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Subal Chandra Kundu Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 112 of 1951
Judge
Reported inAIR1953Cal650
ActsBengal Rationing Order, 1943
AppellantSubal Chandra Kundu
RespondentState of West Bengal and ors.
Appellant AdvocateBinayak Nath Banerjee and ;Sushil Kumar Biswas, Advs.
Respondent AdvocateJ. Mazumdar, A.G.P.
DispositionAppeal dismissed
Cases ReferredBhatia Ghisalal v. R. T. Authority
Excerpt:
- .....the introduction of sugar control in october 1949, the appellant was granted an establishment sugar permit for 3 mds. 12 srs. of sugar per week for the manufacture of condensed milk only. it is alleged that prior to the introduction of sugar control in 1949 the appellant also used to manufacture lozenges, sugar candy and toffees. in 1950 the appellant filed several applications to the central as well as to the state government for allotment of an additional quantity of sugar for the manufacture of sugar candy, lozenges etc. but his applications were rejected.2. on 9-9-1950 an area inspector of the civil supplies department, named s. mukherjee, inspected a lozenge manufacturing factory, named oriental confectionary, where the appellant was employed as the manager and asked the.....
Judgment:

Lahiri, J.

1. The appellant Subal Chandra Kundu is the owner of an establishment, named National Milk Company, at premises No. 1/9 Nilmony Mitra Row, and used to carry on the business of manufacture of condensed milk. After the introduction of sugar control in October 1949, the appellant was granted an establishment sugar permit for 3 mds. 12 srs. of sugar per week for the manufacture of condensed milk only. It is alleged that prior to the introduction of sugar control in 1949 the appellant also used to manufacture lozenges, sugar candy and toffees. In 1950 the appellant filed several applications to the Central as well as to the State Government for allotment of an additional quantity of sugar for the manufacture of sugar candy, lozenges etc. but his applications were rejected.

2. On 9-9-1950 an Area Inspector of the Civil Supplies Department, named S. Mukherjee, inspected a lozenge manufacturing factory, named Oriental Confectionary, where the appellant was employed as the manager and asked the appellant to accompany him to the appellant's condensed milk factory. The appellant expressed his inability to comply with the request on the ground that it was not possible for him to remove himself from the lozenge factory leaving the charge to the workers.

3. On 11-9-1950, the said area Inspector visited the appellant's condensed milk factory and made a note in the Daily Consumption Register which runs as follows:

'Stock of sugar could not be weighed. Found one full bag and two bags loose, -- the total approximating 5 mds. 4 srs. Also found 44 tins of condensed milk (14 oz. each). Printed cash memos are not issued for sale of products. Found 'Kundas' in the Factory and one log of round solid wood. Account upto 6-9-50 i. e. in arrears for 4 days.'

4. On 23-10-1950 when the appellant went to purchase the sugar, allotted by his permit, he was informed that his permit had been suspended.

5. Thereafter the appellant received a letter, dated 28-10-50 from somebody acting for the Joint Controller of Rationing asking him to show cause why his sugar permit should not be cancelled for misuse of sugar. The appellant showed cause by a letter dated 3-11-1950, in which he gave explanations for the presence of equipments for the manufacture of sugar candy in his condensed milk factory and also arrears of accounts and his inability to comply with the request of the Area Inspector on 9-9-1950.

6. By a letter, dated 13-12-1950 somebody acting for the Joint Controller of Rationing informed the appellant that 'his establishment had been cancelled.' Against this order the appellant moved this Court under Article 226 of the Constitution of India and obtained a Rule calling upon the respondents to show cause why the order of cancellation of the appellant's establishment should not be withdrawn, or why the benefits under the appellant's sugar permit No. N/Me/8 (sug) No. 37688 should not be restored.

7. The respondents showed cause by a counter-affidavit affirmed by Sri Bivacar Das, who is the Special Officer (Establishment) Directorate of Rationing and Distribution, Government of West Bengal. The material allegations in the counter-affidavit are that the respondents had no knowledge and made no admission about the allegation that the appellant had ever carried on the business of manufacture of sugar candy and lozenge, and that the Area Inspector ascertained on local enquiry that sugar candy was manufactured in the appellant's condensed milk factory. The Inspection Report of the Area Inspector and a statement in writing over the signatures of the residents of the locality have been produced in this Court and collectively marked Annexure 'A' tothe counter affidavit.

8. Bose, J. who decided the case pointed out various irregularities in the counter-affidavit filed by the respondents, but in spite of those irregularities he came to the conclusion that there was a ring of truth in the statements made therein. He also held that Clause 3 (4) and Clause 10 (3) of the Bengal Rationing Order are void in so far as they provide for the cancellation of a permit without assigning any reason. In the end, however, Bose, J. discharged the Rule upon the view that the authorities had justifiable reasons for cancelling the appellant's permit.

9. Against the judgment of Bose, J. the appellant has filed this appeal and Mr. Banerjee, appearing in support of the appeal, has argued that in view of the irregularities in the counter-affidavit Bose, J. was not justified in relying upon the statements contained therein.

10. I cannot accept this argument. The objections to the use of the counter-affidavit are twofold : in the first place, it is said that the deponent Sri B. Das does not state when he was employed by the Directorate of Rationing and as such he was not competent to depose to the facts of the case. It is true that Sri B. Das does not state when he joined the office of the Directorate of Rationing but he says that he is a Special officer of that office and has dealt with the case and is, therefore, acquainted with the facts of the case. I, therefore, see no reason to throw out the counter-affidavit on the ground suggested.

11. The second objection is that the verification clause is not in accordance with law, inasmuch as it does not state which specific parts are true to knowledge and which are not. The relevant parts of the counter-affidavit upon which Bose J. relied are matters of record kept by the Directorate of Rationing that is, the inspection report submitted by the Area Inspector which is an annexure to the counter-affidavit. From the verification clause we find no difficulty in holding that this part was referred to therein as being a matter of record. It is not suggested that this report was not prepared by the Area Inspector. For these reasons, I am unable to give effect to the second objection raised by the appellant.

12. The relevant part of the inspection report of the Area Inspector dated 11-9-1950 runs as follows :

'It has been, made abundantly clear to me by the local people that the P. H. used to manufacture Sugar Candy in his Establishment. Bengali and non-Bengali people were contacted by me who all told me the same story, e. g. Gopeehand, employee of a nearby Grocer's shop, 3 inmates (male and female) of the same premises have jointly given a written statement to this effect which is attached herewith.

Found 9 Kundas in the Factory and husk spread in one of the rooms in possession of P. H. and this husk is required for making the floor damp proof in connection with sugar candy manufacturing. Also found a log of round solid wood which is generally used by sugar candy manufacturers for breaking the lump candy. Enclo: 1 statement,

Sd. S. Mukherjee

11-9-1950 Inspector (Estbts)

Sugar Section.'

13. As the written statement signed by the local residents on 9-9-1950 did not contain anyreference to the time when they saw the appellant manufacturing sugar candy, the Area Inspector again visited the locality on 21-11-1956. This time the residents of the locality signed a written statement to the effect that they saw sugar candy being manufactured in the appellant's establishment during the present sugar 'control.

14. It has been suggested that none of the signatories have come forward to swear to the facts contained in their written statement. I think, however, that that is not necessary. All that we have to see is whether the authorities concerned had sufficient materials before them upon which they could pass the order complained of. Upon the evidence on the record, I must hold that the authorities had such materials before them.

15. With reference to the presence of instruments for the manufacture of sugar candy, Mr. Banerjee has strenuously argued that his client used to manufacture sugar candy during the period of temporary decontrol of sugar. But the appellant has not produced any trade license, or document to prove that he used to manufacture sugar candy during the period of decontrol. Moreover, the presence of husk spread in one of the rooms occupied by the appellant points to the conclusion that he was manufacturing sugar candy quite recently, because husk is required for making the floor damp proof in connection with the manufacture of sugar candy.

16. Bose, J. has relied on the decision of the Judicial Committee of the Privy Council in the case of --' Nakkauda Ali v. M. P. De S. Jayaratne', 54 Cal WN 883 (PC) (A) for the proposition that in a case of this description which deals with the revocation of a license the authorities concerned are justified in acting on reasonable suspicion which is not dissolved by the explanation offered by the licensee. This point has been brought out more clearly in the subsequent case of -- 'M, F. De S. Jayaratne v. Bapu Miya Mohd. Miya', 54 Cal WN 893 (PC) (B) where it has been said that on no view could it be held that the authorities concerned were under a duty to treat the case as if they were conducting a criminal trial with the prosecution put to strict proof of what was charged. Mr. Banerjee strongly argued that these decisions of the Privy Council are not correct and referred us to the decisions of the House of Lords in the case of -- 'Board of Education v. Rice', (1911) App Cas 179 (C) and of the Madhya Bharat High Court in the case of --'Bhatia Ghisalal v. R. T. Authority', AIR 1952 Madh B 128 (D).

17. The decision of the House of Lords does not deal with the question of revocation of a license and the Madhya Bharat High Court deals with a case where a license was revoked without issuing any notice upon the licensee. We accordingly hold that the cases relied on by Mr. Banerjee have no bearing upon the facts of the present case. The revocation of a permit is after all a matter of discretion of the revoking authorities and if the order of revocation is not contrary to any principle of natural justice, it is impossible for us to interfere with that order.

18. In the case before us, the permit-holder was asked to show cause and he did show cause, but the authorities were not evidently satisfied by the explanation offered. Mr. Banerjee argued that the final order of revocation communicated to the appellant by the letter, dated 13-12-1950, does not give any reason and therefore it is void. We have, however, to examine the entire proceedings to ascertain if any reasons were given. If we do so, we find that in the letter asking theappellant to show cause it was specifically stated that the appellant should show cause why his permit should not be cancelled for misuse of sugar and the appellant showed cause on that footing. Prom these facts it is abundantly clear that the appellant's permit was cancelled for misuse of sugar.

19. Lastly, Mr. Banerjee argued that the order of cancellation was made by an authority not properly authorised to exercise the power. Paragraphs 3(4) and 10(3) of the Rationing Order authorise the Provincial Government to exercise the power of revocation, and para 22 empowers the Provincial Government to delegate this power. By Notification No. 10087 D. C. S. dated 19-10-1944, the Governor delegated this power to the Additional Controller of Rationing, Civil Supplies Department, Bengal, but in the counter-affidavit on behalf of the State it was stated that the order of cancellation had been passed by the Director of Rationing and Distribution. Mr. Banerjee has argued that the power of revoking a permit was not delegated to him under para 22 of the Bengal Rationing Order and accordingly the order of cancellation is void. This point, though raised in the pleadings, was not pressed before Bose, J. nor has it been taken in the grounds of appeal before us. We, therefore, allowed the learned Assistant Government Pleader time to ascertain the correct state of facts. Our attention has now been drawn to a Notification N. 5086 D. C. S. dated 21-4-1946 by which the powers under paras. 3(4) and 10(3) of the Bengal Rationing Order were delegated to the Director of Rationing in the Directorate General of Food Department of Civil Supplies Bengal.

This Notification was published in the Calcutta Gagette on 26-4-1945. But it is extremely unfortunate that it has not been included in the Enforcement Manual corrected upto 1-1-1952, which was published sometime in the year 1952. The omission to include this Notification in the Enforcement Manual gave rise to a suspicion if this Notification had not been subsequently withdrawn. To satisfy us on this point, Sri B. Das, Special Officer, Directorate of Rationing and Distribution, has filed an affidavit to the effect that this Notification No. 5086 D. C. S. has not been withdrawn and is still in force. The appellant has not also been able to point out any subsequent Notification by which the aforesaid Notification has been withdrawn. Upon these materials I am satisfied that the Director of Rationing has been authorised to exercise the powers under paras. 3(4) and 10(3) off the Bengal Rationing Order.

20. In that view of the matter, the point raised by the appellant fails. But we desire to point out that considerable time of the Court was wasted on account of the non-inclusion of Notification No. 5036 D. C. S. dated 21-4-1945, in the Enforcement Manual, published by the Government in the year 1952.

21. Bose, J, has held that paras. 3(4) and 10(3) of the Bengal Rationing Order are void to the extent that they empower the authorities concerned to revoke an appointment, or a ration document without assigning any reason. As in the case before us, reasons have been given by the authorities for revocation of the appointment, this point does not arise for consideration and we leave this point undecided.

22. Before parting with this case, we desire to point out that our attention was invited to Notification No. 816/SC/Gen/102/51 -- 31st March, 1951 published in the Calcutta Gazette Extraordinary of the same date, under which the appellant is entitled to purchase sugar from 'free market' without any permit. If that be so, it is difficult to realise why the appellant is seeking restoration of the benefits of his permit No. N/ME/ 8 (Sug)37688. It has, however, been suggested that this Notification may be withdrawn at any time by the Government. For these reasons I have given my decision on all the points raised by the appellant.

23. As all the points raised by the appellant fail, this appeal must be dismissed and the judgment of Bose J, affirmed.

24. The respondents are entitled to costs of this appeal hearing fee being assessed at five gold mohurs.

25. Guha Ray, J.

I agree.


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