Dipta Kumar China & Anr vs State Of West Bengal & Ors
2023 Latest Caselaw 2114 Cal

30.03.2023

Court No.12 Suvayan/ Sourav MAT 335 of 2023 With CAN 1 of 2023

Dipta Kumar China & Anr.

Vs.

State of West Bengal & Ors.

Mr. Ashok Kr. Banerjee, Sr. Adv.

Mr. Ramesh Dhara Ms. Mousumi Choudhury ...for the appellants.

Mr. Susovan Sengupta Mr. Subir Pal ...for the State.

Heard Mr. Ashok Kr. Banerjee, learned Senior

Counsel appearing for the appellants and Mr. Susovan

Sengupta, learned Counsel for the State.

The appellant herein was appointed as a

wholesale distributor for 24 Parganas under 2013

Control Order for rural area. He was, thereafter,

appointed as wholesale distributor for urban area of

Garden Reach and New Alipore under 2013, Control

Order for urban area. While he was continuing as

such vacancy in respect of New Alipore and Garden

Reach area was advertised.

Challenging that order, the appellant preferred

the instant writ petition. He, however, failed to get

relief from Hon'ble Single Bench. Hence this appeal.

Before Hon'ble Single Bench, it was the

contention of the appellant that after coming into

force of the Central Control Order of 2015, the

2013, State Control Order both for urban area and

rural area have lost its effect as the same were

promulgated under the 2001, Central Control Order

and said 2001, Central Control Order was repealed by

the 2015, Central Control Order. It was further

contended before the Hon'ble Single Bench that the

appellant having spent huge amount and having

employed more than 75 persons to carry out the

purpose of the Control Order, the vacancy should not

have been advertised in absence of any allegation of

malfeasance and misfeasance against him.

The stand of the state before the Hon'ble Single

Bench was that the appellant was given temporary

charge of Garden Reach area and New Alipore area

and it was not a permanent licence.

While passing the impugned order, Hon'ble

Single Bench relied on the decision of this Court in

Paragraph 54 in the case of Sekh Abdul Majed vs.

State of West Bengal & Ors. reported in 2022 SCC

Online Cal. 3030 on the aspect of continuance of the

effect of 2013, Control Order promulgated by the

State. The aforesaid decision of this Court is the

subject matter of appeal before the Hon'ble Supreme

Court now.

While granting special leave to appeal, Hon'ble

Supreme Court has ordered thus:

"In the meanwhile, status quo as was prevailing before the

pronouncement of the impugned judgment dated 28.09.2022 shall be maintained and will continue."

In view of such position, Mr. Banerjee, learned

Senior Counsel for the appellants submits that when

the judgment passed by this court is subject matter of

appeal before the Hon'ble Supreme Court and status

quo has been granted, it was not justified on the part

of Hon'ble Single Bench to rely on the observation

made in Paragraph 54 of the said judgment.

With greatest regard to Hon'ble Supreme Court

and with greatest humility, we would like to say here

that according to our understanding Hon'ble Supreme

Court has not stayed the operation of the judgment

but has allowed continuance of the scheme that was

the subject matter of challenge in the appeal giving

rise to the judgment under challenge before the

Hon'ble Supreme Court.

Mr. Banerjee, learned Senior Counsel for the

appellants at this juncture submits that the appellant

is being supplied with P.D.S. items for distribution

even on date and no step has yet been taken for filling

up the vacancy advertised.

Mr. Sengupta, learned Counsel for the State on

the other hand submits that the licence given to the

appellant in respect of Garden Reach and New Alipore

was just a temporary arrangement and the appellant

cannot claim continuance of the licence as a matter of

right. It is further submitted by him that 2013,

Control Order is still in force in view of Section 3 read

with Section 5 of the Essential Commodities Act, 1955

and relevant G.S.R. of 1978. It is further submitted by

Mr. Sengupta that a lincencee cannot claim lincece in

perpetuity and the State authority for benefit of the

beneficiaries may divide, bifurcate and create new

distributorship and wholesale dealership in respect of

any area. Lastly, it is submitted by him that there is

no arbitrariness so far as declaration of vacancy is

concerned.

Taking into consideration the submissions

advanced by learned Counsel for the parties, we are of

the view that, there is clamour for legality of the

impugned action in view of coming into force of the

Central Control Order, 2015 preceded by National

Food Security Act, 2013. The appellant being stated to

be supplied with P.D.S. items as a wholesaler as on

date, his discontinuance may cause irreparable loss to

him. Further the M.R. distributor tagged to the

appellant as wholesaler may by effected prejudicing

greatly the public interest at large in case of abrupt

discontinuance of the wholesale dealership of the

appellant.

Taking into consideration all such facts, we feel

it just and proper to direct the appropriate State to

continue supply of P.D.S. materials to the appellant as

the wholesale dealer of Garden Reach and New Alipore

area till the next date but the State may proceed with

the process of filling up the vacancy advertised but no

final decision shall be taken without leave of this

Court.

Accordingly, the interim application being CAN 1

of 2023 is disposed of.

List this appeal being MAT 335 of 2023 on April

27, 2023 for hearing and final disposal.

The preparation of paper book is dispensed with.

We propose to dispose of the appeal on the basis of

documents supplied along with stay petition.

Mr. Sengupta, learned Counsel for the State, if

so advised may file affidavit-in-opposition in the

meantime. As Counsels for both the parties have

already appeared there is no need of further notice.

No adjournment shall be granted on the date fixed

except on health condition.

(Chitta Ranjan Dash, J.)

(Partha Sarathi Sen, J.)