Gurupada Das vs State Of West Bengal And Ors
2022 Latest Caselaw 2943 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha


                                WPA No. 2774 of 2022

                                     Gurupada Das

                                            Vs.

                             State of West Bengal and Ors.


For the writ petitioner         :-    Mr.   Debabrata Saha Roy, Adv.
                                      Mr.   Pingal Bhattacharyya, Adv.
                                      Mr.   Subhankar Das, Adv.
                                      Mr.   Neil Basu, Adv.

For the State                   :-    Mr. Susovan Sengupta, Adv.
                                      Mr. Subir Pal, Adv.

Hearing concluded on            :-    22.04.2022

Judgment on                     :-    18.05.2022


Amrita Sinha, J.:-

      The father of the petitioner was a fair price shop (FPS) dealer. During his

 lifetime he affirmed an affidavit on 2nd February, 2019 expressing his intention to

 transfer his dealership license in favour of the petitioner. A representation to the

 above effect was made by the father of the petitioner before the Sub-Divisional

 Controller on 5th February, 2019. Prior to any decision being taken in response to

 the application filed by the father of the petitioner, he died on 8th October, 2019.


      After the death of his father, the petitioner applied before the Sub-Divisional

 Controller praying for grant of FPS dealership license in his favour in accordance

 with the desire expressed by his deceased father. An enquiry was conducted by the

 Chief Inspector (F & S) on 1st June, 2021 and a report was submitted by him on 3rd

 June, 2021. The petitioner was directed to attend a hearing on 25th June, 2021.

 The Sub-Divisional Controller by a communication dated 6th January, 2022
                                            2




 intimated the petitioner that his prayer for engagement on compassionate ground

 has been rejected by the government in terms of memo dated 8th November, 2021,

 of the Deputy Director (License) since one of his family members did not give the

 required 'no objection' in his favour.


      The petitioner is aggrieved by the said rejection and challenges the same in

 the present writ petition.


      It is the specific submission of the petitioner that during the lifetime of his

 father, application was made by his father before the respondent authority,

expressing intention to opt for the petitioner for grant of license. The respondents

intentionally and deliberately did not take any positive steps in response to the

request made by the licensee.

As in accordance with the provisions of Clause 20 (vi) of the West Bengal

Public Distribution System (Maintenance and Control) Order, 2013 [hereinafter

referred to as the Control Order, 2013] there is no requirement of obtaining 'no

objection' from the other eligible members of the family if the licensee opts in

favour of any of the family members accordingly, the respondents ought to have

issued the license in favour of the petitioner long back. Instead of issuing the

license, the respondents maintained a stoic silence. In the meantime, the father of

the petitioner, that is, the recorded licensee expired leaving behind other heirs

apart from the petitioner herein.

The petitioner submits that the respondent authority ought to have proceeded

immediately on receipt of the option that was filed by the licensee, and in

accordance with the intention expressed by the licensee, ought to have transferred

and issued the license in favour of the petitioner herein.

It has been strongly contended that had the authority taken steps in proper

time, then the license could have been issued in favour of the petitioner during the

lifetime of the licensee and there would not have been any requirement for obtaining

no objection from the other eligible family members.

The petitioner contends that the respondent authority, being the wrong doer,

cannot take advantage of the inaction/non-action on its part and reject the claim of

the petitioner.

In support of his stand for issuance of license in favour of the optee in

accordance with the option exercised by the recorded licensee, the petitioner relies

upon the judgment delivered by a co-ordinate bench of this Court on 19th

February, 2014 in WP 34215 (W) of 2013 (Samar Das vs. The State of West

Bengal and Ors.).

The petitioner also relies upon the judgment dated 18th December, 2020

passed by a co-ordinate bench of this Court in WPA 18261 of 2017 in the matter

of Rajib Debnath vs. The State of West Bengal and Ors.

In support of the contention that a wrong doer cannot take advantage of his

own wrong, the petitioner relies upon the judgment delivered by the Hon'ble

Supreme Court in the matter of Kusheshwar Prasad Singh vs. State of Bihar

and Ors. reported in (2007) 11 SCC 447 paragraph 16.

According to the petitioner, the issue in the present case is no longer res

integra and has been conclusively decided by this Court in the matter of Samar

Das (supra). The law laid down in Samar Das was followed in the matter of Rajib

Debnath (supra).

The petitioner contends that judicial decorum demands that the law laid

down by the Court in a similar matter is to be followed by the subsequent Bench.

In support of the said contention the petitioner relies upon the judgment delivered

by the Hon'ble Supreme Court in the matter of Sandhya Educational Society

and another vs. Union of India and Ors. reported in (2014) 7 SCC 701

paragraph 9.

Prayer has been made for setting aside the impugned order of rejection with a

further direction upon the respondent authority to issue the license in his favour.

Learned advocate representing the State respondents vociferously opposes the

prayer of the petitioner. It has been contended that had the application of the

licensee opting for the petitioner been accepted during his lifetime, then the issue

would have been different. The moment the licensee expires; vacancy arises out of

death of the licensee. In case of death, any of the family members of the deceased

licensee can apply for license only after obtaining no objection from the other

eligible family members.

In the present case vacancy arose on the death of the licensee, and as such,

application for issuance of license on compassionate ground can be entertained

only if any of the eligible family members apply with the requisite no objection from

the other eligible family members.

It has been submitted that the language of the provision of the Control Order

relating to engagement on compassionate ground is very clear and unambiguous.

The Court ought not to interpret the same in a manner contrary to what has been

laid down therein.

It has been argued that as the provision of the Control Order requires

furnishing a no objection from the other eligible family members of the deceased

licensee, accordingly, the petitioner is bound to submit the same for obtaining the

license on compassionate ground.

It has been submitted that the law laid down by the Court in Samar Das

(supra) and Rajib Debnath (supra) will not be applicable in the facts of the present

case and as such the same will not be binding upon this Bench at the time of

deciding the issue.

It has also been submitted that there may be some delay on the part of the

respondent authority in taking prompt steps in the matter, but the petitioner

cannot take advantage of the alleged wrong on the part of the respondent authority

and seek for issuance of license in his favour on compassionate grounds.

It has been argued that engagement on compassionate ground is always an

exception to the general rule of appointment and the same is required to be made

strictly in accordance with the scheme laid down by the Government. The

provisions of the scheme have to be given a very strict interpretation.

The cause of action arises only when the licensee is declared to be

incapacitated/ infirm but the same ends when the licensee expires. A fresh cause

of action arises on the death of a licensee. To avail the benefit of being engaged on

the ground of incapacitation of the ex licensee, the licensee ought to remain alive at

the time when license is being issued in favour of the optee.

It has been enthusiastically argued that it is settled law that if a matter is

required to be done in a particular manner, the same has to be done in that

manner or not at all. The option exercised by a licensee remains in force only

during the lifetime of the licensee, and its effect ceases immediately on the death of

the licensee.

On this score the respondents rely upon the judgment delivered by the

Hon'ble Supreme Court in the matter of Hossain Ghatiali alias MHGA Shaikh

and Ors. Vs. The State of Gujrat reported in (2014) 8 SCC 425 paragraph 21.3

and 25.

Learned advocate for the respondents relies upon the judgment delivered by

the Hon'ble Supreme Court in the matter of Santi Lal Gupta and Ors. Vs.

Modern Co-operative Housing Society Limited and Ors. reported in (2010) 13

SCC 336 paragraphs 15, 17 and 18 on the score that it is not the duty of the

Court to enlarge the scope of the legislation or to reiterate, recast or reframe the

legislation.

The respondents further rely upon the judgment delivered by the Hon'ble

Supreme Court in the matter of Siddharam Satlingappa Methre vs. The State

of Maharastra and Ors. reported in (2011) 1 SCC 694 paragraphs 128 to 138 on

the issue of per incurrium. It has been submitted that the order passed in the

matter of Samar Das (supra) and Rajib Debnath (supra) has been passed in

ignorance of the terms of the Statute.

The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties and have

perused the materials on record.

Clause 20 of the Control Order, 2013 lays down the provision for engagement

of dealer.

According to Clause 20 (i)(b) of the Control Order 2013 in the event of death

or incapacitation of the existing new dealer on medical ground, unless any of

his/her family members is found suitable for engagement on compassionate

ground as per sub-Clause (vi); the resultant vacancy has to be notified by the Sub-

Divisional Controller, Food and Supplies with prior approval of the department.

The same implies that a vacancy arising out of death or incapacitation of the

existing individual dealer on medical ground, may be filled up as provided, for

engagement on compassionate ground only in accordance with sub-clause (vi) of

Clause 20 of the Control Order, 2013.

Clause 20 (vi) lays down the provision for engagement on compassionate

grounds. It mentions that at the time of making application for engagement on

compassionate ground on account of incapacitation, the applicant is not required

to furnish no objection from the other family members, if the ex-licensee, because

of his/her being incapacitated/infirm has opted for the applicant.

In the present case though an application was made by the licensee opting in

favour of the petitioner herein but the said application did not reach its logical

conclusion. Prior to the said application being accepted and approved by the Sub-

Divisional Controller, the licensee expired.

As per the aforesaid provision, the Sub-Divisional Controller is required to

arrange for an enquiry to verify the eligibility of the applicant and submit a report

with his opinion to the District Controller. While forwarding a case on medical

grounds the Sub-Divisional Controller is required to satisfy himself on examination

of the medical prescription and certificate issued by a registered Government

Medical Practitioner that the ex-licensee was not in a position to run dealership

business considering his/her medical ground.

The District Controller is thereafter required to forward the same with his

comments to the State Government through the Director, DDP & S for necessary

approval. After the Government approves, the Sub-Divisional Controller issues an

offer letter to the approved candidate.

It is not that whenever an application is made by a licensee opting in favour

of a family member, the same is accepted and approved. It may be that the option

exercised by the licensee may not be approved by the authority.

A vacancy is a sine qua non prior to the same being filled up. Till the

application made by the licensee for transferring the license on medical ground is

approved by the competent authority; the vacancy does not arise. Only after the

application of the licensee is approved, does the vacancy arise to be filled up as per

the option exercised by the licensee.

In the instant case, it does not appear that the application filed by the

licensee opting in favour of the petitioner was at all taken up for consideration by

the respondent authority. Till the same is proceeded with in accordance with the

steps mentioned in the Control Order, 2013 the application remains inconclusive.

Here, unfortunately, the licensee expired prior to a final decision being taken

in response to his application expressing his option in favour of the petitioner.

Accordingly, it cannot be taken that the vacancy in the present case arose out of

incapacitation or on medical ground(s) of the licensee. On the contrary, it appears

that the vacancy arose only on the death of the licensee and not prior thereto.

Nothing has been brought on record to show that the Sub-Divisional Controller

recorded his satisfaction that the licensee was not in a position to run the business

on medical ground.

The argument of the petitioner that the respondents were at fault in not

taking prompt steps in considering the application of the licensee and accordingly

they ought not to take advantage of their own wrong, will also not come to the aid

of the petitioner. Prima facie, it appears that there has been a delay on the part of

the respondent authority in prompt consideration of the application of the licensee

which cannot be supported in law, but at the same time, the prayer of the

petitioner for grant of license by jumping the steps as mentioned in Clause 20 (vi)

of the Control Order, 2013 also cannot be accepted.

At this stage, the next contention of the petitioner that the application of the

licensee made during his lifetime ought to be treated as valid till the same is

disposed of by the respondent authority, also cannot be accepted by the Court.

As long as the licensee is alive, his right to the license remains intact till the

license is transferred in favour of the person opted for by him. As soon as the

licensee expires, the right of the eligible family members to seek engagement on

compassionate ground accrues. Proceeding with the declaration of the deceased

licensee to transfer the license in favour of the erstwhile optee will amount to

infringement of the right of the other claimants which arises only on the death of

the licensee.

License is not a property which can pass on to another as per the will, choice

and desire of a deceased licensee. The expression and the term used in the Control

Order, 2013 is that no objection from the other family members will not be

required if the 'ex-licensee' opted for the applicant. Legislation consciously used

the term 'ex-licensee' and not 'deceased licensee'. The expressions 'ex-licensee' and

'deceased licensee' are not the same and they cannot be used interchangeably.

It is clear that the term 'ex-licensee' has been used only to imply that the

licensee remains alive till the process of transferring the license concludes. It is

then that the vacancy arises out of incapacitation. On death of the licensee prior to

conclusion of the transfer of license, the vacancy cannot be treated as vacancy on

medical ground, and the same has to be treated as vacancy arising on death of the

licensee.

The Court in the matter of Samar Das (supra) was considering the question

as to whether the option exercised by an ex licensee during the existence of 2003

Control Order loses its force with the intervention of the 2013 Control Order. In

Rajib Debnath (supra) consideration before the Court was whether the petitioner's

fresh application under Control Order, 2013 can be considered as a continuation

of the former representation initially submitted under the Control Order, 2003.

In Rajib Debnath (supra) the application for transfer of the recorded licensee

was duly processed and approved by the government.

It is settled law that the ratio of a decision depends upon the facts and

circumstances of a given case. A slight difference in facts may lead to a different

conclusion. Here the recorded licensee made an application on medical ground in

accordance with the Control Order 2013 opting in favour of the petitioner. The

application for transfer was not processed at all. Prior to the application being

disposed of in accordance with Clause 20 (vi), the applicant expired leaving behind

more than one eligible heir. It is not the case that application was made under the

earlier Control Order 2003 and the same has to be treated as continuation even

after promulgation of the Control Order, 2013. Accordingly, the ratio laid down in

Samar Das (supra), Rajib Debnath (supra) and Sandhya Educational Society

(supra) will not be applicable here.

In such a situation, will the no objection from the other eligible heirs be

required for issuance of license for engagement on compassionate ground?

According to the provisions of the Control Order, 2013 license is not heritable

but the eligible family member of the deceased licensee do get a priority in issuance

of fresh license on compassionate ground. The same however can be transferred

only during the lifetime of the licensee if the licensee opts in favour of one of the

eligible family members.

In the present case, the recorded licensee opted to transfer the license in

favour of the petitioner. Had the license been transferred during his lifetime then

the right of the other heirs to claim engagement on compassionate ground would

not have arisen at all. The moment the licensee dies prior to the transfer being

effected, the other legal heirs also become eligible to be considered for engagement

on compassionate ground. The right of the family members to be considered for

engagement on compassionate ground accrues only on the death of the licensee. It

is in such a situation that no objection is required from the other eligible family

members in favour of one of the eligible members. In the absence of a no objection

from the other eligible members, the issue of grant of license for engagement on

compassionate ground become contentious. If there is a rival claimant for

obtaining the license on compassionate ground, and in the absence of a

consensus, the authority is required to declare vacancy in the said locality in

accordance with the Control Order, 2013.

The declaration of the licensee opting in favour of one of the eligible family

members has to be given effect during the lifetime of the licensee. The same cannot

be treated as a will of the deceased licensee for giving effect to after his death.

If the recorded licensee dies prior to transfer of license in favour of the chosen

candidate, the declaration loses its force and steps have to be taken for filing up

the vacancy in accordance with the Control Order, 2013.

The submission of the petitioner that the respondents cannot take advantage

of their own wrong is a very settled proposition of law. However, in the instant case

the petitioner cannot take the benefit of the delay on the part of the respondent

authority to proceed and conclude the process of transferring the license in favour

of the chosen candidate, because the rights of the other eligible candidates for

being considered for engagement on compassionate ground will be infringed the

moment the petitioner's case is taken up for consideration relying on the

declaration of the deceased licensee. One wrong cannot be supported by another

and two wrongs do not make a right.

Giving any other interpretation to the above proposition will amount to

rewriting or enlarging the scope of the legislation which is impermissible and

contrary to the principle laid down in Santi Lal Gupta (supra).

As it has been observed hereinabove that the facts of the case of Samar Das

(supra) and Rajib Debnath (supra) are dissimilar to the facts of the present case,

accordingly, the ratio laid down in Siddharam Satlingappa Methre (supra) will not

be applicable here.

It is always open for the aggrieved person to initiate appropriate proceeding

and sue the person(s) responsible for the delay on account of which the petitioner

has suffered a wrong, but the same will not give any right to the aggrieved party to

compel the authority to act de hors the provisions of law.

The impugned order accordingly does not require any interference.

The writ petition fails and is hereby dismissed.

No costs.

Urgent certified photo copy of this judgment, if applied for, be supplied to the

parties expeditiously on compliance of usual legal formalities.

( Amrita Sinha, J. )