DIRECTOR OF RATIONING Vs. BASUDEO GUPTA

JUDGEMENT

(1.) The facts in this case are shortly as follows: In exercise of powers conferred under Section 8 of the Essential Commodities Act, 1966 read with the order of the Government of India No. GSR 888 dated 28th June 1961, the Government of West Bengal promulgated the West Bengal Sugar Dealers Licensing Order, 1963 (hereinafter referred to as the "licensing order") which came into force on and from the 15th January 1963. Under the said licensing order, a "retailer" means a person engaged in the business of purchase, sale or storage for sale of sugar in quantities exceeding 60 quintals at any one time, but does not include an industrial undertaking which is engaged in the manufacture and production of sugar and which is registered or licensed under the Industries (Development and Regulation) Act, 1951 (Act 65 of 1951). The "licensing authority" means an officer appointed by the State Government to exercise powers and perform the duties of a licensing authority in respect of such areas as may be specified. Under para 3 of the said Order, no person it permitted to carry on business as a retailer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority.

(2.) It will thus appear that the licensing order merely controls the distribution of sugar by confining such distribution to licensed dealers. It is not analogous, for example, to the Steel Control Order where the entire distribution of steel is brought under the superintendence of the Steel Controller acting through controlled stockists. All that it provides for, is that a dealer wishing to deal in sugar in quantities exceeding 50 quintals at any one time, should take out a licence. There is no provision in the said licensing order for Government to supply sugar to a dealer. Next we come to a Central order known as the (Sugar Control) Order, 1963 which was originally enacted under the Defence of India Rules, 1961 and was reenacted in 1966 under the Essential Commodities Act, and is hereinafter referred to as the "control order". Under the said control order, "a recognised dealer" means a person carrying on the business of purchasing, selling or distributing sugar and licensed under the order relating to the licensing of sugar dealers for the time being in force in a State or Union territory. A "producer" means a person carrying on the business of manufacturing sugar. Under para 8 of the control order, no producer shall sell or agree to sell or otherwise dispose of, sugar, or deliver or agree to deliver sugar from the appointed godown of the factory in which it ii produced, except under and in accordance with a direction issued in writing by the Central Government or the Chief Director. Para 4 grants the Central Government or the Chief Director the power to issue a general order or special order to any producer or recognised dealer containing directions regarding production, description of stock, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of sugar as he may think fit. Under para 5, the Central Government or the Chief Director has got the power to regulate the movement of sugar. Under para 6 It has power to fix the price. Under para 7, the Central Government or the Chief Director may, from time to time, by order, allot quotas of sugar to any specified State or area. Under para 8, the Central Government or the Chief Director may, from time to time by order issue directions to any producer or recognised dealer to supply sugar of such type or grade and in such quantities as it may think fit to such persons, organisations or State Governments as may be specified. The Central Government has also enacted the Sugar (Movement Control) Order, 1959 which lays down that no person shall take or cause to be taken sugar to any State or any part of a State except under permit or directions issued by the Central Government. We now come to the facts of the present case. It will be better to set out here the relevant allegations in the petition which show the exact position of the respondent No. 1 as a dealer. I set out below paragraphs 6, 7 and 8 of the petition.

(3.) The stand taken was that the said respondent had no legal right to obtain delivery orders for supply of ration shops or the particular delivery order complained of and delivery orders were being issued to selected dealers who were carrying on their business effectively in, the interest of the general consumers. As the respondent No. 1 was not working satisfactorily, the delivery order for the particular week complained of, was not given to him. In answer, the said respondent in his affidavit-in-reply stated as follows in paragraph 9. He said that on 2nd of August, 1966 the office of the Rationing Officer. Howrah (North) handed over a copy of the delivery order No. 07358 addressed to Bhartiya Sugar Industries Private Ltd. directing it to deliver 100 bags of sugar to the appellant. The delivery order was valid for 10 days from the date of issue. On 4th of August, 1965 the said respondent deposited with Bhartiya Sugar Indutries Private Limited a sum of Rs. 12,815 being the price of 100 bags of sugar covered by the said order. On 7th August, 1965 the transport agent of the supplier delivered the sugar at the said respondent's shop and the said respondent thereupon started to deliver sugar to the retailers. These facts have beep stated to show that the said respondent had not committed any default. He takes a stand that he had a legal right to claim issue of the delivery order. On these facts, Mr. Mukherjee appearing on behalf of the respondents has argued three points. The first point is that the withholding of the delivery order was mala fide, secondly that there was discrimination violative of the Article 14 of the Constitution and thirdly, that the act of the authorities in withholding the delivery order amounted to suspension of the said respondent's licence and this was done without any notice to him to show cause and there was thus a violation of the law and rules of natural justice. It appears that in the court below, the last point was found to be of substance and the application succeeded. In other words, the learned Judge in the court below found that in effect the withholding of the delivery order amounted to a suspension of the licence of the respondent No. 1 and this was done without giving him any opportunity to show cause and the application was entitled to succeed. I shall now proceed to deal with these points. One thing which has been firmly established, is that an allegation of mala fides must not be made in a vague and general way, but all facts must be pleaded to show the mala fides. Whether it is a judicial act or an administrative act, mala fides go to the root and destroy the efficacy of either a judicial order or an administrative action. Therefore, an allegation of mala fides cannot be treated lightly. See C.S. Rowjee v. State of Andhra Pradesh, Let us see what are the allegations of mala fides in this case. In paragraph 15 of the petition, it is stated that the said respondent's son Bejoy Gupta is the owner of F. P. S. 2719 at 72, Harimohan Bose Road, Howrah. He is an appointed retailer under the West Bengal Rationing Order, 1964. It is stated that the Deputy Controller of Rationing tried to delink certain ration documents i.e., family identity cards from F. P. S. 2719 and transferred them to another ration shop. Thereupon, the said Bejoy Kumar Gupta made an application to this Court in the writ jurisdiction and a Rule was issued on the 20th August 1965. This application is still pending. In paragraph 16 it is said that respondents Nos. 1, 2, 3 and 6 have been annoyed with the appellant and his family on account of the matter and that is why the said respondents have mala fides and animus against the respondent No. 1. In my opinion, these allegations do not amount to allegation of mala fides, sufficient to support an application in the writ jurisdiction. The withholding was on or about 23rd of August 1965 and there is nothing to show that by that time the Rule issued by this Court in matter No. 279 of 1966 was served upon anybody or that the appellant or the other respondents came to know about the same. There is no allegation to that effect in the petition. Apart from this, the point seems to be covered by a Supreme Court decision Kishan Chand Arora v. Commissioner of Police, Calcutta. That was a case under the Calcutta Police Act. Section 39 of the Calcutta Police Act 1866 empowers the Commissioner to grant licences to the keeper of eating houses. The Commissioner of Police, Calcutta refused to grant a licence to the applicant and between them there were previous litigations. One of the points taken was that the Commissioner had been annoyed with him because he went to the High Court by means of a writ applica tion and that is why licence was not being given and this was said to be mala fide. In turning down this complaint, Wanchoo, J. said as follows: