Calcutta High Court (Appellete Side)
Piyal Ghosh vs State Of West Bengal & Ors on 10 September, 2024
10.09.24
Sws.M
WPA 22167 of 2024
Piyal Ghosh
Vs.
State of West Bengal & Ors.
Mr. Debabrata Saha Roy
Mr. Pingal Bhattacharyya
Mr. Subhankar Das
Mr. Neil Basu
Mr. Sankha Biswas
....for the petitioner
Mr. Suman Sengupta
Mr. Dwaipayan Basu Mallick
....for the State
Affidavit-of-service filed on behalf of the
petitioner is taken on record.
In pursuant to the approval accorded by the
Government of West Bengal, Good & Supply
Department, Director of Rationing, Government of
West Bengal vide vacancy declaration notice dated
01.03.2024 declared vacancy of wholesaler under the
Urban Public Distribution System (Maintenance &
Control) Order, 2013 at Beliaghata under Park Street
Sub-Area under Kolkata (North).
The present petitioner is an intending eligible
candidate having suitable godown and financial
stability meeting the specification as mentioned in the
vacancy declaration notice dated 1st March, 2024.
Mr. Saha Roy, learned counsel appearing on
behalf of the petitioner submits that the petitioner has
challenged the vacancy notification on the ground
that after promulgation of National Food Security Act,
2013 and targeted Public Distribution (Control Order,
2015) the Control Order 2013, on the basis of which
the vacancy has been declared has become
redundant. Mr. Saha Roy further submits that the
issue regarding the merit of Control Order, 2013 is
pending before the Hon'ble Division Bench in a batch
of appeals. Hon'ble Division Bench has also passed an
interim order in the batch of appeals on 6 th August,
2024. By the strength of that order, this Court also
has issued interim order in several writ petitions. He
further submits that the same direction may be
passed so that the authority concerned may be
proceeded with the selection process but they should
not grant the licence finally till the disposal of the writ
petition.
Learned counsel appearing on behalf of the
State raised strong objection and submits that only
for the reasons the State has not preferred any appeal
against any of the interim order or State has not filed
any application for vacating the interim order that
does not tantamount that there is an estopple against
the law. He submits that an appeal has been preferred
before the Hon'ble Division Bench against the order of
a Co-ordinate Bench in a batch of writ petitions where
the Co-ordinate Bench has categorically opined that
since the National Food Security Act, 2013 was not
fully implemented in the State of West Bengal, thus
the West Bengal Public Distribution System
(Maintenance & Control) Order, 2013 is not
redundant. He further submits that the learned Co-
ordinate Bench has decided the issue in favour of the
State against which the appeal has been preferred.
The Division Bench in the appeal has not set aside the
finding of the learned Co-ordinate Bench, thus the
finding and the law has already been declared by the
Co-ordinate Bench. He submits that merely an
interim order passed by the Division Bench does not
set aside the law declared by the learned Single
Bench. Moreover, he submits that similar issue was
involved before a Division Bench of this Court wherein
an order of stay has been passed by the Hon'ble
Supreme Court in SLP but the law has been
specifically declared by the Division Bench in Pijush
Kanti Chowdhury vs. State of West Bengal & Ors.,
reported in 2007 SCC OnLine Cal 267.
Learned counsel for the State further argued
that the present appellant has not made party before
the learned Division Bench, so that interim order
passed by the learned Division Bench is an order in-
personam not a judgment-in-rem. Thus, the
observation of the learned Division Bench which was
passed in respect of some of the appellants is not
binding upon this Court. Moreover, the issue was not
decided by the Hon'ble Division Bench, thus this
Court is not binding the follow the direction of
Division Bench as passed in the batch of appeals.
It is the contention of the learned counsel for
the State that the WBPDS (M&C) Order, 2013 is not at
all declared redundant by any of the Court. Thus the
State authority may proceed with the selection
process for new vacancy.
Mr. Saha Roy, learned counsel appearing on
behalf of the petitioner submits in reply, that this
Court has already decided a number of writ petitions
considering the objections of the State authority. He
further submits that the issue which was decided by
learned Co-ordinate Bench of this Court is on the
basis of wrong submission made on behalf of the
State. He specifically pointed out that the State has
opted different view regarding the implementation of
National Food Security Act, 2013 in State before the
Hon'ble Supreme Court. The issue was taken care of
by the learned Division Bench and on the basis of the
said prevaricating stands of the State, the interim
order was passed. Mr. Saha Roy further argued that if
this Court allowed the State to continue the
proceeding and appoint a person under the strength
of the Control Order, 2013, the order of Hon'ble
Division Bench would be violated. He further submits
that the observation of the Hon'ble Division Bench in
Pijush Kanti Chowdhury is of different perspective,
so it cannot be applicable in the present case.
Heard the learned counsel.
Perused the observation of the Hon'ble Division
Bench as well as the instant writ petition. It is true
that this Court has decided several writ petitions and
passed interim orders following the direction of
Hon'ble Division Bench in MAT 1543 of 2024. It is the
submission of the State authority that the issue of the
law whether the Control Order, 2013 became
redundant or not after the promulgation of National
Food Security Act, 2013 has been specifically decided
by a Coordinate Bench of this Court in a batch of writ
petitions. It further appears that against the order of
the Co-ordinate Bench appeals have been preferred
before the Division Bench. The Division Bench has
admitted the appeal and passed an interim order. The
interim order is specifically directed the State
authority not to delink any of the ration card holders
from any of the dealers till further orders. The interim
order was extended.
Let me consider whether the stand of the State
as argued before this Court is taken to be correct
what would be its implication in the case itself. If the
State is allowed to continue the selection process up
to its final stage and allowed a new vacancy to be
commissioned in favour of any individual, the State
must have acted upon the provision laid down under
the Control Order, 2013. Afterwords if it appears that
the Control Order, 2013 become redundant, by order
of the Division Bench, the entire vacancy as
commissioned by the State would be automatically
cancelled. If the vacancy was allowed to be continued
the multiplicity of proceeding would crop up and the
person in favour of whom the vacancy has been
declared must have approached before this Court
seeking reliefs.
In considering the observation of the Division
Bench of this Court in Pijush Kanti Chowdhury it is
necessary to set out the observation of the Division
Bench.
"13. Therefore, the effect of the order
of stay in a pending appeal before the Apex
Court does not amount to 'any declaration
of law' but is only binding upon the parties
to the said proceedings and at the same
time, such interim order does not destroy
the binding effect of the judgment of the
High Court as a precedent because while
granting the interim order, the Apex Court
had no occasion to lay down any
proposition of law inconsistent with the one
declared by the High Court which is
impugned.
14. We, therefore, find substance in
the contention of Dr. Mondal that a Division
Bench of this Court having declared the
provision contained in the West Bengal
Land Reforms Act regarding vesting without
making any lawful provision for
compensation for such vesting in the Act as
ultra vires the Constitution of India, the
State cannot be permitted to proceed with
the said provision of vesting against the
petitioners as adequate provision is not
made in the Statute for compensation."
The Hon'ble Division Bench in Pijush Kanti
Chowdhury has specifically observed that the
Division Bench of this Court has declared a law as
ultra vires to the Constitution of India. The said order
was stayed by the Hon'ble Supreme Court in SLP. It
has been observed by the Hon'ble Division Bench that
at the time of granting the interim order, the Apex
Court had no occasion to lay down any proposition of
law inconsistent with the one declared by the High
Court which is impugned. In considering the direction
of the Hon'ble Division Bench in Pijush Kanti
Chowdhury by matching the present scenario of this
case it appears to me that if the stand of the State as
taken before this Court is allowed then the
multiplicity of proceedings would be cropped up and
sufferings of the citizens would be increased. Nothing
has been demonstrated before this Court how the
general public at large has suffered or whether
distribution of PDS articles to the public has
hampered due to the interim order passed by this
Court in other writ petitions. In my view the issue is
sub judice, hence to maintain the judicial discipline,
the directions of Hon'ble Division Bench has to be
followed. Moreover, this Court has observed in various
writ petitions and passed an interim order following
the direction of the Hon'ble Division Bench. At this
juncture in my view the observation of the Hon'ble
Apex Court in Pijush Kanti Chowdhury is not
properly applicable in the present facts scenario of
this case.
Under the above observation I am of the view
that the finding of this Court in several writ petitions
in issuing interim order to allowing the State
authority to precede the selection but not to grant the
licence in favour of any individual till the disposal of
the batch of appeals pending before the learned
Division Bench appears to me justified. Under the
above observation the argument as advanced by the
learned counsel appearing on behalf of the State
authority is not appears to me appropriate. Under the
above observation I think it necessary to pass a
similar interim order as has been ordered by this
Court on the earlier occasions.
The State authority is directed to submit a
report in the form of Affidavit within four weeks from
date, exception thereto, if any, within two weeks
thereof.
Considering the situation the State authority
may proceed with the selection process but so far as
the grant of licence, the same shall not be issued till
the disposal of the batch of appeals pending before
the learned Division Bench being MAT 1543 of 2024.
Let the matter go out of the list.
Parties are at liberty to mention.
(Subhendu Samanta, J.)
