DISTRICT:
SOUTH 24-PARGANAS
IN THE HIGH COURT AT
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P. No. (W) of 2014
In the matter of
An application under Article 226 of the Constitution of India
And
In the matter of
A writ in the nature
of Mandamus and/or in the nature of Certiorari and/or in the nature of
Prohibition and/or any such other appropriate writ/writs, order/orders and/or
direction/directions under the Constitution of India
And
In the matter of
Violation of the Principles of Natural Justice
And
In the matter of
Article 14 of the Constitution of
And
In the Matter of
The Essential Commodities Act, 1955
And
In the Matter of
Application for engagement as Dealer
under PDS at Uttarbale under Beledurganagar G. P. Joynagar-II Block under
Baruipur Sub-Division, District South 24-Parganas
And
In the Matter of
Memo No. 111/1(36)/SC/F&S/BRP/14
dated 31/1/2014
And
In the Matter of
Notification on 21/7/2014 vide Memo No. 1707
-FS/Sectt.lFood/4P-9/2012 (Pt. -11)
And
In the Matter of
Nursama Molla, daughter of Abdul Sobohan Molla
alias Abdul Chobhan Molla of Village
Bamoner Chak, P. O. Bakultalahat, P. S. Jaynagar, District South 24-Parganas,
Pin 743 338
............. Petitioner
Versus
1. The State of West Bengal,
service through The Principal Secretary, Food and Supplies Department, 11-A,
Mirza Ghalib Street, Kolkata 700 087;
2. The
Sub-Division Controller (F&S) & Ex-Officio, Assistant Director,
Baruipur, Kolkata 700 144, South 24-Parganas;
3. The District Controller,
Food and Supplies Department, Alipore, Kolkata 700 027, District South
24-Parganas;
4. The Prodhan, Beledurga Gram
Panchayat, Village and P. O. Beledurga, P. S. Joynagar, District South
24-Parganas, Pin 743 337.
… Respondents
To
The Hon’ble Mrs. Manjula Chellur, Chief Justice and Her
Companion Justices of The said
The humble petition on behalf of the petitioner above named Most
Respectfully
Sheweth: -
1.
That Your petitioner is a citizen of
2.
That Your petitioner states that is
an educated unemployed lady and is a permanent resident of the address as
stated hereinabove.
3.
That Your petitioner states that it
may be pertinent to mention that she applied for a new M. R. Dealership on
28/2/2014 pursuant to a notification issued by the Sub-Division Controller
(F&S) & Ex-Officio, Assistant Director, Baruipur, South 24-Parganas vide Memo No.
111/1(36)/SC/F&S/BRP/14 dated 31/1/2014 under the Scheme `Application for
engagement as Dealer under PDS at Uttarbale under Beledurganagar G. P.
Joynagar-II Block under Baruipur Sub-Division, District South 24-Parganas”.
A
Photocopy of the Notification vide Memo
No. 111/1(36)/SC/F&S/BRP/14 dated 31/1/2014 is annexed herewith and marked
as Annexure P1 to the
instant writ application.
4.
That Your petitioner states that she submitted
the application for engagement as Dealer under PDS at Uttarbale under
Beledurganagar G. P. Joynagar-II Block under Baruipur Sub-Division, District
South 24-Parganas in the office of the Sub-Divisional Controller (F&S),
Baruipur, Kalpukur Road, Subuddhipur, (beside South Centre K. G. School),
Baruipur, Kolkata 700 144, District South 24-Parganas.
A Photocopy of the submitted application is annexed herewith and marked as Annexure P2 to the instant
writ petition.
5.
That Your petitioner
states that being hopeful that she would be appointed as a Dealer under PDS at
Uttarbale under Beledurganagar G. P. Joynagar-II Block under Baruipur
Sub-Division, District South 24-Parganas, she entered into a leave and license
agreement with one Dilip Kumar Naskar for ten years on 25/2/2014 at a monthly
license fee of Rs. 400/- with Rs. 1,000/- as advance paid to the licensor.
A Photocopy of the Leave and License Agreement dated 25/2/2014 is annexed
herewith and marked as Annexure P3
to this application.
6.
That Your petitioner
states that she also made a representation to the respondent no. 4 and the
ration card holders of the locality also made representations to the respondent
no. 2 for engagement of the petitioner in the locality as a dealer on
26/2/2014.
Photocopies of the representation dated 26/2/2014 are annexed herewith and
marked as Annexure P4 to
this petition.
7.
That Your petitioner
states that after submission of the said application, the concerned Food
Controller along with two of his subordinate officers made an enquiry at Your
petitioner’s spot on 5/6/2014 and on that day, a hearing was also conducted at
the office of the Food Controller.
8.
That thereafter as
there was no response from the office of the Controller, Your petitioner made a
representation to the officer of the District Controller on 1/9/2014 seeking
status of her application.
A Photocopy of the representation dated 1/9/2014 is annexed herewith and marked
as Annexure P5.
9.
That Your petitioner
states that all of a sudden she came to know that the respondent no. 1 has
issued a notification on 21/7/2014 vide Memo
No. 1707 -FS/Sectt.lFood/4P-9/2012 (Pt. -11), whereby it has been stated as
follows: -
‘In
view of coming into force of the West Bengal Public Distribution System (M
& C) Order, 2013 and its subsequent amendment vide
NO.1284-FS/Sectt/Food/4P-09/2012 dated 06.06.2014 published In the Kolkata
Gazette, and In keeping with various reforms undertaken by the Department for
safe and scientific storage of food grains to be utilised under PDS it has
become necessary and expedient to adopt a uniform policy in respect of
specification of storage godowns both for FPS and Distributors.
Now,
therefore, in exercise of the powers conferred by Section 3 of the EC Act,1955,
the Governor is pleased hereby to make the following guidelines to be followed
while inviting applications for new licences and In case of renewal of licences
The existing dealers/ distributors shall also upgrade their godowns
accordingly within 6(six) months from the date of Issue of this Order.
Order. F.P.S. (Fair Price Shop)
1. The size of the godown should be minimum
400 sq. ft. along with a covered space of 200 sq. ft adjacent to tile godown to
be used for office purpose and for FPS automation.
2. There must be a shade in front of the
shop to accommodate at least 20 people who may wait in the queue in consonant
With point 23, NB-1 of 'Form C' of the W B P D.S (M&C) Order, 2013.
3. The Godown must be a well-ventilated
pucca structure with concrete floor.
Distributor
1. The size of the godown should be to
accommodate at least 1000 MT of food grains along with a space of 25%, for
provision of alleys In between the stacks of different commodities with view to
keeping the stock of each commodity separately and neatly arranged for easy
identification. There must be a covered space of 200 sq. ft adjacent to the
godown to be used for office purpose as well as for computer operations.
2. The minimum height of the godown should
be 15 feet high.
3, The Godown must be a well-ventilated
pucca structure with concrete floor.
4. Equivalent Insurance coverage should be
there to cover the loss of food grains due to any natural or manmade disaster.
This
order shall also be applicable while processing vacancies for which enquiries
may be ongoing or complete but have not been approved by the Department for
engagement or issue of licence.’
A
Photocopy of the notification vide Memo
No. 1707 -FS/Sectt.lFood/4P-9/2012 (Pt. -11) dated 21/7/2014 is annexed
herewith and marked as Annexure P6.
10.
That Your petitioner states that the
part of the notification vide Memo
No. 1707 -FS/Sectt.lFood/4P-9/2012 (Pt. -11) dated 21/7/2014 is highly objectionable,
which states that “This order shall also be applicable while processing
vacancies for which enquiries may be ongoing or complete but have not been
approved by the Department for engagement or issue of licence”.
11.
That in previous
notification, whereby it was stated that `preference may be given to Self Help
Groups, especially women Self Help Groups` all of a sudden abrogating the
principle without any cogent reason is violative of the principles of Natural
Justice and also ultra vires any
principle laid down by a welfare State and ought to be quashed and further it
is a settled principle of law that the Government, while entering into contracts is expected
not to act like a private individual but should act in conformity, with which
certain healthy standards and norms and such actions should not be arbitrary,
irrational and irrelevant.
12.
That Your petitioner states that the terms and
conditions are unjust, unfair and inequitable.
13.
That Your petitioner states that it is a settled
principle of law that the Government while entering into contracts is expected
not to act like a private individual but should act in conformity with certain
healthy standards and norms and such actions should not be arbitrary,
irrational or irrelevant and the Government cannot fix any arbitrary price and
it cannot fix prices on extraneous consideration.
14.
That Your petitioner states that there is huge
anomaly in the selection process and the procedure for submission of offers.
15.
That Your petitioner states that the instant notification Memo
No. 1707 -FS/Sectt.lFood/4P-9/2012 (Pt. -11) dated 21/7/2014 is a complete departure from the earlier notification
Memo No. 111/1(36)/SC/F&S/BRP/14 dated
31/1/2014.
16.
That Your petitioner states that she is a poor
educated lady and the terms and conditions stated therein will help only the rich
businessmen and the petitioner and other rich businessmen on the same footing
will result in the petitioner being easily be hooted out of the process and as
such the same is violative of Article 14 of the Constitution of India as the
State cannot fix any arbitrary price and it cannot fix prices on extraneous
considerations.
17.
That Your petitioner states that the impugned
notification is either a fruit of the mala fide intention of the
authorities or issued with out applying mind and in both cases it is liable to
be set aside.
18.
That Your Petitioner states that constitutional
powers carry corresponding obligations with them. This is the rule of law,
which regulates the operation of organs of Government functioning under a
Constitution.
19.
That Your petitioner states that in a case like
the present, it is clearly shown that the impugned State action is arbitrary
and, therefore, violative of Article 14 of the Constitution, there can be no
impediment in striking down the impugned act irrespective of the question
whether an additional right, contractual or statutory, if any, is also
available to the petitioner.
20.
That Your petitioner states that under public
law, it is the dispute between the citizen or a group of citizens on the one
hand and the State or other public bodies on the other, which is resolved. This
is done to maintain the rule of law and to prevent the State or the public
bodies from acting in an arbitrary manner or in violation of that rule. The
exercise of constitutional powers by the High Court and the Supreme Court under
Articles 226 and 32 has been categorised as power of "judicial
review".
21.
That Your petitioner states that every executive
or administrative action of the State or other statutory or public bodies is
open to judicial scrutiny and the High Court or the Supreme Court can, in
exercise of the power of judicial review under the Constitution, quash the
executive action or decision which is contrary to law or is violative of
fundamental rights guaranteed by the Constitution.
22.
That Your petitioner states the expanding
horizon of Article 14 read with other articles dealing with fundamental rights,
every executive action of the Government or other public bodies, including
instrumentalities of the Government, or those which can be legally treated as
"Authority" within the meaning of Article 12, if arbitrary,
unreasonable or contrary to law, is now amenable to the writ jurisdiction of
this Court under Article 32 or the High Courts under Article 226 and can be
validly scrutinised on the touchstone of the constitutional mandates.
23.
That Your petitioner states that constitutional
powers carry corresponding obligations with them, and this is the rule of law
which regulates the operation of organs of the Governments functioning under
the Constitution.
24.
That Your petitioner states that Government
bound by doctrine of promissory estoppel not to go back on the assurance
extended and exemption granted by its initial order to entrepreneurs who acting
upon the same had set up new industries during the period between the dates of
commencement of the first order and its supersession by the subsequent Orders.
25.
That Your petitioner states that when the
authorities, by words or conduct has led to another to believe that he may
safely act on the faith of them - and the other does not on them - the
authority will not be allowed to go back on what he has said or done when it
would be unjust or inequitable for him to do so.
26.
That Your petitioner states that the Government
functions through its officials and so long they are acting bona fide in
pursuance of Government policy the Government cannot be permitted to disown it
as a citizen can have no means to know if what was being done was with tacit
approval of the Government.
27.
That Your petitioner states that Welfare state
like our republic is duty bound to protect the citizen from unnecessary
harassment. The Preamble of the Constitution embodies the concept of social
justice and equality and Constitution guarantee equality before law.
28.
That Your petitioner submits that when public
wrongs are inextricably mixed up justice requires the victim to take recourse
of Article 226.
29.
That Your petitioner states that she made a
Notice Demanding Justice through her Learned Advocate Sri Sandip Roy Choudhury
to the respondent no. 1 for redressal of her just and legitimate grievances on 14/11/2014.
A Photocopy of the Notice Demanding Justice dated 14/11/2014 is annexed
herewith and marked as Annexure P7
to the instant writ application.
30.
That being aggrieved by and dissatisfied with
purported notification dated 21/7/2014 vide Memo No. 1707
-FS/Sectt.lFood/4P-9/2012 (Pt. -11) issued by the respondent no. 1, the petitioner
herein begs to move this application under Article 226 of the Constitution of
India on the following amongst other
G
R O U N D S
I.
For that the entire process is irreconcilable
with what is right or reasonable or the terms of which are so unfair and
unreasonable that they ought to shock the conscience of This Hon’ble Court.
II.
For that in the sphere of contractual relations,
the State, its instrumentality, the public authorities are enjoined to act in a
manner, which is fair, just and equitable.
III.
For that The Government, while entering into
contracts is expected not act like a private individual but should act in
conformity, with which certain healthy standards and norms and such actions
should not be arbitrary, irrational and irrelevant.
IV.
For that every executive or administrative
action of the State or other statutory or public bodies is open to judicial
scrutiny and the High Court or the Supreme Court can, in exercise of the power
of judicial review under the Constitution, quash the executive action or
decision which is contrary to law or is violative of fundamental rights guaranteed
by the Constitution.
V.
For that the expanding horizon of Article 14
read with other articles dealing with fundamental rights, every executive
action of the Government or other public bodies, including instrumentalities of
the Government, or those which can be legally treated as "Authority"
within the meaning of Article 12, if arbitrary, unreasonable or contrary to
law, is now amenable to the writ jurisdiction of this Court under Article 32 or
the High Courts under Article 226 and can be validly scrutinized on the
touchstone of the constitutional mandates.
VI.
For that constitutional powers carry
corresponding obligations with them, and this is the rule of law which
regulates the operation of organs of the Governments functioning under the
Constitution.
VII.
For that Government functions through its
officials and so long they are acting bona fide in pursuance of Government
policy the Government cannot be permitted to disown it as a citizen can have no
means to know if what was being done was with tacit approval of the Government.
VIII. For that the Government
while entering into contracts is expected not to act like a private individual
but should act in conformity with certain healthy standards and norms and such
actions should not be arbitrary, irrational or irrelevant.
IX.
For that the State cannot fix any arbitrary
price and it cannot fix prices on extraneous considerations.
X.
For that the prevailing market conditions, the
respondent organizing should have taken note while inviting the notification
dated 21/7/2014, which is unassailable and there could be no doubt as to the
unreasonableness, mala fide and the like.
XI.
For that it is a settled principle of law that
in contractual relations, the State does not stand on the same forting as a
private person and the State, in exercise of its various functions, is governed
by the mandate of Article 14, which excludes arbitrariness in State Actions and
requires the State to act fairly and reasonably and the State has to satisfy
this criterion.
XII. For that the petitioner is
a poor educated businesswoman imposing a stiff condition upon it would help rich
businessmen, who are not on the same footing as that of Your petitioner.
XIII. For that the impugned notification
is bad in law and liable to be quashed.
31.
That Your petitioner states that the act of the
respondent has left him with no choice as such in the facts and circumstances
of the present, any demand for justice in writing will be nothing but an idle
formality.
32.
That your petitioner has no choice since there
are no other equally, effective, speedy, efficacious, inexpensive, suitable and
adequate alternative remedy available and the relief as prayed for if granted
will be adequate.
33.
That Your petitioner states that the Your
petitioner has not moved any other application before This
34.
That the cause of action or part of cause of
action has arisen within the Appellate jurisdiction of this
35.
That Your petitioner states that the records of
the case are lying with the Appellate Side Jurisdiction of This Hon’ble Court.
36.
That Your petitioner submits that considering
the fact that the instant petitioner has no time left for exhausting all
departmental and procedural remedies is compelled to file the instant
application to settle the grievances and
are accordingly advised to prefer the instant application before The Hon’ble
High Court for exercising the writ Jurisdiction.
37.
Your petitioner states that there is no other
alternative and speedy relief open to your petitioner and the reliefs as prayed
for, if granted would afford complete relief to your petitioner.
38.
Your petitioner states that that the balance of
convenience and in convenience rests entirely in favour of your petitioner in
granting the interim order as prayed for.
39.
That Your petitioner submits that unless The
order as prayed for be granted by this
40.
That this application is made bona fide
and in the interest of justice.
In the circumstances as aforesaid your petitioner most humbly and
respectfully prays that your Lordship would be graciously pleased to issue:-
a) a writ in the nature of
mandamus commanding the respondents and each of them his servants, agents and
sub-ordinates to rescind/cancel/withdraw and/or quash the notification
vide Memo No. 1707
-FS/Sectt.lFood/4P-9/2012 (Pt. -11) dated 21/7/2014 issued by the respondent
no. 3 being Annexure P6 to the instant application;
b) A writ in the nature of
mandamus declaring that Notification vide
Memo No. 1707 -FS/Sectt.lFood/4P-9/2012
(Pt. -11) dated 21/7/2014 is ultra vires the
Constitution of India;
c) A writ in the nature of
Certiorari by directing the respondents to transmit the entire records before
This Hon’ble Court and to certify the same so that after perusing the same
conscionable justice may be administered by issuing necessary direction;
d) Rule NISI in terms of
prayers (a), (b) and (c) above;
e) Ad-interim order of
injunction by directing the respondents and each of them his servants, agents
and sub-ordinates not to give any effect and/or further effect to the Notification
vide Memo
No. 1707 -FS/Sectt.lFood/4P-9/2012 (Pt. -11) dated 21/7/2014 till the disposal of the writ application;
f) Such further Order/Orders,
Direction/Directions be given as to this
And Your petitioner as in duty bound shall ever pray.
A F F I D A V I T
I, Nursama Molla, daughter of Abdul Sobohan Molla
alias Abdul Chobhan Molla, aged about 23 years, by faith Islam of Village
Bamoner Chak, P. O. Bakultalahat, P. S. Jaynagar, District South 24-Parganas,
Pin 743 338, do hereby
solemnly affirm and say as follows: -
1.
That I am the petitioner in the instant
case, I am well-acquainted with the facts and circumstances of the case and as
such I am competent to affirm this affidavit.
2.
That the statements made in Paragraphs 1, 2,
7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 33, 34
and 36 are true to my knowledge, those made in Paragraphs 3, 4, 5, 6, 8, 9 and
35 are true on the basis of records and the rest are my humble submissions
before This Hon’ble Court.
Prepared
in my office Deponent
Advocate Clerk
to
Advocate
Solemnly
affirmed before me
this day of December, 2014
C O M M I S S I O N E R
DISTRICT: SOUTH 24-PARGANAS
IN THE HIGH COURT AT
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W. P.
No. (W) of 2014
Nursama
Molla
…………. Petitioner
Versus
The
State of
………………. Respondents
An application under Article 226 of
the Constitution of India
Sandip Roy Choudhury,
Bar Association,
Room No. 2,
(In front of
Court Room No. 12)
High Court,
Mobile No. 98368
60164
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