BHAGABATI PRASAD BANERJEE, J. - (1.) This is an appeal against the order dt. 4/06/1991 passed in matter No. 1595 of 1991 passed by the learned trial Judge by which the learned trial Judge passed an interim order to the following extent : "In the meantime, the petitioner will be entitled to apply for allotment of 5 B. G. Rakes from special quota per month before the respondents in terms of recommendation made by the Director of consumer affairs, West Bengal being Annexures-D and E to the writ petition. If any prayer is made for allotment the respondent authorities will allot from the special quota of 5 B. G. Rakes month by month to the writ petitioner starting from the month of June, 1991. Such allotment should be made within a period of fortnight from the date of communication of this order. This interim order will be continued till the disposal of this application with liberty to the respondents to apply for variation and/or vacating of the interim order upon notice to the petitioner". Some other orders were passed in some other proceedings for allotment of B. G. Rakes for import of iodized Salt in this stage. All the matters have been taken up for hearing together. In order to prevent goitre disease caused by deficiency of iodine, Government of India has launched a massive All India programme for control of goitre which is commonly referred to as "National Goitre Control Programme". The Govt. of West Bengal has declared all the districts in the State of West Bengal as "Goitre Endemic Areas".
(2.) In exercise of power conferred by S. 23 of the Indian Railway Act, 1890 the Central Government published an order being General Order No. 74 whereby "preferential tariff Schedule" for transportation of goods was published and the Central Government thereby directed the Railway Administration and gave special facilities and/or preference to the transportation of goods/class of goods specified in (a) schedule to the said order. The said schedule provides priorities "(a) to (e)". The movement of the iodise salt in accordance with the sponsored scheme under the "National Goitre Control Programme" gets preference under priority '(b) in "Preferential Tariff Schedule". Under the said scheme quarterly quota of B. G. Rakes is fixed for different 'Zonal Quota' and such iodise salt is distributed through recognised salt importers as government nominees. At present the 'Zonal quota' for the State of West Bengal given by Railway in respect of B. G. Rakes the State of West Bengal is about 290 Rakes. The requirement of the State of West Bengal and the corresponding supply by the railway for some years are set out below : Year Population of the State (in crore) Requirement of the State (in lakh MT) Actual Supply by (Lakh M. T.) 1989 6.50 4.68 4.87 1990 6.65 4.79 5.25 1991 6.80 4.90 5.71 1992 6.95 5.00 5.11 1993 7.10 5.21 5.21 5.21 lakh M. T is the expected supply by railway during 1993. It is evident from the above table that during the last 4 years railways have been supplying salt more than the requirement of the State calculated on the above basis. Hence, the present requirement of the State is 305 B. G. rakes or 5.21 lakh M. T. However, the railways have directed the State Government not to sponsor more than 290 rakes because of railway's limitation. There are empanelled importers who are there in the field for 28 years or more with wide experience and intending importers, the total number of such empanelled importers are 466.SC.219 rakes had to be distributed amongst 460 empanelled importers. It has to be remembered that all the empanelled importers are not similarly situated. One of the parties case before us is that it has built a strong capacity of nearly 2 lakh bags of salt at a time which is equivalent to 9 B. G. rakes at Chitpur. It has been paying rent Rupees 2,48,000/- per month to Eastern Railway .............. keeping the same completely waterproof for storage of iodize salt. It is stated that this party is engaged in importation of iodize salt for more than 20 years and claimed that this party has been allotted 5 rakes per month. Considering its godown capacity and the infrastructure and the past performance. On the contrary there are importers who have no experience at all and who may not have any godown capacity and/or any infracture but they are interested in getting supply of rakes. We are told in open court if a rake is allotted to a party that party in view of the present will earn a profit of Rs. 40,000.00 per rake. There is also possibilities of selling the salt allotment for a valuable consideration for earning easy profit. We have to bear in mind the purpose of such allotment is for importation of iodize salt and equitable distribution of those iodise salt to the consumer at large at a reasonable price. Salt is an essential requirement for every human-being and iodise salt is necessary to prevent goitre. Iodise salt is imported mainly from Western and Northern India through rail route. It is not in dispute that large quantity of iodise salt are available in Western and Northern India but there is acute shortage of railway wagons and rakes for carriage of salt. Such allotments were made by salt Commissioner who was recommending the Railway Authorities for the purpose of allotment of rakes to parties as the competition between the parties to get allotment of rakes were increasing and some of the parties moved this court and obtained an order for allotment of rakes. In such cases when individual parties are moving the court, this court passes interim order or final order considering the need and the capacity of the particular party. The Salt Commissioner was also making recommendation but with the increase of demand for rakes situation became difficult. It is not necessary to go into details of the history of the case and/or litigation in view of the fact that once this came up before the Division Bench presided over by the then Hon'ble Chief Justice N. P. Singh (as his Lordship then was) and Their Lordships by an order D/- 16/09/1991, inter alia, passed the following order : "Accordingly, after hearing the counsels appearing for the parties and taking all facts and circumstances into consideration we constitute a committee consisting of (i) Secretary, Department of Food and Supplies, Government of West Bengal, (ii) Director of Consumer Affairs, Govt. of West Bengal and (iii) Asstt. Salt Commissioner, Calcutta. The said committee shall consider the application filed on behalf of the different nominated importers/dealers for sponsorship of Railway rakes, after taking all facts and circumstances into consideration including past performance of such nominated importer/dealers, necessity of such iodised salt in any particular part of the State and other relevant factors which shall be in the interest of the public in general. The operation of the directions given in the writ applications regarding sponsorship to be made by the State Government for the allotment or Railway rakes shall remain stayed during the pendency of the appeal in view of the order passed above. The aforesaid order regarding constitution of the committee should be implemented so far as the 4th Quarter commencing from October, 1991 is concerned. We however, make it clear that if the sponsorship in respect of the railway rakes for the 3rd quarter ending with 30/09/1991 has not been made or any final decision has not been taken in respect of some of the railway rakes, then the sponsorship in respect of remaining railway rakes even for that quarters shall be made by aforesaid committee and the orders passed in respect of such/remaining railway rakes in different writ application in question shall be deemed to have been stayed. It is expected that the aforesaid committee shall prepare a scheme which may be reasonable from all aspects for sponsorship of the railway rakes for the quarter commencing from January, 1992. In the meantime, it will be open to the said committee to hear the nominated importers/dealers or their association while framing the scheme for proper sponsorship in respect of allotment of railway rakes to different nominated importers/dealers for quarter commencing from January, 1992. The application for stay and/or interim relief is disposed of as above without any order as to costs." After this order was passed by the Division Bench a large number of writ petitions were filed being aggrieved by and dissatisfied with the decision taken by the authorities implementing the order passed by the Division Bench and whereupon in another writ application filed by M/s. Banwarilal Agarwal and others, au order was passed appointing a Special Officer in order to check up the records and files and report as to whether similarly placed other persons in the list of empanelled importer there were discriminations and/or the persons who are having quotas in different districts and asking further any other district and on 9-12-92 passed an interim order relating to the allotment of the month of December, 1992 wherein it was provided that the State respondents should take steps effectively in arranging as regards the priorities of allotment of 'B' priority rakes by giving priorities to such importers, appearing in the panel who have not obtained any quota in any district whatsoever. Secondly, it was provided that they would not be given any preference for the month of December, 1992 to those quota-holders who had obtained previous rakes but could not perform due to lack of potentials. All the matters were heard together and upon hearing all the parties and considering the facts and circumstances following order was passed by the Division Bench constituted by myself and Justice A. K. Bhattacharjee on 14/05/1993. Considering the facts and circumstances of the cases, we direct, a committee should be constituted as directed by the earlier Division Bench consisting of the Secretary, Department of Foods and Supplies, Government of West Bengal, Director of Consumer Affairs, Government of West Bengal and Assistant Salt Commissioner, Calcutta and over and above the Committee shall also include one representative of the Railway Board inasmuch as under the preferential tariff schedule framed by the Railway Board Zonal Scheme has to be approved by the Railway Board and accordingly, the Railway Board shall send a representative and that such representative should be included in the Committee that would be set up for the purpose of framing the scheme. The said committee shall frame a scheme as an interim measure to meet with the situation out of which these appeals arose. The said Committee shall first find out the need District wise so that the object of giving preference in the matter of allotment of rakes are fulfilled. The consumers' interest is a paramount consideration even though the consumers are not before us. The Salt has to be brought for the consumers and that as all the districts in the State of West Bengal are in Goitre Endemic Area, the dried districts and the requirements of the districts has to be found out first and on the basis of the need of the district the rakes which are allotted by the Railway Board should be distributed districtwise first. This is necessary so that according to the need of a particular district the iodised salt may reach in that district for the consuming public. For the time being the allotment should be made to the persons who are in the panel which is already there and which was prepared in terms of the order passed by the earlier Division Bench and that the said committee shall consider a fixed percentage of about 50% of the rakes available to importers having long past experience and a minimum 50% should be earmarked for the purpose of allotment of the new entrants, whose names have been empanelled so that all persons and/or traders have been empanelled get allotment of rakes pro rata basis or on rotation basis as may be determined by such committee. The said committee shall consider that the life of the panel should be fixed for 2/3 years and that once a panel is prepared the same should be allowed to continue for that fixed term without any addition or alteration and that periodically a fresh panel had to be made on the basis of guidelines on which the earlier panel was prepared. On the basis of the scheme and on principle framed by the said committee the sponsorship in respect of which no such sponsorship has yet been made. While sponsoring the ranks in respect of the traders who were already in the trade for long years and have past experience their cases for sponsorship should be considered on the basis of their length of such past experience and while taking into consideration the past experience number of rakes allotted in previous year should be taken into consideration and that their performance' had to be looked into. If it is found that in spite of making allotment of rakes that party had consistently defaulted in fulfilling the commitment, in that event, the authority concerned shall take the same also into consideration. The question of giving priority to any importer having long and outstanding performance could arise, when such traders were found to have sufficient numbers of Railway Godowns and have sufficient infrastructure. If a trader is found to have long and outstanding performance and in the past their cases had been duly recommended by the authorities in that event they would deserve priority, that would ensure smooth movement of salt. Number of traders have empanelled themselves on the basis of guidelines fixed by the authorities concerned and that when they are in the ........... and all are eligible in that event endeavour should be made so that all the traders who were already in the panel may get it and that there may not be any dissentment or discrimination amongst the new entrants. While preparing panel it should also be considered that a trader who is empanelled for a particular district should not be empanelled in other districts as far as possible. This is necessary for the purpose of eliminating any monopoly and/or to enjoy maximum benefit when the number of rakes is very less than the number of the empanelled traders/importers had been increased and that sponsoring of allotment of rakes should be made in respect of a particular district from the panel maintained for that district so that the iodized salt may reach straight to that district and not through some other districts, in order to avoid any increase in the price of iodised salt in any particular district which may be situated in any part of remote part of State of West Bengal. If any recommendation have already been made by the authorities concerned for the purpose the same should not be effected by this order. Stay already granted will continue. On the date of hearing the State of West Bengal is directed to submit a report with regard to the framing of the scheme and allotments made on that basis." On the basis of the principles laid down by the Division Bench in its order dt. 14/05/1993 allotments of rakes were made. The said allotment was confined to particular quarters concerned. The reports were submitted by the State Government showing how the allotments were made. On the basis of the principles laid down by the Division Bench D/- 14/05/1993, allotments of rakes were made and that the learned counsel appearing for various parties were asked to make their submissions confined only to the principles to be formulated by this Court for the purpose of allotment of rakes.
(3.) Mr. Ashok Kumar Sen, learned counsel for the respondents, M/s. Shree Ram Trading and Supply Co. and others, submitted that the principles formulated by this Court for the purpose of allotment of rakes were fair, proper and reasonable and submitted that no revision of the principles laid down is necessary. Mr. Sen further submitted that the respondents have not followed the principles and/or formulas laid down by this court while making the allotment. Consequently, M/s. Shree Ram Trading and Supply Co. and others had suffered. It was further submitted that in consideration of the performance of that party and considering all other relevant factors recommendations were made in the past in favour of that party for sponsorship of rakes by Memo No. 1534/1(2) CA dt. 15-10-88 issued by the Director of Consumer Affairs, Food and Supply Department, Government of West Bengal which was required to be implemented or giving effect to. But in spite of such recommendation no step was taken by the authority concerned.;