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2014 Supreme(Cal) 622
High Court of Judicature at Calcutta
ANIRUDDHA BOSE, J.
Manakamna Flour Mills Pvt. Ltd. & Another
Versus
The State of West Bengal & Others
W.P. Nos. 28017, 28138 (W) of 2014 (Appellate Side)
Decided on: 07-11-2014
For the Petitioners:Samaraditya Pal, Sr. Adv., Pradip Kumar Tarfdar, Joydip Sen, Sambuddha Dutta, Hemraj Adhikari, Advocates.
For the Respondents:Ashok Banerjee, Learned Advocate General, Susovan Sengupta, Subir Pal, Advocates.
The scope of judicial review in the empanelment process of flour mills for the purpose of enriching wheat meant for public distribution system is limited to examining the legality of the decision to disqualify a candidate, and does not extend to providing inspection reports to individual disqualified candidates.
Headnote:
EMPANELMENT OF FLOUR MILLS - PUBLIC DISTRIBUTION SYSTEM - WEST BENGAL PUBLIC DISTRIBUTION SYSTEM (MAINTENANCE AND CONTROL) ORDER, 2013, CLAUSE 37 - VALIDITY OF EXISTING ORDERS - ELIGIBILITY CRITERIA - PRINCIPLES OF NATURAL JUSTICE - DISQUALIFICATION OF PETITIONER'S MILL FROM EMPANELMENT - SCOPE OF JUDICIAL REVIEW - INTERIM RELIEF - BALANCE OF CONVENIENCE - INTERPRETATION OF ORDER DATED 29 FEBRUARY, 2012.
Fact of the Case:
Petitioners' flour mill was engaged in converting wheat into fortified atta for distribution among BPL population in Purba Midnapur. The engagement was made on 19th June, 2009, and subsequently, distributors were allocated to the petitioners. An order dated 29th February, 2012, specified the validity of subsisting orders to be up to three years from the date of issue. On 4th September 2013, a notice inviting applications for selection of roller flour mill/chakki mill for conversion of wheat BPL/ APL into fortified atta /wholemeal atta was issued. Petitioners participated in the empanelment process, but their mill was not included in the list of empanelled mills published on 5th July, 2014. Another memorandum dated 20th August 2014 was issued for allocation of wheat to the empanelled mills, which stated that existing mills not empanelled would cease to get wheat on and from the date to be determined by the Director of DDP & S but not later than 31st October 2014. Petitioners challenged their exclusion from the list of empanelled mills and sought invalidation of their existing agreement in terms of the order dated 20th August, 2014.
Finding of the Court:
1. The Court held that the petitioners have made out a case for reexamination of the decision on their disqualification. 2. The Court observed that the first clause of the Order dated 29th February, 2012, does not stipulate unqualified validity of all the existing Orders up to three years from the date of issue of the Order. 3. The Court opined that the empanelment of flour mills in terms of the order dated 5th July, 2014 appears to be transient in nature, as the memorandum dated 5th July, 2014 specifies that the order shall not prevent in making fresh empanelment any time during the year.
Issues: 1. Whether the petitioners' mill was illegally excluded from the list of empanelled mills? 2. Whether the existing agreement between the petitioners and the State Government was validly terminated by the order dated 20th August, 2014? 3. Whether the petitioners were denied the principles of natural justice in the empanelment process?
Ratio Decidendi: 1. The Court held that there is no requirement to provide inspection report to individual candidates while making empanelment of individual mills in an exercise of this nature. 2. The Court observed that the petitioners have not approached the court immediately on issue of the list of empanelled mills on 5th July, 2014 or on issue of the memorandum dated 20th August, 2014. 3. The Court opined that the petitioners have made out a case for reexamination of the decision on their disqualification.
Final Decision: 1. The Court directed the respondents to file an affidavit in opposition by 17th November, 2014, and the petitioners to file a reply by 21st November 2014. 2. The matter was listed for hearing on 21st November, 2014, at 2.00 p.m. 3. The Court clarified that any allocation made to any other mill in the interim period shall be subject to further direction in this proceeding, or final outcome of this case, as the case may be.
Aniruddha Bose, J.
1. The flour mill of the petitioner no.1 was engaged for converting wheat into fortified atta for distribution among the beneficiaries belonging to below poverty line (BPL) segment of the population in 17 Blocks in the District of Purba Midnapur. This engagement was made on 19th June, 2009 and subsequently the petitioners were allocated distributors who were tagged to the petitioner no.1, through whom fortified atta was being made available to the consumers. At that point of time, there was no timeframe specified as regards the term of such engagement or allocation. Subsequently, an order was issued by the department of Food and Supplies, Government of West Bengal bearing no.901-FS/Sectt/Food/13-A-04/2012 dated 29 February, 2012 by which the validity of the subsisting orders were specified to be up to three years form the date of the issue of that Order. This order stipulates:-
“1) The validity of all the existing orders will be up to three years from the date of issue of this order. That mean flour mills mentioned in these orders will be allotted BPL wheat as per existing system until further order or after three years whichever is earlier.
2) However, performance of existing flour mills will be reviewed every six months and it shall be duty of all DCF&S to send performance reports of flour mills at the end of every six months without fail.
3) If any irregularity comes to the notice of the department it is to be enquired into without any delay. And, if it is proved that serious irregularities has taken place on the part of any flour mill, allotment of wheat will be stopped forthwith and penal action will be taken as per nature of the offence.
4) Whenever any action is taken as per para 3 against any flour mill, the allotted wheat for that particular mill will be distributed among the other existing selected flour mills as per their capacity. In such cases, if required inclusion of new flour mills may be considered with prior approval of Government for smooth supply of fortified atta under TPDS.”
2. On 4 September 2013, a notice under Memo no. 2550-FS was issued by the department of Food & Supplies, Government of West Bengal inviting applications for selection of roller flour mill/chakki mill for conversion of wheat BPL/ APL into fortified atta /wholemeal atta. Some of the relevant clauses specified in this notice are:
“1. Installed machineries viz Screening, Milling, Packaging (automatic online/automatic packaging machine) & dozing machines are in running condition at least for six months prior to the date of application for selection.
12. The selected Flour/Chakki Mill shall ensure Computerised infrastructure as per the agreement.
14. The selected Flour Mill/Chakki Mill must have adequate fire fighting devices duly certified by the Fire Services Department.
15. Any person as proprietor/partner/director holding a M.R. Distributorship / Dealership/ Licence shall not be entitled to apply for selection of his Roller Flour/ Chakki Mill in the above mentioned capacity under the Scheme of conversion of Wheat into Atta.”
3. The eligibility criteria under the said notice is divided into two categories, (A) and (B). Under the category “A”, certain technical specifications have been laid down and under category “B” the documents which are required to be furnished at the empanelment stage have been referred to. The aforesaid four clauses come under category (A), being technical criteria. The petitioners participated in the empanelment process and a list of empanelled mills was published as annexure to an order bearing No.1561/FS/Sectt/Food/4P-14/2013 Pt.1 dated 5 July, 2014 issued by the State Government. Altogether 80 flour mills have been empanelled and but the mill of the petitioners has not been included in this list. On 20 August 2014 another memorandum bearing no. 1987-FS/Sectt/Food/4P-14/13(P-1) was issued by the State Government primarily for the purpose of the allocation of wheat to the empanelled mil
