Sinha, C.J. - (1.) The facts in this case are shortly as follows: In exercise of powers conferred under Section 8 of the Essential Commodities Act, 1966 read with the order of the Government of India No. GSR 888 dated 28th June 1961, the Government of West Bengal promulgated the West Bengal Sugar Dealers Licensing Order, 1963 (hereinafter referred to as the "licensing order") which came into force on and from the 15th January 1963. Under the said licensing order, a "retailer" means a person engaged in the business of purchase, sale or storage for sale of sugar in quantities exceeding 60 quintals at any one time, but does not include an industrial undertaking which is engaged in the manufacture and production of sugar and which is registered or licensed under the Industries (Development and Regulation) Act, 1951 (Act 65 of 1951). The "licensing authority" means an officer appointed by the State Government to exercise powers and perform the duties of a licensing authority in respect of such areas as may be specified. Under para 3 of the said Order, no person it permitted to carry on business as a retailer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority.
(2.) It will thus appear that the licensing order merely controls the distribution of sugar by confining such distribution to licensed dealers. It is not analogous, for example, to the Steel Control Order where the entire distribution of steel is brought under the superintendence of the Steel Controller acting through controlled stockists. All that it provides for, is that a dealer wishing to deal in sugar in quantities exceeding 50 quintals at any one time, should take out a licence. There is no provision in the said licensing order for Government to supply sugar to a dealer. Next we come to a Central order known as the (Sugar Control) Order, 1963 which was originally enacted under the Defence of India Rules, 1961 and was reenacted in 1966 under the Essential Commodities Act, and is hereinafter referred to as the "control order". Under the said control order, "a recognised dealer" means a person carrying on the business of purchasing, selling or distributing sugar and licensed under the order relating to the licensing of sugar dealers for the time being in force in a State or Union territory. A "producer" means a person carrying on the business of manufacturing sugar. Under para 8 of the control order, no producer shall sell or agree to sell or otherwise dispose of, sugar, or deliver or agree to deliver sugar from the appointed godown of the factory in which it ii produced, except under and in accordance with a direction issued in writing by the Central Government or the Chief Director. Para 4 grants the Central Government or the Chief Director the power to issue a general order or special order to any producer or recognised dealer containing directions regarding production, description of stock, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of sugar as he may think fit. Under para 5, the Central Government or the Chief Director has got the power to regulate the movement of sugar. Under para 6 It has power to fix the price. Under para 7, the Central Government or the Chief Director may, from time to time, by order, allot quotas of sugar to any specified State or area. Under para 8, the Central Government or the Chief Director may, from time to time by order issue directions to any producer or recognised dealer to supply sugar of such type or grade and in such quantities as it may think fit to such persons, organisations or State Governments as may be specified. The Central Government has also enacted the Sugar (Movement Control) Order, 1959 which lays down that no person shall take or cause to be taken sugar to any State or any part of a State except under permit or directions issued by the Central Government. We now come to the facts of the present case. It will be better to set out here the relevant allegations in the petition which show the exact position of the respondent No. 1 as a dealer. I set out below paragraphs 6, 7 and 8 of the petition. "6. The West Bengal Government has appointed a number of dealers for purchase, sale or storage for sale of sugar exceeding 50 quintals sugar within the State. Some of the said dealers have been appointed for importing sugar from producers manufacturing sugar. The said dealers who import sugar can sell sugar only against delivery orders issued from time to time by the State Government in favour of other appointed dealers who carry on wholesale business of sugar. 7. The dealers obtain sugar under the said delivery orders sell sugar to the retail dealers under orders of the Rationing Officers of the respective areas. Such retail dealers who are generally appointed retailers of Food Ration Shops sell sugar to holders of Ration documents i.e Family Identity Cards and Permits. 8. Your petitioner is a dealer appointed under the said Licensing Order and your petitioner is authorised to purchase, sell and store for sell of sugar. The Licensing Authority of your petitioner is the Sub-Divisional Controller, Food and Supplies, Howrah. A copy of the said Licence for the current year is annexed herewith marked with the letter 'A' ". The respondent No. 1 was appointed as a whole sale dealer of sugar in June 1961 by appointment No. SWR/III. At the relevant time, the area within which he was operating was Howrah Zone (Central) to Howrah Zone (North). On the 10th of July, 1963 general directions were issued for wholesalers a copy of which is set out in the paper book at pages 43 to 46. Instruction No. 1 is as follows: "The wholesalers on receipt of the information from the Rationing Officer or D. C. R. should arrange for taking delivery of D. O. from the R. A. or D. C. R D. O. should be produced before the Importer without any loss of time along with the licence and the letter of authority". There are two letters of complaint against the respondent No. 1. The first being dated 10th of August 1965 and the other dated 14th of August 1965 copies of which are let out at pages 33 and 68 of the paper book. These complaints how the following facts: On 2nd of August 1965 the respondent No. 1 received D. O. 07368 dated 28-7-66. On 6th of August 1065 dealers linked with him as wholesalers who were connected with the rationing shops, reported non-availability of sugar from him. The C. I. contacted the said respondent and requested him to lift out sugar and distribute it to the retailers immediately, otherwise the shops would go dry. Shri N. Chakravarty C. I. went to the said respondent's godown at about 3.45 p.m. but found it closed. He then contacted the said respondent at his residence at 72, Harimohan Bose Road and enquired of him about the stock of sugar. The said respondent told him that the stock had already been received. When however, he was informed that the godown was found closed, he said that the stock would be received in the evening of 7-8-65, but the dealers reported to N. Banerjee, Rationing Officer, Howrah Zone (North) that their shops were about to go dry for want of sugar. Upon this, loan slips had to be Immediately arranged to avoid the shortage in the F. P. shops. In para 17 of the petition, it is stated that on the 23rd August, 1965 the respondent No. 1 as usual went to the office of the Rationing Officer, Howrah (North) Zone to take delivery of the delivery order for the week. The said delivery order was not given to the said respondent although delivery orders were given to other wholesale dealers, namely, respondents Nos. 9 to 14. On the 25th of August, 1965 the said respondent sent a solicitor's letter, a copy whereof is set out at pages 17 and 18 of the paper book. After stating the fact that on 23rd August, 1965 the said respondent had gone to the rationing office, and had failed to get the delivery order, and that he was told that his quota has not been sanctioned, the letter proceeds to state as follows: "Under the provisions of Sugar Control Order 1963 you are bound to supply the weekly quota to my client and as such you have acted arbitrarily, illegally, mala fide and without jurisdiction or authority of law." This letter was framed as a demand of justice, indicating that legal steps will be adopted for redress. This was followed by another letter dated 2nd of September, and a letter dated 13th of September, 1965 in which the solicitor stated that if the weekly quota was not immediately given, legal proceeding would be taken. The Rule in this case was issued on the 23rd of November. 1965 upon the respondents to show cause as to why a writ in the nature of Mandamus should not be issued directing them to act in accordance with law and not to unreasonably restrict the business of the appellant by withholding the delivery order of sugar and further to forbear from making any discrimination against the said petitioner in the matter of issuing delivery orders and why a writ in the nature of Certiorari should not be issued selling aside cancelling or quashing the order of withholding delivery orders of sugar and for other reliefs. In the affidavit-in-opposition affirmed by Narayan Das Banerjee who acted as the Rationing Officer at the relevant time in the Howrah (North) Zone it is stated as follows: (i) That the Government of West Bengal had not appointed anybody to act as wholesale dealer for purchase, sale or storage for sale of sugar as alleged in the paragraph 6 of the petition. (ii) That a licence was issued to the respondent No. 1 by the Sub-Divisional Controller, Howrah under the said licencing order. (iii) Some of the dealers who hold licences under the said licensing order were selected by the Director of Rationing of the Food and Supplies Department for obtaining delivery of sugar and distributing the same to fair price shops for sale to consumers holding ration cards or family Identity cards. (iv) The respondent No. 1 was appointed one of such dealers to supply ration shops in Howrah (North). (v) The respondent No. 1 was irregular in lifting stocks of sugar. The precise complaint is set out in paragraph 7 as follows: "I state that the petitioner had not been carrying on the business as one of such distributors in a proper manner. The petitioner was irregular in lifting stocks of sugar for which delivery order was issued to him and to distribute the same to the Ration Shops concerned. In particular I state that on the 20th day of July 1965 he was granted a Delivery Order No. 07358 to obtain delivery of sugar from the importers for distribution as aforesaid but he failed to do so promptly and within a reasonable time as a result of which the Ration shops concerned were running out of stock."
(3.) The stand taken was that the said respondent had no legal right to obtain delivery orders for supply of ration shops or the particular delivery order complained of and delivery orders were being issued to selected dealers who were carrying on their business effectively in, the interest of the general consumers. As the respondent No. 1 was not working satisfactorily, the delivery order for the particular week complained of, was not given to him. In answer, the said respondent in his affidavit-in-reply stated as follows in paragraph 9. He said that on 2nd of August, 1966 the office of the Rationing Officer. Howrah (North) handed over a copy of the delivery order No. 07358 addressed to Bhartiya Sugar Industries Private Ltd. directing it to deliver 100 bags of sugar to the appellant. The delivery order was valid for 10 days from the date of issue. On 4th of August, 1965 the said respondent deposited with Bhartiya Sugar Indutries Private Limited a sum of Rs. 12,815 being the price of 100 bags of sugar covered by the said order. On 7th August, 1965 the transport agent of the supplier delivered the sugar at the said respondent's shop and the said respondent thereupon started to deliver sugar to the retailers. These facts have beep stated to show that the said respondent had not committed any default. He takes a stand that he had a legal right to claim issue of the delivery order. On these facts, Mr. Mukherjee appearing on behalf of the respondents has argued three points. The first point is that the withholding of the delivery order was mala fide, secondly that there was discrimination violative of the Article 14 of the Constitution and thirdly, that the act of the authorities in withholding the delivery order amounted to suspension of the said respondent's licence and this was done without any notice to him to show cause and there was thus a violation of the law and rules of natural justice. It appears that in the court below, the last point was found to be of substance and the application succeeded. In other words, the learned Judge in the court below found that in effect the withholding of the delivery order amounted to a suspension of the licence of the respondent No. 1 and this was done without giving him any opportunity to show cause and the application was entitled to succeed. I shall now proceed to deal with these points. One thing which has been firmly established, is that an allegation of mala fides must not be made in a vague and general way, but all facts must be pleaded to show the mala fides. Whether it is a judicial act or an administrative act, mala fides go to the root and destroy the efficacy of either a judicial order or an administrative action. Therefore, an allegation of mala fides cannot be treated lightly. See C.S. Rowjee v. State of Andhra Pradesh, Let us see what are the allegations of mala fides in this case. In paragraph 15 of the petition, it is stated that the said respondent's son Bejoy Gupta is the owner of F. P. S. 2719 at 72, Harimohan Bose Road, Howrah. He is an appointed retailer under the West Bengal Rationing Order, 1964. It is stated that the Deputy Controller of Rationing tried to delink certain ration documents i.e., family identity cards from F. P. S. 2719 and transferred them to another ration shop. Thereupon, the said Bejoy Kumar Gupta made an application to this Court in the writ jurisdiction and a Rule was issued on the 20th August 1965. This application is still pending. In paragraph 16 it is said that respondents Nos. 1, 2, 3 and 6 have been annoyed with the appellant and his family on account of the matter and that is why the said respondents have mala fides and animus against the respondent No. 1. In my opinion, these allegations do not amount to allegation of mala fides, sufficient to support an application in the writ jurisdiction. The withholding was on or about 23rd of August 1965 and there is nothing to show that by that time the Rule issued by this Court in matter No. 279 of 1966 was served upon anybody or that the appellant or the other respondents came to know about the same. There is no allegation to that effect in the petition. Apart from this, the point seems to be covered by a Supreme Court decision Kishan Chand Arora v. Commissioner of Police, Calcutta. That was a case under the Calcutta Police Act. Section 39 of the Calcutta Police Act 1866 empowers the Commissioner to grant licences to the keeper of eating houses. The Commissioner of Police, Calcutta refused to grant a licence to the applicant and between them there were previous litigations. One of the points taken was that the Commissioner had been annoyed with him because he went to the High Court by means of a writ applica tion and that is why licence was not being given and this was said to be mala fide. In turning down this complaint, Wanchoo, J. said as follows: "Then we turn to the question of mala fides. It is not the case of the petitioner that the Commissioner has any personal animus against him or that he is favouring Bhowmick. What he says in ground 41 of his petition in this connection is that the reasons given by the Commissioner in his order dated May 30, 1959, for refusing the licence are not correct and that the Commissioner is annoyed with him because he went to the High Court by means of a writ application. These in our opinion are no ground for holding that the order of the Commissioner passed in this case on May 30, 1959 is mala fide." While mala fide exercise of discretion on the part of a public officer doing administrative duty might be struck down, the court never interferes with a bona fide exercise of discretion even if the action entails hardship. See State of West Bengal v. Anwar Ali. I now come to the question of discrimination. The way that discrimination has been pleaded in the petition is as follows: In paragraph 10 of the petition the names of six dealers have been set out who are said to be carrying on business as a dealer of sugar under the licencing order, as wholesalers linked to different zones of the rationing areas. In paragraph 11 it is said as follows: "The Messrs. Howrah Wholesale Consumers Stores (which is one of the names mentioned in paragraph 10), Howrah has been appointed as a wholesale dealer of sugar in respect of all the five zones including the aforesaid North Zone of Howrah Sadar and is consequently getting a much larger amount of sugar. No other person or body has been appointed as a dealer for more than one zone. In the premises, without any intelligible basis the said Howrah Wholesale Consumers Co-operative Stores Ltd. has been given a favourable treatment. The same amounts to discrimination against other dealers of sugar." This paragraph has been dealt with in the affidavit-in-opposition affirmed by Narayandas Banerjee on the 10th of January 1966 in paragraph 8. It has been stated that the Howrah Wholesale Consumers Co-operative Stores is an apex organisation for all primary consumers co-operative societies in the district of Howrah and its area of operation extends through out the district. As such, the society has beep selected by the Director of Rationing for the whole of the district of Howrah under the statutory rationning with the result that it naturally gets more than others. There it, therefore, no basis for saying that there has been discrimination. The respondent No. 1 and the Consumers Co-operative Society which is an apex organisation stand on a different footing. It has now been established that discrimination can only be amongst equals. The next allegation is that while in September 1965 the said respondent was not given delivery order, some of the dealers other than the said respondent got their delivery orders. To this an explanation has been given. It is pointed out that the conduct of the respondent No. 1 was not found satisfactory. Of course, this is not admitted by the respondent No. 1 but if the matter stood there it would only be a question of disputed facts which cannot be resolved in this jurisdiction As I shall, however, presently show, such a question of fact is not necessary to be considered, because the said respondent has failed to show a legal right in obtaining any particular or specific delivery order.;