VIVEKANANDA ENTERPRISES Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the writ petition being W.P. No. 20283(W) of 2006 M/s. Vivekananda Enterprises, a partnership firm, the petitioner No. 1 and its managing partner, the petitioner No.2, have challenged the order dated 1st August, 2003 passed by the District Magistrate, Paschim Medinipur, the respondent No. 3 and the order dated 28th July, 2006 passed by the Commissioner, Food, the respondent No.1 on the grounds mentioned in the petition. The matter was moved on 2nd April, 2007 when after hearing the learned Advocates for the parties an interim order was passed restraining the respondents from filling up the vacancy created due to the cancellation of the petitioner's modified ration distributorship licence till 20th February, 2007 which was subsequently extended. Directions were also issued for filing of affidavits. Affidavits have since been filed and are on record.

(2.) The grievance of the writ petitioners is that the authorities had all along proceeded with a closed, biased and pre -determined mind which is amply reflected in the order dated 28th July, 2006 passed by the respondent No. 1, wherein the order passed on 1st August, 2003 passed by the respondent No. 3 had merged. Submission was that the show cause notice (for short "the notice") dated 17th March, 2003 was not specific,as it does not specify the records to be relied on. Moreover, as evident from the language of the notice, the fate of the petitioner was already sealed. As there was no notice of termination of agreement after giving one month's notice in writing, it was under Clause 12 and not Clause 13 of the agreement dated 14th March, 2002. According to the petitioner, under the agreement, the respondent No. 3 before passing the order should have sought the opinion of the Controller. THE respondent No. 3 could not be the Judge of his own cause since he had himself issued the notice. As there was absence of the opinion of the Controller; the respondent No. 3 acted suo motu and lacked jurisdiction. Moreover, while passing the order the respondent No. 3 did not consider at all the reply dated 2nd May, 2003 to the notice. So far as the order passed by the respondent No.1 is concerned, submission was it was passed perfunctorily. THE representatives of the petitioners were asked to summarily make their submission. Submission was that the respondent No. 1 misdirected himself since the impugned order was passed relying on paragraph 14(2) of West Bengal Rice and Paddy (Licensing and Control) Order, 1967, ("the 1967 order" for short) repealed in 1997, and the order passed in W.P. No. 349 (W) of 2001 and neither the show-cause notice nor the order of the respondent No. 3 mentioned the same. It was submitted that the allegation regarding misrepresentation or suppression of material facts was not correct since the affidavit in opposition (for short "the affidavit") affirmed on behalf of the State respondent is silent in that regard. Moreover, in the said affidavit there is no specific or general denial of the facts pleaded or stated in the petition. Submission was, as evident from the annexures including the agreements of 1982 and 2002 entered into by the petitioners and the State, the authorities all along had accepted the petitioner No.2 as the managing partner of the petitioner No. 1, a concept not alien to provisions of the Partnership Act, 1932 (in short 'the Act'). Referring to the registered deed of partnership dated 3rd August, 1981, a copy of which was filed during hearing, it was submitted that the petitioner No.1- the firm - and the petitioner No. 2 have the locus standi to move the petition. With regard to the defect in the affidavit of the petition, submission was that the mistake was technical and may be ignored for the ends of Justice.

(3.) Question is whether a mistake in the affidavit would rob the petitioners of their rights guaranteed under Article 226 of the Constitution of India. If the answer is in the negative, the question is have the petitioners made out a case for issuance of appropriate orders. If not, whether orders impugned still pass the test of scrutiny.