Aniruddha Bose, J.
1. This writ petition has been filed by the Secretaries of the West Bengal M.R. Dealers Association and the Secretary of the Malda unit of the same association. The association has amongst its members dealers having license to distribute public distribution commodities under the provisions of the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 (referred to hereinafter the 2003 Control Order). In the writ petition what has been primarily challenged is an order issued by the Food Commissioner and Principal Secretary of the Government of West Bengal on 19th November 2007 in which reallocation of ration card holders tagged to individual kerosene dealers appointed under the 2003 Control Order as also the West Bengal Kerosene Control Order, 1968 (1968 Order) has been envisaged. A copy of this order has been made annexure 'P7' to the writ petition. It is also the prayer of the writ petitioners that the persons who are not fair price shop owners having been granted license under the 2003 Control Order ought not be allowed to deal with super fine kerosene oil under the public distribution system on the basis of the licences issued to them under paragraph 6 of the 1968 Control Order. The respondent Nos. 5 and 6 represent the holders of license only under the 1968 Control Order.
2. It appears that so far as kerosene oil is concerned, which is distributed through the public distribution system, at present there are two types of dealers. One set of dealers operate through a regulatory mechanism provided under the West Bengal Kerosene Control Order, 1968 which is an Order promulgated under the provisions of Section 3 of the Essential Commodities Act, 1955 (the 'Act' in short). The other set of dealers, whose interest the petitioners are espousing, are dealers appointed under the 2003 Control Order, who deal with various other public distribution commodities along with kerosene oil. This category of dealers are also known as M.R. Dealers, being the short form of Modified Ration Dealers, the description by which they were known as when dealers of public distribution commodities were regulated through executive instructions and orders. Some of the dealers under 2003 control Order, it has been submitted before me by the learned Counsels appearing for the respondent Nos. 5 and 6, also hold license under the 1968 Control Order. The writ petitioners apprehend that substantial number of ration cards tagged to their members may be allocated to the dealers under the 1968 Control Order in this process of equitable distribution, which is being contemplated by the authorities.
3. The core argument of the petitioners is that the dealers under the 1968 Control Order became disentitled to conduct their business of sale of kerosene oil through the Public Distribution System upon coming into operation of the 2003 Control Order. When the writ petition was moved, it was urged on behalf of the petitioners that readjustment of the individual allocation of ration cards to the dealers under both the Control Orders were being contemplated and apprehension was expressed about reduction of large number of ration cards. At that stage, I had passed an interim order to the limited extent permitting the state authorities to continue with the examination with the status of individual dealers vis-a-vis the ration cards tagged to them, but I directed that if it was intended to delink the ration cards of any existing M.R. dealers who were members of the association represented by the petitioner No. 1 and 2, prior intimation of fifteen days was directed to be given to such individual dealers. This interim order was passed on 31st August 2008.
4. Thereafter, some of the members of the associations whose interest the petitioners represent were issued notices for delinking of ration cards from them, and another interlocutory application being G.A. No. 584 of 2008 was taken out by the petitioners praying for an order restraining the respondent authorities for delinking the ration cards from the members of the petitioner No. 1 till disposal of the writ petition. This application was taken up for hearing on 28th February 2008, on which date upon hearing the learned Advocates appearing for the parties. I passed an order restraining the respondents from delinking of ration cards uptil 6th March 2008. Affidavits were directed to be exchanged in the meantime. The matter was directed to be listed on 6th March 2008. Subsequently, this interim order has been extended from time to time in the same terms, as neither the main writ petition nor the interlocutory application could be taken up for final hearing by this Court, mainly because motions and other matters which in this opinion of this Court required hearing on a priority basis were being taken up. In the meantime, on behalf of the respondent Nos. 5 and 6, an application being G.A. No. 1043 of 2008 was taken out for vacating the interim order passed on 28th February 2008. Affidavits have been exchanged in this application also. The interim order which was passed on 28th February 2008 and subsequently extended from time to time lapsed on 21st August 2008. The matter was mentioned and listed at the instance of the petitioners for extension of the interim order which was resisted by Mr. Bandopadhyay, learned Senior Counsel appearing for the respondent Nos. 5 and 6.
5. The case of the respondent Nos. 5 and 6 as submitted before me is that the process of tagging and detagging was being done to give effect to a direction of an Hon'ble Division Bench of this Court passed in the case of Manindra Nath Sarkar v. Krishna Gopal Pramanick reported in 2002 (1) CLJ 169. In this case, the dispute related to allocation of kerosene oil to the dealers appointed under the 1968 Control Order and the M.R. Dealers appointed under the rule prevailing at that point of time. In this decision the Hon'ble Division Bench confirmed a decision delivered by an Hon'ble Single Judge of this Court in which the State was directed to ensure distribution of kerosene oil to both categories of dealers and the Secretary, Department Food and Supplies, Government of West Bengal was directed to formulate a guideline in this regard. In pursuance of such direction, the concerned authority undertook the exercise of ensuring equal distribution between M.R. Dealers and other retail dealers in kerosene for sale to consumers having ration cards. When this decision was delivered, however, the 2003 Control Order was yet to be promulgated.
6. The Public Distribution System (Control Order), 2001 (2001 Control Order) was promulgated by the Central Government which came into effect on 31st August 2001. The 2001 Control Order was made as the Central Government found it necessary and expedient to do so for maintaining supplies and securing availability and distribution of essential commodities. This Order lays down the framework for effecting public distribution system through fair price shops. The definitions of the expressions 'fair price shop' and 'public distribution system' are of relevance for adjudication of the present proceeding and the same are reproduced below:
2. (j) 'fair price shop' means a shop, which has been licensed to distribute essential commodities by an order issued under Section 3 of the Act, to the ration card holders under the Public Distribution System.
2(l) 'Public Distribution System' means the system for distribution of essential commodities to the ration card holders through the fair price shops. Such as rice, wheat, sugar, edible oils, kerosene and such other commodities as are notified by the Central Government under Clause (a) of Section 2 of the Act.
7. Subsequently in exercise of power conferred under Section 3 of the Essential Commodities Act 1955, read with the 2001 Control Order, the State Government promulgated the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 which is being referred to in this order as the 2003 Control Order. Under this order, a regulatory system for supply and distribution of public distribution commodities through a regime of licensing has been developed.
8. When this matter was taken up for hearing for the purpose of considering the petitioners' prayer for further extension of interim order, learned Counsels appearing for the parties submitted before me that the respondent No. 5 and 6 had preferred an appeal against the order passed by this Court extending the interim order before an Hon'ble Division Bench of this Court. Though the copy of the order of the Hon'ble Division Bench has not been produced before me, learned Counsels appearing for the parties had submitted that in that order, the Hon'ble Division Bench had requested this Court to hear out the main writ petition and in the event the writ petition could not disposed of, to take up the application for vacating the interim order and dispose of the same. I was inclined to take up the main writ petition for hearing only at this stage, but on behalf of the petitioners accommodation was prayed for due to certain difficulties being faced by them in prosecuting the writ petition and as such I had to postpone the hearing of the main writ petition. Under these circumstances, while examining as to whether I shall extend the interim order or not, I chose to consider the case made out by the respondent Nos. 5 and 6 in the vacating application, along with the writ petitioners' application for further order being G.A. No. 1043 of 2008 and G.A. No. 584 of 2008.
9. In the order which was passed on 31st March 2008, I had examined the various provisions of law and considering the nature of the controversy involved, passed the interim order, which has been referred to in the earlier part of this order. The order which was passed on 28th February 2008 was also in the nature of an ad-interim order, passed in G.A. 584 of 2008. This 'ad-interim' character of the order, however, continued even after several time-bound extensions of this interim order was directed. Thus, till the matter was heard when extension of interim order was prayed for before the same lapsed on 21st August 2008, the examination of comparative strength of the cases of the respective parties, the question of balance of convenience and/or, inconvenience and the possibility of causing irreparable hardship was not undertaken in detail. The whole object behind passing such time-bound interim orders was to postpone consideration in greater detail the three factors referred to above before deciding whether the interim order already passed ought to continue till final disposal of the writ petition or not. It is at this stage only this Court took up the exercise of examining these factors in the light of the facts of the present case.
10. As I have observed earlier, the main case of the writ petitioners is that the members of the respondent No. 5 and 6 or any other holder of licenses under the 1968 Control Order are not entitled to carry on business of kerosene oil which is supplied and sold through the Public Distribution System because of coming into effect of 2003 Control Order. Mr. Saptangshu Basu, learned Advocate led by Mr. Jayanta Kumar Mitra, learned Senior Advocate argued on behalf of the petitioners that the 2003 Control Order in substance obliterated the 1968 Control Order and the former was repugnant to the latter. My attention was drawn by the learned Counsels for the petitioners to the definition of 'fair price shop'. It was submitted that under the 2003 Control Order, only fair price shop owners would be entitled to distribute the essential commodities to the ration card holders under the Public Distribution System. Since kerosene was included in the definition of the Public Distribution System as an essential commodity, it was contended that kerosene oil could be distributed only through the distribution mechanism devised under the 2003 Control Order. So far as the licenses of the 1968 Control Order are concerned, it was argued that those dealers at best would be entitled to deal with that type of kerosene which are not meant to be sold through the public distribution system. The methodology of such distribution is prescribed in Paragraph 6 of the 2001 Control Order read with 'Annexe' to such Order. Clause 5 of 'Annexe' to the 2001 Control Order stipulates that the State Government shall issue an order under Section 3 of the Act for regulating the sale and distribution of the essential commodities. The licences to the fair price shop owners are to be issued under the said order which are to specify the duties and responsibilities of the fair price shop owners. There are also provisions for monitoring the functioning of such establishments. The argument of the petitioners, thus is that since kerosene oil has been declared as an essential commodity in the 2001 Control Order and the 2003 Control Order has been formulated in pursuance of the 2001 Control Order, fair price shops constituted under the 2003 Control Order would have the exclusive right to conduct retail sale of this product through the public distribution system.
11. Prima facie, I am unable to accept this argument. I do not find any provision under any of these two Control Orders which specifically stipulates that all essential commodities which come within the ambit of the expression 'Public Distribution System' as defined in Clause 2(1) of the 2001 Control Order would have to be distributed through a specified type of shop like 'fair price shops' only. The mandate on the State Government in terms of Clause 5 of the Annexe to the 2001 Control Order to issue order under Section 3 for regulating the sale and distribution of the essential commodities does not imply, in my prima facie opinion, that those 'fair price shops' which are organised after commencement of the 2003 Control Order alone will have the right to deal with all the essential commodities. If there already subsists a Control Order broadly answering the mandate of said Clause 5, but covering a single 'essential commodity', then shops organised under such subsisting Control Order would also be entitled to continue with their activities. Licences granted under such subsisting Control Order shall not be deemed to have been invalidated or excluded from the legitimate public distribution system.
12. Mr. Bandopadhyay, appearing on behalf of the private respondents also argued that an Order made under the Essential Commodities Act, 1955 also becomes part of the statute and on this basis the 1968 Control Order also ought to be deemed to be a part of the Essential Commodities Act, 1955. He relied on a decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Swaran Singh reported in : AIR2004SC1531 in support of this proposition. His further submission that is the West Bengal Kerosene Control Order, 1968 is a special statute covering of distribution of kerosene only and since source of power for issuance both the Control Orders were same, the question of repugnancy or obliteration would not arise. The authorities relied on for this propositions are two decisions of the Hon'ble Supreme Court reported in : (2004)IILLJ815SC and : [1997]3SCR813 .
13. He also questioned the legal right of the petitioners to question the allotment made in favour of the dealers under the 1968 Control Order relying on a decision of the Hon'ble Supreme Court reported in : (1999)5SCC612 . On the question of restoration and further continuing the interim order, which he opposed, he based his case on two grounds. The first submission of Mr. Bandopadhyay for vacating the interim order is that no reason has been given in the interim order passed on 28th February 2008. The authority relied in support of this proposition of law is a decision of the Hon'ble Supreme Court reported in : 2004(164)ELT141(SC) . His further submission is that the interim order, as granted constitutes granting of final relief in the writ petition at the interim stage, and relied on a decision of the Hon'ble Supreme Court reported in : AIR2003SC2218 to contend that granting of interim relief of this nature is impermissible in law.
14. Appearing for the State respondents Mr. Indrajeet Sarkar also opposed any further extension of the interim order, relying on the decision of the Hon'ble Supreme Court reported in : (1999)5SCC612 . His further submission is that the State was giving effect to the order of an Hon'ble Division Bench of this Court (to which I have referred to earlier in this Order) and hence they should be allowed to continue with such exercise. Mr. Saha Ray appeared in this matter for two added respondents supported in substance the case of the petitioners.
15. On behalf of the petitioners it was argued that they had made out a strong prima facie case. Taking me through the second proviso to Order 39 Rule 4 of the Code of Civil Procedure, the learned Advocate for the petitioner contended that in the event an order of injunction is passed after giving to the parties opportunity of being heard, such order ought not to be vacated pending final hearing of the application unless the same is necessitated by a change of circumstances or the Court is satisfied that the order passed is causing undue hardship to the applicant. The petitioners' case is that in the present case no undue hardship was being caused to the private respondents as their business activities would continue as before even if the interim order was continued. On this point he referred to a decision of an Hon'ble Division Bench of this Court delivered in the case of Phani Bhusan Dey v. Sudhamoyee Roy reported in 91 CWN 1078.
16. I have heard the learned Counsels appearing for the parties. I have already indicated my prima facie view that neither the 2001 Control Order nor 2003 Control Order render licences granted under the 1968 Control Order invalid.
17. Having formed such prima facie opinion, I will examine now the petitioners' submission that the interim order having been passed upon giving opportunity of hearing to the contesting parties, such order ought not to be varied as there has been no change of circumstances nor any case of undue hardship of the respondents have been made out. The interim order in this case was initially passed on 31st March 2008. The subsequent order of 28th February 2008 was passed on changed circumstances, being issuance of detagging orders from the dealers of 2003 Control Order. But this interim order was being extended from time to time and was not confirmed to last until disposal of the writ petition. In the meantime the application for vacating interim order was filed and the case of the respondent Nos. 5 and 6 was argued before me substantially in support of this application. This being the position, in my opinion the manner in which the interim order was being passed in this matter from time to time, the second proviso to Rule 4 of Order 39 of the Code of Civil Procedure would have no application. The authorities relied on behalf of the petitioners on this point do not also apply in the facts of the present case.
18. The petitioners' main case is pegged on the disentitlement of the dealers under the 1968 Control Order to continue with their business in view of promulgation of 2003 Control Order. Since I am prima facie satisfied that the subsequent Control Orders do not invalidate the 1968 Control Order, I am of the opinion that the interim order already having lapsed ought not to be restored and extended any further. Two authorities cited by Mr. Bandopadhyay on the question of legal right of the petitioners to maintain this writ petition and on the proposition that there can be no repugnancy between two Control Orders issued having same source of power or jurisdiction in exercise of which they were promulgated would be considered at the final stage of hearing of the writ petition. As regards his submission that interim relief which results in grant of final relief at the interim stage ought not to be granted, I am of the view that this is a well-established proposition of law, and except in exceptional cases, Courts ought to decline to grant such relief. On his submission that no reason was given for granting interim order on 28th February 2008, I am of the view that this Court being a Chartered High Court, the requirement to give reasons in support of an interim order can be dispensed with in appropriate cases. But detailed examination of these issues at this stage would be an academic exercise only, as I am of the view that the petitioners have failed to make out a prima facie case. I am prima facie satisfied that the holder of a license under the 1968 Control Order are not entitled to carry on their business of sale of kerosene oil under the Public distribution system.
19. Thus I decline to extend the interim order passed on 28th February 2008.
20. Both the applications, being G.A. No. 584 of 2008 and G.A. No. 1043 of 2008 stand disposed of in the above terms.
21. There shall, however, be no order as to costs.
22. Later:
Let the main matter appear in the list on 04.09.2008.
Let a signed copy of the operative portion of the order be supplied to the parties on usual undertaking.
Let an urgent Photostat certified copy of the order be supplied to the parties if applied for upon compliance with all requisite formalities.