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2015 (9) TMI 1737
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....ene Oil Control Order, 1968 (for brevity, 'the Control Order'), is called in question. 2. The facts which need to be exposited for adjudication of this appeal are that the first Respondent was granted the licence for carrying on the business of superior kerosene oil as an agent by the Joint Director of Consumer Goods, West Bengal in accordance with the paragraph 5(1) of the Control Order. The monthly allocation of public distribution system of superior kerosene oil to the said Respondent was fixed by the Director of Consumer Goods, West Bengal at 1,82,000 litres per month. On 10.8.2012 a physical inspection was carried out by the Area Inspector attached to the office of the Sub Divisional Controller, Food and Supplies, Burdwan (for short, "SCFS") at the depot of the Respondent. The concerned Inspector submitted the report to the SCFS stating that 71,494 litres of superior kerosene oil had been delivered in excess by the dealer. On 8.4.2013, the SCFS issued a notice seeking explanation about the discrepancy pointed out by the Area Inspector. On receipt of the said show cause notice, the first Respondent submitted his explanation on 16.4.2013. The SCFS afforded an opportun....
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....hall dispose of the same by 31.12.2013. The learned Single Judge further directed that the agent shall maintain with utmost care an inventory of stocks and accounts for periodical submission to the authorities and the penalty amount should be deposited by 6.9.2013 and the said penalty amount shall be kept in a separate interest bearing account. 5. Being aggrieved by the aforesaid order, the Respondents 1 and 2 preferred an appeal being AST No. 177 of 2013 before the Division Bench. It was urged in the intra-court appeal that the proceeding before the Director of Consumer Goods was patently without jurisdiction, for power of cancellation or suspension could only be exercised by the Director or District Magistrate having jurisdiction and in the case at hand the District Magistrate, Burdwan is the competent authority to exercise the power under paragraph 9 of the Control Order and not the Director of Consumer Goods; that assuming the Director had jurisdiction, the proceeding that was initiated had lapsed after expiry of 30 days after the date of issuance of the show cause notice by the Director; and that in any case the proceeding was initiated by SCFS and he could not have sent th....
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....e of West Bengal and Ors. 2005 (4) CHN 264. It referred to paragraphs 27 and 29 of the said decision and thereafter came to hold thus: For the reasons discussed hereinabove, we hold that the Sub-Divisional Controller, Food and Supplies, Burdwan lawfully initiated the proceeding against the Appellant/writ Petitioner No. 1 by issuing show cause notice but did not conclude the same within 30 days as required under paragraph 9 of the West Bengal Kerosene Control Order, 1968. We further hold that the Director of Consumer Goods had no jurisdiction and/or authority to initiate any proceeding against the Appellant/writ Petitioner No. 1 in terms of paragraph 9 of the West Bengal Kerosene Control Order since the licence was granted to the Appellant/writ Petitioner No. 1 for carrying on business as S.K. Oil agent in the district of Burdwan which is outside Calcutta. In the result, the impugned order dated 22nd July, 2013 passed by the Director of Consumer Goods cannot survive and is liable to be set aside since the said Director had no authority and/or jurisdiction to pass any order under paragraph 9 of the West Bengal Kerosene Control Order, 1968 in respect of S.K.....
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....sene in West Bengal. Paragraph 3(a) of the Control Order defines "agent" which reads as under: 3(a) "agent" means a person who has been appointed as an agent of an oil distributing company by such company and has been granted a licence under paragraph 5 of this Order. 11. Paragraph 3(c) of the Control Order defines "dealer" which reads as follows: 3(c) "dealer" means a person who has been granted a licence under paragraph 6 of this Order authorising him to carry on trade in kerosene. 12. Paragraphs 3(d) and 3(e) of the Control Order define the "Director" and the "District Magistrate" respectively, which reads as follows: 3(d) "Director" means the Director of Consumer Goods, Department of Food and Supplies, Government of West Bengal and includes any officer, not below the rank of Assistant Director, Directorate of Consumer Goods, Food and Supplies Department, Government of West Bengal who can perform all the functions of the Director and this order including cancellation of licence. 3(e) "District Magistrate" includes the Deputy Commissioner of a district and also includes any person not below the rank of a Sub-divisional Controller of Food ....
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....having jurisdiction shall pass an order in writing within 30 days from the date of serving the show-cause notice or suspension of the licence taking any or all of the actions given below. (i) He may let off the Agent or Dealer if sufficient cause has been shown. (ii) He may pass an order by imposing a penalty which according to the gravity of the violations made will not be less than Rs. 10,000/- in case of an Agent and Rs. 2,000/- in case of a Dealer and revoke the suspension order if already served. (iii) He may cancel the licence: Provided that the order shall be passed ex parte if the Agent or the Dealer whose licence has been so suspended or on whom show-cause notice has been served fails to appear at the hearing. 16. Paragraph 10 of the Control Order which provides for appeal is extracted hereunder: 10. Appeal - (a) Any person aggrieved by an Order passed under paragraph 8 or paragraph 9 of this Order, may within 30 days from the date of the order, prefer an appeal to the State Government in the Food and Supplies Department. (b) elsewhere,- (i) where the order is passed by the District Magistrate or the Deputy ....
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....ation in the Official Gazette, extend the time for filing of application for renewal of licences: Provided also that on an application made by a licensee in that behalf, the authority by which the licence was issued may, if he considers it expedient so to do, renew a licence issued under paragraph 5 or paragraph 6 of this Order, for a maximum period of three years at a time on payment in non-judicial stamps of the fees for renewal of licences referred to in sub-paragraph (3) of this paragraph, for each year of renewal or part thereof. (2) Every application for the issue of licence under paragraph 5 or paragraph 6 of the Order or for the renewal of such licence under this paragraphs shall be made to the appropriate authority in Form C. 18. On a reading of that paragraph it is clear that power conferred on the Director and the District Magistrate are different, for the Director is a higher authority and the rule clothes him with more authority. Needless to say, the said paragraph has to be read in juxtaposition with other paragraphs. It is clear from paragraph 5 that the Director alone is authorised to grant a licence to an agent whereas a dealer's licence ca....
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.... dealer specified in paragraph 6. That apart, it is noticeable that sub-paragraph (e) of paragraph (3) a District Magistrate would include a Sub-Divisional Controller of Food and Supplies, authorised by the District Magistrate or Deputy Commissioner and District Magistrate is for a specified small area within the State. He cannot exercise jurisdiction in respect of an area beyond the geographical boundaries of the area/district. In such a situation to place a construction on Paragraph 9 that the Director as well as the District Magistrate would have concurrent jurisdiction would be inapposite. In our considered view, a logical and reasonable interpretation to paragraph 9 of the Control Order has to be preferred instead of adopting the loose meaning in the literal sense. Such an interpretation would be in consonance with the principles of harmonious construction, that is, harmonious reading of paragraphs 5, 6, 7 and 9 of the Control Order. It is based on the premise that the authority who has the right to grant licence has the authority to suspend or cancel the licence. In this regard, we may fruitfully reproduce a passage from Reserve Bank of India v. Peerless General Finance and I....
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....doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained". (Maxwell, Interpretation of Statutes, 9th Edn., p. 55). 21. Keeping in view the aforesaid rule of interpretation, we are constrained to think that it would be incongruous to hold that even when the licence of an agent at the State level is granted and issued by the Director, a District Magistrate, as defined in paragraph 3(e) of the Control Order, in exercise of concurrent jurisdiction can suspend or cancel the State level licence. Be it noted, as per Section 21 of the General Clauses Act, power to issue notification/ order/rules/bye-laws, etc. includes the power to amend/ vary or rescind. Though the said provision is not applicable, yet it is indicative that generally unless the statute or rule provides to the contrary, either expressly or impliedly, issuing or appointing authority would al....
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....d Ors. (supra). In the said case the agent had challenged the order of suspension-cum-show cause notice and the order of cancelling the agency licence. The High Court had taken note of the contention that assuming the Director had jurisdiction, the order having been communicated beyond 30 days from the issue of the order of suspension, it was liable to be set aside. After stating the facts, the earlier Division Bench proceeded to interpret Paragraphs 9 and 10 of the Control Order and opined thus: 29. After going through the aforesaid two paragraphs, I find that against an order of cancellation of licence, there is a provision of appeal to be availed of within 30 days from the date of the order. There is, however, no power conferred upon the appellate authority to entertain such appeal after the period of limitation by condoning the delay. If I accept the contention of Mr. Chakraborty, the learned Counsel appearing for the State that the date of communication of the order is insignificant, in that case, the right of appeal conferred upon the aggrieved agent against an order of cancellation can easily be frustrated by communicating the order after the expiry of 30 days from ....
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.... on the file and not communicated to the person aggrieved is not an order that can be taken cognizance of. There can be no scintilla of doubt that unless an adverse order is communicated that does not come into effect. Passing of an order on the file does not become an order in the eye of law. But the core question would be, if an order is passed within 30 days and communicated thereafter, what would be the effect. In the instant case, as the factual matrix would unveil, the order was passed before expiration of 30 days, but the same was served on the first Respondent beyond 30 days. The thrust of the matter is whether the order has to be passed and communicated within 30 days. Paragraph 9 of the Control Order requires the competent authority to pass an order within 30 days from the date of serving the show cause notice or the suspension of licence. The word used is "shall". Paragraph 10 of the Control Order enables the aggrieved person to prefer an appeal against an order passed under Paragraph 8 or 9 within 30 days to the State Government in Food and Supplies Department. In this context, reference to the authority in MCD v. Qimat Rai Gupta and Ors. (2007) 7 SCC 309 is of signific....
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....he Court proceeded to interpret the term "made" and observed that meaning of a word depends upon the text and context and it will also depend upon the purport and object it seeks to achieve. The two-Judge Bench referred to Surendra Singh v. State of U.P. AIR 1954 SC 194, Harish Chandra Raj Singh v. Dy. Land Acquisition Officer AIR 1961 SC 1500 and K. Bhaskaran v. Sankaran Vaidhya Balan (1999) 7 SCC 510. The Court reproduced paragraphs 12 and 18 from M.M. Rubber and Company (supra). They read as follows: 12.It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made pub....
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....bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, then the said order is required to be communicated. To arrive at the said conclusion, as has been stated earlier, the Division Bench has found support from Rani Sati Kerosene Supply Company and Ors. (supra) wherein it has been held that if an order is communicated after 30 days, an order of cancellation can easily be frustrated and, therefore, the phrase by an order in writing to be made appearing in proviso to Paragraph 9 of the Control Order is to be construed as by an order in writing to be communicated. 27. The Division Bench has read the prescription of 30 days passing of an order in writing within 30 days from the date of serving the show cause notice or suspension of licence to be mandatory. To elaborate, if the order is not passed within the said period, the authority cannot pass any order or if it passes an order, it is a nullity. In this context, we may fruitfully refer to a passage from G.P. Singh's book, as has been reproduced by the three-Judge Bench in Kailash v. Nankhu and Ors. (2005) 4 SCC 480. It reads as under: Justice G.P. S....
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....hat there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the conside....