Calcutta High Court (Appellete Side)

Utpal Ghosh vs The State Of West Bengal & Ors on 14 December, 2023

                   IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE

Present :-

Hon'ble Justice Partha Sarathi Sen

                             WPA 7087 of 2019
                                 Utpal Ghosh
                                      Vs.
                       The State of West Bengal & Ors.
                                     With
                              WPA 7969 of 2019
                           Jogmaya Ghosh & Ors.
                                      Vs.
                        The State of West Bengal & Ors.


For the petitioner  : Mr. Ram Anand Agarwala, Adv.,
in WPA 7087 of 2019 : Ms. Nibedita Pal, Adv.,
                    : Mr. Ananda Gopal Mukherjee, Adv.

For the petitioners in : Mr. Partha Sarathi Bhattacharya, Sr. Adv.,
WPA 7969 of 2019       : Mr. Debabrata Mandal, Adv.,
                       : Ms. Sreetama Neogi, Adv.

For the pvt. Respondent : Mr. Ram Anand Agarwala, Adv.,

in WPA 7969 of 2019     : Ms. Nibedita Pal, Adv.,
                        : Mr. Ananda Gopal Mukherjee, Adv.

For the respondent       : Mr. Partha Sarathi Bhattacharya, Sr. Adv.,
Nos. 6 & 7 in            : Mr. Debabrata Mandal, Adv.,
WPA 7087 of 2019         : Ms. Sreetama Neogi, Adv.


For the State            : Mr. Amitesh Banerjee, Adv.,
                         : Mr. Suddhadev Adak, Adv.
Last Heard On:              08.12.2023
Judgement On:               14.12.2023





   PARTHA SARATHI SEN, J. : -

1. Both the writ petitions as filed under Article 226 of the Constitution of

India are taken up together for judgement because of their identical nature of

facts and circumstances, parties to the writ petitions are interrelated and

involvment common questions of law.

2. For effective adjudication of the instant two writ petitions some admitted

facts are required to be discussed which are as under:-

i. Originally one Jogendra Nath Ghosh, since deceased was a MR

Dealer and kerosene dealer under English Bazar Block in

District Malda.

ii. Jogendra Nath Ghosh died intestate leaving behind Biswanath

Ghosh, since deceased (one of writ petitioners in WPA

7969(W)/2019), Tapan Kumar Ghosh (one of the writ petitioners

in WPA 7969(W) /2019), Ajay Ghosh, since deceased, Utpal

Ghosh (the writ petitioner in WPA 7087(W)/2019), Sumitra

Ghosh and Jhunti Ghosh as his sons and daughters and as his

legal heirs within the meaning of Hindu Succession Act, 1956.

iii. During his life time, the said Jogendra Nath Ghosh, since

deceased, made an application before the appropriate

authority for transfer of the said dealerships in favour of his

two sons namely; Utpal Ghosh and Ajay Ghosh, since

deceased.

iv. After the death of Jogendra Nath Ghsoh , since deceased, his

other four legal heirs namely; Biswanath Ghosh, since

deceased, Tapan Kumar Ghosh, Sumitra Ghosh and Jhunti

Ghosh jointly gave their no objection for granting

appointment in favour of Utpal Ghosh and Ajay Ghosh, since

deceased, in respect of the said two dealerships.

v. Ajay Ghosh and Utpal Ghosh made a partnership firm and

licence in respect of the said MR Dealership was granted to

the said partnership firm namely; 'M/S Ghosh Brothers'.

vi. On 10.03.2015 one of the partners of the said partnership

firm namely; Ajay Ghosh died as a bachelor and on his

demise Utpal Ghosh (the writ petitioner in WPA

7087(W)/2019) applied before the appropriate authority to

continue the said dealership as a surviving partner.

vii. On the death of the said Ajoy Ghosh, (who died as bachelor)

his two other brothers namely; Biswanath Ghosh,since

deceased and Tapan Ghosh (the writ petitioners in WPA 7969

(W)/2019) also made joint application before the appropriate

authority for grant of the dealership in their joint names.

However, such prayer was rejected by the competent

authority.

viii. The said Biswanath Ghosh, since deceased and Tapan Ghosh

thereafter approached this Hon'ble Court by filing WP-

26973(W)/2017 wherein a co-ordinate bench of this court

passed the following order:-

"In those circumstances, both the writ petitioners as also Utpal Ghosh shall be entitled to apply for M. R. Dealership afresh for the village and P. O. Milki, P. S. English Bazar, Malda in their respective individual capacities, if however they choose to come together to form any commercially recognized body, the same may be considered in terms of sub-Clause VI of Paragraph 20 of the 2013 Control Order. In the absence of the parties coming together, their application may be considered purely in an individual capacity and as a fresh application."

ix. Pursuant to such order Utpal Ghosh (the writ petitioner in

WPA 7087(W)/2019) and Biswanath Ghosh, since deceased

and Tapan Ghosh (the writ petitioners in WPA-

7969(W)/2019) made their respective applications before the

appropriate authority being the Sub-Divisional Controller,

Food and Supplies, Malda (SDCFS, Malda in short) who by

his orders dated 12.03.2019 and 13. 03.2019 rejected both

the applications as filed by Utpal Ghosh and as jointly filed

by Biswanath Ghosh and Tapan Ghosh.

3. Both the sets of writ petitioners have assailed the said orders dated

12.03.2019 and 13.03.2019 as passed by SDCFS, Malda by filing the instant

two writ petitions.

4. Mr. Agarwala, learned advocate for the writ petitioner in WPA-

7087(W)/2019 and private respondent no.3 in WPA 7969(W)/2019 in course

of his argument contended that in view of liberty given by the co-ordinate

bench by His Lordship's order dated 26.06.2018 as passed in

WP26937(W)/2017 and in view of the amended provision of Clause 20(vii) of

WBPDS( Maintenance and Control) Order, 2013( hereinafter referred to as

'Control Order,2013' in short)there cannot be any justification on the part of

the SDCFS, Malda to reject the prayer of Utpal Ghosh being the surviving

partner of the partnership firm; 'M/S Ghosh Brothers' by its impugned order

dated 13.03.2019.

5. While supporting the impugned order dated 12.03.2019 as passed by

SDCFS, Malda thereby rejecting the prayer of the writ petitioners namely;

Biswanath Ghosh, since deceased and Tapan Ghosh in WPA 7969(W)/2019

Mr. Agarwala also draws attention of this court to the second proviso of

Clause 20(vii) of the Control Order, 2013 vis-à-vis the definition 'family

member(s)' as embodied in Clause (2)(m) of the Control Order of 2013. Mr.

Agarwala, submits further that since the said Biswanath Ghosh, since

deceased and Tapan Ghosh do not come under the purview of the definition

'family member(s)' as per Control Order of 2013, under no stretch of

imagination it can be said that the said Biswanath Ghosh, since deceased

and Tapan Ghosh are entitled to compassionate appointment on account of

the death of their brother Ajoy Ghosh.

6. Mr. Agarwala in course of his argument places his reliance upon a

judgement as passed in MAT 760/2020 (Dilip Saha @ Dilip Kumar Saha

Vs State of West Bengal) as passed by this Hon'ble Court (where the

undersigned is a part of the Division Bench). It is argued by Mr. Agarwala

that in the judgement of Dilip Saha (supra) the Division Bench of this court

has expressly stated that in order to come under the category of 'family

member(s)' within the meaning of Clause 2(m) of Control Order of 2013 a

person must have to be wholly dependent on the dealer or distributor at the

time of death. Mr. Agarwala, thus submits that WPA-7087 (W)/2019 be

dismissed.

7. Per contra, Mr. Partha Sarathi Bhattacharya, learned advocate appearing

for the respondent nos. 6 and 7 in WPA 7087 (W)/2019 and for the writ

petitioners in WPA 7969(W)/2019 contended that SDCFS, Malda is very

much justified in passing the impugned order dated 13.03.2019 rejecting the

prayer of Utpal Ghosh holding that in the Control Order of 2013 there is no

provision for conversion of partnership firm to a proprietorship firm. It is

argued by Mr. Bhattacharya, that Section 42 of the Partnership Act clearly

mandates that in the event of death of a partner, partnership dissolves and

therefore Utpal Ghosh being the surviving partner of 'M/S Ghosh Brothers'

cannot claim that the said partnership still continues. It is further argued by

Mr. Bhattacharya, that the amended provisions of Control Order of 2013 as

referred by Mr. Agarwala cannot have any applications in the instant two writ

petitions since the cause of action for filling the instant two writ petitions

arose much before 14.12.2020(with effect from 16.12.2020) being the date of

publication of notification for amendment whereas the writ petitioners in WPA

7969(W)/2019 namely; Biswanath Ghosh, since deceased and Tapan Ghosh

made an application for grant of dealership on compassionate ground on

31.03.2015 i.e. much before the date of publication of the relevant

notification regarding amendment of the Control Order, 2013.

8. In course of his reply Mr. Agarwala, places his reliance upon a judgement

dated 29.09.2023 as passed by a co-ordinate bench of this Court in WPA

23173/2023 (Mallika Daskarmakar Pal vs. State of West Bengal and

Ors.). It is argued by Mr. Agarwala that in the judgement of Mallika

Daskarmakar Pal (supra) it has been held that the amended provision of

Clause 20 of the Control Order, 2013 would take effect from the date of

promulgation of the said Control Order.

9. Mr. Adak, Learned advocate for the State in both the writ petitions

however contended that SDCFS, Malda is very much justified in passing the

aforementioned two impugned orders thereby rejecting the prayers of both

the petitioners. Learned Counsel for the State thus submits that both the writ

petitions may be dismissed.

10. This court has heard the learned advocates for the contending parties at

length. This court has minutely perused the entire materials as placed in

course of hearing. This court has also gone through the reported decisions as

cited from the Bar.

11. Since a serious question of law has been raised by Mr. Bhattacharya,

learned senior advocate appearing for the writ petitioners in WPA

7969(W)/2019 and for the private respondent nos. 6and 7 in WPA

7087(W)/2019 with regard to the non-applicability of the amended provision

of Control Order, 2013 in the lis before this court, this Court considers that a

finding to that effect is very much necessary for effective adjudication of the

instant two writ petitions.

12. A similar question arose before a Co-ordinate Bench of this court in the

case of Mallika Daskarmakar Pal (supra) where it was held as follows:-

"Law is trite on this subject that if a substantive right is conferred to any person in any statute, that right shall be deemed to be in effect from the date of promulgation of the statute. In other words, it will be help that the amended provision was in the provision of compassionate appointment provided in Clause 20 of the WBPDS (Maintenance and Control) Order from the date of promulgation of the control order. However, in case of procedural amendment or amendment imposing any penalty will take effect on and from the date of amendment and not retrospectively. Since a substantive right has been conferred on the son's wife to apply for grant of licence on compassionate ground on the death of her mother-in-law, the right of the son's wife ought to have been considered taking into consideration the amended provision dated 29th November, 2022 as if it was in the control order from the date of its promulgation. In other words, amendment of substantive law conferred any right to any class of person will operate from the date when the original control order of 2013 came into force."

13. This court considers that the proposition of law as discussed above has

been correctly dealt with by the co-ordinate bench of this court. I am also in

agreement with the view taken by the Hon'ble Co-ordinate bench of this

court. In view of such this court holds that in both the writ petitions,

amended provision of Control Order, 2013 would apply.

14. On perusal of the impugned order dated 13.03.2019 it reveals to this

court that SDCFS, Malda basically rejected the prayer of the writ petitioner

Utpal Singh, basically on the ground that in the office order dated 28.04.2014

read with Indian Partnership Act, 1932, there is no provision for conversion

of any partnership firm to a purely proprietorship nature on the basis of

application of the said surviving partner of the partnership firm. In

considered view of this Court the reason as assigned by SDCFS, Malda in its

impugned order dated 13.03.2019 is contrary to the amended provision of

Clause 20 (vii) of the Control Order, 2013.

15. Clause 20 of the Control Order, 2013 runs as follows:-

"20.Engagement of Dealer:-

i....................

ii...................

iiA.................

iii..................

iiiA................

iv.................

ivA...............

v..................

vi...................

vii. Whenever-

(a) an individual licensee opt to convert its business into partnership firm for the reason of his physical incapacitation, or

(b) a licensee of a partnership firm opt to induct a new partner or substitute the name of an existing partner, the licensing authorities may, on an application in Form C3 along with Annexure-l, requisite fee as prescribed in Schedule A and corroborative documents as per Checklist made by the licensee in this behalf, allow him to do so on examination of the enquiry report in Form L2 and comments of the SCF&S in Form M2, with the approval of the Director, if and only if any of the family member of licensee

having no regular means of income is inducted or substituted as partner and not otherwise:

Provided that in case of death of one of the partner of a partnership firm comprising of only two partners having the dealer's license, the surviving partner shall reconstitute the partnership firm by inducting only the family member of the deceased partner having no regular means of income and not otherwise:

Provided further that-

(A) in case of death of a partner of partnership firm having the dealer's license, the licensing authorities may, on an application made by the surviving partner, allows him to continue the business for a period of ninety days or till the new license is granted, whichever is earlier;

(B) in case of death of a partner of partnership firm having the dealer's license and if no eligible family members found to become the partner or partners, as the case may be, of the said partnership firm, the surviving partner, may apply for the conversion, before the licensing authority, and upon satisfaction of the licensing authority, the said surviving partner will be allowed to continue the business, as a sole licensee, subject to the approval given by the [Director, DDP&S] in this behalf:

Provided also that in case of death of an individual licensee, the eligible family member or members, as the case may be, may apply before the licensing authority, for running its business, either as an individual licensee or as the registered partnership firm, subject to the approval given by the '[Director, DDP&S] in this behalf.]"

16. At this juncture the amended provision of 'family member(s)' as defined in

Clause 2(m) of the Control Order, 2013 is required to be looked into and the

same is reproduced hereunder:-

"{(m) "family member(s)" means-

i. Spouse; or ii. parents; or iii. son (including son legally adopted before death or incapacitation);or iv. widow of pre-deceased son; or v. daughter (including daughter legally adopted before death or incapacitation, divorced daughter and widowed daughter), who is wholly dependent on the dealer or distributor at the time of death;}"

17. The words 'family member(s)' as defined in Clause 2(m) of 2013 Control

Order has been dealt with in a judgement passed by the Division Bench of

this High Court in MAT 842/2022 (Gurupada Das Vs. State of West

Bengal and Ors) where the Hon'ble Court expressed the following view:-

"14. Now the most important question is what is the meaning of "No Objection" from other family members. Family members have been defined in Clause 2 (m) of the 2013 Control Order which reads thus:

2.(m) "Family members" means spouse, dependent parents, dependent sons and daughters for the purpose of considering engagement as Dealers/Distributors on compassionate ground. The most important word in the definition is the word 'dependent'. If any of the family member was not dependent on the deceased on the date of his death, his no objection is not necessary for consideration of issuance of licence in favour of any of the legal heir who has applied in Form C along with Annexure-I of the 2013 Control Order. If any of the sons or daughters who are dependent they are required to file "No Objection". If we read paragraph 2 of sub-Clause (vi) of Clause 20 in conjunction with Clause 2 (m), it would be clear that only sons and 14 daughters who were dependent on the deceased on

the date of his death are required to file "No Objection" and not all family members."

18. On conjoint perusal of the definition of 'family member(s)' as mentioned

in Clause (m) of the Control Order, 2013 and as explained in para 14 of the

judgment of Gurupada Das (supra) this court finds that under no stretch of

imagination the writ petitioners of WPA 7969(W)/2019 i.e. Biswanath Ghosh,

since deceased and Tapan Ghosh come under the purview of 'family

member(s)' and therefore in view of the second proviso of Clause 20 (vi) of the

Control Order, 2013 Utpal Ghosh, the writ petitioner in WPA 7087(W)/2019

is very much entitled for applying for the conversion as a surviving partner

for continuing the said MR Dealership as a sole licencee. This court further

holds that Section 42 of the Partnership Act has got no manner of application

in these two cases in view of specific provision for continuance of the MR

Dealership business by the surviving partner of a partnership firm in the