P. MANI Vs. LT. GOVERNOR & ORS.
HIGH COURT OF CALCUTTA
Lt. Governor and Ors.
Click here to view full judgement.
Bijitendra Mohan Mitra, J. -
(1.)The present writ petition is directed against the Annextures being Annexure-'M' dated 27th Aug., 1994 and Annexure-'P' dated 18th Oct., 1994. The prayer which has been canvassed in this petition is for issuance of the writ of mandamus for cancellation of the Memo referred to hereinabove by a letter, vide Anncxure-'M', appended to the writ petition and also for the decision of another Memo for the Order No 559 dated 18th Oct., 1994, (vide letter 'P'). From the first impugned Memo in question, it appears that a permission, granted to the petitioner to bring and sell open-market rice and sugar vide office letter No 4232 dated 12th Dec., 1990 (Annexure-'D'), was cancelled to check the influx of non-tribals into the tribal area. The a office Memo as mentioned in the impugned Annexure vide letter 'M' to to the writ petition is appended vide letter 'D' wherefrom it appears that the letter has been forwarded to the petitioner as early as on 12th Dec., 1990, informing him that he shall be at liberty to bring rice and sugar for sale at Car Nicobar at the fixed prices subject to the rules mentioned thereunder. The impugned Annexure, namely, the office letter to the writ petition dated 27th Aug., 1994, (Annexure-'M') does not make any mention as to the date from which it will come into effect. The Court has repeated its enquiries from the Learned Advocates appearing on behalf of the Respondents to indicate as to the date from which the Memo in quested will be deemed to be in force.
(2.)Mr. A. S. Roy, Learned Advocate, appearing for the Respondents, is fair enough to suggest that the letter bears a particular date and nothing more is mentioned It should be presumed that the impugned Memo is being given effect to from the date of issuance of the letter. The Court is perplexed to take notice of the same as how the same can be given effect to prior to the date when the recipient of the same Memo was served with the same. It appears that the notice was sent and it should be presumed that the same would be received on a prospective date by the recipient but the said Memo has been given effect to from a retrospective effect prior to the date of the receipt by the recipient. This Memo appears to be penal in nature as the permission to carry on one's means of livelihood has been attempted to be interfered. This is replete with the danger of far reaching consequence of causing the erosion of one's guarantee as provided in the Art. 21 of the Constitution as prosecution of means of livelihood as associated with right of life as guaranteed under the Constitution. This Court cannot reconcile itself to the suggestion of giving a restrospective operation of a penal clause prior to the receipt of the despatch of the same and the same cannot be given effect to from that date when it is in the store house of a contemplated mood of the authorities. The said mood of cancellation on the face of it is not only procedurally defective, but also is laconic in nature and the authorities are not expected to take such a harsh step with undue haste by Tinkering with rights to prosecute means of livelihood. This Court could have considered if the recipient would have been afforded with sufficient time either to dismantle his establishment or to make any representation thereof. Even from a homestead one cannot be evicted without notice and one s running shop cannot be expected to be dismantled nor he can a business be put to a grinding halt just by he contemplated move on the part of the executive. It is peculiar and strange that it was dated sometime in Aug. 1994, and the permission was given as early as on 12.12.1990. A person was allowed to carryon with his business for a period of four years and during that period no whisper of objection was raised from the quarters of the Administration. If the Administration can afford to lie down in deep slumber for such inordinate period and the moment the same is awakened the Court is not required to answer to the clarion call of the wisdom of such executive.
(3.)The Learned Advocate appearing for the petitioner has repeatedly drawn the attention of this Court by referring to Clause 9 of the conditions of the permission of cancellation of such licence and, according to his submission, unless the said conditions are fulfilled, the same moot be terminated. His further contention is that there is a time period of 60 days contemplated under Clause 10 of the conditions of the Mice and the impugned notice is not founded on the basis of such time period. Perhaps such time period is stipulated after keeping in view that a person having a commercial running establishment should be aforeded with reasonable time to dismantle the same. This Court instead going into the question as to whether grounds exist or not and the manner of attempt to effect service of the impugned Memo is something which is in derogation not only of the conditions of such licence but the same is repugnant to the rudimentary principles of natural justice. The leviathan and/or its agents cannot be allowed to take refuge under the better of the technicalities of the statutes if they are accomplices of violation of principles of natural justice because the Court is a repository and protector even of the plea of natural justice of the citizens of this Country. The impugned Memo for the reasons of non-compliance ; the procedure of giving any time and the notice was interwoven with an eloquent analogy that Ramayana was conceived by the authorities before Ram was born This Court cannot sustain the plea of the Respondents and, as such, it sets aside the said Memo particularly being Annexed by letter 'M' to the writ petition dated 27th Aug., 1994. It significant to mention in this context that there was a reference made in be writ petition that the Village Captain of the Nicobari tribals provided better/space for running the shop of the petitioner. The same has not been controverted with specific denial in any affidavit-in-reply. The conduct of Village Captain cannot be ignored as he has a vital role to play in the social structure of tribal life particularly in remote areas of 1 the Nicobar Islands. One of the objective of national policies is to assimilate the tribes in the national main stream by retaining their identity and when the village Captain has allowed the petitioner being a ;on-tribal to run the establishment, the plea of the non-tribal executive bureaucrats should be taken with grain of salt. If the presence of a n non-tribal is considered necessary by a Village Captain of a particular a tribe and if he is allowed to indulge in some activities so that the necessities of the people can be met for a period spread over five years, the Court cannot shut its eyes to the background of that scenario.
Copyright © Regent Computronics Pvt.Ltd.