Calcutta High Court (Appellete Side)

Arunava Sasmal vs The State Of West Bengal & Ors on 9 January, 2023

                          IN THE HIGH COURT AT CALCUTTA
                        CONSTITUTIONAL WRIT JURISDICTION
                                  APPELLATE SIDE

     Present :-

     Hon'ble Justice Partha Sarathi Sen


                            W.P.A No. 29746 (W) of 2016
                                     Arunava Sasmal
                                       -Versus-
                           The State of West Bengal & Ors.

     For the Petitioner:             Mr. Timir Baran Saha, Adv.

     For the Respondent no.6 :        Mr. Saptanshu Basu, Sr. Adv.

Mr. Debabrata Saha Roy, Adv.

Mr. Pingal Bhattacharya, Adv.

Mr. A. Mukherjee, Adv.

Ms. S. Ray, Adv.

     For the State:                   Mr. Jaharlal De, Adv.
                                     Mr. Pranab Halder, Adv.


     Heard on:                   :    22.12.2022
     Judgment on.                :     09.01.2023

     PARTHA SARATHI SEN, J. : -

1. In this writ petition under Article 226 of the Constitution of India the writ

petitioner is aggrieved by the decision of the District Controller (F & S) and Ex-

Officio Director, Paschim Medinipur, who issued a licence dated 12.04.2012, in

favour of the private respondent no.6 to act as a distributor under the

provisions of West Bengal Public Distribution System (Maintenance and

Control) Order, 2003 hereinafter referred to as the 'Control Order of 2003'. By

the impugned licence no. 36/WB/PDS/MID(S) dated 12.04.2012, the

aforementioned authority has permitted the private respondent no.6 which is

a partnership firm to include one outsider namely; Dinesh Kumar Agarwala in

place of deceased Jagadish Prasad Sharma. In this writ petition, it has been

alleged by the writ petitioner that since a vacancy arose on account of the

death of one of the original partners of the private respondent no.6 firm, such

vacancy has to be filled up from the legal heirs of the said deceased partner on

compassionate ground, failing which the State/respondents are duty bound to

declare a new vacancy under the provisions of the Control Order, 2003. At the

time of hearing of the instant writ petition Mr. Saha, learned advocate for the

writ petitioner draws attention of this Court to Clause 23 of the Control

Order,2003. Attention of this court is also drawn to the impugned licence

dated 12.04.2012, the photocopy of the reply letter dated 28.04.2016 as

written by S.P.I.O of the State respondents indicating that an outsider cannot

be included as a partner for M.R Distributorship on compassionate ground.

Attention of this Court is also drawn on behalf of the writ petitioner to page 25

of the writ petition wherefrom it reveals that S.P.I.O of the State/respondents

on an application made by the writ petitioner under the provisions of the Right

to Information Act, clearly indicated that in 2003 Control Order there was no

such provision to include an outsider as a partner in M.R Distributorship on

compassionate ground. It is argued on behalf of the writ petitioner that since

the inclusion of an outsider namely; Dinesh Kumar Agarwala in the

partnership firm of private respondent no.6 in place and stead of one of the

original partners namely; Jagadish Prasad Sharma is foreign to the Control

Order, 2003, the State/respondents ought not to have issued the said licence

dated 12.04.2012 in favour of the aforementioned reconstituted partnership

firm i.e. private respondent no.6. It is further argued by Mr. Saha that in the

event such licence was not issued in favour of the reconstructed partnership

firm of private respondent no. 6, the present petitioner could have got the

opportunity to make application for the said distributorship on a declaration of

a fresh vacancy due to cessation of licence in favour of the newly reconstructed

partnership firm of private respondent no.6. It is thus submitted that an

appropriate writ be issued for declaration of the vacancy quashing the licence

dated 12.04.2012.

2. In support of his contention Mr. Saha, learned advocate for the writ

petitioner placed his reliance upon the following reported decisions:-

I. Mehsana District Central Cooperative Bank Ltd. And Others vs. State of Gujarat and Others reported in (2004) 2 SCC 463 II. Barun Ghosh vs. Goutam Kumar Saha and Ors. Reported in (2011)4 WBLR (Cal) 231 III. Commissioner Of Income Tax vs Anjum M.H.Ghaswala & Ors reported in (2002)1 SCC633 IV. State of Haryana vs. Chandra Mani and others reported in AIR 1996 SC 1623.

3. While opposing the contention of the writ petitioner Mr. Basu, learned Sr.

Advocate on behalf of the private respondent no.6 argued that the present writ

petitioner is not entitled to get any relief since on account of the inordinate

and unexplained delay, the grant of relief as prayed for has become time

barred. Drawing attention to the different provisions of Control Order,2003

vis-a-vis Control Order, 2013, it is argued that with the implementation of

Control Order 2013, Control Order 2003 has been repealed and since the

instant writ petition was filed long after repealing of Control Order, 2003 when

Control Order, 2013 was in force the present writ petitioner cannot seek any

relief under the repealed Control Order of 2003. Mr. Basu, learned Sr.

Advocate for the private respondent no. 6 in course of his argument draws

attention of this Court to the judgement as passed in WPA 17857(W)/13 by a

Coordinate Bench of this Hon'ble High Court. It is argued that in the said

judgement the reconstitution of the partnership firm of the private respondent

no.6 was under challenge and by the said judgement dated 25.07.2014 this

Hon'ble Court affirmed the reconstitution of the partnership firm of the private

respondent no.6 and accordingly the present writ petitioner cannot raise the

self same point in this writ petition afresh. It is argued further that since the

vacancy arose on account of death of a partner of the private respondent no.6

partnership firm, in view of the provisions of the Clause 23 of 2003 Control

Order, the State/respondents are very much justified in not issuing any fresh

notification or vacancy. Mr. Basu, learned Sr. Advocate in course of his

argument also submitted that under no stretch of imagination the present writ

petitioner cannot be considered as a person aggrieved and thus the present

writ petitioner is not entitled to any relief as prayed for. Mr.Basu, learned Sr.

Advocate for the private respondent no.6 places his reliance upon the following

three reported decisions namely:-

i)State of M.P and others Vs. Nandalal Jaiswal and others reported

in (1986)4 SCC 566;

ii)Bar Council of Maharashtra vs. M.V Dabholkar and others

reported in (1975) 2 SCC 702;

iii)Shripal Bhati and Anr. vs. State of Uttar Pradesh and Others

reported in (2020)12 SCC87.

Mr. Basu, learned Sr. Advocate for the private respondent no.6

urges that the instant writ petition be dismissed.

4. Mr. Jaharlal Dey, learned advocate duly assisted by Mr. Pranab Halder,

learned advocate for the State in course of their submission practically echoes

the argument as advanced by Mr. Basu. It is submitted that after passing of

the judgement dated 25.07.2014, in WPA No. 17857(W)/13, if any contrary

decision is taken in this writ petition, that will violate the established principle

of judicial discipline and as such the present writ petitioner is not entitled to

any relief as prayed for. It is further submitted that since the present writ

petitioner is a rank outsider, he has got no legal right to challenge the licence

in question since the State /respondents are very much justified in not

declaring the vacancy on account of death of the one of the partners of the

private respondent no.6 partnership firm. It is thus submitted that the present

writ petition may be dismissed.

5. This Court has meticulously gone though the writ petition and the

affidavits-in-opposition as used by the State/respondents as well as the private

respondents no.6. This Court has given its due consideration over the

submissions of the learned advocates for the contending parties. This court

has meticulously gone through the reported decisions as cited from the Bar.

6. For effective adjudication of the instant writ petition this Court proposes

to look to the Clause 23 of the Control Order ,2003 and the same is

reproduced herein in verbatim:-

"23. Appointment of Distributor.- (i) in the event of a vacancy arising out of death or resignation of an existing Distributor or for better functioning of the PDS in a particular area, the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of the vacancy report and the DCRS will transmit the same to Director- DDP &S for necessary action in the matter. The Director -DDP &S after obtaining necessary approval from the Government shall declare such vacancy though public notification/advertisement in the concerned SCFS/DCFS officer for new vacancy only. Where vacancy arises due to death, incapacitation on medical ground for existing Distributor, such vacancy shall not initially be notified. In such cases, prayer of the legal heirs will be considered with preference on compassionate ground provided required minimum qualifications are fulfilled, if out of several legal heirs, one legal heir is the claimant, he is to submit no objection of other legal heirs along with his prayer.

This order will not take effect when both husband and wife possess separate licences and one of them dies, Government is the final authority for such appointment."

7. Keeping in mind the aforementioned provisions of Control Order, 2003

this Court proposes to look to Clause 11 of the impugned licence dated 12.4.12

which reads as under:-

"The licence will cease to be valid in the event of death or resignation of the licensee or reconstitution of a partnership firm or transfer of interest of the licensee in his business"

8. From the aforesaid clause it thus reveals that the licence under the

Control Order,2003 became invalid in the event of death of the licensee or

reconstitution of a partnership firm. From the various replies as given by the

State respondents through its S.P.I.O, it appears to this Court that an outsider

cannot be included as a partner for MR Distributorship on compassionate

ground under the Control Order, 2003. On perusal of the entire materials as

passed before this Court there is no doubt in the mind of this Court that on

account of death of Jagadish Prasad Sharma, one of the original partners of

the private respondent no.6, one outsider Dinesh Kumar Agarwala, was

included in the partnership business of private respondent no.6. It is worthy to

mention herein that for some reason or others, none of the legal heirs of the

deceased Jagadish Prasad Sharma was included in the said partnership firm.

9. In view of such, the moot question arises as to whether the inclusion of an

outsider in the partnership firm of private respondent no.6 can be held to be

valid under the provisions of 2003 Control Order. On conjoint perusal of

Clause 23 of the Control Order, 2003 vis-à-vis the replies of the State

respondents in answer to the various RTI applications made by the present

writ petitioner, it has become crystal clear that under the Control Order, 2003

an outsider cannot be included as a partner for MR Distributorship on

compassionate ground and at the same time reconstitution of a partnership

firm by including an outsider for whatever reason has the effect of cessation of

licence as issued in favour of the said partnership firm. In view of such, this

Court holds that since the legal heirs of the original partners Jagadish Prasad

Sharma, was/were not included in the partnership firm, the

State/respondents ought to have declared vacancy afresh under the provisions

of Control Order, 2003 and therefore the State/respondents ought not to have

issued a fresh licence dated 12.04.2012 in favour of the reconstituted

partnership firm of private respondent no.6.

10. In considered view of this Court the view taken by the Hon'ble Supreme

Court of India in Mehsana District Central Cooperative Bank Ltd case (supra) is

very much relevant for the purpose of disposal of this instant writ petition and

the relevant portion of the said judgement is as under:-

" In the facts and circumstances stated above, the High Court by the impugned order issued a writ of mandamus, directing respondent Nos. 4 and 5 to take appropriate action against the appellants in accordance with the provisions contained in the Gujarat Cooperative Societies Act and the rules framed thereunder. We do not see any infirmity in the impugned order. The Acts and Rules are made to be followed and not to be violated. When the Statute prescribed the norms to be followed, it has to be in that fashion. Converse would be contrary to law. If there is any allegation of violation of statutory rules which have been brought to the notice of the authorities and if the concerned authorities do not perform their statutory obligation, as in the present case, any aggrieved citizen can always bring to the notice of the High Court about the inaction of the statutory authorities and in such event it would always be open to the High Court to pass an appropriate order as deemed fit and proper in the facts and circumstances of the case."

11. In the reported decision of Barun Ghosh (supra) reliance was placed upon

the reported decision of Mehsana (supra) and accordingly the same view was

taken by the Hon'ble Division Bench of the High Court at Calcutta. In the

reported decision of Anjim M.H Ghaswala and Others (supra) the Hon'ble

Supreme Court of India while dealing with the authorities of the State

expressed the following:-

"27. ....It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."

12. On perusal of the aforesaid three reported decisions it thus appears that

in the case in hand the State respondents prior to issuing the impugned

licence dated 12.04.2012 ought to have perused Clause 23 of Control

Order,2003 and thus must not issue licence in favour of the private

respondent no.6 especially when it is the clear admission of the

State/respondents that under the provisions of Control Order, 2003 inclusion

of an outsider as a partner in MR Distributorship Firm is impermissible and

therefore, the State authorities are bound declare the vacancy afresh under the

2003 Control Order.

13. So far as the locus standi of the present writ petitioner is concerned in

challenging the impugned licence, the matter is set at rest in view of the

decision taken by the Hon'ble Supreme Court in Mehsana (supra) case where

it has been categorically observed that any aggrieved citizens can always bring

to the notice of the Court the inaction of the statutory authorities and/or if it is

found that the State Authorities have acted contrary to the statutory

requirement and thus failed to perform their statutory obligation.

14. In considered view of this Court the reported decision of M.V Dabholkar

(supra) supports present writ petitioner instead of private respondent no.6

since before this Court the present writ petitioner ventilates his genuine

grievance for not getting opportunity to apply for MR Distributorship in the

relevant location because of issuance of licence of the State/respondents in

favour of the private respondent no.6 violating the relevant provisions of 2003

Control Order. In view of the aforesaid discussion, this Court also finds that

the decision of Shripal Bhati (supra) is of no help to the private respondent

no.6.

15. In considered view of this Court the reported decision of Ritesh Tewari

and Another vs. State of Uttar Pradesh and Others reported in (2010) 10 SCC

677 as cited from the side of the writ petitioner is very much relevant wherein

the Hon'ble Supreme Court expressed the following :-

"It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi Vs. State of Assam & Ors., (1998) 3 SCC 381; Satchidananda Misra Vs. State of Orissa & Ors., (2004) 8 SCC 599; and Regional Manager, SBI Vs. Rakesh Kumar Tewari, (2006) 1 SCC 530).

27. In C. Albert Morris Vs. K. Chandrasekaran & Ors., (2006) 1 SCC 228, this Court held that a right in law exists only and only when it has a lawful origin.

28. In Mangal Prasad Tamoli (dead) by LRs. Vs. Narvadeshwar Mishra (dead) by LRs. & Ors., (2005) 3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non-est and have to be necessarily set aside."

16. In considered view of this Court the alleged delay in filing the instant writ

petition that too after repealing the Control Order, 2003 with the introduction

of the Control Order, 2013 is not much fatal since the present

State/respondents as well as private respondent no.6 cannot take advantage of

their own wrong as committed by them and as discussed hereinabove.

17. In view of the discussion made hereinabove, this Court holds that the

impugned licence no. 36 dated 12.4.2012 by the State/respondents in favour

of private respondent no.6 cannot be considered to be a valid one and the

same has been issued contrary to the provisions of Control Order, 2003 and

thus the same is liable to be quashed. Accordingly, the instant writ petition

succeeds.

18. The State/respondents more specifically State-respondent no.4 is hereby