K.J. Sengupta, J. - (1.) THIS appeal as well as another appeal in the Appellate Side being No. A.S.T. 177 of 2011 were heard analogously by consent of the parties as the nature of both the orders passed by the learned Trial Judge are similar and identical in language " only difference is the order passed in the Original Side which is a final one, whereas the same passed in Appellate Side is interim order. Both the appeals are preferred by a third party against the judgment and order dated 22nd March, 2011 (in Original Side) by which the learned Trial Judge has set aside the reasoned order passed by the Joint Directors and fresh order was directed to be passed.
(2.) THE short fact in the Original Side matter leading to preferring the instant appeal is as follows:- The respondent No.1 being the writ-petitioner and the sole proprietor of the respondent No.2 namely M/s. Laxmi Narayan Food Products (Unit No.II) has established and installed a flour mill with all modern equipments including automatic packing machine, dosing machine etc. at Reni Road, Purulia Town, Post Office & District " Purulia. The said mill was installed aiming at to make it ready for grinding wheats and producing fortified Atta and after having packeted for distribution to the BPL categories of people in the District of Purulia within the modified ration areas. The writ petitioner-respondent (in the Original Side matter) pursuant to the guidelines being memo dated 10th August, 2007 applied to be selected for getting allotment of certain quantity of wheat for grinding and packaging of fortified Atta. Likewise the writ petitioner, other eight mill-owners also applied. The writ petitioner-respondent is claiming to have milling capacity of producing 141.60 metric tones Atta per day. The application of the respondent No.1 followed by several representation dated 27th July 2010, 28th October 2010, 25th November 2010 and 29th November 2010 respectively to the Commissioner of Food was rejected by memo dated 25th November 2010 on the ground that the further allotment of BPL wheat for conversion into fortified Atta for distribution through PDS network was not possible because the district quota is fixed and the same has already been allotted to different flour mills. According to writ petitioner-respondent the said rejection was wrong and unfair as the supply and distribution of BPL wheat to the eligible mill owners are to be made equitably in view of number of judicial pronouncements having held so far. The respondent No.1 (Original Side matter) thereafter challenged the said memo dated 25th November, 2010 on various grounds by filing a writ petition being W.P. No. 1615 of 2010 and the same was disposed of by an order dated 10th January 2011 by Justice Tapen Sen. By this order Justice Sen was pleased to set aside the said memo and directed the Joint Directors of DDP & S respondent No.4 to reconsider the prayer of the petitioner by passing fresh order. In the said order various observations were made by Justice Sen, which apparently had got supportive value of the case of the writ petitioner. In terms of the said order dated 10th January, 2011 the Joint Director reconsidered the matter upon hearing the petitioners with detailed reasons and he found it impossible to allot any further quota observing that unless only the quota of district is enhanced and further vacancy is created by inviting application from all other flour mills/units of the districts, such sporadic new inclusion may open a flood gate for new aspirant while Government will have to accommodate many by curtailing the quota of existing flour mills day after day which will create problem for those including the writ petitioner/respondent. Thereafter the writ petitioner-respondent filed a contempt application alleging violation of the order passed by Justice Sen on 10th January 2011. In the said contempt application direction was given to carry out earlier order. In addition to the contempt application the writ petitioner again filed fresh writ petition being No.103 of 2011 challenging the last order passed by the Joint Director on 20thJanuary, 2011.
(3.) IN this writ petition no other mill owners were made parties. The learned Trial Judge while passing the impugned order observed that the order passed by the Joint Director was neither in true spirit of earlier order nor in consonance with observation made by Justice Sen wherein previous order of the Division Bench containing relevant observation was also recorded. Thereafter, the Joint Secretary appears to have passed an order dated 12th April, 2011 reallocating quota of BPL wheat to thirteen (13) eligible flour mill/chakkis including second unit of the writ petitioner/respondent. IN view of the reallocation of quota as above the quota of the appellant was naturally reduced. Mr. Saktinath Mukherjee, the learned Senior Counsel appearing in support of the appeal contends that impugned order dated 10th January, 2011 was passed in absence of his client though it is recorded therein that other mill owners including the appellant are also allottee of the BPL wheat. According to Mr. Mukherjee this order seriously affects the right of his client of being allotted with wheat. Consequent upon the said order the department has passed order dated 12th April, 2011 reducing the quota previously allotted to his client without any hearing being given although, an inspection was held to ascertain milling capacity and also workability of other infrastructure in the mills which are required to produce fortified Atta with allotted quota of BPL wheat. He submits that the reliance of the learned trial Judge on Division Bench order was totally misplaced as the said order was an interim one in an appeal which was ultimately dismissed.;