Calcutta High Court (Appellete Side)
Sujit Moulik vs The State Of West Bengal & Ors on 8 February, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
HON'BLE MR. JUSTICE ABHIJIT GANGOPADHYAY
WPA 19824 of 2019
Sujit Moulik
-Versus-
The State of West Bengal & Ors.
For the petitioner : Mr. Bijoy Adhikary
For the State : Mr. Susovan Sengupta
Mr. Subir Pal
Heard on : 14.01.2021, 15.01.2021,
27.01.2021, 02.02.2021 &
04.02.2021
Judgment on : 08.02.2021
1. The petitioner filed this writ application praying for mandamus for
considering its representation being annexure P-8 (which should be
annexure P-7, annexure P-8 is not any representation) for granting
licence of an M.R. Dealer shop in the District of Alipurduar. He also
prayed for a mandamus for setting aside the Government
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notification No. 2893-FS/SECH/4M-195/2018 dated 12.09.2018 for
filling up vacancy of Fair Price Shop Dealer in different places
including a Village namely Damanpur in the District of Alipurduar.
M.R. Dealer shops are now termed as Fair Price Shops.
2. From the representation of the petitioner dated 18th August, 2017 it
is found that the M.R. Shop No. 38 had two partners namely
Debabrata Moulik and Ratan Kumar Moulik. After death of one of
the partners Debabrata the other partner Ratan, who was
unmarried and physically handicapped, by submitting a
representation wanted the licence of the M.R. shop to be given in
the name of his younger brother Sujit Moulik i.e. the petitioner
herein. Ratan expired on 17th December, 2016. (Debabrata, elder
brother of the petitioner, expired before Ratan on 29th June, 2013,
as is found from annexure P-3 of the writ application).
3. Therefore the case of the petitioner as appears from the writ
application is that after the death of the partners namely Debabrata
and Ratan he wanted the licence of M.R. Shop and as his
representation dated 18th August, 2017 was not considered by the
concerned authority, Government should be restrained from filling
up the resultant vacancy of Fair Price Shop Dealership and such
decision of the government was required to be set aside.
4. The petitioner has submitted that there was an agreement dated 9th
March, 1983 between the Governor of West Bengal on one part and
Debabrata Moulik and Ratan Moulik on the other, as retailer in food
stuffs under the scheme framed by the government for distribution
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of food stuffs to consumer in the Districts of West Bengal. The
petitioner submitted that the state cannot terminate this agreement
by any order or notification as it is a contract under Article 299(1) of
the Constitution of India.
5. Such submission is wholly without merit as from annexure P-2 of
the writ application it is found that a licence was granted in 2005 to
one M/s. A.K. Moulik & company having partners Debabrata and
Ratan as a Dealer under West Bengal Public Distribution system
(Maintenance & Control) Order 2003. This licence dated 30th
December, 2005 shows that the agreement between the Governor on
the one part and Debabrata and Ratan and the other had no
existence in the year 2005 i.e. after lapse of nearly 22 years from the
date of the said agreement of 1983. There is no document or
pleading that Debabrata and Ratan raised objection as to non
existence of the 1983 agreement, on the contrary from annexure P-2
it is found that the said licence was renewed from year to year and
endorsement towards renewal in different years is there on the said
licence. Debabrata and Ratan, partners of the partnership firm, also
had a dealership under West Bengal kerosene control order which
was also renewed from time to time as appears from at page 28 and
29 of annexure P-2.
6. Though the petitioner has claimed by making submission from the
bar that he is running the Fair Price Shop of A.K. Moulik & Co as a
joint family business nothing has been disclosed to show that the
petitioner was ever granted any licence of M.R. Shop/ Fair Price
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Shop as the proprietor or partner of M/s. A.K. Moulik & Co. Nor he
was granted any licence for kerosene dealership as partner or
proprietor of the above named firm. The Petitioner has also not
disclosed any documents showing that it was a joint family
business.
It was also never stated by Ratan in his representation dated
19.11.2013 (Annexure P-4) nor any such claim is found by other
numbers of the family as is found from a copy of an affidavit dated
30.09.2013 (vide annexure R-2 of the affidavit-in-opposition of R-4).
Therefore the claim of the petitioner that he is running a joint family
business of M.R, dealership is wholly baseless. On the contrary and
fact the petitioner filed application for dealership under Public
Distribution System (Maintenance & Control) Order 2003 on 29th
October, 2013 and on the same date also applied for licence of a
kerosene dealership under West Bengal Kerosene Control order
1968 for himself and not for the joint family business which clearly
shows that in 2013 it was not his case that he was running a joint
family business.
7. Learned advocate for the state has indicated to this court that in the
application for dealership (at page 38 of the application which was a
Form for 2003 Control order) the date has been interpolated as 29th
October, 2013. It is the submission that on 8th August, 2013 the
West Bengal Public Distribution System (Maintenance & Control)
Order 2013 came into existence and there was no occasion in 2013
for filing application in a Form of 2003 Control order. In fact, from
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the date of the application of the petitioner (29th October, 2013) it is
found that there is an interpolation in the date of the application
whereby the date has been shown as of 2013 when actually it was of
2003.
8. After the death of Debabrata on 29th June, 2013 (vide annexure P-3,
at page 30), the M.R. shop was tagged with one R.M. enterprise,
from 1st July, and 2013 (vide annexure P-9 at page 44). This tagging
was made by the Sub Divisional Controller, Food & Supplies,
Alipurduar.
9. The petitioner submits that he still runs the M.R. dealership under
the name and style of A.K. Moulik & Co. As the said business was a
joint family business he has been automatically inducted to the said
joint family partnership business on the death of his two elder
brothers namely Debabrata and Ratan. It is not understood at all
how the petitioner is running the M.R. dealership (Fair Price Shop)
and Kerosene dealership, without any licence. Nothing has come to
light that there was any joint family business. On the contrary it is
found from the licences at pages 27 and 28 of the writ application
that A.K. Moulik & co. was a partnership farm of two partners.
The petitioner produced one document at the time of hearing
(and later in supplementary affidavit affirmed on 21.01.2021), a
stock summery report dated 9th December, 2020 in respect of FPS
132800900046 in the name of M/s. A.K. Moulik and submitted that
he was actually running the M.R. shop even in December, 2020. On
the basis of such submission and as the respondent authority could
not clarify the document, limited period interim order was granted
on 15th January, 2021 protecting the petitioner by restraining the
state respondent from taking any further steps in respect of
engaging new dealer of Fair Price Shop and kerosene dealership for
the village Damanpur (i.e. in the petitioner's area) in the district of
Alipurduar till 8th February, 2021.
10. The respondent No. 4 being the Sub-Divisional Controller Food
Supplies by filling affidavit-in-opposition (affirmed on 19th January,
2021) has shown that :
(i) The petitioner does not come within the definition of family
members of the 2013 Control order which would be evident
from Section 2 (m) of the said Control Order. Thus there
was no question of granting licence to the petitioner by the
state authorities on compassionate ground.
(ii) As the application of the petitioner for granting the licence
on companionate ground was recommended and forwarded
by the then Sub-Divisional Controller, Food and Supplies,
Alipurduar the said officer was issued one show-cause
notice on 4th August, 2015 and subsequently the said
officer was warned by the Director of District Distribution,
Procurement and Supply on 17th November, 2015.
11. The petitioner filed one supplementary affidavit (affirmed on
21.01.2021) disclosing the stock summery report in support of his
submission that even in December 2020 he was still running the
Fair Price shop.
This has been dealt with by the respondent No. 4 by filing another
affidavit (affirmed on 29th January, 2021) who has clarified that if
any Fair Price Shop is tagged to any other Fair Price shop then the
name of the tagged Fair Prise Shop appears with the name of the
Fair Price Shop to which it was tagged unless and until the new
licence is given in place of the tagged fair Price Shop. The name of
A.K. Moulik appears in the annexure of the supplementary affidavit
of the petitioner with the expression "tagged" with Markus Barla,
Anu chakraborty & Jagabandhu Sharma. The respondent No. 4 has
also given one example from government records of stock summary
report in his affidavit to the supplementary affidavit of the writ
petitioner in annexure R-1 (at page 8 thereof) which shows that one
Fair Price Shop of one Bijoy Lama was tagged with Gopi Krishna
Agarwal and Bijoy Lama's name appears there along with Gopi
Krishna Agarwal. The respondent No. 4 has also stated that mere
mentioning of the name of erstwhile FPS is not proof of running a
Fair Price Shop. It has also been stated specifically by the
respondent No. 4 that the petitioner was never issued FPS licence
by the department of Food and Supplies in his name.
I accept this explanation as reasonable and as the same is based
on government record in similar circumstances.
Despite receiving the affidavit in opposition the petitioner has not
filed any reply thereto and tried to take advantage of such non filing
of affidavit under the technical question of no direction of court to
file affidavit-in-reply, which technical question was rejected by this
court and hearing was held. The petitioner had enough opportunity
to deal with the affidavits of the respondent No. 4 which the
petitioner has not done.
12. It is found from the pleading of the writ application and also from the
submission made on behalf of the petitioner that he has tried to create
a wrong impression in the mind of the court that he is still running
the partnership, firm as an M.R. Dealer and a kerosene dealer.
The petitioner at the time of hearing instead of filing any
affidavit-in-reply has filed photocopy of some papers and photograph
of the Fair Price Shop that was running by him are not taken into
account as the same have not been filed under any affidavit. Apart
from that this papers and the photograph also do not create any
impression in the mind of this court otherwise.
13. The petitioner in support of his case has referred to certain judgments
which are as follows:
(i) AIR 1996 Patna 1
(ii) (2016)6 WBLR (Cal) 614
(iii) (2017) WBLR (Cal) 144
(iv) One unreported judgment in A.S.T. No. 25 of 2015
(v) AIR 1978 SC 597
(vi) AIR 1996 SC 51
(vii) 1979 (3) SCC 489
On perusal of those judgments cited by the petitioner, I find that
those cases do not support the case of the petitioner at all as the
petitioner has not been able to establish the fundamental requirement
for getting an order in this matter that after death of his brothers he
was ever granted licence by the appropriate authority for running the
Fair Price Shop and the kerosene dealership and he is running any
such shop with licence and he has also failed to establish that despite
such situation the respondent authority is going to engage new dealer
in the relevant area.
14. The case of the petitioner is wholly meritless. Interim order passed on
15.01.2021 is vacated. The respondents have no impediment to take
steps in terms of the notification No. ICA 1577 (1) / 2020 and memo
No. 2893-FS/SecH/4M-195/2018 dated 12 July, 2019.
I do not find any merit in the writ application, and the writ
application is dismissed.
No costs.
(Abhijit Gangopadhyay, J)
Later : After the judgment is passed, the Learned Advocate for
the petitioner prays for stay of operation of this order which is
considered and rejected.
(Abhijit Gangopadhyay, J)
