- (1.) In the writ petition being W.P. No. 20283(W) of 2006 M/s. Vivekananda Enterprises, a partnership firm, the petitioner No. 1 and its managing partner, the petitioner No.2, have challenged the order dated 1st August, 2003 passed by the District Magistrate, Paschim Medinipur, the respondent No. 3 and the order dated 28th July, 2006 passed by the Commissioner, Food, the respondent No.1 on the grounds mentioned in the petition. The matter was moved on 2nd April, 2007 when after hearing the learned Advocates for the parties an interim order was passed restraining the respondents from filling up the vacancy created due to the cancellation of the petitioner's modified ration distributorship licence till 20th February, 2007 which was subsequently extended. Directions were also issued for filing of affidavits. Affidavits have since been filed and are on record.
(2.) The grievance of the writ petitioners is that the authorities had all along proceeded with a closed, biased and pre -determined mind which is amply reflected in the order dated 28th July, 2006 passed by the respondent No. 1, wherein the order passed on 1st August, 2003 passed by the respondent No. 3 had merged. Submission was that the show cause notice (for short "the notice") dated 17th March, 2003 was not specific,as it does not specify the records to be relied on. Moreover, as evident from the language of the notice, the fate of the petitioner was already sealed. As there was no notice of termination of agreement after giving one month's notice in writing, it was under Clause 12 and not Clause 13 of the agreement dated 14th March, 2002. According to the petitioner, under the agreement, the respondent No. 3 before passing the order should have sought the opinion of the Controller. THE respondent No. 3 could not be the Judge of his own cause since he had himself issued the notice. As there was absence of the opinion of the Controller; the respondent No. 3 acted suo motu and lacked jurisdiction. Moreover, while passing the order the respondent No. 3 did not consider at all the reply dated 2nd May, 2003 to the notice. So far as the order passed by the respondent No.1 is concerned, submission was it was passed perfunctorily. THE representatives of the petitioners were asked to summarily make their submission. Submission was that the respondent No. 1 misdirected himself since the impugned order was passed relying on paragraph 14(2) of West Bengal Rice and Paddy (Licensing and Control) Order, 1967, ("the 1967 order" for short) repealed in 1997, and the order passed in W.P. No. 349 (W) of 2001 and neither the show-cause notice nor the order of the respondent No. 3 mentioned the same. It was submitted that the allegation regarding misrepresentation or suppression of material facts was not correct since the affidavit in opposition (for short "the affidavit") affirmed on behalf of the State respondent is silent in that regard. Moreover, in the said affidavit there is no specific or general denial of the facts pleaded or stated in the petition. Submission was, as evident from the annexures including the agreements of 1982 and 2002 entered into by the petitioners and the State, the authorities all along had accepted the petitioner No.2 as the managing partner of the petitioner No. 1, a concept not alien to provisions of the Partnership Act, 1932 (in short 'the Act'). Referring to the registered deed of partnership dated 3rd August, 1981, a copy of which was filed during hearing, it was submitted that the petitioner No.1- the firm - and the petitioner No. 2 have the locus standi to move the petition. With regard to the defect in the affidavit of the petition, submission was that the mistake was technical and may be ignored for the ends of Justice. Learned Advocate appearing for the State respondent submitted that the petitioners have no locus standi since there is no statement whether the firm is registered. Assuming it is registered, there is no pleading whether the persons suing have been shown as partners in the register of firms. That apart, there is no authorisation by six other partners authorising the petitioners to move the petition. Referring to the agreement it was submitted that appointment of the petitioners as M.R. distributor was not under any Control Order but under a Scheme where trust plays a vital role. Since the petitioner committed breach of trust and in view of the order passed in W.P. No. 349 (w) of 2001, the respondent No. 3 in exercise of his absolute and unfettered powers under the agreement had issued the notice. In compliance with the principles of natural justice opportunity was granted to the petitioners to put forward their case and thereafter order was passed terminating the agreement. Since the petitioner had understood the contents of the notice as evident from the elaborate reply, order passed by the respondent No. 3 was proper. So far as order dated 28th July, 2006 passed by the respondent No. 1 is concerned, submission was that as appointment was made under a Scheme, the provisions of Order 22(2) of the West Bengal Rationing Order, 1964, under which appeal was filed, are not applicable. Moreover, quoting a wrong paragraph does not make the order passed by the respondent No. 1 nugatory. Submission was, since the petition lacks pleadings and reliance has been placed on the repealed provisions of the 1967 order and grounds are insufficient, the writ petition may be dismissed. Learned Advocates for the parties had relied on a number of judgements in support of their submissions.
(3.) Question is whether a mistake in the affidavit would rob the petitioners of their rights guaranteed under Article 226 of the Constitution of India. If the answer is in the negative, the question is have the petitioners made out a case for issuance of appropriate orders. If not, whether orders impugned still pass the test of scrutiny. So far as the first question is concerned it is an established concept that a writ Court is a Court of Equity. It is evident from paragraph 1 of the petition that Vivekananda Enterprises, the petitioner No.1, is a partnership firm. However, there is no statement whether it is registered or not. The affidavit filed on behalf of the state too is silent in that regard. However, in course of hearing the petitioner had produced the deed of partnership registered on 3rd August, 1981, on the strength of which agreements were entered into between the petitioner Nos. 1 and 2 and the State. Therefore, as the petitioner No. 1, is are,gistered firm and hence it is a juristic person and as a registered firm itself is competent to move a writ petition in case of violation of fundamental rights guaranteed under Article 226 of the Constitution of India, the argument that the petitioners are not competent to move the petition fails. Thus, since the firm is registered, the mistake in the "Affidavit" in page 36 of the petition seems to be a typographical error and hence needs to be ignored. Further the argument on behalf of the State that the writ petition is not maintainable as the persons suing have not been shown in the register of firms under Section 69(2) of the Act, cannot be accepted as it is clear from the language of the said sub-section that it bars filing of a suit but does not disentitle a citizen from pursuing other proceedings such as challenging State action under Article 226 of the Constitution of India. The law laid down in the judgements relied on by the State in the case of Satchidananda Samanta v/s. Ranjan Kumar Basu and Ors., 1992 AIR(Cal) 222; Chandra Mohan Sur and Ors. v/s. Mohit Lai Seal and Anr., 2007 1 CalLJ 63and Sri Jiban Krishna Saha v. Smt. Parulbala Saha and Ors.,2009 2 CalLJ 429 are not applicable to the facts of this case as therein the disputes were in between the private individuals and appeals were preferred against the judgements and decrees passed in suits. Hence, in the facts of this case Section 69(2) of the Act would not disentitle the petitioner No. 1, a registered firm, from challenging the actions of the State with whom it had entered into agreements and had all along transacted business.;