M/s. Purushottamdas Jhunjhunwala and Another vs The State of West Bengal and Others

Hon''ble Justice Soumen Sen

(VACATION BENCH)

The Court: The present writ petition has been filed challenging an FIR lodged on 4th August, 2011 u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955 read with Sections 406, 407, 411, 413, 414 of the Indian Penal Code. It appears that prior to the filing of the instant writ petition there has been writ petition concerning the seizure of foodgrains in which an order was passed on 8th September, 2011, by which the Competent Authority was directed to sent a report to the Respondent No. 6 with regard to the seized articles and the Respondent No. 6 was directed to take steps with regard to the above articles on the basis of such report in accordance with provision of Sections 6A and 6B of the Essential Commodities Act, 1955 and to dispose of the proceedings by September 23, 2011.

In the present writ application, which is a sequel to the earlier writ petition, a prayer was made directing the Respondents and each of them to allow the Petitioners to function as MR Distributorship forthwith. On an earlier occasion, a prayer was made for release of the seized stock of wheat in favour of the Petitioners, which has been the subject matter of consideration in the earlier writ petition and in that connection the earlier order was passed.

Mr. Saptansu Basu appearing on behalf of the Petitioners submits that having regard to the fact that 30 days have passed within which the authorities have failed to take any step the suspension order cannot continue beyond the period of 30 days. It appears on an earlier occasion. Mr. Basu submitted that show cause notice was served on the Petitioner on 7th August, 2011 and the Respondent authorities have failed to pass any order in respect of the representation being made in answer to the said show-cause notice within a period of 30 days from the date of service of the show cause notice upon the Petitioner.

Mr. Basu further submitted that the show cause notice dated 7th August, 2011 was served upon the Petitioners pursuant whereof the Petitioners replied on 23rd August, 2011. He referred to paragraph 26[c] of the Control Order 2003 and submitted that upon receipt of the said suspension it was incumbent upon the authorities concerned to decide the matter within 10 days from the date of receipt of such explanation. He has drawn my attention to the judgement reported in Md. Yeasin and Others Vs. State of West Bengal and Others, in which the similar points arose and the Hon''ble Division Bench holds such provision to be mandatory and it would be reflected in paragraph 40 of the said report. The District Controller, Department of Food and Supplies after giving an opportunity of hearing to the distributor is required to dispose of the proceeding within one month from the date of receipt of the communication from the said sub-Divisional Controller, Department of Food & Supplies. In this case, admittedly no order was passed within such time. However, it has been submitted that the learned Trial Judge on the earlier occasion extended the period till 23rd September, 2011. Even that was not complied with.

Learned Senior counsel appearing for the State, however, submitted that the said order referred to the confiscation proceedings and has nothing to do with the present issue. If that be the situation, then it is all over this Court should pass an ad interim order since admittedly the period prescribed under the control order had not been followed. In view thereof suspension order cannot continue any further. The suspension order has to go and accordingly the said order is revoked. However this will not prevent the Respondent authorities to decide the show-cause notice on its own merits and pass an appropriate order.

Direction is given for filing of affidavits. Let affidavit-in-opposition be filed within one week after Vacation; reply, if any, be filed within two weeks thereafter. Although points of maintainability have been raised, but I fail to appreciate how the writ petition is not maintainable having regard to the fact that the provision of the control order appears to have been violated.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.