Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Sudip Sarkar on 13 June, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
13.06.2025.
Item No. 5.
Court No. 13
ap
M.A.T. No. 745 of 2025
With
I.A. No. CAN 1 of 2025
State of West Bengal & Ors.
Versus
Sudip Sarkar
Mr. Kishore Datta, ld. Advocate General,
Mr. Sirsanya Bandhopadhyay,
Mr. Vivekananda Bose,
Mr. Ritesh Kumar Ganguly.
...For the appellants.
Mr. Debabrata Saha Ray, ld. Senior Advocate,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das.
...For the respondent/writ petitioner.
Ms. Nibedita Pal,
Mr. Ananda Gopal Mukherjee,
Ms. N. Khatoon.
…For the private respondents.
1. The challenge in the instant appeal by the State
is to an interim order dated 7th April, 2025 passed by a
learned Single Judge of this Court in six several writ
petitions. The lead one being W.P.A. No. 6533 of 2025
(Sudip Sarkar – Vs. – The State of West Bengal & Ors.).
2. The subject matter of challenge in the writ
petition was Clause 11(V) of West Bengal Targeted
Public Distribution System (Maintenance & Control)
Order, 2024. The writ petitioners are aggrieved by the
said Clause in so far as it imposed an age restriction
on the individuals and partners of partnership firms
from applying for M.R. Dealership/Fair Price Shops in
the State. The age restriction was that the individuals
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or partners of the Firms applying for such Fair Price
Shop Licences should be above 25 years and below 45
years of age.
3. The learned Single Judge in a detailed interim
order, having regard to the decision of the Hon’ble
Supreme Court of India in the case of Brij Mohan Lal
– Vs. – Union of India & Ors. reported in (2012) 6
Supreme Court Cases 502 and several other
decisions passed an interim order, directing the State
to proceed with consideration of applications but not
to grant the licences without the leave of the Court. In
essence, the learned Single Judge prima facie found
that the argument of unreasonableness of the
restriction to be sustainable.
4. This Court has heard the appeal of the State
against the said order over a period of two days.
5. The primary thrust of the argument of the State
against the impugned order is that the writ petitioner
has filed the writ petition beyond the period of 45 days
within which applications for M.R. Dealership were
required to be submitted. The writ petitioner has not
even chosen to apply for a M.R. Dealership. It is,
therefore, argued that the writ petitioner in the instant
case was not entitled to any interim order. The interim
order does not enure any benefit to the writ
petitioners. There is substance in the arguments of the
State in this regard.
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6. It is now well-settled that there is a presumption
of constitutionality of a legislation once it is passed by
the legislature and ascent is given by the Governor or
President, as the case may be. A question could arise if
the same principle is applicable to subordinate
legislation and rules framed under the Statute. The
learned Single Judge ought to have discussed the
above while considering passing of interim order.
7. This Court further notes that in a recent
decision of the Hon’ble Supreme Court of India in the
case of State of Andhra Pradesh – Vs. – Dr. Rao
VBT Chelikeni reported in 2024 INSC 894, the test of
reasonableness of a restriction under Article 14 of the
Constitution, has been expanded to include the
“Substantive Clarification Test”. The test has been
made more stringent than the pre-existing test. The
pre-existing test being existence of intelligible
differentia and a rational nexus with the object sought
to be achieved by such classification.
8. What is now called is a substantive clarification
test following the principles from the Canadian
Constitution, the Hon’ble Supreme Court of India in
the case of Dr. Rao VBT Chelikeni’s case (supra) at
paragraphs 51 to 64 has observed that the earlier test
of reasonableness under Article 14 of the Constitution
of India is required to be relooked and reconsidered in
the light of the substantive reasonableness test.
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9. Additional parameters have been specified by the
Hon’ble Supreme Court of India i.e. as to whether the
classification would, inter alia, resulting stereotypes or
in prejudice other similarly placed classes.
10. Yet another test to be applied to the challenge is
the doctrine of proportionality as explained by the
Hon’ble Supreme Court of India in the case of Union
of India & Anr. – Vs. G. Ganayutham reported in
(1997) 7 Supreme Court Cases 463 and reiterated by
more recently in the case of Justice K.S. Puttaswamy
(Aadhaar-5J) – Vs. – Union of India reported in
(2019) 1 Supreme Court Cases 1 paragraphs 157
and 158 thereof.
11. Mr. Sirsanya Bandhopadhyay, learned Counsel
appearing on behalf of the appellants/State has placed
reliance upon the decision of the Hon’ble Supreme
Court of India in the case of D. Nagaraj & Ors. – Vs. –
State of Karnataka & Ors. reported in (1977) 2
Supreme Court Cases 148, particularly paragraph 7
thereof, the case of Sarkari Sasta Anaj Vikreta
Sangh Tahsil Bemetra & Ors. – Vs. – State of
Madhya Pradesh & Ors. reported in (1981) 4
Supreme Court Cases 471, particularly paragraph 11
thereof and the case of Madhya Pradesh Ration
Vikreta Sangh Society & Ors. – vs. – State of
Madhya Pradesh & Anr. reported in (1981) 4
Supreme Court Cases 535 particularly paragraph 5
thereof to buttress the arguments that firstly the
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interim orders are not granted without exchange of
affidavits where Constitutional vires of provisions of
Statute and/or subordinate legislation is challenged.
12. It is also argued by reference to the aforesaid
judgments that their rights under Article 19(1)(g) of the
Constitution of India cannot be claimed in respect of
PDS Statute and Subordinate Legislation Rules. There
is substance in the arguments of the State in this
regard.
13. Per contra, the learned Senior Counsel, Mr.
Saha Ray, appearing on behalf of the writ
petitioner/respondent has placed reliance on the
decision of the Hon’ble Supreme Court of India in the
case of Brij Mohan Lal (supra), particularly
paragraphs 100 and 101 thereof and paragraphs 13
and 15 of the case of Indian Council of Legal Aid &
Advice & ors. – Vs. – Bar Council of India & Anr.
reported in (1995) 1 Supreme Court Cases 732.
Reliance is also placed in an unreported decision of
the Hon’ble Supreme Court of India in the case of
Rakesh Vaishnav & Ors. – Vs. – Union of India &
Ors. being order dated 12th January, 2021 in Writ
Petition (Civil) No.1118 of 2020.
14. It is submitted that in the case of Rakesh
Vaishnav’s decision (supra), the Hon’ble Supreme
Court of India has passed an interim order staying the
provisions of Statute even at an ex parte stage.
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15. It is now well-settled that each case depends on
its peculiar facts and circumstances. The
circumstances under which the Hon’ble Supreme
Court of India felt the need to stay the Statute in
Rakesh Vaishnav’s decision (supra) where the Farm
Laws were under challenged, public protests whereof
lead to a stranglehold on the movement of the persons
and the people in the northern part of India.
16. Having regard to the aforesaid discussions, this
Court is of the view that interest of justice would be
served if the State is allowed to proceed with the
selection process and also issued licences for M.R.
Dealership and Distributorship under the amended
Targeted Public Distribution Control Order of 2024
applying Clause 11. There shall, however, be a rider to
each licence issued indicating that the same shall
abide by the result of the proceedings pending before
the learned Single Judge of this Court. The impugned
order is modified accordingly.
17. It is made absolutely clear that this Court as of
now has not disturbed any of the observations of the
Single Bench in the impugned order. The same shall
be subject to the final arguments advanced by all the
parties and the final result of the writ petition.
18. It is expected that all these writ petitions on the
subject matter i.e. challenge to Clause 11(v) of the
Control Order of 2024 may be listed together before
the learned Single Judge of this Court on an early date
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after the State files an affidavit within a mandatory
period of seven days from date and reply of the writ
petitioner is received within three days thereafter.
19. The learned Single Judge is requested to dispose
of these writ petitions after hearing all the sides at an
early date, subject to its business permitting.
20. It is made clear that this Court has not made
any final pronunciation in favour of either side in so
far as Clause 11(v) of the Control Order of the year
2024 is concerned and all the questions are deemed to
be kept open for decision by the Single Judge,
uninfluenced by any observations made by this Court
in this order.
21. As a matter of abundant caution, the parties
shall be in addition to the citing judgments already
referred to by the learned Single Judge and in this
order, may rely upon any other decisions that they
may deem necessary in support of their arguments.
22. With the aforesaid observations, the impugned
order dated 7th April, 2025 passed in six several writ
petitions shall stand modified. M.A.T. No. 745 of 2025
is disposed of.
23. In view of the disposal of the appeal itself, the
connected application being CAN 1 of 2025 shall also
stand disposed of.
24. There will be no order as to costs.
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25. All parties are directed to act on a server copy of
this order duly downloaded from the official website of
this Court.
(Rajasekhar Mantha, J.)
(Ajay Kumar Gupta, J.)