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2014 DIGILAW 126 (CAL)

Samar Das v. State of West Bengal

2014-02-19

SOUMITRA PAL

body2014
JUDGMENT 1. Let affidavit of service filed today be kept on record. 2. In the writ petition the petitioner has prayed for a direction upon the authorities of the Food and Supplies Department, Government of West Bengal to issue appointment letter and to grant Fair Price Shop Licence in his favour on compassionate ground, since his father Biswanath Das, a licensee of the shop concerned, on 21st August, 2006, that is during his life time, had submitted an application before the Sub-Divisional Controller (F & S), Chinsurah, Hooghly, the respondent No.5 praying for transfer of the licence on the ground of incapacitation, and since subsequently on 13th August, 2013 the petitioner had furnished an application for such appointment Submission is as his father during his life time filed an application, in view of Paragraph 20(vi) of the West Bengal Public Distribution System (Maintenance & Control) Order, 2013(for short “2013 Order”) which permits such transfer, appropriate order may be passed. On a query it is submitted that Amar Das, the elder brother of the petitioner had expired in the year 2001, that is during the lifetime of his father, the licensee. 3. Learned Advocate appearing on behalf of the State submits that as the father had opted for transfer of his licence in favour of the petitioner when the West Bengal Public Distribution System (Maintenance & Control) Order, 2003 (“2003 Order” for short) was in vogue which had lapsed on 8th August 2013 with the introduction of the 2013 Order and as it is not an action saved under paragraph 42 of the 2013 Order, no order may be passed. 4. Learned Advocate appearing on behalf of the private respondents, adopting the submission made on behalf of the State, submits that as objection has been filed by his clients that is the wife and son of late Amar Das, the application of his clients may be directed to be considered along with that of the petitioner. 5. In order to answer the issue it is appropriate terrefer to paragraph 20(vi) of the 2013 Order, which is as under:- “vi) Engagement on compassionate grounds:- In case of vacancy arising out of death or in case of incapacitation on medical ground, subject to satisfaction of the authority, of any existing dealer, such vacancy shall not initially be notified. 5. In order to answer the issue it is appropriate terrefer to paragraph 20(vi) of the 2013 Order, which is as under:- “vi) Engagement on compassionate grounds:- In case of vacancy arising out of death or in case of incapacitation on medical ground, subject to satisfaction of the authority, of any existing dealer, such vacancy shall not initially be notified. Prayer of any of the family members of the deceased/incapacitated dealer having no regular means of subsistence, will be considered with preference on compassionate ground provided such prayer along with formal application in Form ‘C’ along with annexure I with requisite fee is submitted within 60 days from the occurrence of such vacancy. While applying, the applicant shall have to furnish “No Objection” from other family members in the form of an Affidavit executed before a 1st Class Magistrate except in the following cases:- (a) if the applicant be the spouse of the deceased licensee, (b) if the ex-licensee, because of his/her being incapacitated/infirm has opted for the applicant.” (Emphasis supplied) 6. Admittedly the father of the petitioner on 21st August, 2006 had opted for transfer of licence of the fair price shop in favour of the petitioner by filing an application before the respondent No.5. During its pendency, on 16th June, 2013 Biswanath Das, father of the petitioner had expired. It is not in dispute that on 8th August 2013 Order had come into effect. Thereafter, the petitioner had applied on 13th August, 2013 for the grant of licence of the concerned fair price shop on compassionate ground. 7. The question to be considered whether the opinion exercised by an ex-licensee during the existence of 2003 Order loses its force with the introduction of the 2013 Order. 8. Evidently, with regard to engagement on compassionate ground, the applicant under paragraph 20(vi) of the 2013 Order, “while applying” has to furnish “No objection” from other family members in the form of an affidavit except in cases “(a) if the applicant be the spouse of the deceased licensee,” or “(b) if the ex-licensee, because of his/her being incapacitated/infirm has opted for the applicant”. In the instant case the applicant while applying has to demonstrate that the “ex-licensee” had “opted for the applicant” as he was incapacitated or infirm. In the instant case the applicant while applying has to demonstrate that the “ex-licensee” had “opted for the applicant” as he was incapacitated or infirm. There is no dispute that on 21st August, 2006 the father of the petitioner, an ex-licensee, being incapacitated had opted for transfer of licence in favour of his son, the applicant. The petitioner now “while applying” on 13th August, 2013 is seeking to have the benefit of the 2013 Order. Since, under paragraph 20(vi), engagement on compassionate ground is a beneficial scheme, accordingly it has to be interpreted. Hence as the father of the petitioner, an ex-licensee, being incapacitated had opted for transfer of licence in favour of the petitioner, and the petitioner having acquired a right, under paragraph 20(vi) has sought the benefit under exception “(b)” under paragraph 20(vi) of the 2013 Control Order, the application filed on 13th August, 2013 has to be considered accordingly. As the ex-licensee had opted for transfer of licence in favour of the petitioner, and the petitioner is seeking the benefit under Clause 20(vi), the private respondents are estopped from raising objection as any other interpretation would defeat the very purpose of the scheme as enumerated in paragraph 20(vi). The argument on behalf of the State that the option had lapsed with the repeal of the 2003 Order cannot be accepted as the State had kept the matter pending since 2006 for no fault on the part of the ex-licensee or the petitioner and as appointment has to be on compassionate ground. 9. Therefore, the writ petition is disposed of by directing the Sub-Divisional Controller (F & S), Chinsurah, Hooghly, the respondent No.5 to consider the application dated 13th August, 2013 for the grant of licence of the fair price shop on compassionate ground in favour of the petitioner by passing a reasoned order to be communicated to the petitioner within six weeks from the date of presentation of a copy of the certified copy of the order without insisting on the ‘no objection’ certificate from the private respondent Nos.6 and 7, that is the heirs of the deceased licensee. 10. No order as to costs.