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2018 DIGILAW 1393 (GAU)

Mala Das v. State of Assam

2018-09-18

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. MU Mahmud, learned counsel for the petitioner, Mr. S Dutta, learned senior counsel for the respondent No.5 as well as Mr. TC Chutia, learned Additional Senior Government Advocate appearing for the State respondents. 2. The father of the respondent No.5 late Mohit Ranjan Sarbabidya and the petitioner Smti Mala Das by virtue of a partnership Deed jointly operated a fair price shop in the name and style of M/s Renuka Store in the Bongaigaon town. On the death of the father of the respondent No.5, the respondent No.5 being a legal heir, claimed a stake to be a part of the aforesaid partnership arrangement in respect of the said fair price shop. In the process, by an order dated 21.01.2018 of the In-charge Deputy Director of Food and Civil Supplies and Consumer Affairs, Bongaigaon, the petitioner Mala Das was directed to enter into a fresh Deed of partnership with the respondent No.5 for further carrying out the business of M/s Renuka Store. It is stated that the direction contained in the order dated 20.01.2018 was not complied with by the petitioner Mala Das. 3. In the consequence, the order dated 20.02.2018 was passed by the Deputy Commissioner, Bongaigaon, which is being assailed in this writ petition. By the order dated 20.02.2018, the Deputy Commissioner was of the view that as by the earlier order dated 20.01.2018, the petitioner Mala Das was directed to execute a fresh Deed of partnership for smooth running of the fair price shop, which the petitioner did not comply with, there was a violation of the provision of Clause-26 of the Assam Public Distribution of Articles Order, 1982, read with terms and conditions No.4 of the PDS License No. NSS(R)/62 issued in favour of M/s Renuka Store. 4. The provision of Clause-26 of the Assam Public Distribution of Articles Order, 1982, inter-alia provides as follows:- "26. The State Government or the Director or the Licensing Authority may issue directions to any appointed dealer with regard to purchase, sale, disposal, storage or exhibition of any of the notified articles which shall be forthwith complied with by the appointed dealer." 5. The State Government or the Director or the Licensing Authority may issue directions to any appointed dealer with regard to purchase, sale, disposal, storage or exhibition of any of the notified articles which shall be forthwith complied with by the appointed dealer." 5. A bare perusal of Clause-26 gives the indication that the State Government or the Director or the Licensing Authority may issue directions to any appointed dealer with regard to purchase, sale, disposal, storage or exhibition of any of the notified articles which shall forthwith be complied with by the appointed dealer. It is taken note of that the direction contained in the order dated 20.01.2018 of the In-charge Deputy Director was to the petitioner Mala Das to execute a fresh Deed of partnership and the said direction was not a direction to any appointed dealer with regard to purchase, sale, disposal, storage or exhibition of any of the notified articles. 6. In view of the above, it is the view of the Court that the direction to execute a fresh partnership Deed is not a direction under Clause-26. As the order dated 20.02.2018 was issued by the Deputy Commissioner, Bongaigaon for an alleged violation of Clause-26 and as it is the view that the direction made to the petitioner was not a direction under Clause-26, therefore, the order dated 20.02.2018 is not sustainable. 7. Accordingly, the order of 20.02.2018 of the Deputy Commissioner, Bongaigaon, including the direction to suspend the fair price shop M/s Renuka Store and further to tag its customers with other fair price shops, is set aside. 8. But, however, as the original dispute between the petitioner and the respondent No.5 is as to whether on the death of his father, the respondent No.5 is entitled to be a part of the partnership business, the same needs an appropriate reasoned decision by the authority concerned. It is stated that the appropriate authority would be the Deputy Commissioner, Bongaigaon. 9. Accordingly, the Deputy Commissioner, Bongaigaon is directed to take a decision as to whether the respondent No.5 being the legal heir of late Mohit Ranjan Sarbabidya, who was a partner in the partnership business with the petitioner Mala Das would in the terms of the earlier partnership Deed be entitled to continue as the partner on the death of his father and pass a reasoned order thereon. In doing so, the Deputy Commissioner shall give a hearing to both the petitioner as well as the respondent No.5 and allow them to produce any relevant material that they may desire to produce for substantiating their respective claims. 10. Mr. S. Dutta, learned senior counsel appearing for the respondent No.5 states that under Clause-12 of the earlier partnership Deed, the respondent No.5 has a right to continue. 11. The Deputy Commissioner while passing the reasoned order, shall look into the said aspect as raised by the respondent No.5 and for the purpose, shall also allow the petitioner to raise her objection to it. 12. The aforesaid exercise be done within a period of two months from the date of receipt of a certified copy of this order. Till such decision is taken, the fair price shop M/s Renuka Store shall be operated in the same manner it was being operated prior to the order dated 20.02.2018 being passed by the Deputy Commissioner, Bongaigaon. In terms of the above, the writ petition stands disposed of.