PIJUSH KANT1 BASAK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) COMMON questions of law and facts in volved in these nine Rules. Accordingly, these were heard together. This judgment shall dispose of a bunch of nine writ Petitions.

(2.) THE petitioners have been carrying on the buninees as licensed cement dealers in the district of Burdwen. Licences were issued to them by the director of Food and Supply under the west Bengal Cement Control Act, 1948. Sometime in the month of June, 1978 the Government of West Bengal proposed to entrust the West Bengal Essential Commodities Supplies Corporation Ltd hereinafter referred to as the ECSC, a State Government Undertaking, the entire quota of free sale cement allotted to the State of West bengal, from 1st of October 1978 for marketing in the State. The purpose and object of controlling the distribution of the cement was to ensure that genuine consumers get their supplies without payment of any premium and at the controlled rate To give effect to the said decision of the Government, applications in the prescribed forms were invited by the ECSC from the public for appointment as a dealer in imported and indigenous cement. The existing dealers were also asked to submit applications in the said form. Directives were issued By the Managing Director of ECSC and by the Dy. Secretary, government of West Bengal, Food and supply, to the District Magistrates of all the districts and the Dy- Commissioner of Police informing them that it was the accepted State policy for selection of cement dealers under ECSC to appoint all the existing cemerit licenced dealers as dealers under the new arrangement if there are no adverse police or administrative reports against them. A list of existing licensed dealers including the name of the petitioners were sent by the said Managing Director to the district Magistrate. Thereafter, on or about the 28th September, 1978 the Cement Controller, New Delhi issued telegrams to all the manufactures turers and/or producers of cement that in exercise of the powers conferred on him by the provisions of the Cement control Order, 1967 they were directed that from October, 1978 they shall not dispatch any cement under "free sale category" to any of their stockists in the 13th States/union Territories "beginning of 1st October, 1978. On and from October, 1978 dispatches under "free sale" will hereinafter be called "public sales category" in the aforesaid 13th States and Union Territories. Public sales will be made to these parties who are issued release order in their favour under the authority of the cement Controller. By the said instruction the cement controller has prohibited the manufacturers of cement from delivering any "free sale cement" to their stockists. But the entire free sale cement now named public sales has to be despatched in terras of the release orders that may be issued by the cement controller. In the State of West Bengal, ECSC has been entrusted with the marketing of cement who would distribute cement through cement licenced dealers. Release orders are now being issued solely in favour of the said ECSC who has decided for the time being to allot 55 tones of cement to each dealer per month. The petitioners went to the office of the respondent No. 4 at the cement sales office and there, found the list of cement dealers appointed in the district for the Burdwan under the new arrangement. From the aforesaid list, it appears that out of existing 85 cement licenced dealers in the Asansol Sub-division of burdwan, only 17 dealers have been appointed and the names of the rest of the dealers numbering 68 have been deleted. The petitioners names have also been deleted from the said list of persons entitled to deal in cement as cement licenced dealers inspite of the fact that the petitioners have duly applied with the prescribed form to the appropriate authority. They are holders of valid cement dealers' licences. It is alleged there are no adverse police reports against them. It is stated by the petitioners in the petitions that the method of taking over and conferring of the monopoly right of distribution and supply of cement to ECSC has been done by an executive instruction without any authority of law. The authorities are acting in colorable exercise of powers trying to confer the monopoly in the supply and distribution of cement to a state Government run Corporation without there being any sanction in law the Cement Control Order 1967 does not give any indication either in clauses 4 and 5 or anywhere else in the said order of any policy or principle for guiding the competent authority for choosing the allotters or fixing the quantum of allotment to the person chosen by him. The authorities have failed to exercise their discretion and have acted most arbitrarily and in abuse of powers conferred on them by depriving the petitioners the cement dealership under the new arrangement without disclosing to them any reason and basis for the same According to the petitioner there are no adverse police reports against them. As the petitioners are not aware of any adverse reports or the same has been disclosed to them nor any explanation has been asked for, nor any show cause has been issued to them, regarding the purported report, if any, it is alleged that the authorities have been politically influenced and have acted on extraneous consideration not relevant to the purpose and object of the said taking over being aggrieved, the petitioners moved this Court under Art. 226 of the Constitution and obtained the present Rules and interim orders restraining the respondents not to give further effect to the impugned order.

(3.) AN affidavit-in-opposition has been filed on behalf of the respondents 1-3 and 7-10 by Subendu Ray, Sub divisional Officer, Asansol wherein it is stated that prior to taking ever of cement distribution by the ECS corporation, there was an acute shortage of cement supply in the cement market of West Bengal. This scarcity of cement had been felt since April, 1967 and except on one or two occasions of transitory nature, it prevailed throughout the period i. e. from April, 1977 till September, 1978. During the last 8 years it will be found that cement was not easily available in the market of West Bengal and there are constant public complaints that cement was being sold in Black market. Most of the cement that come to West Bengal are manufactured in factories situated in Bihar, Orissa, Madhya Pradesh and tamilnadu. It is now known to the government that the dealers in collusion with the suppliers had great contribution in the matter of creating occasional scarcity condition for cement in West Bengal. Studying all these aspects, the Government of West Bengal had decided that unless there was a neat distribution system of cement in the market of West Bengal, the chronic disease viz. scarcity of cement could not be cured. It is under that situation that the Government of West Bengal had taken the decision to take up distribution of cement throughout the state and consequently the said Corporation has been entrusted with. the duty on approval of the Government of india. In order to ensure steady supply of cement in West Bengal as well as to establish the proper system for distribution of cement of different categories of consumers, the Government of West Bengal for sometime past had been considering to take up distribution of cement from the cement companies. The purpose for this taking over is two fold, first to ensure cement supply to different government departments and Public Sector Undertakings so that all development projects undertaken by the State Government for welfare of the pepole of the State may go on uninterrupted secondly to set up an effective machinery to curb the widespread black marketing in the cement markets in the State and to distribute cement to the people according to their need. Those persons against whom adverse police or administrative reports were found, they were excluded. Those persons who do not have any godown together with financial viability were also! excluded. It is denied that monopoly right of distributor and supply of cement has been granted to the corporation. What has been done is that, the corporation will be the distributing agency on behalf of the producers and manufacturers of cement, but the sales to the public under the public sales category will be done through the licenced dealers as before. It is not that the corporation has taken over the trade in sale of cement under the public sales category. There is no intention on the part of the corporation to interfere with private trade and commerce in cement. What is being done is that, the allotment of cement is being canalised through the Corporation to the dealers instead of direct from the manufacturers to the dealers. This is not act of monopoly either on the part of the Central Government or of the Corporation but is a reasonable restraint on the trade in order to ensure accountability and prevent black marketing. A district list has not yet been finalised. The petitioners could not be allowed to continue as cement dealers without being selected as such by the Corporation.