Olisa Reality Pvt. Ltd. & Anr vs The Jute Commissioner & Ors
2023 Latest Caselaw 4217 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI


                         WPA No. 14823 of 2023
                      Olisa Reality Pvt. Ltd. & Anr.
                                   -Vs-
                     The Jute Commissioner & Ors.

      For the Petitioners:     Mr. Sabyasachi Chaudhury, Adv.,
                               Mr. Ajay Gaggar, Adv.,
                               Mr. Uttiyo Mallick, Adv.,
                               Mr. Trini Joardar, Adv.

      For the Respondent No.1:-Mr. Anirudha Chatterjee, Adv.,

Mr. Rahul Karmakar, Adv., Mr. Surya Prasad Chattapadhay, Adv.

Heard on: 27 June, 2023.

Judgment on: 14 July, 2023.

BIBEK CHAUDHURI, J. : -

1. Olisa Reality Pvt. Ltd, a company incorporated under the

Companies Act, 1956, carries on business of manufacturing and

supplying of jute bags. The petitioner No.1- company has its jute mill at

Manikpur within the P.S Sankrail in the district of Howrah. There are

about 3000 workers employed in the said jute mill. It is the case of the

petitioners that jute bag manufacturing business is one of the major

industries in the eastern region particularly in West Bengal. It supports

nearly four million farmer families, besides providing direct employment

to 2.6 lakhs industrial workers and livelihood to another 1.4 lakhs

persons in the tertiary sector and allied activities. The Government of

India recognized the important of jute industry and has taken various

remedial measures to protect the jute industry. The Central Government

enacted the Jute Packaging Materials (Compulsory Use in Packaging

Commodities) Act, 1987 to provide for the compulsory use of jute

packaging material in the supply and distribution of certain commodities

in the interest of production of raw jute and jute packing materials and

the persons engaged in the production thereof. From time to time the

Ministry of Textile, Government of India have passed order under Section

3 of the said Act directing use of jute packaging materials by producers of

certain commodities and or class of commodities. In exercise of the power

conferred by Section 3 of the Essential Commodities Act, 1955, the

Central Government made the Jute and Jute Textile Control Order, 2000

for the protection of jute farmers, the jute industry and control of the

price of raw jute and jute products to boost up the industry.

Subsequently, the Control Order of 2000 was replaced by the Jute and

Jute Textile Control Order 2016. As per the provisions of the said

Packaging Act of 1987 the jute commissioner is entitled to implement the

Packaging Act and issue production control order on jute mills. Under the

Control Order of 2000, the Jute Commissioner is empowered to take all

steps necessary for implementation of the Packaging Act, 1987 or any

other directive of the Central Government and may by order direct any

manufacturer to produce such quantities of such classes or specifications

or jute textiles as may prescribed in the order for such implementation.

The said orders passed by the Jute Commissioner are commonly called as

"Production Control Orders." The Jute Commissioner is also empowered

to issue "Requisition Order" as supply order to the concerned jute mill

which contains the terms and conditions of sale of jute bags under the

Control Order, 2000. The procedure in respect of issuance of. Production

Control and Supply Order (PCSO) in the Control Order of 2016 is almost

identical to the control order of 2000. The proforma respondent, Delta

Jute Mill Limited used to run the jute mill at Manikchak previously and

the Jute Commissioner used to issue PCSO's in favour of the proforma

respondent till 10th November, 2021.

2. Sometimes in the year 2018 there was a dispute between the

proforma respondent and the Jute Commissioner in the matter of non

issuance of PCSO's which had prompted the proforma respondent to file a

writ petition being WP No.22091(W) of 2018. A Coordinate Bench of this

Court by an order dated 5th November, 2018 disposed of the aforesaid writ

petition giving liberty to the writ petitioner to make an application before

the concerned authorities for issuance of the Production Control Orders

in accordance with law. The respondent authorities were directed to

consider and dispose of the said application by passing a reasoned order

within a period of four weeks from the date of filing of the said

application. As directed by the this Court, the proforma respondent made

an application before the Jute Commissioner and the Jute Commissioner

passed an order dated 10th December, 2018 commencing issuance of

PCSO's in favour of proforma respondent in respect of the said jute mill.

3. By executing a deed of lease dated 9th January, 2023 the proforma

respondent granted lease in favour of petitioner No.1 to run and operate

the jute mill at Manikchak from the factory premises for a period of 15

years with effect from 1st January, 2023 as against the monthly rent of

Rs.10 lakhs or 10% of net profit whichever is higher. On the basis of the

said lease, the petitioner No.1 is operating the jute mill at the said factory

premises. The petitioner No.1 submitted a representation on 8th February,

2023 before the Jute Commissioner requesting him to incorporate the

name of the petitioner No.1 and to issue PCSO's in favour of it from the

month of February, 2023 in place and stead of the proforma respondent.

The said representation was replied to by the respondent No.2 by a letter

dated 20th February, 2023 requiring the petitioner No.1 to furnish certain

information/document for taking further action on the issue. The

petitioners forwarded all the required/desired documents to the

respondent No.1 by a forwarding letter dated 26th May, 2023. In spite of

receipt of all the documents, the respondent authorities failed and

neglected to act on the basis of the petitioner's representation dated 8th

February, 2023 with the petitioner's letter dated 26th May, 2023.

4. Therefore, the petitioners have prayed for issuance of a writ in the

nature of mandamus commending the respondent authorities and each

one of them to forthwith issue Production Control and Supply Order in

favour of petitioner No.1 with other coordinate prayers.

5. It is submitted by Mr. Sabyasachi Chaudhury referring to the order

dated 4th February, 2016 issued by the Ministry of Textiles that the Jute

and Jute Textile Control Order, 2016 was issued in exercise of the powers

conferred by Section 3 of the Essential Commodities Act. Clause 3 of the

said Order speaks of Jute Commissioner's power to fix prices at which

any grade of raw jute may be purchased and sold. Sub-Clause 6 of Clause

3 empowers the Jute Commissioner issuing notification in the official

gazette, to fix from time to time the maximum price or minimum price or

nominal price or all of them at which any specification of jute textile may

be purchased or sold for use under the Jute Packaging Materials

(Compulsory Use in Packaging Commodities) Act, 1987. Clause 4

prescribes that the Jute Commissioner shall take all steps necessary for

implementation of the Jute Packaging Materials (Compulsory Use in

Packaging Commodities) Act, 1987 or any other productive of the Central

Government and by order, direct any jute mill, to produce such quantities

of such specifications of jute textile as may be specified in the Order for

such implementation. Sub-Clause 2 of Clause 4 empowers the Jute

Commissioner to take all steps necessary for the implementation of Jute

Packaging Act, 1987 or any other directive of the Central Government and

may by order direct any emperor, processor, trader of raw jute and jute

textiles to mark or print or brand such quantities of such specification of

jute textiles as may be specified in the year for such implementation. Mr.

Chaudhury next takes me to an order dated 10th November, 2021 issued

by the Deputy Director (Marketing) in the office of the Jute Commissioner

issuing order in favour of the proforma respondent, Delta Jute Mill Ltd for

production and deliver stores of jute bags. The petitioner No.1 has been

running the mill and factory which was previously run by Delta Jute Mill

Ltd on the basis of a deed of lease. It is the case of the petitioner that on

the basis of the order dated 5th November, 2018 passed in WP No.22091

(W) of 2018 the Jute Commissioner passed an order in favour of Delta

Jute Mill Ltd. that the mill company is entitled to PCSO's during

pendency of proceedings and the department shall forthwith make

arrangement to grant PCSO in accordance with law after fulfillment of

requisite formalities which is practiced by the department in case of other

jute mills seeking PCSO, by the petitioner mill company.

6. Mr. Anirudha Chatterjee, learned Advocate on behalf of the Jute

Commissioner submits that the Assistant Director in the office of the Jute

Commissioner by a letter dated 19th June, 2023 requested the petitioner

No.2 to submit the following documents:- i) Statutory clearance relating to

pollution control issued by competent authority ii) number of workers

covered under provident fund and ESI duly certified by PF and ESI

Authorities (iii) no dues certificate from PF and ESI authorities. According

the Mr. Chatterjee the petitioner No.1 has not filed the statutory clearance

relating to pollution control. It is stated by the petitioner No.1 by a letter

dated 14th June, 2023 that 1577 workers are covered under Provident

Fund and ESI but they failed to produce any document in respect of the

said workers. They also failed to supply no dues certificate from PF and

ESI authorities.

7. In reply it is submitted by the learned Advocate for the petitioner

that the petitioner No.1 got the leasehold right to run the jute mill by the

erstwhile company namely Delta Jute Mill Ltd. by an indenture of lease

dated 9th January, 2023. After taking over the management of the

company in the month of January, 2023 the petitioner company is under

obligation to make payment of employer's share of Provident Fund

Contribution, ESI Contribution etc in respect of the workers who are

covered under PF and ESI only after the mill becoming operational on the

basis of the work order submitted by the Jute Commissioner. It is also

submitted by Mr. Chaudhury that the petitioner No.1 has already

obtained the pollution certificate which it will submit before the Jute

Commissioner.

8. Having heard the Counsels for the petitioners and the Jute

Commissioner, respondent No.1 herein this Court finds substance in the

submission made by Mr. Chaudhury that the petitioner no.1 company is

not in a position to submit no due certificate of PF and ESI contribution

at this stage because it took over the operation of the mill and factory

from proforma respondent No.4 on the basis of a deed of lease dated 9th

January, 2023. It is the obligation of the profroma respondent to submit

no due certificate of PF and ESI contribution of the workers of the said

mill till 31st December, 2022.

9. Undisputedly the petitioner No.1 did not get any PCSO from the

respondent No.1 till date. The factory remains without any operation for

failure on the part of the respondent no.1 from issuing PCSO in favour of

petitioner no.1. Considering the object and propose of Jute Packaging Act,

1987 and the Control Order of 2016 this Court find wide range of power

has been given to the Jute Commissioner for ensuring the survival of jute

industry. If a jute mill or factory is not supplied with ESCO entire

production of jute bags and jute textile will come to an end and this must

not be the object of a welfare state and beneficial legislation. The

petitioner no.1 company has submitted all the documents. It is submitted

by Mr. Chaudhury that they will submit statutory clearance relating to

pollution control before the Jute Commissioner. They have also informed

the numbers of workers covered under PF and ESI scheme. The obligation

of payment of PF and ESI dues comes only when a factory resumes it

work and the workmen are paid their wages. Work in jute industry can

only be commenced by on the strength on PSCO's issued by the Jute

Commissioner.

10. For the reasons stated above, the instant writ petition is disposed of

directing the respondent No.1 to dispose of petitioner's representation

dated 8th February, 2023 along with letters dated 26th May, 2023, 1st

June, 2023 and 19th June, 2023 without insisting upon no dues

certificate of PF and ESI contribution by the petitioner No.1.

11. Of course the Jute Commissioner is at liberty to fix a future date

after issuing PCSO in favour of petitioner No.1 and making the said mill

and factory operational, for submission of no dues certificate in respect of

PF and ESI contribution. With the above order the instant writ petition is

disposed of on contest. There shall however, be no order as to costs.

(Bibek Chaudhuri, J.)