Md. Samim vs The State Of West Bengal & Ors
2023 Latest Caselaw 5119 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
               CONSTITUTIONAL WRIT JURISDICTION
                              Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                         WPA 19293 of 2023

                            Md. Samim
                                Vs.
                   The State of West Bengal & Ors.


Ms. Nilanjana Adhya
Ms. Mousumi Parvin
Md. Maznu Ahmed
            ..for the petitioner

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

Item No.10

Heard & Judgment on:           17.08.2023

Bibek Chaudhuri, J.

Affidavit of service be kept with the record.

The petitioner is one of the applicants in respect of fair price

licence, the vacancy notice which was published on 7 th June, 2022 for

village Rampur, Rampur Pally Mangall Yoba Samity and Gram

Panchayet Mahendrapur in the district of Malda. It is submitted by the

petitioner that the petitioner is a permanent resident of Chanchal

Sub-Division. It is also submitted that the petitioner possesses a

suitable godown as per the notification issued by the department of

Food & Supplies dated 21 st July, 2021 within the vacancy location

having an area of 400 square feet. The petitioner has also a shop

room with big covered space that may be used for beneficiaries to

wait to receive the ration articles. Thus, the petitioner also satisfied

clause 4 and 5 of the eligibility criteria. In spite of such eligibility

criteria the application of the petitioner was rejected and the private

respondent No.10 was selected for licence of fair price shop of the

said area.

It is submitted by the learned advocate for the petitioner that

the private respondent is not a resident of the same Gram Panchayet

area. His godown and proposed shop room is situated in a lease hold

property and there is a dispute with regard to the lease deed because

of the fact that it could not be ascertained as to whether the lessor of

the said property is actually the owner and authorized to grant lease

in respect of the said property in favour of the respondent No.10. It

is also submitted by the learned advocate for the petitioner that the

respondent No.10 showed the said lease hold property as his godown

and shop-cum-office though the lease was taken for residential

purpose. Considering all such aspect of the matter the petitioner

ought to have been selected for licence.

The learned advocate for the petitioner further submits that the

Department of Food & Supplies has issued an order bearing No.2750-

FS dated 17th August, 2021 delineating the scoring system in respect

of different heads of eligibility criteria of the applicants and the

applicant who gets the highest mark is selected. On the basis of the

said order dated 17th August, 2021 the petitioner made a comparative

study in respect of the eligibility criteria and it is shown that the

petitioner was at least entitled to get eight marks more than the

respondent No.10 who has been selected by the Sub-Divisional

Controller, Food & Supplies Department, Chanchal Sub-Division.

The petitioner has submitted a representation on 28 th April,

2023 for reconsideration of the decision made by the State

Respondents. However, the said representation has not been acceded

to.

The learned advocate for the State Respondent, on the other

hand, submits that if the applicant does not have requisite space for

godown and office premises, his application is liable to be rejected at

the threshold. In the instant case, the petitioner himself admits in

paragraph 18 of the writ petition that he is having an office space

measuring about 120 square feet. Thus, the petitioner does not have

an office space measuring about 200 square feet. Moreover, the

petitioner has converted his living room as a godown. The living room

contains two doors on both sides of the room. A godown cannot have

two entries and exit. Therefore, the authority did not treat the same

as a godown. For the reasons aforesaid the respondent's action

cannot be questioned by the petitioner by filing the instant writ

petition.

Having heard the learned advocates for the parties and on

perusal of the materials on record it is found that as per the order

bearing No.2750-FS dated 17th August, 2021 the petitioner was

entitled to get five marks for the size of shop-cum-distribution centre.

The petitioner was not given any mark on these two counts. I am also

of the view that if the Inspecting Team found there are two doors in

the proposed godown of the petitioner, the petitioner could have

asked to close one door before considering the size and suitability of

the godown. It is the allegation of the petitioner that though the

petitioner has a godown measuring about 450 square feet and a shop

room measuring about 120 square feet with a front shed of 270

square feet, he was not granted any mark by the respondents.

In view of such circumstances, the representation filed by the

petitioner dated 28th April, 2023 ought to have been considered by the

State Respondents.

In view of such circumstances, the instant writ petition is

allowed directing the respondent No.3 to consider the representation

of the petitioner dated 28th April, 2023 in accordance with law after

giving an opportunity to the petitioner of hearing within 60 days from

the date of this order.

In the meantime, the State respondent shall not issue licence in

favour of the private respondent till the disposal of the representation

made by the petitioner as stated hereinabove.

The parties are at liberty to act on the server copy of this order.

(Bibek Chaudhuri, J.)