Calcutta High Court (Appellete Side)
Bamacharan Singha vs The State Of West Bengal & Ors on 16 June, 2023
Form J(2) IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
WPA 1131 of 2017
With
CAN 3 of 2023
Bamacharan Singha
Vs.
The State of West Bengal & Ors.
Mr. Sayan Sinha
Mr. Adil Naser
Mr. Aniruddha Ganguly
Mr. Soham Kumar
..for the petitioner
Item No.13
Heard & Judgment on: 16.06.2023
Bibek Chaudhuri, J.
One Rathindra Nath Singha was a licensee of fair price shop of
village Banagram within Jalandi Gram Panchayat in the district of
Birbhum. During his lifetime on 8th March, 2011 he made an
application stating, inter alia, that he is unmarried and living with the
family of his brother Bamacharan Singha. It is also stated in the said
application addressed to the Sub-Divisional Controller, Food &
Supplies (Bolpur, Birbhum) that as a result of various ailments he
became incapacitated to run the said fair price shop and requested
the authority to change/transfer the licence of F.P.S. in the name of
his brother Bamacharan. Subsequently, on 17 th June, 2011 the said
licensee had expired. On 29 th August, 2011 the present petitioner filed
an application in appropriate form for granting licence of F.P.S. which
stood in the name of his unmarried elder brother in favour of him.
The said application was filed along with an affidavit of one Krishna
Singh being the sister of Rathindra Nath, since deceased and
Bamacharan. The concerned authority who has been arraigned as
respondent No.5 failed to dispose of the said application filed by the
petitioner till 27th November, 2013. When it is informed by him that
other legal heirs have not submitted any 'no objection' certificate in
favour of the present petitioner and, therefore, as per direction of the
District Controller, Food & Supplies (Birbhum), respondent No.4 the
petitioner was directed to submit 'no objection' certificate duly
affirmed by the other legal heirs. The petitioner had complied with the
said requirement also. Subsequently on 20th April, 2014 the
respondent No.5 informed the petitioner that his file was returned
again as per order of the respondent No.4 dated 28 th March, 2014
with a direction to the petitioner to resubmit his application in
connection with his prayer for issuance of F.P.S. license on
compassionate ground following the West Bengal Public
Distribution System (Maintenance and Control) Order, 2013.
Being aggrieved against the said letter and decision of the
District Controller as communicated by the Sub-Divisional Controller,
Food & Supplies vide letter dated 24th April, 2014 the petitioner has
filed the instant writ petition.
Be it mentioned here that before filing of the writ petition the
petitioner was informed that as per control order of 2013 a brother of
a deceased F.P.S. dealer cannot be regarded as a family member as
defined in Clause 2 (m) of West Bengal Public Distribution System
(Maintenance and Control) Order 2013 and, therefore, the application
of the present petitioner cannot be allowed.
Though this day when the matter is taken up for hearing, the
State respondents are not represented by their learned advocate.
However, on the previous occasion, i.e., 17 th February, 2023 the Sub-
Divisional Controller affirmed an affidavit in the form of a report in
compliance of the order passed by this Court on 13 th February, 2023
stating, inter alia, that the petitioner cannot be regarded as a member
of the family within the meaning of Clause 2 (m) of the Control Order
of 2013 and secondly the Sub-Divisional Controller asked the
petitioner on 27th November, 2013 to submit 'no objection' certificate
from all the family members of ex F.P.S. dealer which he failed
inasmuch as the original F.P.S. dealer had a brother who predeceased
the original F.P.S. dealer. According to the Sub-Divisional Controller
'no objection' certificate of the legal heirs of the said predeceased
brother of the original F.P.S. dealer is required to be filed by the
present petitioner.
In course of argument it is submitted by the learned advocate
for the petitioner that prior to promulgation of the West Bengal Public
Distribution System (Maintenance and Control) Order, 2013 the
control order of 2003 used to operate in the field. Clause 19 (ii) of
the said Control Order, 2003 states:-
"In case of vacancy arising out of death incapacitation on
medical ground of any existing dealer, such vacancy shall not initially
be notified. The prayer of the legal heirs will be considered with
preference on compassionate ground provided required minimum
qualifications are fulfilled. If out of other legal heirs, only one legal
heir is the claimant he is to submit 'no objection' of other legal heirs
along with his prayer." (Emphasis supplied)
Thus, 2003 Control Order is absolutely clear that preferential
treatment would be given in respect of grant of F.P.S. licence on
compassionate ground amongst the legal heirs of the deceased or
permanently incapacitated F.P.S. dealer. 2013 Control Order, on the
other hand, provides a specific provision of engagement on
compassionate ground in clause 20 (vi) which runs thus:-
"20(vi)(a): In case of death or in case of incapacitation on
medical ground subject to satisfaction of the authority, of any existing
dealer, prayer of any family members of the deceased/incapacitated
dealer having no regular means of income may be considered on
compassionate ground...."
Thus, in the control order of 2013 the term legal heir has been
replaced by the term family members. Clause 2(m) of the Control
Order of 2013 defines "family members".
"(i) Spouse; or
(ii) Parents; or son
(iii) (Including son legally adopted before death or
incapacitation);
or widow of predeceased son;
or 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. "
The learned advocate for the petitioner submits that when the
present petitioner filed application for grant of licence on
compassionate ground in the year 2011, the control order of 2003
used to operate in the field. As per the said control order any legal
heir of the licensee of F.P.S. dealership on his death or medical
incapacitation was entitled to file an application for grant of licence on
compassionate ground.
In support of his contention he refers to a judgment passed by a
Co-ordinate Bench of this Court in Rajib Debnath versus Sate of
West Bengal and Others reported in (2020) 4 Cal LT 327. In the
said report of the Co-ordinate Bench, the Hon'ble Judge considered
the decision of this Court in Matadin versus State of West Bengal
(AIR 2016 Cal 251), Tarun Kumar Bhunia versus State of West
Bengal decided on 27th October, 2017 in W.P. No. 15796 (W) of 2017
and Samar Das versus State of West Bengal reported in (2014)5
CHN 499 (Cal).
In the said report also the question as to whether control order
of 2003 or 2013 should be considered as the initial application for
grant of licence on compassionate ground was filed by the petitioner
when the control order of 2003 which was in force came for decision.
This Court held in Rajib Debnath (supra) in paragraph 14 as
hereunder:-
"14. The dictum laid down in Matadin (supra) has been affirmed
by both the Division Bench of this Court as well as the Supreme Court
wherein, such special leave petition was dismissed with costs imposed
on the State Respondents. Therefore, the dictum in Matadin (supra)
has therefore attained finality and can be considered the correct view
of law on this point. This Court had therefore, subsequently relied on
Matadin (supra) in Tarun Kumar Bhunia (supra) in a similar lis as
well. The learned Single Judge in the unreported judgment had held:
"Since the application was filed by the petitioner during the
period of time when the State Control Order of 2003 was in force and
since the delay in conclusion of hearing took place due to negligence
on the part of the State respondents, I am of the view that the
application of the petitioner should be considered in accordance with
the provisions of the State Control Order of 2003."
Thus, State Authority failed to appreciate that at the time of
initial application the control order of 2003 remained in force. The
original licence holder was a bachelor. He used to stay in the family
of the present petitioner. As per the Hindu Succession Act the brother
of a deceased person died intestate falls under clause (ii) heir as per
Schedule ii(3).
As per Section 8 of the Hindu Succession Act if there is no heir
of class (i) then the right of any property of a Hindu male died
intestate shall devolve upon heirs being relative specified in clause (ii)
of the Schedule. When the decision has a proper devolution of
interest, it will not go to the widow and son of a predeceased brother
of the licensee. Following the principle of the Hindu Succession Act
and control order of 2003, the petitioner is entitled to get the licence
of F.P.S. dealership of his deceased holder brother namely Rathindra
Nath Singha as the said Rathindra Nath Singha died on 17 th July, 2011
and the application of the petitioner on compassionate ground was
filed on 29th August, 2011.
In view of the above discussion, instant writ petition is allowed
on contest. The Sub-Divisional Controller, Food & Supplies
Department is directed to issue licence in the name of the petitioner
in respect of F.P.S. dealership on compassionate ground of village
Banagram (Jalandi Gram Panchayat in the district of Birbhum) within
a period of 30 days from the date of communication of this order.
There shall be, however, no order as to costs.
The instant writ petition is, thus, disposed of.
All the connected applications are also disposed of.
(Bibek Chaudhuri, J.)
