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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7263 OF 2012
(Arising out of Special Leave Petition (Civil)
No.9259/2012)
RANJIT KUMAR MURMU …. APPELLANT
VERSUS
M/S LACHMI NARAYAN BHOMROJ & ORS. ….RESPONDENTS
J UD G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal has been preferred by the appellant
against the Judgment dated 2nd February, 2012 passed
by the Division Bench of the Calcutta High Court in
A.P.O.T No.237 of 2010. The Division Bench while
dismissing the appeal preferred by the appellant held
that the Principal Secretary, Food and Supplies
Department is not an appellate authority with
respect to an order passed under Paragraph 11 of the
West Bengal Kerosene Control Order, 1968 and thereby
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affirmed the order passed by the learned Single
Judge.
2. The relevant facts of the case are as follows:
One Purushottam Das Jhunjhunwala was issued
with a Kerosene Dealer licence in the year 1997 and
was carrying on his business in the name
of M/s Lachmi Narayan Bhomroj, as a sole proprietor.
Upon his death, his heirs were temporarily allowed to
carry on kerosene business under the same name as per
the provisions of West Bengal Kerosene Control Order,
1968 (hereinafter referred to as the ‘Control
Order’).
On or about 6th March, 2006, a fresh licence was
issued to the partnership firm of the legal heirs of
said Purushottam Das Jhunjhunwala (respondents
herein) on compassionate ground.
Even though the licence was issued on 6th March,
2006, no supply was effected. After much persuasion
from the part of respondents the authority allotted a
quota of 72 K.L. of Kerosene Oil per month as
against the quota of 168 K.L. per month originally
allotted to their late father.
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3. Partners of M/s Lachmi Narayan Bhomroj made
representation citing the above matter before the
concerned authorities. The Director of Consumer
Goods, Food and Supplies Department, Government of
West Bengal passed an order on 12th August, 2009
whereby the quota of 168 K.L. of Kerosene Oil was
restored in favour of respondents. By virtue of this
restoration while respondents’ quota got enhanced
there was corresponding reduction in the allocation
to the appellant.
4. Being aggrieved by the reduction of allocation,
the appellant filed a Writ Petition No. 899/09 before
the Calcutta High Court challenging the order dated
12th August, 2009 which was disposed of by a learned
Single Judge on 4th September, 2009 directing the
Joint Director of Consumer Goods to hear the matter
and take a decision. In an appeal being APOT No.
367 of 2009 against the said order the Division Bench
modified the order and directed the District
Magistrate, Purulia, the competent authority under
the Control Order to hear and pass an appropriate
order.
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5. Pursuant to the aforesaid order, the District
Magistrate, Purulia, passed an order dated 6.10.2009
upholding the allocation of monthly quota made to
both the agents by Director of Consumer Goods vide
letter dated 12th August, 2009.
6. Being aggrieved, the appellant preferred a writ
petition No. 1093/2009 challenging the order of the
District Magistrate. When the matter was taken up by
the learned Single Judge on 23rd December, 2009,
learned counsel for the appellant on instruction
withdraw the writ petition to enable the appellant to
move departmentally. The writ petition was
accordingly dismissed as withdrawn.
7. Thereafter, the appellant preferred an appeal to
the Principal Secretary and Commissioner Food, Food
and Supplies Department, Government of West Bengal
whereupon the Principal Secretary and Commissioner
Food passed an order dated 8th March, 2010 setting
aside the order of the District Magistrate, Purulia
with a direction to restore supply of 192 K.L.
Kerosene Oil per month in favour of the appellant.
It was also ordered to reduce the quota of M/s Lachmi
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Narayan Bhomroj (respondent) to 70 K.L. Kerosene Oil
per month.
8. The aforesaid order dated 8th March, 2010
passed by the Principal Secretary was challenged by
the respondents M/s Lachmi Narayan Bhomroj and others
in Writ Petition No. 365/2010. They questioned the
maintainability of the appeal and jurisdiction of the
Principal Secretary to entertain such appeal.
Learned single Judge by order dated 26th March, 2010
held that the Principal Secretary was not competent
to hear the appeal and to set aside the order passed
by the District Magistrate. Hence, the writ petition
was allowed and the order passed by Principal
Secretary was set aside. The aforesaid order has
been affirmed by the Division Bench.
9. Learned counsel for the appellant submitted that
the Division Bench committed serious error of law by
holding that the State Government is not an appellate
authority with respect to the order passed under
Paragraph 11 of the Control Order. The appeal
against the order passed by the District Magistrate
lies to the State Government and that the High Court
also failed to notice that in the present case the
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amended provision of the Paragraph 10 of the Control
Order is applicable which came into effect prior to
the order passed by the District Magistrate on 16th
December, 2009.
10. On the other hand, learned counsel for the
respondent contended that the Principal Secretary and
Commissioner of Food and Supplies Department had no
jurisdiction to hear an appeal over an order passed
by the District Magistrate.
11. In the said circumstances, the questions that
arise for our consideration are:
(i) Whether the impugned order was
passed by the State Government?
(ii) If not so, whether the Principal
Secretary and Commissioner of the
Food and Supply Department has
jurisdiction to entertain the appeal
against the order passed by District
Magistrate.
12. Under paragraph 8 of the Control Order, the
Director or the District Magistrate, as the case may
be, are vested with the power to refuse to grant or
renew a licence following the procedure as mentioned
therein. It reads as follows:
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“8. Refusal to grant or renew
license: The Director, or the
District Magistrate, having
jurisdiction, may, after giving the
agent or the dealer or hawker
concerned an opportunity of stating
his case in writing and for reasons
to be recorded in writing, refuse to
grant or renew a license under this
Order.”
13. On the other hand, Paragraph 9 of the Control
Order deals with the power of Director/District
Magistrate for cancellation or suspension of license
in case of any malpractice or contravention of any
provision of this Order. Paragraph 9 reads as
follows:
“9. Cancellation or suspension of
license: If it appears to the
Director or the District Magistrate
having jurisdiction that an agent or
a dealer has indulged in any
malpractice or contravened any
provision of this order or any
condition of the license or any
direction given under paragraph 12 of
the order, he may forthwith
temporarily suspend the license;
Provided that the agent or the dealer
whose license has been so suspended
shall be given an opportunity of
being heard before cancellation of
the license or revocation of the
order of suspension of the license
finally by an order in writing to be
made within 30 days from the date of
suspension of the license. The order
shall be passed ex parte if the
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dealer whose license has been so
suspended fails to appear at the
hearing.”
14. Any person aggrieved by the Order passed under
Paragraph 8 or Paragraph 9 of the Control Order may
within 30 days prefer an appeal under Paragraph 10,
which reads as follows:
“10. Appeal – Any person aggrieved by
an order passed under paragraph or
paragraph 9 of this order may within
30 days from the date of the order,
prefer an appeal –
a) in Calcutta.
i) where the order is passed by the
Director of Consumer Goods,
Department of Food and Supplies,
to the State Government.
ii) where the order is passed by any
other authorised by the State
Government under Clause (d) of
paragraph 3, to the Director of
Consumer Goods, Department of
Food and Supplies, and
b) elsewhere;
i) where the order is passed by the
District Magistrate or the Deputy
Commissioner of a District, to
the State Government
ii) Where the order is passed by
any other officer authorised by
the District Magistrate of the
Deputy Commissioner of a district
under Clause (e) of paragraph 3,
to the District Magistrate or the
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deputy commissioner, as the case
may be, of the District”.
15. From the aforesaid provision, it is
evident that no appeal lies to the Principal
Secretary or the Commission of Food and
Supply Department.
16. Paragraph 11 relates to issue of delivery
order or permit by the Director or the
District Magistrate, which reads as under:
“11. Issue of delivery order or
permit – (1) The Director or the
District Magistrate having
jurisdiction may issue a delivery
order or permit requiring an agent
within his jurisdiction to supply
kerosene to –
a) a dealer, or
b) other person or
establishment requiring
kerosene for his or its own
consumption, in any
particular area, if in the
opinion of the Director or
the District Magistrate, as
the case may be, this is
considered necessary, or
c) an agent.
(2) No person other than oil
distributing company, an
agent or a dealer shall
transport kerosene or store
kerosene or shall have in
his possession kerosene
exceeding ten liters at a
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time except under and in
accordance with a permit
issued by the Director or
the District Magistrate
having jurisdiction.”
17. The impugned order passed by the District
Magistrate, Purulia on 6th October, 2009 cannot be
termed as an order passed under Paragraph 8 or
Paragraph 9 of the Control Order. In such a
situation, no appeal is maintainable under
Paragraph 10 before the Principal Secretary or
the Commissioner, Food and Supply Department,
Government of West Bengal.
18. In the present case, the District Magistrate,
Purulia passed an order dated 6.10.2009 whereby the
quantum of Kerosene Oil allotted per month to
respondent got enhanced. By the same order quantum
of Kerosene Oil allotted to the appellant got
reduced. Even if it is assumed that the order of
the District Magistrate was under Paragraph 11 of
the Control Order, such an order is not appealable
under Paragraph 10 or before the Principal
Secretary and Commissioner of Food and Supply
Department, Govt. of West Bengal.
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19. The State has indeed the inherent power to
alter or to set aside any order passed by the
District Magistrate but it should follow the
procedure as prescribed by the law, such an order
should be passed by the authority empowered to do
so on behalf of the State in the name of Governor
of the State.
20. From the impugned order passed by the Principal
Secretary and Commissioner, Food and Supply
Department, it is apparent that the said order has
been passed in the capacity of his designated post
and not on behalf of the State.
21. Learned counsel for the appellant submitted
that the writ petition was withdrawn by the
appellant to move before the competent authority.
But that does not mean that while withdrawing such
case, the Court or any individual can confer
jurisdiction upon any authority who otherwise is
not so empowered under the Statute.
22. We, therefore, do not find any infirmity or
illegality in the impugned order passed by the
District Magistrate as affirmed by the Single Judge
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and the Division Bench. In absence of any merit
the appeal is dismissed. The parties shall bear
their respective costs.
………..……………………………………………..J.
(G.S. SINGHVI)
……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
APRIL 15, 2013.
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