Sri Parimal Nath @APPELLANT@Hash State of West Bengal & Ors

Heard the submissions made on behalf of the petitioner. None appears on behalf of the respondent authorities in spite of service. The affidavit of

service filed by the petitioner is kept with the records. The petitioner was a kerosene dealer. He had been running his business since 1990. A surprise

raid was conducted on 17th December, 2008 and 750 liters of S.K. oil, 54 empty barrels and measuring containers were seized from the residence of

the petitioner. On 18th December, 2008 the Sub-Divisional Controller of Food and Supplies Srirampore, Hooghly issued an order of suspension of the

SK Oil license of the petitioner for unauthorized and illegal storing of SK Oil at his residential premises.

On 7th January, 2009 the petitioner was issued a show-cause notice against his suspension of SK Oil license. The petitioner replied to the said show-

cause by his letter dated 14th January, 2009. Vide a memo dated 14th January, 2009 the petitioner was directed to appear for a hearing in the office of

the Sub-Divisional Controller Food and Supplies, Srirampore, Hooghly on 16th January, 2009, but as he was apprehending arrest he could not appear

on the said date of hearing. He obtained an order of anticipatory bail from this Hon’ble High Court vide order dated 20th January, 2009 passed in

CRM 755 of 2009. A further opportunity was given to the petitioner to appear for hearing on 27th January, 2009. On that date the petitioner appeared

before the authorities and submitted documents in support of his case.

Vide order dated 27th January, 2009 the Sub-Divisional Controller, Food and Supplies, Srirampore, Hooghly cancelled the SK Oil license issued in

favour of the petitioner on the ground of unauthorized and illegal storage of SK Oil at his residential premises. The aforesaid order of cancellation is

impugned in the instant writ petition. The specific case of the petitioner is that though the petitioner submitted his reply in response to the show-cause

none of the points that have been raised by the petitioner had been addressed by the respondent authorities. No reasoning whatsoever has been

provided in the impugned order of cancellation of license of the petitioner.

The petitioner has filed a supplementary affidavit wherefrom it appears that the police case that had been initiated against the petitioner pursuant to

the complaint lodged in the police station under section 3 of the Essential Commodities Act, 1955 read with Section 7(1) (a) (ii) of Act 10, 1955 was

taken up for consideration by the learned Additional Chief Judicial Magistrate, Srirampore, Hooghly and vide judgment dated 1st April, 2014 the

petitioner being the accused in the said case had been acquitted on the specific finding that he was found not guilty of the offence. The petitioner

made a further representation before the Sub-Divisional Controller, Food & Supplies on 26th June, 2014 praying for withdrawal of the order of

cancellation of SK Oil license but there has been no response from the respondent authorities.

The petitioner relies upon the judgement reported in 1992(2) CHN 323 Md. Abdus Salam @ Sk. Vs. Sub-Divisional Controller, F&S, Basirhat, 24

Parganas (N) & Ors. wherein this Court held that the provision for passing final order within the period of 30 days from the date of the order of

suspension is mandatory and if necessary even exparte orders may be passed where the dealer fails to appear at the hearing. The order of suspension

or for that matter the proceeding in which the order of suspension was passed cannot be made beyond the prescribed period of 30 days and the

continuation of the proceeding as well as the suspension without cancellation beyond the said period is not tenable. Any order of cancellation of the

license if not passed within the period of 30 days from the date of temporary suspension will also not be tenable and bad in law as well as without

jurisdiction. The Court further held that the provision of appeal would not necessarily stand in the way of the aggrieved person in approaching this

Court in its writ jurisdiction against the order which is passed without jurisdiction. The Hon’ble Court had been pleased to set aside the order of

cancellation and further directed the respondents to restore supply of kerosene oil to the petitioner as licensed dealer.

The petitioner further relies upon a judgement reported in 2005(4) CHN 264 in the matter of Rani Sati Kerosene Supply and Ors.-Vs- The State of

West Bengal & Ors. on the aforesaid provision of law. In the instant case it appears from the records that the order of suspension was passed on 18th

December 2008 and the order of cancellation was passed on 27th January, 2009, i.e., well beyond the statutory period of 30 days.

The provision for cancellation or suspension of license in accordance with the West Bengal Control Order 1968 is set out herein below:-

Paragraph 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 or this Order or any condition of the license or any direction given under Paragraph 12 of

this Order, (or any order issued under the Essential Commodities Act, 1995 [Act 10 of 1995]), 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 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 dealer whose license has been so suspended fails to appear at the hearing.

Any person aggrieved by an order passed under paragraph 9 may prefer appeal in accordance with paragraph 10 which is set out herein below:-

Paragraph 10- Appeal- 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, (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 officer authorized 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 District, to the State Government,

(ii) where the order is passed by any officer authorized by the District magistrate or the Deputy Commissioner of a District under Clause of

Paragraph 3, to the District Magistrate or the Deputy Commissioner, as the case may be, of the District.

In Rani Sati (supra) this Court specifically held that it is settled position of law that if a statute prescribes the mode of doing a particular thing that must

be done in that way. The Control Order, a delegated piece of legislation authorizes the Director of Consumer Goods with the power to investigate the

allegation of misconduct and if such allegation if found to be true, to cancel the license. Against the order of cancellation of license there is 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.

Admittedly in the instant case the order of cancellation of license was passed beyond the statutory period of 30 days. Though the petitioner could not

appear on the first date of hearing but in view of the proviso to Paragraph 9 of the Control Order the order of cancellation of license could be passed

ex parte. As the order of suspension had been passed beyond the statutory period it is wholly without jurisdiction and liable to be set aside. The

provision for appeal will also not be available to the petitioner.

In view of the settled provision of law and also in tune with the judgements referred to hereinabove the impugned order of cancellation of license of

the petitioner dated 27th of January, 2009 cannot stand in the eye of law and is hereby set aside. The respondent authorities are directed to take

immediate steps to restore the SK Oil license in favour of the petitioner. Such step to be taken preferably within a period of 8 weeks but not later than

10 weeks from the date of receipt of a copy of this order.

W.P. 11589(W) OF 2009 stands disposed of accordingly. There will however be no order as to costs. Urgent photostat certified copy of this order, if

applied for be made available to the learned advocate appearing for the parties upon compliance of usual formalities.