RANJIT KUMAR MURMUversusM/S LACHMI NARAYAN BHOMROJ & ORS.

                   [2013) 4 S.C.R. 263


                 RANJIT KUMAR MURMU                            A
                             V.
       M/S LACHMI NARAYAN BHOMROJ & ORS.
            (Civil Appeal No. 7263 of 2012)

                     APRIL 15, 2013
                                                               B
            [G.S. SINGHVI AND SUDHANSU
              JYOTI MUKHOPADHAYA, JJ.]

      West Bengal Kerosene Control Order, 1968 - Paras 8
to 11 - A/location of monthly quota to kerosene oil dealers - C
Quota allotted to appellant-dealer reduced by the Director of
Consumer Goods - Order upheld by District Magistrate -
Appeal· before Principal Secretary! Commissioner of Food
and Supply Department which set aside the order of District
Magistrate - Jurisdiction of Principal Secretary/Commissioner  o
to entertain the appeal - Challenged - Held: Order passed
by District Magistrate, could not be termed as an order under
para 8 or 9 of the Control Order and thus, no appeal was
 maintainable under para 10 of the Control Order before the
 Principal Secretary! Commissioner - Even if the order of E
 District Magistrate was passed under para 11 of the Control
 Order, such order was not appealable under para 10 or before
 the Principal Secretary !Commissioner - The State has the
 inherent power to alter or to set aside any order passed by
 the District Magistrate but it should follow the procedure as F
 prescribed by the law - From the order passed by the Principal
 Secretary/Commissioner, it is apparent that the order was
 passed in capacity of his designated post and not on behalf
 of the State - High Court justified in holding that the Principal
  Secretary !Commissioner was not competent to hear the G
  appeal.

    The respondent, a Kerosene Dealer under the
provisions of the West Bengal Kerosene Control Order,
1968, had been allotted a specified quota of Kerosene Oil
                             263                                H
    264      SUPREME COURT REPORTS            [2013] 4 S.C.R.

A per month. The Director of Consumer Goods, Food and
  Supplies Department, Government of West Bengal
  passed order whereby the respondents' monthly quota
  got enhanced while quota allocated to another dealer, viz.
  the appellant was correspondingly reduced. The District
8 Magistrate, the competent authority under the Control
  Order, upheld the allocation of monthly quota made to the
  respondents and the appellant by the Director of
  Consumer Goods.

        The appellant filed writ petition challenging the order
C of the District Magistrate, but later withdrew the same and
   filed appeal before the Principal Secretary and
   Commissioner Food, Food and Supplies Department,
  Government of West Bengal who set aside the order of
  the District Magistrate.
D
        The respondents filed writ petition challenging the
  maintainability of the appeal and jurisdiction of the
  Principal Secretary to entertain such appeal. The High
  Court set aside the order passed by the Principal
E Secretary and Commissioner of the Food and Supplies
  Department of the State Government holding that it was
  not competent to hear the appeal and therefore the
  instant appeal.

       Dismissing the appeal, the Court
F
      HELD: 1.1. Under paragraph 8 of the West Bengal
  Kerosene Control Order, 1968, the Director or the District
  Magistrate, as the case may be, are vested with the power
  to refuse to grant or renew a licence following the
G procedure as mentioned therein. On the other hand,
  Paragraph 9 of the Control Order deals with the power
  of Director/District Magistrate for cancellation or
  suspension of license in case of any malpractice or
  contravention of any provision of this Order. Any person
H aggrieved by the Order passed under Paragraph 8 or
    RANJIT KUMAR MURMU v. LACHMI NARAYAN ·            265
                  BHOMROJ
Paragraph 9 of the Control Order may within 30 days         A
prefer an appeal under Paragraph 10. [Paras 12, 13 and
14] [269-C-E; 270-B]

      1.2. The impugned order passed by the District
 Magistrate cannot be termed as an order passed under 8
 Paragraph 8 or Paragraph 9 of the Control Order. In such
 a situation, no appeal is maintainable under Paragraph
 10 before the Principal Secretary or the Commissioner,
 Food and Supply Department, Government of West
 Bengal. Even if it is assumed that the order of the District C
.Magistrate was under Paragraph 11 of the Control Order,
 such an order is not appealable under Paragraph 10 or
 before the Principal Secretary and Commissioner of Food
 and Supply Department, Govt. of West Bengal. [Paras 17,
 18] [271-G; 272-A-B]
                                                              D
      2. The State has indeed the inherent power to alter
 or to set aside any order passed by the District Magistrate
 but it should follow the procedure as prescribed by the
 law, such an order should be passed by the authority
 empowered to do so on behalf of the State in the name E
 of Governor of the State. From the impugned order
 passed by the Principal Secretary and Commissioner,
 Food and Supply Department, it is apparent that the said
 order has been passed in the capacity of his designated
 post and not on behalf of the State. [Paras 19, 20] [272- F
 C-D]

     3. The appellant submitted that the writ petition was
withdrawn by the appellant to move before the competent
authority. But that does not mean that while withdrawing
such case, the Court or any individual can confer G
jurisdiction upon any authority who otherwise is not so
empowered under the Statute. There is no infirmity or
illegality in the impugned order passed by the District
Magistrate as affirmed by the High Court. [Paras 21, 22]
 ~n~~                                                      H
    266        SUPREME COURT REPORTS               (2013] 4 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7263 of 2012.
        From the Judgment & Order dated 02.02.2012 of the High
    Court at Calcutta in A.P.O.T. No. 237 of 2010.
B       Pallav Shishodia, Pijush K. Roy, Kumar Gupta for the
    Appellant.

        V. Giri, Timir Baran Saha, Ranjan Mukherjee for the
    Respondents.
c         The Judgment of the Court was delivered by

        SUDHANSU JYOTI MUKHOPADHAYA, J. 1. This appeal
    has been preferred by the appellant against the Judgment dated
   2nd February, 2012 passed by the Division Bench of the
D Calcutta High Court in A.P.O.T No.237 of 2010. The Division
   Bench while dismissing the appeal preferred by the appellant
   held that the Principal Secretary, Food and Supplies
   Department is not an appellate authority with respect to an order
   passed under Paragraph 11 of the West Bengal Kerosene
E Control Order, 1968 and thereby affirmed the order passed by
 , the learned Single Judge.

          2. The relevant facts of the case are as follows:

       One Purushottam Das Jhunjhunwala was issued with a
F Kerosene Dealer licence in the year 1997 and was carrying on
  his business in the name of M/s Lachmi Narayan Bhomroj, as
  a sole proprietor. Upon his death, his heirs were temporarily
  allowed to carry on kerosene business under the same name
  as per the provisions of West Bengal Kerosene Control Order,
G 1968 (hereinafter referred to as the 'Control Order').
       On or about 6th March, 2006, a fresh licence was issued
  to the partnership firm of the legal heirs of said Purushottam
  Das Jhunjhunwala (respondents herein) on compassionate
H ground.                                                        fa    ,
  RANJIT KUMAR MURMU v. LACHMI NARAYAN    267
BHOMROJ [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     Even though the licence was issued on 6th March, 2006, A
no supply was effected. After much persuasion from the part
of respondents the authority allotted a quota of 72 K.L. of
Kerosene Oil per month as against the quota of 168 K.L. per
month originally allotted to their late father.

     3. Partners of Mis Lachmi Narayan Bhomroj made B
representation citing the above matter before the concerned
authorities. The Director of Consumer Goods, Food and
Supplies Department, Government of West Bengal passed a11
order on 12th August, 2009 whereby the quota of 168 K.L. of
Kerosene Oil was restored in favour of respondents. By virtue C
of this restoration while respondents' quota got enhanced there
was corresponding reduction in the allocation to the appellant.

    4. Being aggrieved by the reduction of allocation, the
appellant filed a Writ Petition No. 899/09 before the Calcutta o
High Court challenging the order dated 12th August, 2009
which was disposed of by a learned Single Judge on 4th
September, 2009 directing the Joint Director of Consumer
Goods to hear the matter and take a decision. In an appeal
being APOT No. 367 of 2009 against the said order the Division E
Bench modified the order and directed the District Magistrate,·
Purulia, the competent authority under the Control Order to hear
and pass an appropriate order.

     5. Pursuant to the aforesaid order, the District Magistrate,
Purulia, passed an order dated 6.10.2009 upholding the              F
allocation of monthly quota made to both the agents by Director
of Consumer Goods vide letter dated 12th August, 2009.
     6. Being aggrieved, the appellant preferred a writ petition
No. 1093/2009 challenging the order of the District Magistrate. G
When the matter was taken up by the learned Single Judge on
23rd December, 2009, learned counsel for the appellant on
instruction withdraw the writ petition to enable the appellant to
move departmentally. The writ petition was accordingly
dismissed as withdrawn.                                           H
     268      SUPREME COURT REPORTS               [2013] 4 S.C.R.


 A     7. Thereafter, the appellant preferred an appeal to the
  Principal Secretary and Commissioner Food, Food and
  Supplies Department, Government of West Bengal whereupon
  the Principal Secretary and Commissioner Food passed an
  order dated 8th March, 2010 setting aside the order of the
B District Magistrate, Purulia with a direction to restore supply of
  192 K.L. Kerosene Oil per month in favour of the appellant. It
  was also ordered to reduce the quota of M/s Lachmi Narayan
  Bhomroj (respondent) to 70 K.L. Kerosene Oil per month.

        8. The aforesaid order dated 8th March, 2010 passed by
C the Principal Secretary was challenged by the respondents M/
  s Lachmi Narayan Bhomroj and others in Writ Petition No. 365/
  2010. They questioned the maintainability of the appeal and
  jurisdiction of the Principal Secretary to entertain such appeal.
  Learned single Judge by order dated 26th March, 2010 held
D that the Principal Secretary was not competent to hear the
  appeal and to set aside the order passed by the District
  Magistrate. Hence, the writ petition was allowed and the order
  passed by Principal Secretary was set aside. The aforesaid
  order has been affirmed by the Division Bench.
E
        9. Learned counsel for the appellant submitted that the
   Division Bench committed serious error of law by holding that
  the State Government is not an appellate authority with respect
  to the order passed under Paragraph 11 of the Control Order.
F The appeal against the order passed by the District Magistrate
  lies to the State Government and that the High Court also failed
  to notice that in the present case the amended provision of the
  Paragraph 10 of the Control Order is applicable which came
  into effect prior to the order passed by the District Magistrate
  on 16th December, 2009.
G
        10. On the other hand, learned counsel for the respondent
  contended that the Principal Secretary and Commissioner of
  Food and Supplies Department had no jurisdiction to hear an
  appeal over an order passed by the District Magistrate.
H
  RANJIT KUMAR MURMU v. LACHMI NARAYAN    269
BHOMROJ [SUDHANSU JYOTI MUKHOPADHAYA, J.]
     11. In the said circumstances, the questions that arise for   A
our consideration are:

    (i) Whether the impugned order was passed by the State
    Government?

    (ii) If not so, whether the Principal Secretary and            8
     Commissioner of the Food and Supply Department has
    jurisdiction to entertain the appeal against the order
    passed by District Magistrate.

     12. Under paragraph 8 of the Control Order.dhe Director       C
or the District Magistrate, as the case may be, are vested with
the power to refuse to grant or renew a licence following the
procedure as mentioned therein. It reads as follows:

     "8~ Refusal to grant or renew license:- The Director, or
     the District Magistrate, having jurisdiction, may, after      D
     giving the agent or the dealer or hawker concerned an
     opportunity of stating his case in writing and for reasons
     to be recorded in writing, refuse to grant or ·renew a
     license under this Order."
                                                                   E
     13. On the other hand, Paragraph 9 of the Control Order
deals with the power of Director/District Magistrate for
cancellation or suspension of license in case of any malpractice
or contravention of any provision of this Order. Paragraph 9
reads as follows:                                                  F

      "9. Cancellation or suspension of license:- If it appears
      to the Director or the District Magistrate having
     jurisdiction that an agent or a dealer has indulged in any
     malpractice or contravened any provision of this order or     G
      any condition of the license or any direction given under
      paragraph 12 of the order, he may forthwith temporarily
      suspend the license;

      Provided that the agent or the dealer whose license has
      been so suspended shall be given an opportunity of           H
    270          SUPREME COURT REPORTS             [2013] 4 S.C.R.


A         being hearcj before cancellation of the license or
          revocation ofthe order of suspension of the license finally
          by an order in writing to be made within 30 days from the
          date of suspension of the license. The order shall be
          passed ex parte if the dealer whose license has been so
B         suspended fails to appear at the hearing."

          14. Any person aggrieved by the Order passed under
    Paragraph 8 or Paragraph 9 of the Control Order may within
    30 days prefer an appeal under Paragraph 10, which reads as
    follows:
c
          "10. Appeal - Any person aggrieved by an order passed
        under paragraph or paragraph 9 of this order may within
        30 days from the date of the order, prefer an appeal -

o         (a)    in Calcutta.

          (i)    where the order is passed by the Director of
                 Consumer Goods, Department of Food and
                 Supplies, to the State Government.

E         (ii)   where the order is passed by any other authorised
                 by the State Government under Clause (d) of
                 paragraph 3, to the Director of Consumer Goods,
                 Department of Food and Supplies, and

          (b)    elsewhere;
F
          (i)    where the order is passed by the District
                 Magistrate or the Deputy Commissioner of a
                 District, to the State Government

G         (ii)   Where the order is passed by any other officer
                 authorised by the District Magistrate of the Deputy
                 Commissioner of a district under Clause (e) of
                 paragraph 3, to the District Magistrate or the
                 deputy commissioner, as the case may be, of the
H                District".
  RANJIT KUMAR MURMU v. LACHMI NARAYAN    271
BHOMROJ [SUDHANSU JYOTI MUKHOPADHAYA, J.]
    15. From the aforesaid provision, it is evident that no        A
appeal lies to the Principal Secretary or the Commissi9n of
Food and Supply Department.

    16. Paragraph 11 relates to issue of delivery order or
permit by the Director or the District Magistrate, which reads
                                                                   8
as under:

     "11. /ssue of delivery order or permit- (1) The Director
    or the District Magistrate having jurisdiction may issue
     a delivery order or permit requiring an agent within his
    jurisdiction to supply kerosene to -                           C
            (a)   a dealer, or
            (b)   other person or establishment requiring
                  kerosene for his or its own consumption, in
                  any particular area, if in the opinion of the    D
                  Director or the District Magistrate, as the
                  case may be, this is considered necessary,
                  or

            (c)   an agent.                                        E
            (2)    No person other than oil distributing
                   company, an agent or a dealer shall
                   transport kerosene or store kerosene or
                  shall have in his possession kerosene            F
                   exceeding ten liters at a time except under
                   and in accordance with a permit issued by
                  the Director or the District Magistrate having
                  jurisdiction."

    17. The impugned order passed by the District Magistrate,      G
Purulia on 6th October, 2009 cannot be termed as an order
passed under Paragraph 8 or Paragraph 9 of the Control
Order. In such a situation, no appeal is maintainable under
Paragraph 1O before the Principal Secretary or the
Commissioner, Food and Supply Department, Government of            H
    272      SUPREME COURT REPORTS                [2013] 4 S.C.R.

A West Bengal.

       18. In the present case, the District Magistrate, Purulia
  passed an order dated 6.10.2009 whereby the quantum of
  Kerosene Oil allotted per month to respondent got enhanced.
  By the same order quantum o.f Kerosene Oil allotted to the
B appellant got reduced. Even if it is assumed that the order of
  the District Magistrate was under Paragraph 11 of the Control
  Order, such an order is not appealable under Paragraph 10 or·'
  before the Principal Secretary and Commissioner of Food and
  Supply Department, Govt. of West Bengal.
c
       19. The State has indeed the inherent power to alter or to
  set aside any order passed by the District Magistrate but it
  should follow the procedure as prescribed by the law, such an
  order should be passed by the authority empowered to do so
D on behalf of the State in the name of Governor of the State.

          20. From the impugned order passed by the Principal
    Secretary and Commissioner, Food and Supply Department,
    it is apparent that the said order has been passed in the
    capacity of his designated post and not on behalf of the State.
E
       21. Learned counsel for the appellant submitted that the
  writ petition was withdrawn by the appellant to move before the
  competent authority. But that does not mean that while
  withdrawing such case, the Court or any individual can confer
F jurisdiction upon any authority who otherwise is not so
  empowered under the Statute.

       22. We, therefore, do not find any infirmity or illegality in
  the impugned order passed by the District Magistrate as
  affirmed by the Single Judge and the Division Bench. In
G absence of any merit the appeal is dismissed. The parties shall
  bear their respective costs.

    B.B.B.                                     Appeal dismis~ed.