Calcutta High Court (Appellete Side)

M/S. Sonai Food Marketing Pvt. ... vs The State Of West Bengal & Ors on 23 February, 2022

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE


Present:
The Hon'ble Justice Krishna Rao


                               WPA 10846 of 2021

                  M/s. Sonai Food Marketing Pvt. Ltd. & Anr.
                                     Vs.
                       The State of West Bengal & Ors.



     For the petitioners:              Mr. Kalyan Bandyopadhyay
                                       Mr. Ram Anand Agarwal
                                       Ms. Nibedita Pal
                                       Mr. Ramesh Dhara
                                       Mr. Ananda Gopal Mukherjee
                                       Ms. Sonam Ray
                                       Mr. Saurabh Kumar Das

     For the State:                    Mr. Susovan Sengupta
                                       Mr. Subir Pal

     Heard on :                        17.02.2022

     Judgment on:                      23.02.2022

     Krishna Rao, J.

The petitioner has challenged the order passed by the Secretary,

Food and Supplies Department dated 11 May, 2021, wherein the application

of distributorship filed by the petitioner, M/s. Sony Food Marketing Pvt. Ltd.

was rejected.

The State Government published the public distribution system

(Maintenance and Control Order), 2013 by a Notification dated 8th August,

2013, in exercise of power conferred under Section 3 of the Essential

Commodities Act, 1955.

Paragraph 26 of the order provides for engagement of

distributor and Paragraph 26(ii) of the order provides for declaration of a new

vacancy for better functioning of public distribution in a particular area with

the approval of the department.

Declaration of vacancies, the concerned Sub-Divisional

Controller, Food and Supplies is required to submit a proposal to the

concerned District Controller, Food and Supplies who will send the same to

the District, District Distribution, Procurement and Supplies with the opinion

of the concerned District Magistrate and the Director shall send the same to

the State Government with his specific views for consideration.

As per Paragraph 26 (ii) (a) of the order provides that the

concerned District Controller, upon receipt of approval of the vacancy, shall

publish notice in the Official Gazette specifying the eligibility criteria and

shall also publish an indicative advertisement for the information of general

public in the newspaper and the last date of receipt of application shall be

thirty days from the date of publication of vacancy notice.

In the instant case, the concerned Sub-Divisional Controller,

Food and Supplies Department, submitted the proposal for declaration of two

vacancies in Raghunathpur-II Block and Joypur Block to the District

Controller, Food and Supplies, Purulia, for his opinion and after favourable

opinion of the District Magistrate, Purulia forwarded the same to the

Director, District Distribution, Procurement and Supply to examine the

proposal and send to the State Government for consideration. The Director,

upon examining the proposal sent the same to the State Government and

upon approval by the State Government, the vacancies were published in two

Official Gazette notifications respectively dated 29th January, 2019 and

published advertisement in the newspaper on 4th March, 2019.

In response to the notification dated 29th January, 2019, and

the advertisement dated 4th March, 2019, the petitioner had submitted two

separate applications against the said vacancies notified under the cover of

two separate letters dated 1st April, 2019 along with the requisite documents

which were received by the office of the D.C.F.S. on 2nd April, 2019. On

receipt of the applications of the petitioner as well as other applicants, in

both the areas, inspection was carried out by S.C.F.S. in respect of the

applicants except the writ petitioner on the ground that the company of the

petitioner is not entitled to apply against the vacancies in question.

Being aggrieved with the decision of the authorities, the

petitioners have filed a writ petition before this Court being W.P. No.

16013(W) of 2019 praying for declaration that a company is entitled to apply

for distribution under 2013 order. During the pendency of the writ

application, the petitioners came to know that the State Government had

issued an order dated 7th August, 2019, directing the concerned District

Controller to cancel the vacancy notification including the vacancies

notification of Raghunathpur-II, and Joypur Block in the District of Purulia.

Being aggrieved with the order dated 7th August, 2019, the

petitioners have filed a writ petition being W.P. No. 1673(W) of 2019 praying

for quashing of the order dated 7th August, 2019. The Co-ordinate Bench of

the Court had disposed of both the writ petitions as mentioned above on

17.03.2021directing the petitioner company to deposit requisite application

fee and also directing the respondent authorities to consider the application

of the petitioners for distribution in Raghunathpur-II and Joypur Block in the

District of Purulia respectively in accordance with law and to give a reasoned

order after hearing the parties.

In terms of the order passed by the Co-ordinate Bench the

petitioner company deposited the application fee in respect of the application

for both the places and the Secretary, Food and Supplies Department

directed the petitioner to appear for hearing on 16th April, 2021. On receipt of

the notice dated 7th April, 2021, the petitioner had informed the Secretary,

inter alia, that no enquiry has been conducted by the concerned S.C.F.S. and

hearing can be held only after the statutory formalities.

The Secretary did not accept the contention of the petitioner and

fixed the hearing on 16th April, 2021. On 16th April, 2021 the learned

Counsel for the petitioner appeared before the Secretary and made his

submission along with the written notes of argument.

On 11th May, 2021, the Secretary, Department of Food and

Supplies, Government of West Bengal had passed an order rejecting the

petitioner's application alleging that the company is not covered under the

notification.

The order dated 11th May, 2021, passed by the Secretary of

Department of Food and Supplies is impugned in the instant writ application.

Learned Senior Counsel Mr. Kalyan Bandyopadhyay submitted

that Paragraph 2(j) of 2013 order provides the definition of "distributor"

which includes "Company" within the meaning thereof and the same was

applicable for making application for distributorship at the relevant point of

time.

Mr. Bandyopadhyay submitted that the word "Company"

includes within the expression "group of individuals as an entity"

Mr. Bandyopadhyay. Learned Senior Counsel appearing for the

petitioner company submitted that when a group of individuals is configured

to an entity, the petitioner company would qualify to be considered as an

entity in the juristic sense.

Learned Senior Counsel has relied upon the judgment passed

by the Division Bench of this Court in M.A.T. No. 562 of 2021 with CAN 1 of

2021 (M/s. Sonai Food Marketing Pvt. Ltd. Vs. State of West Bengal and

Ors.) and submitted that the Hon'ble Division Bench has already settled the

issue and had relied upon paragraphs IX and X of the judgment, inter alia,

as follows:-

" IX. It is also difficult for this Court to appreciate the concept of a group of individuals as an entity restricted only to a fluid aggregation of so-called natural persons. To the mind of this Court, the expression group of individuals as an entity or, in other words, acting as an entity could also relate to a juristic entity such as the Company formed out of a group

of individuals being its promoters, shareholders and Directors.

X. In the event, the expression natural persons is to be applied to the tender notice, it must be applied across the board to the other categories of applicants such as Registered Co-Operative Societies/Self Help Groups and Semi-Government Bodies which, by their very own configuration, are ineligible to be treated as natural persons. Carrying the above discussion further, this Court is left in doubt whether the meaning given to group of individuals as an entity by the communication dated 28th January, 2021 although not so appearing from the Notification itself, could be designed to act in a particular manner to eliminate the Appellants/the Company from applying at the threshold itself and, the Hon'ble Single Bench, with respect, could have perceived that the so called literal/ordinary meaning of the expression group of individuals as an entity is not a legal contextual meaning at all. Since, the so-called literal/ordinary meaning carries no legal context at all having regard to the present facts and circumstances, this Court must resort to a purposeful construction which must negate such legal absurdity.

In the backdrop of the above discussion, the order impugned of the Hon'ble Single Bench stands set aside.

The application for MR Distributorship of the Appellants/the Company shall be now processed in accordance with law."

Mr. Susovan Sengupta representing the respondents submitted

that on scrutiny of the application and supporting documents submitted by

the petitioner company, it is found that the petitioner company is not eligible

for engagement as M.R. Distributor against the vacancy declared at

Raghunathpur-II Block as well as Joypur Block on the ground that the

applications were invited only from the intending self-help groups/Registered

Co-operative Society/semi government bodies/individual/group of

individuals as entity but the petitioner is a Private Limited Company.

Mr. Sengupta submitted that the eligibility criteria of a group of

individuals as an entity would only apply to the natural person and not to

artificial persons such as the petitioner company.

Mr. Sengupta further submitted that it was also transpired that

the address of the registered office of the petitioner company is 24/1 Bethun

Row, Kolkata and the petitioner is not the permanent resident of the District.

Mr. Sengupta has supported the order passed by the Secretary,

Department of Food and prayed for dismissal of the writ application.

This Court considered the contention of both the parties,

documents available on record and the judgment passed by the Hon'ble

Division Bench in MAT No. 562 of 2021 dated 26th August, 2021.

As per the impugned order dated 11th May, 2021, the Secretary,

Department of Food and Supplies had rejected the claim of the petitioner on

the ground that the petitioner is a private limited company and the company

cannot be treated to be in the nature of a group of individuals as an entity.

The judgement relied by the counsel for the petitioner passed in

MAT 562 of 2021, (M/s Sonai Food Marketing Pvt. Ltd. & Anr. -vs- State of

West Bengal & Ors. (supra), the similar issue was raised and the Hon'ble

Division Bench held that

" VIII) It is hence incomprehensible that tender specifications should be designed in a manner construing a group of individuals as an entity as limited to eliminating the Appellants/the Company. It is equally incomprehensible that the construction of the expression a group of individuals as an entity has been argued as limited to natural persons whereas the legal grundnorm 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 stands out to be ex facie discriminatory and since such a tender condition fails to provide a level plying field, the exclusion of the Appellants/the Company is liable to be struck down."

In the judgement passed by the Hon'ble Division Bench (supra)

it is settled that the expression group of individuals as an entity or, in other

words, acting as an entity could also relate to a juristic entity as the company

formed out of group of individuals being its promoters, shareholders and

Directors.

In view of the settled law this Court has no other alternative but

to set aside the order passed by the Secretary, Department of Food &

Supplies, Government of West Bengal dated 11.05.2021.

The respondents are directed to proceed with the applications

submitted by the petitioners for M.R. Distribution of both the places in

accordance with law.

WPA 10846 of 2021 is disposed of.