Kartick Chandra Pal & Ors vs State Of West Bengal & Others
2022 Latest Caselaw 7447 Cal

                     IN THE HIGH COURT AT CALCUTTA

                      Constitutional Writ Jurisdiction

                                Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 12264 of 2022

                        Kartick Chandra Pal & Ors.

                                  Versus

                       State of West Bengal & others



For the petitioner                         : Mr. Kalyan Kr. Bandopadhyay

                                            Mr. Ramesh Dhara

                                            Ms. Mousumi Choudhury

                                                             .....Advocates

For the State                              : Mr. T.M. Siddiqui

                                            Mr. Arijit Chakrabarti

                                                             .....Advocates

Heard lastly on                            : 16.09.2022

Judgment on                                : 10.11.2022
                                         2



Jay Sengupta, J.:

1.    This is an application under Article 226 of the Constitution of India

praying for direction upon the respondents authorities to withdraw and/or

to rescind and/or cancel the impugned order dated 31.05.2022 of the

respondent no. 2 rejecting the petitioners' candidature for empanelment of

his flour mill.

2. Mr. Kalyan Kr. Bandopadhyay, learned senior counsel representing

the petitioner, submitted as follows. The petitioners are the partners of M/s.

Ma Fullara Flour Mill which is engaged in the business of conversion of

wheat into fortified atta/wholemeal atta in the district of Birbhum. Between

2009 and 2017 the petitioners' firm was selected as an empanelled flour mill

of the respondent in the district of Birbhum by virtue of agreements

executed with the concerned respondent authorities. In 2018, in terms of

the Guidelines of 2017, the Food and Supplies Department, Government of

West Bengal, issued a notice inviting application from the roller flour

mill/chakki mill for all districts except Kolkata. The petitioner submitted

application in the name of the partnership firm in the prescribed format.

The concerned authority issued an inspection notice. But, the petitioners'

mill was not selected for which the petitioners made several representations.

On 02.12.2021 the Food and Supplies Department, Government of West

Bengal, invited online applications from the roller flour mills for all districts

except Kolkata. On 28.12.2021, the petitioners submitted an application in

the name of the firm on-line in Form 'K'. The concerned authority thereafter

forwarded the same to the District Inspection Committee to cause necessary

inspection. On 07.01.2002 the Head, District Inspection Team issued a

notice informing one of the petitioners that an inspection team would

conduct a physical inspection in the flour mill of the petitioner. On

19.01.2022 at 11 a.m., an officer of Food and Supplies Department along

with the District Controller, Birbhum visited the flour mill of the petitioners.

However, thereafter no communication was received by the petitioner. On

28.02.2002 the representative of the petitioner made a representation in

person before the District Controller who refused to disclose the status of

the petitioners' application. On 04.03.2022 the petitioners came to know

that the respondent published names of the successful empanelled flour

mills wherein the petitioners' firm was not included. The petitioners filed a

writ petition being WPO 1447/2022 in this regard. On 12.05.2022 this

Court finally passed an order directing the respondents to inspect the

petitioners' flour mill, which they did. However, finally the authorities

rejected the prayer of the petitioners. In spite of a direction passed by this

Court earlier, the petitioners' case was not at all considered.

Representations had to be made. The impugned order suffered from serious

irregularities. Although it was mentioned in an earlier report that the

installed machineries were found to be in running condition, yet it was held

that the flour mill was not fully functional as on the date of application.

Furthermore, it was inferred that the land which was offered belonged to

individuals was not registered in a name of the firm in question. It was

purportedly found that the machineries were running below capacity. The

General Manager, District Industries Centre, Birbhum arrived at such

conclusions not only on inspection of the unit but also after considering the

last six months' electricity bills. First, the land offered belonged to the

partners. Since it was a case of a partnership firm, the said land could fairly

be considered as belonging to the firm. It was apparent from the face of the

record that the respondent authorities considered the electricity bills for last

six months, which was after the date of application of the petitioners. Even if

these bills were considered one could not get an idea about how much

electricity was consumed at the date of the petitioners' application. It was

thus an absolutely irrelevant consideration. In fact, the petitioners' flour mill

was operating in full swing for all those years between 2009 and 2017. After

the notification was made and the petitioner was made to wait for getting

empanelled, it did not run in full swing as there was lack of demand. Quite

naturally, in the subsequent months electricity bills were less. However,

what was more important was the finding of the authority itself that the

installed machinery was found in running condition. That made the unit

functional at the date of application, which was the relevant consideration

for deciding whether to empanel the petitioner or not. The list of documents

placed before the authorities like the deed, the balance-sheet, the net worth

certificate, the land parcha and the schedule were all on record till the same

were placed before this Court in the earlier writ petition. Therefore, now the

respondent authorities could not object regarding the veracity of the same. It

was true that the merits of the petitioners' claims were not gone into in the

first writ proceeding, as recorded by this Court therein, it was evident that

the respondent authorities were only to consider whether the factory was in

functional condition as per requirement. What was directed was only an

inspection. In that sense, the respondent authorities travelled beyond the

order passed by the High Court and proceeded in a fault finding mode in

order to somehow deny the petitioners their right to get empanelled.

Reliance was placed on the decision of the Hon'ble Apex Court reported at

1986 (2) SCC 679 on the point that this Court had the power to directly

order empanelment instead of sending the matter for fresh consideration.

3. Mr. T.M. Siddiqui, learned Additional Government Pleader

representing the State, submitted as follows. As would be evident from the

order passed by this Court in the earlier writ proceeding, this Court had not

gone into the merits of the case. Therefore, it was open to the respondent

authorities to find out whether the petitioners actually satisfied all the

criteria for getting empanelled and not just rely on the inspection to be done.

The unit was running at a lower output capacity and this coupled with the

fact that the last six months' electricity bills showed very low consumption

made it evident that the mill was not running in fully functional state.

Moreover, the condition that the land had to be in the name of the entity or

the mill had not been satisfied in the present case. In fact, the petitioners

could produce documents showing that only 0.33 out of 0.41 acres satisfied

the criteria in the improved stand taken by them. Reliance was placed on

the decision of the Hon'ble Apex Court reported at 2022 6 SCC 127.

4. In reply, Mr. Bandopadhyay, appearing on behalf of the petitioners,

submitted as follows. The order passed by this Court in the earlier writ

petition was not challenged by the respondent authorities. The petitioners

made their application for empanelment in December, 2021. Documents like

electricity bills produced for the relevant period were not considered by the

petitioners. There is no condition that the output had to be of a particular

minimum rate.

5. I heard the learned counsels appearing on behalf of the parties and

perused the writ petition.

6. First, from the inspection report dated 10.05.2022 issued by the

General Manager, District Industries Centre, Birbhum, it appears that the

machinery was found in running condition. This is in direct contradiction

with the inference drawn by the Joint Secretary, Food and Supplies in the

impugned order that one out of two packaging machines was not running on

the date of inspection of the District Inspection Committee as well as on the

date inspection by the GMDIC.

7. Secondly, the conclusion that the flour mill was not functional on the

date of application in terms of production was not borne out from the

records. It does not appear that the impugned order took into consideration

the functionality of the flour mill vis-a-vis the two inspections. As rightly

pointed out by the learned senior counsel for the petitioners, looking into

electricity records of the last six months would not give a conclusive view of

the functionality of the flour mill. The lack of demand leading to subsequent

non-user of the whole of the facility might have resulted in such electricity

requirement for a particular period. However, no other cogent or convincing

evidence or material has been referred to in order to conclude that the mill

was not functional on the date of application.

8. The impugned order lacks clarity on the question of conversion

certificate of the factory land. First, had that been an issue, one wonders

whether the same could have been raised earlier. Secondly, the petitioners

contend that conversion certificates are available for all the land, but in the

name of the respective owners. In fact, the impugned order lacks clarity even

on the other issues that were discussed earlier.

9. Therefore, it is abundantly clear that the impugned order suffers from

serious irregularities as discussed above.

10. It is true that this Court can pass a direction upon the respondents to

empanel the petitioners' flour mill without referring the matter back again

for reconsideration. Yet, as the relevant documents and the issues involved

are yet to be properly considered by the concerned authorities, this Court is

not willing to embark upon such an exercise.

11. However, there is no doubt that the impugned order cannot be

sustained in the eye of law.

12. In view of the above, the impugned order, is set aside. The respondent

no. 2 is directed to consider the petitioners' case afresh after giving an

opportunity of hearing to the petitioner, within four weeks from the date of

communication of this order.

13. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

S.M