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2018 DIGILAW 180 (CAL)

Tamal Chowdhury v. State of West Bengal

2018-01-25

MIR DARA SHEKO

body2018
JUDGMENT : Heard Mr. Saha Roy, learned counsel representing the writ petitioner. 2. Despite service of notice upon the State respondents in their office, as noticed from the affidavit of service, which is kept on record, State respondents remained unrepresented. 3. Upon hearing and from the materials on record the Court is apprised of that Pankaj Kumar Chowdhury since deceased was appointed as Fair Price Shop Dealer, who died on 2nd February, 2012 leaving his widow, Pratima Chowdhury and two sons namely Tapas Kumar Chowdhury and Tamal Chowdhury, writ petitioner herein. After death of father of the writ petitioner, his mother filed an application before the competent authority on 8th July, 2012, which was acknowledged on 11th July, 2012, so that the license of Fair Price Shop could be granted jointly in favour of her two sons. But subsequently she was advised that the application might be submitted by her sons in the prescribed form. Therefore, taking no objection from their mother, the writ petitioner along with his brother jointly submitted the application in the prescribed form before the competent authority on 21st April, 2014, enclosing all relevant documents for grant of license of Fair Price Shop jointly in their name and for which prescribed fees were paid through local treasury. 4. Mr. Saha Roy inviting attention to annexure-P-5 of this writ petition submitted that though there was no provision in the Control Order that joint dealership is not permissible, but however the Sub-Divisional Controller (F & S), Basirhat rejected the joint application with the following order : “As such the application for partnership as desired above, dated 22.04.14 is hereby considered and rejected. If you desire, any one can apply for the said dealership as per W.B.P.D.S. (M & C) Order 2013, i.e. in Form “C” along with Annexure-I, with requisite fee, ‘No objection’ from all legal heirs of the said deceased dealer through an affidavit executed before 1st class Magistrate, etc. within ten (ten) days from the receipt of this letter failing which an ex parte decision shall be taken in this regard.” 5. Mr. within ten (ten) days from the receipt of this letter failing which an ex parte decision shall be taken in this regard.” 5. Mr. Saha Roy submitted that since vacancy arose on and from 2nd February, 2012, when the Control Order, 2003 was prevalent in the field, the subsequent amendment of the control order which came into force with effect from 8th August, 2013, can have no manner of application in the case on hand, which has been wrongly applied by the authority in rejecting the joint application. 6. However, further grievance is ventilated that since the joint application was not held permissible without applying the relevant Control Order, the writ petitioner submitted fresh application in the prescribed form on 19th August, 2015 with all relevant annexures and no objection from other legal heirs of the deceased. In this occasion the authority again wrongly applying the Control Order, 2013 rejected the application of the writ petitioner, which gives rise this writ petition seeking relief as sought for. 7. Mr. Saha Roy placing both the Control Order, 2003 and amended Control Order, 2013 submitted that the point has already been set at rest by the judgment of this Court that the law shall be applicable when the vacancy would arise, and, as a consequence of arising of that vacancy when the relevant law would have to be applicable, the process which would have to be supposed to run, has been done duly in this case. 8. Before conclusion Mr. Saha Roy submitted accordingly that since vacancy arose on and from 2nd February, 2012 and the Act also having been started with effect from July, 2012 for getting appointment on compassionate ground, wrong application of Control Order has simply victimized the writ petitioner and his family and therefore, the order dated 3rd May, 2017 is required to be quashed by granting adequate relief as sought for. 9. Mr. Saha Roy also relied upon the judgment of the Co-ordinate Bench of this Court in the case of Arbind Gupta vs. State of West Bengal & Ors. reported in 2016 (4) WBLR (Cal) 161 referring paragraphs 17, 19 and 22 and the judgment delivered by the Division Bench in the case of State of West Bengal & Ors. vs. Matadin & Anr. against which the State went to Supreme Court and the Supreme Court dismissed the case with costs of Rs. 50,000/-. 10. reported in 2016 (4) WBLR (Cal) 161 referring paragraphs 17, 19 and 22 and the judgment delivered by the Division Bench in the case of State of West Bengal & Ors. vs. Matadin & Anr. against which the State went to Supreme Court and the Supreme Court dismissed the case with costs of Rs. 50,000/-. 10. At the very outset it should be mentioned that despite service of notice, State remained unrepresented. However, in absence of the State while there is satisfaction about service of notice, there is no impediment to get the matter heard ex parte at the instance of the writ petitioner and for its disposal on merit applying the principles laid down in the Code of Civil Procedure. 11. Perused the materials on record, Control Order, 2003 and the amended Control Order, 2013 and the cases cited by Mr. Saha Roy. From the annexed papers it appears that the father of the writ petitioner namely Pankaj Kumar Chowdhury was the Fair Price Shop Dealer, who died on 2nd February, 2012 leaving his widow and two sons mentioned above. The application, being annexure P-3, dated 8th/ 9th July, 2012 shows that within about five months of the death of her husband, the widow/mother of the petitioner had submitted formal application before the competent authority disclosing about the fact of death of her husband and the M.R. dealership, which was their only source of income, the existence of her two sons and at the end recommending grant of licence in favour of her eldest son following the norms and rules. Though it is not on record, but Mr. Saha Roy apprised the Court that after some days the widow/mother of the petitioner was advised to submit application in prescribed form through her sons. However, since the aforesaid application bears seal with date of receipt in the office of the concerned Sub-Divisional Controller (F & S) being recommended by the Councillor of the ward, there is no reason to disbelieve the prima facie merit about submission of the application by the mother of the writ petitioner and receipt of the same at the office of the concerned Sub-Divisional Controller (F & S), Basirhat. 12. Be that as it may, the subsequent document, being annexure P-4, is the joint application submitted by both the sons on 21st April, 2014. 12. Be that as it may, the subsequent document, being annexure P-4, is the joint application submitted by both the sons on 21st April, 2014. The challan dated 24th April, 2014 shows about payment of fees and other annexures are formal documents bearing no objection, affidavit etc. Though there is no opportunity to counter the point at least to show before this Court, as to whether there is any embargo under law to submit the joint application by two brothers for obtaining any licence of M.R. dealership at least taking the provisions of the Control Order, 2003, but any such embargo could not be noticed. Nonetheless taking it as granted though not admitted, that the concerned Sub-Divisional Controller did not grant permission on that joint application dated 21st April, 2014 by referring amended Control Order, 2013, but he has indicated that the writ petitioner and his brother desire that either of them can apply for the licence under Control Order, 2013 and that order was passed in the year 2014. 13. The question may arise that when the authority by rejecting the application dated 21st April, 2014 had given liberty to the writ petitioner and his brother to submit fresh application, can the authority compel the subject to go by the provision of any law, which would not be applicable to him. Alternatively, if any such provision would not be applicable to him to that subject, then whether the subject would be advised by that order to submit application indicating non-applicable Control Order. 14. The amended Control Order, 2013 has been published by the Government of West Bengal, Department of Food and Supplies on 8th August, 2013 without any retrospective effect. Paragraph 42 under the heading Repeal and Savings runs as follows : “West Bengal Public Distribution System (Maintenance and Control) Order, 2003 and subsequent Amendment being no. 7044 dated 18.11.2004 are hereby repealed provided, however, such repeal shall not affect any investigation, penalty, imposition of punishment for any offence committed by the licensee against any of the provisions of the Order as if the said order had not been repealed.” 15. The subject matter in question was for engagement and/or issuance of licence on compassionate ground where no other consideration may be required as it is required in case of a fresh vacancy. The subject matter in question was for engagement and/or issuance of licence on compassionate ground where no other consideration may be required as it is required in case of a fresh vacancy. The tenor of the communication leaves no room of doubt that before enforcement of the Control Order, 2013, the process seeking permission for licence to run the Fair Price Shop dealership on compassionate ground, was initiated with effect from 2nd week of July, 2012. Had there been long silence till arrival of the Control Order, 2013 and if the prayer would have been made for the first time after coming into operation of the Control Order, the provision of the amended Control Order, 2013 may apply. But when the process had already been initiated before coming of the amended Control Order into operation, then the authority had gone with a wrong approach that the Control Order, 2013 would apply, otherwise in the order dated 19th May, 2014 there would have been no indication about application of such amended Control Order, 2013, which gave rise to the cause of action of this writ petition. Therefore, if it is taken as granted, though not legally that there is bar to issue joint licence in favour of two sons in respect of M.R. dealership and if on that ground it was rejected, then the indication about application of the Control Order, 2013 in the order dated 19th May, 2014 was out and out illegal. The concerned Sub-Divisional Controller (F & S) ought not to misquote the Control Order, which is not applicable in the case on hand. 16. In the sequence, similar issue was dealt with by the Co-ordinate Bench in the case of Arbind Gupta vs. State of West Bengal (supra) for guidance, paragraphs 17, 19 and 22 thereof are set out : “17. Having regard to the clear exposition of the legal principles attached to compassionate appointment laid down by the Hon’ble Apex Court (supra), this Court is of the considered view that since the immediate financial crisis of the claimant arises on the death of the original licensee, the claim to such compassionate appointment must be considered to have arisen at the time of such death. In other words the right of the claimant must be considered to have crystallized at the moment of the death of the original licensee.” “19. In other words the right of the claimant must be considered to have crystallized at the moment of the death of the original licensee.” “19. Therefore, the Court is of the further considered view that the competent State Authority must address itself to a bona fide claim submitted by the claimant within due time under the law and regulations existing at the moment of death. The competent State Authority is then required to arrive at a just conclusion on the need of the claimant to such compassionate appointment on fulfillment of the necessary parameters as applicable to him under the law and regulations as prevalent at the moment of death.” “22. This Court is also persuaded to hold that the second representation of the petitioner dated 18th September, 2013 at the instance of the authority must be construed to be a continuation of his first representation dated 21st June, 2013. As on 21st June, 2013, in view of this Court, the 2003 Control Order was in vogue read with the Memo dated 3rd July, 1985 which deserves to be applied. It is obvious that under the memo dated 3rd July, 1985 the DOR is required to examine the claim of the writ petitioner as the next of kin of the deceased licensee, Saraswati Gupta more so when the deceased licensee in the absence of any son or daughter, had bequeathed her property, including the ration shop, in favour of the writ petitioner.” 17. Be it mentioned that in another case on similar issue, where the Control Order, 2003 or 2013 would be applicable, there was an appeal at the instance of the State of West Bengal against Matadin & Anr., and, the State was trying to impress upon the Division Bench to grant stay of the order passed by the Single Bench, where deciding similar lis it was held that the Control Order, 2013 would not be applicable and stay was refused and the appeal treating as on day’s list was also dismissed. Against such refusal order the State moved further before the Supreme Court by filing Special Leave petition, which was dismissed with costs of Rs. 50,000/-. Against such refusal order the State moved further before the Supreme Court by filing Special Leave petition, which was dismissed with costs of Rs. 50,000/-. Therefore, the issue has already been settled and the State machinery particularly, the competent authority who is in discharge of statutory obligation on the subject, ought to have been briefed with such legal position, so that the writ petitioner may not suffer to come before this Court again to seek relief on the self-same issue. 18. Now, looking into the impugned order passed by the Sub-Divisional Controller, Basirhat, I must say that it is a reasoned order, but the competent authority has exercised a lot but in vain with wrong approach. Since the Control Order, which is not applicable, has been applied and the Control Order, which is applicable, has been kept aside in giving favourable consideration to the applicant. Since the purported application was for grant of licence of Fair Price Shop on compassionate ground and since all formalities had been started while the provisions of the Control Order 2003 were in the field and not the amended Control Order, 2013, and since the right had been accrued in favour of the writ petitioner within the ambit of the Control Order, 2003, the Sub-Divisional Controller (F & S), Basirhat ought to have disposed of by passing reasoned order in favour of the writ petitioner following the norms and procedures of Control Order, 2003, if the same is not otherwise barred by any provision of law. 19. In view of above observation, the order dated 3rd May, 2017 passed by the Sub-Divisional Controller (F & S), Basirhat, North 24-Parganas rejecting the application of the writ petitioner, is quashed and the writ petition stands allowed ex parte with direction upon the respondent no.6 to extend the benefit of compassionate appointment in favour of the writ petitioner in place of his deceased father for running the Fair Price Shop dealership, within a period of eight weeks from the date of communication of this order, provided he is found otherwise eligible. 20. Liberty is given to the writ petitioner to communicate a photocopy of certified copy of this order along with other relevant documents to the respondent no.6. 21. No order as to costs. 22. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.