M/S. Bipatarini Agency And Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 6289 Cal

                      IN THE HIGH COURT AT CALCUTTA
                        Constitutional Writ Jurisdiction
                                Appellate Side
Present :-
The Hon'ble Justice Moushumi Bhattacharya.


                           W.P.A 17930 of 2021

                      M/s. Bipatarini Agency and Anr.

                                     Vs.

                       The State of West Bengal & Ors.


For the petitioners                        :   Mr. Surajit Nath Mitra, Adv.

                                               Mr. Timir Baran Saha, Adv.

                                               Mr. Sudip Sarkar, Adv.



For the respondent no. 8                   :   Mr. Kalyan Bandyopadhyay, Sr. Adv.

                                               Mr. Ram Anand Agarwal, Adv.

                                               Ms. Nibedita Pal, Adv.

                                               Mr. Ramesh Dhara, Adv.

                                               Mr. Ananda Gopal Mukherjee, Adv.

                                               Ms. Sonam Roy, Adv.



For the State                          :       Mr. S.N. Mukherjee, Advocate General

                                               Mr. Sirsanya Bandopadhyay, Adv.

                                               Mr. Arka Kumar Nag, Adv.


Last Heard on                          :       11.08.2022.


Delivered on                           :       06.09.2022.
                                      2



Moushumi Bhattacharya, J.

1. The dispute in the present writ petition relates to the creation of a

M.R. Distributorship in Purba Bardhaman district of West Bengal where

the petitioner no.1 and the respondent no. 8 are the rival applicants.

The petitioners seek a mandamus on the State respondents to cancel

the license issued to the respondent no. 8 for such Distributorship. By

the impugned documents dated 9.11.2021 and 11.11.2021, the

respondent no. 8 (Sonai Food Marketing) was authorised to act as

Distributor under the West Bengal Public Distribution System

(Maintenance & Control) Order, 2013 and the Director, Department of

Food & Supplies was asked to accord online approval in favour of the

respondent no. 8.

2. A brief outline of the proceedings filed by the petitioner no. 1 and

the respondent no. 8 in relation to allocation of the M.R Distributorship

is necessary before alluding to the contentions of the parties.

3. A vacancy Notification for the appointment of M.R. Distributor at

Surekalna in the district of Purba Bardhaman was published on

23.7.2018. This was superseded by another Notification dated 9.1.2019.

Both the publications were issued by the office of the District Controller,

Food & Supplies, Purba Bardhaman. The concerned State respondents

received nine applications including from the petitioner no. 1 and the

respondent no. 8. However, the vacancy Notification was cancelled on

7.8.2019 by an order of the Department of Food and Supplies. This

cancellation was challenged by the respondent no. 8 in WPO 360 of

2020 which was allowed by a learned Single Judge by a judgment dated

18.12.2020. The Court set aside the order dated 7.8.2019 by which the

second vacancy Notification was cancelled and directed the respondent

authorities to process the application of the respondent no. 8 for

engagement as M.R. Distributor in accordance with law. The learned

Judge relied on a Division Bench judgment of 9.10.2020 in FMA 913 of

2020 (Kultali Food Marketing Pvt. Ltd. vs. State of West Bengal) in

coming to the conclusion that the order of 7.8.2019 pertaining to

cancellation of engagement of M.R. Distributor was not proper.

4. The concerned respondents considered the application received

for M.R. Distributorship pursuant the judgment dated 18.12.2020, but

found the applications of the petitioner no. 1 and the respondent no. 8

to be ineligible. Aggrieved by the decision, the petitioners filed a writ

petition being WPA No. 5843 of 2021 praying for appointment of the

petitioner. The said writ petition was taken up for hearing by a learned

Judge and by an order dated 3.3.2021, the Court gave directions for

affidavits and clarified that in the event the State respondents engaged

any distributor with reference to the subject matter of the writ petition,

the said act will not create any equity in favour of the engaged

distributor.

5. The respondent no. 8 filed WPA No. 4928 of 2021 challenging the

rejection of its application. The said writ petition was finally dismissed

by a judgment and order dated 30.4.2021. The aforesaid judgment was

challenged by the respondent no. 8 and the appeal was allowed by the

Division Bench by its judgment dated 26.8.2021 whereby the order of

the Single Bench was set aside and the State respondents were directed

to process the application of the respondent no. 8 for M.R.

Distributorship in accordance with law. The State respondents

considered the application of the respondent no. 8 in terms of the order

of the Division Bench (according to the State respondents) and issued

the M.R. Distributorship to the respondent no. 8 on 9.9.2021.

6. The issue of license to the respondent no. 8 is the subject matter

of challenge in the present writ petition.

7. The basis of the petitioners' grievance is two-fold. First, the

selection of the respondent no. 8 as M.R. Distributor for the particular

block in Purba Bardhaman and second, the rejection of the petitioners'

application for the said distributorship. Learned Counsel appearing for

the petitioners submits that the State authorities had failed to respond

to the application made by the petitioner for the distributorship which

constrained the petitioners to file WPA 5843 of 2021. Counsel submits

that the said writ petition is pending as on date and that the respondent

no. 8 is not a party in the said writ petition. Counsel submits that the

State authorities did not disclose any reason in the said writ petition as

to why the petitioners were found to be ineligible. It is further submitted

that the State respondents acted in inordinate haste for granting the

M.R. Distributorship to the respondent no. 8 citing the order of the

Division Bench but without considering the application of the

petitioners. Counsel objects to the selection of the respondent no. 8 on

the ground that the respondent no. 8 does not fulfil any of the eligibility

criteria for being allocated the distributorship. Counsel submits that the

license was issued to the respondent no. 8 on extraneous considerations

and in violation of the stated criteria for selection of M.R. Distributor.

8. The learned Advocate General appearing for the State defends the

selection of the respondent no. 8 on the ground that the respondent no.

8 fulfils the criteria of the relevant Notification. Counsel submits that

the State respondents acted in terms of the order of the Division Bench

dated 26.8.2021 by which the respondents were directed to consider the

application of the respondent no. 8 and that upon such fresh

consideration, the State was satisfied of the existence of all the eligibility

criteria of the respondent no. 8. Counsel submits that the writ

petitioners have not complied with the requisite eligibility criteria for

being appointed as M.R. Distributor and that the allegations made

against the State are misconceived and without basis.

9. Learned counsel appearing for the respondent no. 8 submits that

the present writ petition is not maintainable since the petitioners did

not challenge its rejection despite having full knowledge of the same.

Counsel further submits that the petitioners were given liberty by a

learned Judge by an order dated 3.3.2021 in WPA 5843 of 2022 filed by

the petitioners to file an appropriate application for interim relief if the

occasion so arises. It is further submitted that having failed to challenge

the rejection, the petitioners cannot claim to come within the zone of

consideration and do not have any enforceable right to challenge the

impugned decision. Counsel relies on the order of the Division Bench

dated 26.8.2021 by which the State was directed to proceed with the

application of the respondent no. 8. Counsel urges that the decision in

favour of the respondent no. 8 is fully justified with reference to the

Notification dated 3.1.2019 for award of the M.R. Distributorship.

10. The adjudication in the present matter involves a combination of

facts in respect of the rejection of the petitioners and award of the M.R.

Distributorship to the respondent no. 8 to the exclusion of the

petitioners. The evidence before the Court throws up the following five

undisputed facts:

 The application of the petitioner no. 1 was not cancelled by the State respondents by way of a formal rejection.

 The State did not enumerate the grounds for cancelling the petitioners' application.

 The respondent no. 8 was awarded the distributorship on 9.11.2021 despite an earlier rejection on 28.1. 2021.

 The reasons for the change in the stand of the State from the rejection of 28.1.2021 to the award of distributorship to the respondent no. 8 on 9.11.2021 are not explained.

 There is no clarification as to whether the respondent no. 8 fulfills the criteria mentioned in the relevant Notification.

The above points are briefly dealt with below.

11. The petitioner had first applied for distributorship in August,

2018 which was rejected by the State in January, 2021. The affidavit-in-

opposition filed by the State to the earlier writ petition being WPA 5843

of 2021 does not disclose any documents communicating cancellation of

the petitioners' application save and except an allegation that the

petitioner's godown was not in conformity with the norms of the Central

Warehousing Corporation (CWC). No other details were disclosed by the

State for such rejection at any point of time. The petitioners case in WPA

No. 5843 of 2021 was considered by the learned Judge resulting in the

order dated 3.3.2021 by which the Court clarified that no equity would

be created in favour of any distributor who may be engaged by the State

in the meantime. The reasons for the rejection of the petitioners

application remain unclear till date.

12. The respondent no. 8 was found to be eligible for the reasons

stated in a document dated 28.1.2021. The letter from the District

Controller, Food & Supplies, Purba Bardhaman specifies that

applications were invited only from self-help groups and entities

mentioned in the Notification dated 3.1.2019 whereas the respondent

no. 8 is a Company. The letter also specifies that the proposed godown

of the respondent no. 8 failed to conform to the CWC norms due to

absence of top ventilation and limited ancillary facility as required for

eligibility. The impugned award of distributorship to the respondent no.

8 on 9.11.2021 however does not refer to the earlier rejection or more

significantly, whether the respondent no. 8 rectified the factors

mentioned in the intervening ten months. The impugned

communication of 9.11.2021 simply lists the conditions which would

have to be fulfilled by the respondent no. 8 for award of the

distributorship. The absence of reasons in the impugned award of

distributorship becomes more glaring when seen against the factual

backdrop of the absence of reasons for rejecting the petitioners'

application in 2021.

13. The evidence produced by the parties before the Court on the

eligibility criteria contained in the Notification dated 3.1.2019 raises a

doubt on the eligibility of the respondent no. 8 for being awarded the

Distributorship. The land on which the godown of the respondent is

situated is agricultural land. The record of titles of the said land as well

as the title deed of the respondent no. 8 shows that the land is a 'Sali' /

agricultural land. The fact that the godown of the respondent no. 8 is

not a 'pucca' structure and is without a sanctioned plan is also part of

records and corroborated in photographs placed before the court. This

has also not been disputed by the respondent no. 8.

14. Further, the fact that the godown of the respondent no. 8 not

conforming to the CWC norms would appear from the earlier rejection

order of the respondent no. 8's application on 28.1.2021. This particular

finding of the State was not interfered with in the writ petition filed by

the respondent no. 8 being WPA 4928 of 2021 which was dismissed by

the Court on 30.4.2021. The Division Bench in its order dated

26.8.2021 did not go into the merits of the rejection. The respondent no.

8 has not produced any documents to controvert any of the factors in

relation to the agricultural land or the godown not being a 'pucca'

structure or not having a sanctioned plan. The State authorities have

also not explained the discounting of the factors for which the

respondent no. 8 had been rejected in January, 2018. There is no

evidence that the criteria has been satisfied by the respondent no. 8

between January, 2021 and November, 2021.

15. The last two bullet points mentioned above lead to the

presumption of a lack of transparency in awarding the Distributorship

in favour of the respondent no. 8. Although the State as well as the

respondent no. 8 have relied on the order of the Division Bench dated

26.8.2021, the said order merely set the order of the learned Single

Judge aside and directed the State to process the application of the

respondent no. 8 in accordance with law. The order cannot be construed

to be read as a peremptory direction on the State to award the M.R

Distributorship in favour of the respondent no. 8. Reference in this

context may be made to A.P. SRTC vs. G. Srinivas Reddy; (2006) 3 SCC

674 for the proposition that a direction for considering a representation

would mean that the respondents must consider every aspect of the

matter. It may also be relevant to state that the documents produced by

the State of 21.8.2018 to show that the nature of the land in question

was changed from 'Sali' to 'Gudam' (non-agricultural land) was not

disclosed earlier by the State despite having sufficient opportunity to do

so.

16. The other issue aggravating the lack of transparency is the

decision granting license to the respondent no. 8 being taken on

9.11.2021 and the District Controller, Food & Supplies, Purba

Bardhaman seeking online approval for creation of a new M.R

Distributorship in the name of the respondent no. 8 within two days

thereafter namely 11.11.2021. In Bahadursinh Lakhubhai Gohil vs.

Jagdishbhai M. Kamalia; (2004) 2 SCC 65, the Supreme Court relied

upon S.P. Kapoor (Dr) vs. State of H.P.; (1981) 4 SCC716 to hold that a

thing done in post-haste would lead to a presumption of malafides.

17. For completeness, the objections taken by the respondent no. 8 to

the present writ petition should also be dealt with. The point that the

petitioners could have applied in WPA 5843 of 2021 for relief before the

learned Judge pursuant to the liberty given by the Court on 3.3.2021

may be answered thus. Since the respondent no. 8 was not a party to

the said writ petition, the petitioners could not claim any relief against

the respondent no. 8 in the said proceeding. More important, the

petitioners have approached the Court by way of the present writ

petition against the award of Distributorship to the respondent no. 8

which, in effect, translates to a fresh cause of action. The second issue

raised is that the petitioner, being an unsuccessful applicant and not

having challenged the same, cannot file the present writ petition. This

Court finds substance in the stand taken by the petitioners that the

petitioners were never communicated with any formal order of

cancellation. Hence the petitioners challenging the same did not arise at

the material point of time. The letter dated 27.1.2021 from the Joint

Secretary, Govt. of West Bengal to the Director, Food and Supplies

Department, Govt. of West Bengal does not refer to the reasons for

rejecting the application of the petitioners. The letter is in any event an

internal document and was not communicated to the petitioners.

18. The Warehouse Manual for Operationalizing of Warehousing

(Development & Regulation) Act, 2007 relied upon by the respondent no.

8 in support of the fact of the respondent no. 8 conforming to the

relevant CWC requirements does not assist the respondent no. 8. Clause

11.5 of the Manual refers to certain specifications for roofing and the

materials to be used read with clause 9 for specifications for walls do

not match with the photographs of the respondent no. 8's godown.

19. The question is not so much whether the petitioners qualify for

the Distributorship but whether the State authorities have conformed to

all the conditions of eligibility under its own Notification dated 3.1.2019

for issuing the license for M.R Distributorship in favour of the

respondent no. 8. The relevant facts seen together cast a very real

shadow over the impugned transaction between the State and the

respondent no. 8. The shadow becomes even more hazy by the fact that

the petitioners were not furnished the reason for the rejection of their

application. Moreover, contrary to the submissions made on behalf of

the State and the respondent no. 8, no orders of Court have been placed

to show that the State was directed to award the Distributorship to the

respondent no. 8. The haste with which the license was issued to the

respondent no. 8, though a relatively minor factor, combines with the

overall picture of the petitioners being excluded from the race for

reasons which are not apparent from the records before the Court.

Transparency and accountability is the rule for all transactions but

becomes sacrosanct where the State or a government agency is a party

in the decision-making process. There is no room for discretion in cases

where the selection is to be made on specific criteria. Any departure

from the criteria framed would lead to a presumption of favouritism for

oblique motives.

20. The order of the Division Bench relied upon in MAT 269 of 2022

dated 1.3.2022 were on different facts and cannot be of any assistance

to the respondents. In any event, the appellants in that case were given

liberty to challenge the order of rejection in accordance with law.

21. In view of the above reasons, this Court finds substance in the

grievance of the writ petitioners. WPA 17930 of 2021 is accordingly

allowed in terms of prayer (a). The license awarded to the respondent

no. 8 by way of the communications dated 9.11.2021 and 11.11.2021 is

cancelled. The State respondents are directed to consider the

applications of the petitioners, respondent no. 8 and any other eligible

applicant afresh in terms of the relevant Notification and come to a

decision within a period of 10 weeks from the date of communication of

this judgment.

Later

Learned advocate-on-record appearing for the private respondent

prays for stay of operation of the judgment. Considering the reasons

given in the above judgment, such prayer is considered and refused.

Urgent Photostat certified copies of this judgment, if applied for,

be supplied to the respective parties upon fulfillment of requisite

formalities.

(Moushumi Bhattacharya, J.)