Calcutta High Court (Appellete Side)
Mangal Sarkar vs Union Of India & Ors on 8 October, 2024
6, 7 & 8
08.10.2024
Court No. 25
Tudu (p.a)
WPA 23452 of 2024
Mangal Sarkar
Vs.
Union of India & Ors.
With
WPA 23453 of 2024
Sujit Sarkar
Vs.
Union of India & Ors.
With
WPA 23609 of 2024
Jabed Sk. & Anr.
Vs.
Union of India & Ors.
Mr. Dilip Kumar Samanta,
Mr. Biswapriya Samanta,
... for the Petitioner
Mr. Sunil Kumar Singhania.
... for the Respondent No.1
Mr. N.I. Khan,
Mr. Amlan Mukherje,
Mr. Abhijit Mandal.
Mr. Pantu Deb Roy, Ld. AGP.,
Mr. Pannalal Bandyopadhyay.
... for the State Respondent
(In WPA 23452 of 2024
&
WPA 23609 of 2024)
Mr. Amal Kumar Sen, Ld. AGP.,
Mr. Reshma Chatterjee.
...for the State Respondent
(In WPA 23453 of 2024)
In these cases the writ petitioners have
challenged the order of the Appellate authority dated
September 6, 2024.
Mr. Samanta, appearing for the petitioners have
submitted that the petitioners are the "Associate
Dealer" of the Parent Manufacturer and thus are
entitled to obtain a trade certificate. From the
records he would show that the petitioners have
applied duly by fulfilling statutory requirements, by
specially referring to the statutory Form No. 16A,
that is, the "Dealership Authorization Certificate".
Therefore according to Mr. Samanta, the
petitioners would be entitled for a trade certificate as
per the statutory provisions. In such view of the
fact, cancellation of the trade certificate, earlier
granted to them, by dint of the impugned order dated
September 6, 2024 is illegal and unsustainable, Mr.
Samanta says.
Mr. Samanta has further pointed out to the fact
that in issuing the impugned order the respondent
authority has relied on the objections raised by one
existing trade certificate holder/dealer, for which the
same would have no jurisdiction under the law.
Such objection would be unsustainable in the eye of
law. In support of such submission Mr. Samanta
would rely on the following two judgments (i) The
Nagar Rice & Flour Mills & Ors. reported in (1970) 1
SCC 575, (ii) Jasbhai Motibhai Desai vs. Roshan
Kumar, Haji Bashir Ahmed & Ors. reported in (1976)
1 SCC 671.
So far as the term "dealer" is concerned Mr.
Samanta would rely on the two Co-ordinate Benches
decisions of this Court dated November 9, 2021 and
January 25, 2022, in writ petitions No. WPA 16302
of 2021 and WPA 13 of 2022 respectively. He would
also rely on the judgment of the Kerala High Court
dated March 2, 2020, Biju K.K. vs. Transport
Commissioner Trans Towers & Ors. in WP (C) No.
13689 OF 2019.
Therefore Mr. Samanta sums up that the trade
certificate dated October 12, 2023, issued to his
client would be in confirmity with the law and
undeniable to the petitioners. In such view of the
fact, he says, the impugned order dated September
6, 2024 would be liable to be set aside.
As an interim measure, Mr. Samanta would ask
for an order of stay of operation of the impugned
order dated September 6, 2024.
The private respondent/objector is represented
by Mr. Khan. Mr. Khan would submit that the
petitioner's contentions and prayer is unsustainable.
He would say by referring to the various provisions of
the Central Motor Vehicles Rules, 1989 that an
authorized dealer and not associate or sub-dealer
would be eligible for grant of trade certificate.
Therefore according to the private respondent,
petitioners' prayer would not be even maintainable,
them being the "Associate Dealer". Mr. Khan would
support the impugned order that the Appellate
authority after due consideration of the relevant legal
provisions and the concerned facts, has directed for
cancellation of the trade certificate, issued to the
petitioners.
Mr. Deb Roy has appeared for the State
respondent in WPA No. 23452 of 2024 and WPA No.
23609 of 2024 and Mr. Sen in WPA No. 23453 of
2024. Mr. Sen has submitted that in this case the
Court would be required to interpret as to if an
"Associate Dealer" can be understood under the law
to be an "Authorised Dealer" or "Dealer" or if the
benefit allowable to a dealer would similarly be
extendable to an Associate Dealer or not.
Considering the entire facts and circumstances
and the relevant legal provisions referred to by the
respective ld. lawyers and also the judgments/orders
referred to before this Court, the Court is of the
considered opinion that this matter can properly be
adjudicated only upon affidavits being filed by the
parties.
Therefore it is directed that the respondents file
affidavit-in-opposition within a period of three weeks
from the date of reopening. An affidavit-in-reply may
be filed within one week thereafter by the petitioners.
This matter so appear in the list under the heading
"Adjourned Hearing" on December 6, 2024.
It is directed that the impugned order dated
September 6, 2024, shall not be given effect/further
effect to, till December 31, 2024.
(Rai Chattopadhyay, J.)
