30.08.2024
SL No.1
Court No.24
Ali
WPA 21825 of 2024
Md. Alauddin Sk. & Ors.
Versus
The State of West Bengal & Ors.
Mr. Syed E. Huda,
Sk. Aptabuddin,
Mr. Himadri Roy,
Ms. Nabeela Akbar
…for the petitioners.
Mr.Suman Sengupta,
Ms. Amrita Panja Mallick
…..for the State.
The present petitioners are the licence-
holders of a Fair Price Shop situated at Village-
Sahajadpur, under P.S. Raghunathganj, District-
Murshidabad.
The checkered history of the case is that on
the earlier occasion the ration card holder of two
Villages, namely, Charbajitpur and Charshibpur
under P.S. Raghunathganj were tagged with the
present petitioner’s Fair Price Shop.
The present petitioner suffers immense
difficulty due to distribution of food grains which he
has to distribute the articles after carrying them by
crossing a river to supply the villagers of
Charbajitpur under the scheme of “Duare Ration”.
By suffering such huge expenses of distributing the
food grains, he filed a writ petition being No. 18648
of 2024 for seeking instructions upon the concerned
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authority so that the ration card holders of
Charbajitpur may be de-tagged with nearby FPS
dealers from his Fair Price Shop. In the said writ
petition one direction was passed upon the authority
concerned to submit a report.
In the meantime, the concerned authority
had suddenly inspected the Fair Price Shop of the
petitioners on 22nd August, 2024 and on the next
day i.e. on 23rd August, 2024 has issued a show-
cause cum suspension Notice for non-compliance of
provisions of licence and Control Order. In such
Show-cause notice the irregularities in the FPS as
observed during the inspection were noted down
under nine (9) heads.
By such Show-cause Notice the petitioner
was directed to Show-cause within seven days from
receipt of the said notice as to why disciplinary
action shall not be taken against him and licence of
the petitioner was put under suspension. On the
same day, the FPS shop of the petitioner was tagged
with nearby one FPS dealer of one Ali Bordy Sk. It is
the case of the petitioner that the act of the
concerned authority is mala fide. As this Court has
directed the authority to submit a report they have
issued the purported Show-cause notice on some
flimsy ground only to teach a lesson to the
petitioner.
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Mr. Huda submits that the order of
suspension is illegal according to the provisions of
the Control Order. Moreover, the allegation made in
the letter of suspension cum Show-cause Notice is
not commensurate to the punishment to issue an
order of suspension.
He further submits that there is only
allegation for non-providing “Duare Ration” to some
of the beneficiaries but they have written to the
concerned authority to the effect that they usually
receive the slip and they have no objection against
the present petitioner.
He further submits that by virtue of the
provisions of the act itself regarding the schedule of
Penalties, the Offences regarding contravention as
stated in the Show-cause Notice is not to warrant
immediate suspension.
He further submits that this Court on the
earlier occasion in WPA 16949 of 2024 has also
stalled the order of show-cause cum the suspension
notice of the concerned authority on the ground that
the authority cannot put the licence under
suspension without hearing of the licence holders.
Mr. Suman Sengupta, learned counsel
appearing on behalf of the State authority submits
that the impugned memo of show-cause Notice
issued by the Sub-Divisional Controller, Food &
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Supplies concerned is according to the provisions of
law.
During inspection the authority has noted
several discrepancies in the FPS. The said
inspection memo has properly clarified regarding the
discrepancies. In pursuance of such inspection
memo the show-cause cum suspension Notice was
issued.
He further pointed out that the present
petitioner was given an opportunity of being heard.
Moreover, there are some provisions of filing appeals
against the order passed by the concerned Sub-
Divisional Controller, Food & Supply. The Control
Order itself provided the statutory appeal.
He further pointed out that according to the
provision of chapter IX, Sub-clause 2 of Clause 45 of
the said Control Order, if a Dealer found to be guilty
from the offence which was committed earlier on
second time or third time, then the licence, may be
put under immediate suspension.
Mr. Sengupta also relied upon the provisions
of Sections 56 and 57 which stated about the
statutory appeal against the order of the concerned
authority. He submits that in this case, there are
two statutory Appellate Authority; first appeal is to
be filed before the District Controller and second
appeal before the Director. It is the argument of Mr.
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Sengupta that by virtue of the decision of Hon’ble
Apex Court in Titaghur Jute Mill Vs. State of
West Bengal as well as J. Jayalalithaa & Ors. Vs.
State of Karnataka & Ors., when there is a
statutory provision of filing appeals against the
order of the authority, the writ Court should not
interfere in merit regarding the order passed by the
concerned authority. He further submits that the
statute itself provides the provision of appeal. Thus,
the present petitioner has every opportunity to
agitate his grievances before the statutory Appellate
Authority.
Mr. Huda in refuting the contention of Mr.
Sengupta, argued that the statutory authority has
acted illegally and in- biasedness to put the licence
of the present petitioner under suspension. He
further argued that the writ Court has ever
opportunity to interfere with any order passed by
the concerned authority if it appears to be
unjustified improper and without jurisdiction.
He further argued that the provision of
schedule ‘C’ of the Control Order regarding schedule
of punishment disclosed about the punishment of
immediate suspension of licence only when the
offence was committed for the third time. Penalty
for the first offences of penalty for the second
offences is only provided imposition of fine.
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Mr. Huda also clarified that in dealing with
Sub-clause 2 of Clause 45, along with the schedule-
‘C’ of the said Control Order, the interpretation
should be harmonious. In such way the punishment
awarded upon the present petitioner by putting the
licence under suspension is illegal in the eye of law
and he prayed for necessary order to quash the said
order of suspension.
Heard the learned advocates; perused the
entire facts also perused the “Suspension cum Show
cause Notice”. It appears that the present petitioner
was earlier found guilty of same offences wherein he
was given punishment of payment of fine. However,
the mala fide by the respondent is pleaded in the
instant writ petition. Let me consider whether
actually the concerned authority has acted mala fide
in passing the impugned “Suspension cum show
cause Notice” against the present petitioner. It is the
only case of the present petitioner that the authority
is ill motivated and to justify their personal
vengeance against the present petitioner while this
Court has asked for submit of a report in the writ, a
petition being No. 18648 of 2024 the surprise
inspection was carried out.
It appears to me that, in writ petition No.
18648 of 2024 the concerned authority has already
submitted a report. The report of the authority does
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not contain about any of the fact of mala fide as
raised in the instant writ petition. Moreover, the
concerned authority has every right and authority to
make a surprise inspection over any FPS. It is true
that the authority concerned during inspection has
found some discrepancies in the FPS. It is also
correct that the discrepancy was reflected in the
Show-cause cum suspension memo. The case as
dealt with by this Court in WPA 16949 of 2024 is
not similar to that of this case. In the earlier case
(WPA 16949 of 2024), the authority concerned was
issued the Show cause cum suspension on the
previous occasion and by their own accord suo moto
they have withdrawn the said suspension cum show
case Notice. But in the present case, the suspension
and Show cause Notice was issued upon the
petitioner on the earlier occasion wherein he was
found guilty for some contravention and some
punishment was imposed in terms of fine.
In perusing the provision of Sub-clause 2 of
Clause 45 of the said Control Order, it appears that
the authority may pass an order by putting the
licence under suspension if they found that the
dealer have contravened the provisions for second or
third time, whereas the schedule-‘C’ of the said
Control Order stated about the punishment of
suspension can immediately effected only when the
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contravention was made for third time. To assess
the true purport and meaning of the said provision
Sub-section 2 of Section 45 is required to be set out
below:
“(2) If a Dealer, who is found guilty of an
offence committed under clause (1) is again
found to have contravened the same provisions
for the second time or third time, the licensing
authority may render his license under
suspension immediately and after giving him an
opportunity of being heard and for reasons to be
recorded in writing, impose punishment of
either fine or reduction of the volume of
business according to t he gravity of the offence
or termination of his license as stipulated in
Part I of Schedule C”.
Sub-Section 2 of Section 45 specifically dealt
with the provisions when the contravention was
made by the licensee for second time or third time. It
has been stated that the licence may put under
immediate suspension but the opportunity has
given to the licensee of being heard and after
hearing if it appears that the imposition of
punishment is either fine or reduction of valuable
business instead of termination of licence, the
authority is at liberty to pass such order.
In the present case, the licence of the
present petitioner was put under suspension and he
was given seven days Show cause Notice to file his
written explanation. Today is the last day of
submission of written explanation.
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This Court is in dark whether the offence
was committed by the petitioner for the third time or
not.
Considering the true nature of offence as
demonstrated in the Show cause Notice it appears to
me that the punishment as disclosed in the
suspension cum Show cause Notice, prima facie, not
commensurate with the offences and charges as
made 1 to 9 paragraph of such Show cause Notice.
Moreover, the issue can only be dealt with by the
concerned authority not by this Court. Thus, in my
view, the present petitioner has every opportunity to
agitate his grievances before the authority
concerned.
Thus, at this juncture, I find no justification
to entertain the merit of this case as regard to the
plea of mala fide and personal vengeance by the
concerned authority against the present petitioner .
The concerned authority has acted upon the
inspection memo and issued the Show cause cum
suspension Notice. This writ Court cannot entertain
the merit of alleged offences and the alleged
discrepancies as dealt with by the concerned
authority.
However, I also make it clear, if the
concerned authority found to be justified that the
punishment is not commensurate to the offences,
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then the licence of the present petitioner may be
restored according to the provisions of law.
Under the above observation, the application
being WPA 21825 of 2024 is disposed of.
I find no justification to pass any favourable
order in favour of the present petitioner. The present
petitioner may approach the concerned authority
with his written explanation within 10 days from the
date of passing of this order; on such explanation
the concerned authority shall dispose of the same
according to the provisions of law, within two weeks
thereafter by providing a reasonable opportunity of
being heard to the petitioner.
As affidavits are not exchanged between the
parties, the allegation made in the writ petition shall
deem to have been not admitted.
Parties to act upon the server copy and
urgent certified copy of this order be provided on
usual terms and conditions.
(Subhendu Samanta, J.)