Hossain Mohammad Kaizar vs National Consumers Co-Operative
2022 Latest Caselaw 6868 Cal

23.09.2022
Court No.12
 S/L. No. 1
  Suvayan/
  Sourav
                                 MAT 1387 of 2022
                                        With
                                IA No. CAN 1 of 2022
                                        With
                                IA No. CAN 2 of 2022
                                        With
                                IA No. CAN 3 of 2022

                            Hossain Mohammad Kaizar
                                        Vs.
                         National Consumers Co-operative
                               Stores Limited & Ors.

              Mr. Debabrata Saha Roy
              Mr. Pingal Bhattacharyya
              Mr. Neil Basu
                                                    ...for the appellant.

              Mr.   Abhrotosh Majumder, Sr. Adv.
              Mr.   Puspal Chakraborty
              Mr.   Arkadipta Sengupta
              Mr.   Prisanka Ganguly
                                   ...for the respondent/writ petitioner.

Mr. Sirsanya Bandopadhyay Mr. Arka Kr. Nag ...for the State.

Heard Mr. Debabrata Saha Roy, learned Counsel

appearing for the appellant, Mr. Abhrotosh Majumder,

learned Senior Counsel appearing for the contesting

opposite party and Mr. Sirsanya Bandopadhyay,

learned Counsel appearing for the State in the

aforesaid appeal.

In Re: CAN 1 of 2022 With CAN 2 of 2022 With CAN 3 of 2022

The interim application being CAN 1 of 2022

has been filed for grant of leave to the appellant to file

appeal on the ground that though he is aggrieved by

the impugned order, he was not made a party by the

opposite party No. 1 in the impugned writ petition.

CAN 2 of 2022 is an application for condonation

of delay in filing the appeal.

CAN 3 of 2022 is an application filed by the

appellant to grant stay of the impugned order.

We are taking of the hearing in CAN 1 of 2022

first. We feel it appropriate to refer to some relevant

facts. The notification dated March 23, 2007 was

issued by the appropriate authority for filling up

vacancy of new distributorship at Chowki Mouza

under Bewa - II G.P. For the said vacancy, the

petitioner, present opposite party No. 1 and 9 others

applied. On September 29, 2008 field verification in

respect of go-down, etc. were taken up by the Sub-

Divisional Controller (F&S) in presence of the

petitioner and others. On April 13, 2009 a list of 12

eligible candidates was prepared by Sub-Divisional

Controller (F&S). One Baba Baidyanath Bhander was

one of the applicants for the aforesaid vacancy and one

Rathindranath Das was one of the partners of that

Baba Baidyanath Bhander. He filed a writ petition

being WP 18223 (W) of 2009 to consider his case for

the aforesaid vacancy. The writ petition was disposed

of on July 29, 2010 directing the appropriate authority

to consider the representation of the petitioner in the

aforesaid writ petition, i.e., Baba Baidyanath Bhander

while taking a call on appointment of M. R. Dealer.

The Director of DDP & S on November 12, 2010

took up the matter as per the direction given by this

Court in the aforesaid writ petition. By a reasoned

order, the candidature of the Baba Baidyanath

Bhander was rejected on November 12, 2010 by order

of the DDP & S.

While the matter for filling up the vacancy was

pending before the appropriate authority, the present

petitioner being one of the applicants, i.e., Hossain

Mohammad Kaizar filed a separate writ petition before

this Court being WP 2394 (W) of 2011. By order dated

November 12, 2010, the said writ petition was

disposed of with the specific finding that the petitioner

has no cause of action to challenge the

recommendation of the present opposite party No. 1,

National Consumers Co-operative Stores Ltd. for

appointment as a M. R. Dealer.

The aforesaid order passed by this Court in WP

2394 (W) of 2011 was not challenged in the higher

forum. The petitioner, however, went on making

representation to different authorities for redressal of

his grievance.

When the recommendation in favour of the

present opposite party No. 1, National Consumers Co-

operative Stores Ltd. for appointment as M. R. Dealer

was passed and no action was taken by the

appropriate authority, the present opposite party No. 1

filed writ petition being WP 16066 (W) of 2012 against

the State for a specific direction to the effect that the

recommendation in favour of the present opposite

party No. 1, National Consumers Co-operative Stores

Ltd. be processed and decision be taken to appoint

him as a M. R. Dealer.

The said writ petition came to be disposed of on

January 8, 2015 with the following observations:

"In view of the above, I direct the competent authority to issue the licence of M. R. distributorship under reference in favour of the petitioner within a period of six weeks from the date of communication of this order provided the petitioner is otherwise eligible for granting the above licence and subject to compliance of all formalities in accordance with law."

It is apposite here to mention that the order

dated January 8, 2015 passed by this Court in WP

16066 (W) of 2012 in favour of the present opposite

party No. 1 was also not challenged in the higher

forum.

On April 8, 2015, notification was issued by the

State canceling all the applications pending under

2003 Control Order in view of the coming into force of

2013 Control Order in the interregnum and

applications were also invited on May 12, 2015 from

intervening self-help groups/registered co-operative

society/some Government bodies/individuals/groups

of individuals as an entity for filling up the vacancy of

the captioned M. R. Dealership for which this Court

had already passed the order in WP 16066 (W) of 2012

to appoint the present opposite party No. 1, National

Consumers Co-operative Stores Ltd.

The petitioner, therefore, filed the impugned writ

petition being WPA 12047 of 2015 and it was disposed

of on May 19, 2022 directing the appropriate authority

to issue lincece in favour of the present opposite party

No. 1 in accordance with 2003 Control Order.

The order dated May 19, 2022 passed in WPA

12047 of 2015 is proposed to be challenged by the

client of Mr. Saha Roy, learned Counsel on the ground

that he being an applicant in the panel prepared by

the appropriate Sub-Divisional Authority and he being

not made a party to the writ petition filed by the

present opposite party No. 1 and he being aggrieved by

the order proposed to be impugned in the appeal, leave

should be granted in his favour to file the appeal.

Mr. Majumder, learned Senior Counsel for the

respondent, on the other hand, submits that the

petitioner was neither the necessary nor the proper

party in the impugned writ petition and secondly, one

order having been passed against the petitioner

observing that he has no cause of action and that

order having attained finality, the present petitioner

was not at all necessary party in the impugned writ

petition. It is also submitted by Mr. Majumder, that

the order dated January 8, 2015 passed by this Court

in WP 16066 (W) of 2012 having also attained finality

not being challenged in higher forum either by the

State or any other party, now the claim of not

impleading the petitioner in the present writ petition

and his claim of being aggrieved by the impugned

order does not subsist.

Having heard the learned Counsel for the parties

and having perused the materials available on record,

i.e., CAN 3 of 2022, we find that the writ petition filed

by the petitioner, vide, WP 2394 (W) of 2011 having

been disposed of with the observation that there is no

cause of action in favour of the petitioner and he

having accepted the position without assailing the

order before any higher forum, it is to be held that the

petitioner though an empanelled candidate cannot

claim a right to be considered after such order was

passed against him by this Court. Furthermore, this

Court in WP 16066 (W) of 2012 has specifically passed

the order to appoint the present opposite party No. 1,

i.e., National Consumers Co-operative Stores Ltd. as

M. R. Dealer in respect of the captioned dealership,

that order has also not been challenged either by the

State or by the present petitioner and that order has

also attained finality.

In the present writ petition, the cancellation of

application and declaration of the vacancy by the State

after coming into force of 2013 Control Order was

challenged and order was passed by this Court to

consider the case of the petitioner taking the vacancy

to be one under 2003 Control Order.

In reply, Mr. Saha Roy, learned Counsel for the

appellant rely on a judgment of Hon'ble Division Bench

of this Court, in MAT 201 of 2016 disposed of on

September 25, 2018 to submit that in Page 25 of the

order Hon'ble Division Bench has specifically held that

cancellation of application during 2003 Control Order

is not arbitrary after coming into force of 2013 Control

Order.

So far as the present case is concerned, the

petitioner cannot be said to be a person aggrieved as

after the disposal of WP 2394 (W) of 2011 against him,

he had no subsisting legal right in coming to such

conclusion, we are supported by a judgment of the

Hon'ble Supreme Court in the case of Ayaaubkhan

Noorkhan Pathan vs. State of Maharashtra and

Others reported in (2013) 4 Supreme Court Cases

465.

We, however, with due regard to Mr. Saha Roy,

learned Counsel, hold that the aforesaid decision has

no application to the facts of the present case to give

leave to the petitioner here to file appeal.

Accordingly, the prayer for leave is refused but

we make it clear that we are not giving any imprimatur

so far as the impugned order is concerned because the

State may come up to challenge the said order if they

feel it so fit.

In view of the aforesaid order, CAN 1 of 2022,

CAN 2 of 2022 and CAN 3 of 2022 are disposed of

accordingly.

(Chitta Ranjan Dash, J.)

(Partha Sarathi Sen, J.)