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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7263 OF 2012 (Arising out of Special Leave Petition (Civil)  

No.9259/2012)

RANJIT KUMAR MURMU           …. APPELLANT

VERSUS

M/S LACHMI NARAYAN BHOMROJ & ORS.       ….RESPONDENTS

J UD G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by the appellant  

against the Judgment dated 2nd  February, 2012 passed  

by the Division Bench of the  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 Control Order, 1968 and thereby  

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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 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,  

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 ground.

Even though the licence was issued on 6th March,  

2006, 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.

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3. Partners of M/s Lachmi Narayan Bhomroj made  

representation citing the above matter before the  

concerned authorities. The Director of Consumer  

Goods, Food and Supplies Department, Government of  

West Bengal passed an order on 12th August, 2009  

whereby the quota of 168 K.L. of Kerosene Oil was  

restored in favour of respondents.  By virtue 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 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 Bench  

modified the order and directed the District  

Magistrate, Purulia, the competent authority under  

the Control Order to hear and pass an appropriate  

order.

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5. Pursuant  to  the  aforesaid  order, the  District  

Magistrate, Purulia, passed an order dated 6.10.2009  

upholding the 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.  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.

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 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  

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Narayan Bhomroj (respondent) to 70 K.L. Kerosene Oil  

per month.

8. The aforesaid order   dated 8th March, 2010  

passed by 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 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.

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.     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  

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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.

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.

11. In  the  said  circumstances, the  questions  that  

arise for our consideration are:

(i) Whether the impugned order was  

passed by the State  Government?

(ii) If not so, whether the Principal  

Secretary   and 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, 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 procedure as mentioned  

therein. It reads as follows:

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“8. Refusal to grant or renew  license:­   The Director, or the  District Magistrate, having  jurisdiction, may, after 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.”

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:

“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 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  being heard before cancellation of  the license or revocation of the  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  

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dealer whose license has been so  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:

“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 –

a) in Calcutta.

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

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;

i) where the order is passed by the  District Magistrate or the Deputy  Commissioner of a District, to  the State Government

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  

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deputy commissioner, as the case  may be, of the District”.

15.      From the aforesaid provision, it is  

evident that no appeal lies to the Principal  

Secretary or the Commission 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 as under:

 “11.   Issue 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 –

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 Director or  the District Magistrate, as  the case may be,   this is  considered necessary, or

c) an agent.

(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  exceeding ten liters at a  

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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, 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 10   before the Principal Secretary or  

the Commissioner, Food and Supply Department,  

Government of 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  

of Kerosene Oil allotted to the 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.

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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 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.   

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  

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  

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and the Division Bench.   In absence of any merit  

the appeal is dismissed. The parties shall bear  

their respective costs.  

………..……………………………………………..J.       (G.S. SINGHVI)

……………………………………………………….J.        (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, APRIL 15, 2013.

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