld. Senior Counsel further submits that as per the vacancy

notification, the applicant is required to submit rent receipt with respect of

the possession of the proposed godown in the vacancy in question and the

petitioner had submitted rent receipt with regard to the possession of the

godown and had fulfilled the eligibility criteria. The Ld. Senior Counsel

further argued that it is beyond the scope of the vacancy notice to enquire

into the status of the owner of the godown if any candidate submits rent

receipt in respect of the godown along with the Application Form. It is

further submitted that the respondent authorities are required to consider

only whether the godown with required space is in possession of the

applicant or not on the date of enquiry.

The Ld. Counsel further argued that the petitioners have submitted

that Bank statement from 11.07.2017 to 10.08.2018 and it will appear from

the said Bank statement that the petitioner company had bank balance of

Rs. 4,07,33,000/- on 20.08.2017 i.e. one year preceding to the date of

application. It is further submitted that the petitioner had the bank balance

of Rs. 3,54,65,133/- on 13.08.2018 even, on the date of application.

The Ld. Counsel for the petitioner further submits that the action of

the respondent authorities is discreminatory as the authorities have

appointed another company as distributor against the similar vacancy

notification for distributorship in respect of the other District which is

violative of the Article 14 of the Constitution of India.

Per contra, Mr. Susovan Sengupta, Ld. Counsel representing the

respondent submits that the petitioner is a Private Limited Company

whereas the applications were invited only from Self Help Groups/

Registered Co-operative Societies/ Semi-Government Bodies/Individuals/

Group of Individuals as an entity and neither the Company has any address

nor any of the directors has the permanent residential address in the

district.

The Counsel for the respondent further submits that no lease

agreement and land conversion certificate were submitted with the

application but the same was submitted later.

It is further submitted that the conversion was issued by the Collector

on 19.09.2018 but the application was made on 20.08.2018 and the

conversion of the land was without permission and is cognizable offence

under WBLR Act, 1955.

It is further submitted that the Bank statement submitted from

11.07.2017 to 10.08.2018 and the Bank certificate was dt. 13.08.2017

whereas the application was made on 20.08.2018 and as such the petitioner

did not fulfilled the eligibility criteria.

The Ld. Counsel for the respondent relied upon the judgment reported

in (2011) 5 SCC 103 (Glodyne Technoserve Limited -Vs- State of Madhya

Pradesh & Ors.) and the judgment reported in (2006) 7 SCC 756 (Jai Narain

Parasrampuria & Ors. -Vs- Pushpa Devi Saraf & Ors.) and submitted that

subsequent filling of documents cannot be taken into consideration if the

applicant has not filed/submitted document along with application.

Considered the rival submissions of the parties, documents available

on record and the judgment relied by the parties.

The respondents have rejected the application of the petitioner for

appointment of M.R. Distributorship by assigning four reasons as

mentioned in preceding paragraphs.

As regard the ground no. 1, in an earlier proceeding the petitioner has

challenged the rejection order of the respondents wherein the respondents

have rejected the claim of the petitioner on the similar ground and the

Hon'ble Division Bench of this Court in MAT No. 562 of 2021 (M/s. Sonai

Food Marketing Pvt. Ltd & Anr. -Vs- State of West Bengal & Ors.) in

paragraph 8 held that, "It is hence in comprehensible that tender

specifications should be designed in a manner construing a group of

individual as an entity has limited to eliminating the Appellants/ the

Company. It is equally in comprehensible that the construction of

expression a group of individuals as an entity has been argued as limited to

natural persons whereas the legal groundnorms persuades this Court to

hold otherwise by purposively interpreting the expression to include within

its scope, ambit and meaning juristic entities constituted by a group of

individuals. To the mind of this Court such a condition in the tender status

out to be ex facie discriminatory and since such a tender condition fails to

provide a level plying field, the exclusion of the Appellants/Company is

liable to be struck down." In view of the judgment passed by the Hon'ble

Division Bench the ground no. 1 of the rejection dt. 29.01.2021 is not

sustainable under law.

As regard ground no. 2, the petitioner has submitted Lease Agreement

and the Land Conversion Certificate subsequently and had not submitted

the document along with the application Form. As per the impugned order

dt. 29.01.2021 it reveals that before passing of the impugned order, the

petitioner has submitted the said documents. It is not the case that at the

time of considering the case of the petitioner; the said documents were not

available with the respondents. It is further admitted case of the

respondents that the respondents have verified the documents and

inspected the godown and process the case of the petitioner for

consideration and at that point of time the respondents have not raised any

objection of the documents thus the grounds that the documents were not

submitted along with the application is not sustainable.

As regard the ground no. 3, it is alleged that the Conversion

Certificate was issued on 19.09.2018 and the conversion of the land was

without any permission and is cognizable offence as per Section 4 (d) of the

WBLR Act, 1955. As per the documents submitted by the petitioner along

with the application, the respondents have inspected the godown but the

respondents have not raised any objection. It is not the case the land is not

converted at the time of passing the impugned order. The conversion order

was available with the respondents. The respondents have alleged that it

was without the permission, but there is no proceeding initiated by any

authority against the petitioner or against the owner of the godown for

conversion of the land in violation of WBLR Act, 1955. The authorities are

concerned with the godown and the godown was available and it is

converted into commercial as required in the vacancy notice. In view of the

above this Court is of the view that the ground as mentioned above is

unsustainable.

As regard the Ground No. 4 with regard to the bank balance of Rs.

50,00,000/-, it reflects from the document which annexed with the writ

application, the petitioner company had the bank balance of Rs.

4,07,33,000/- as on 20.08.2017 i.e. one year preceding from the date of

application and on 20.08.2018 the petitioner had the bank balance of Rs.

3,54,65,133/- and thus the allegation made by the respondents on the basis

of which the request of the petitioner was rejected is not sustainable under

law.

The Counsel for the respondents had relied upon the judgment

reported in (2006) 7 SCC 756 para 48, 49 & 50 which read as follows:-

"48. In a case of this nature, keeping in view the facts and circumstances of the case, even the doctrine of lifting the corporate veil would be applicable.

49. We would, in this regard, notice some precedents operating in the field.

50. In Kapila Hingorani vs. State of Bihar [(2003) 6 SCC 1], this Court opined:

"25. It is now well settled that the corporate veil can in certain situations be pierced or lifted. The principle behind the doctrine is a changing concept and it is expanding its horizon as was held in State of U.P. v. Renusagar Power Co. The ratio of the said decision clearly suggests that whenever a corporate entity is abused for an unjust and inequitable purpose, the court would not hesitate to lift the veil and look into the realities so as to identify the persons who are guilty and liable therefor."

The judgment relied upon the Counsel for the respondent is not

applicable in the instant case, as the facts of the instant case is totally

different from the facts of the case relied by the Counsel for the respondent.

The point raised by the respondents have been settled by the Hon'ble

Division Bench and the same was upheld by the Hon'ble Supreme Court.

The judgment relied by the respondent reported in (2011) 5 SCC 103 para

46 which reads as follows:-

"46. The above provision obliges a tenderer to produce along with the bid document a copy of the quality certificate which is valid and active on the date of submission of the bid and it does not enable a bidder to withhold the copy of such quality certificate. Where the quality certificate will be expiring shortly and is due for renewal, the bidder is also obliged to produce the renewed certificate at the time of signing of the contract. The appellant claimed to have a valid and active ISO 9001:2000 certificate at the time of submission of the bid, but did not produce a copy of the said certificate along with the bid document."

In the instant case, though the petitioner has not enclosed the

document with the application but subsequently the documents were

accepted by the authorities and the respondents have acted upon the

documents submitted by the petitioner by inspecting the land and godown

of the petitioner without any objection and as such the judgment relied by

the respondent is not applicable in the instant case.

In view of the above, this Court is of the view the impugned order

passed by the District Controller, Food and Supplies, Murshidabad dt.

29.01.2021 is not sustainable under law and accordingly, the same is set

aside and quashed.

The respondent authorities are directed to consider the case of the

petitioner for grant of Distributorship in Hariharpara Block, Hariharpara