Calcutta High Court (Appellete Side)

Santosh Kumar Mahato vs State Of West Bengal & Ors on 19 June, 2023

                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            WPA 2540 of 2023

                         Santosh Kumar Mahato
                                   -Vs-
                       State of West Bengal & Ors.

      For the Petitioner:      Mr. Partha Sarathi Bhattacharya. Adv.,
                               Mr. Raju Bhattacaharyya, Adv.,
                               Mr. Arunava Maiti, Adv.

      For the Respondent No.6:Mr. Saibal Kumar Acharya, Adv.,

Mr. Sukhendu Bikash Mukherjee, Adv.

For the Respondent No.7 & 8:

Mr. Tanmoy Mukherjee, Adv., Mr. Souvik Das, Adv., Mr. K. R Ahmed, Adv.

      For the State:           Mr. T.M Siddiqui, Adv.

Heard on: 14 June, 2023.
Judgment on: 19 June , 2023.

BIBEK CHAUDHURI, J. : -

1. Father of the petitioner namely Mohanlal Mahato, since deceased

during his life time was appointed as a MR dealer and was issued licence

under the West Bengal Public Distribution System (Maintenance and

Control) order, 2013. He was also a kerosene dealer under the provisions

of the West Bengal Kerosene Control Order, 1968. The said Mohanlal

Mahato died leaving behind the petitioner and his two brothers being the

sons and one daughter as his legal heirs successors. During his life time

Mohanlal Mahato used to reside in joint mess with his three sons namely

Ashutosh, Santosh and Basudeb. After the death of Mohanlal Mahato the

petitioner submitted an application for issuance of FPS licence on

compassionate ground in place of his deceased father who was a FPS

dealer of village Pardih under Jhalda-1 Block. By an order dated 21st

January, 2022 the petitioner was directed to submit "No objection" form

issued by other family members of the deceased dealer in the form of

affidavit as per legal heirs certificate duly sworn before the First Class

Magistrate (2) No objection from other legal heirs of the proposed shop

cum godown in the form of affidavit before the First Class Magistrate (3)

Medical fitness certificate in the name of the applicant issued by the

registered government Medical Practitioner and (4) declaration in respect

of GO No.1706-FS and 1707-FS dated 21st July, 2014 in the form of

affidavit sworn before the First Class Magistrate.

2. Further case of the petitioner is that the elder brother of the

petitioner namely Ashutosh Mahato also made an application for issuance

of FPS dealership in his name on the death of his father. Ashutosh

Mahato was also directed by the Sub-Divisional Controller, Food and

Supplies, Jhalda to submit the documents as claimed from the present

petitioner for consideration of his prayer.

3. Further case of the petitioner is that his elder brother Ashutosh

Mahato filed a Writ Petition being WPA 2291 of 2022 alleging, inter alia,

that the Sub-Divisional Controller, Food and Supply, Jhalda by the letter

dated 28th January, 2022 directed the petitioner to submit required

documents within seven days from the date of issuance of the letter failing

which the authority will take steps for declaring the vacancy. The

petitioner made a communication with the Sub-Divisional Controller on

31st January, 2022 requesting him to extend the time for filing the

documents but the representation was not considered. The said writ

petition was disposed of by a Coordinate Bench directing the Sub-

Divisional Controller, Food and Supplies to take steps for consideration of

the representation filed by the petitioner on 31st January, 2022 strictly in

accordance with law within a period of eight weeks from the date of

communication of a copy of this order.

4. The rival claims of the petitioner and the respondent No.6 were duly

considered by Sub-Divisional Controller, Food and Supplies and the

representation submitted by them were rejected as they failed to submit

requisite documents communicating no objection of the other legal heirs.

5. This led the present petitioner to file WPA 8188 of 2022 before a

Coordinate Bench which was disposed of on 24th November, 2022

directing the respondent No.5 to conduct an inquiry to the effect as to

whether the petitioner being the dependent son of deceased MR dealer is

required to file any no objection from respondent No.6 or whether the

respondent No.6 was also a dependant of the said MR dealer at the

relevant point of time.

6. In compliance of the above order Sub-Divisional Controller, Food

and Supply, Jhalda conducted an inquiry and submitted a report on 22nd

December, 2022. It was held by him that as per the statement of the

family members of late Mohan Lal Mahato physical verification and

conversation with some villagers at the end of the inquiry it is established

that whole family of late Mohanlal including his sons namely Ashutosh

Mahato and Santosh Mahato were dependant on their father late

Mohanlal Mahato at the time of his death and that they all lived together

in a two storied building at the time of his death. The Sub-Divisional

Controller also found during inquiry that both the petitioner and the

respondent No.6 have no regular source of income. On the basis of the

said inquiry final report was submitted by the Sub-divisional Controller,

Food and Supplies Department on 13th January, 2023.

7. The said final report is under challenged in the instant writ petition.

8. Respondent No.6 being the elder brother of the present petitioner

has filed an affidavit in opposition denying all allegations made by the

petitioner in the above mentioned writ petition. It is specifically submitted

by the respondent No.6 that even during the life time of Nandalal Mahato

the respondent No.6 was entrusted to lift kerosene oil for public

distribution on behalf of his father. He also declared that he has no

landed property. Few decimal of land was purchased in the name of his

wife and son by his mother-in-law and the petitioner tried to establish

that the respondent No.6 had separate bastu land and he lives separately

from the joint mess of his father, since deceased. It is also stated by the

respondent No.6 that he does not carry on any decorating business in the

name of his son Satyaban Mahato. Respondent No.6 also filed a copy of a

mass petition wherein it is stated that private respondent had no separate

house. He or his son had no decorating business. Previously he used to

help his father in distributing ration articles to the ration card holders

and at present he earns his livelihood by way of cultivation and working

in Hundred Days Work programme.

9. The respondent No.1-5 being the said respondent relied on the

inquiry report and the final order passed on the basis of the inquiry report

stating, inter alia, that both the petitioner and respondent No.6 are

unemployed legal heirs of Mohanlal Mahato. However, none of them

issued no objection in the matter of granting MR dealership in favour of

one of them on compassionate grounds. Therefore, the only course to the

petitioner is to declare vacancy in respect of the said fair price shop. The

petitioner has filed affidavit-in-reply against the affidavit-in-opposition

separately filed by respondent No.1-5 and respondent No.6.

10. It is submitted by Mr. Partha Sarathi Bhattacharya, learned

Counsel for the petitioner that the respondent No.6 runs a business of

decorators and light and sound under the name and style of Subrata

Decorators and DJ Sound. The local villagers submitted a mass petition

stating, inter alia, that respondent No.6 used to live separately in a

separate house long before the death of his father. The petitioner has also

filed record of rights showing ownership of bastu land in the name of the

wife and son of Ashutosh. The said land was purchased at a consideration

price of Rs.3,31,000/-.

11. It is contended on behalf of the respondent No.6 that the

consideration price of purchase of the said land was paid by his mother-

in-law.

12. Learned Advocate for the petitioner submits that the deed in respect

of the land in the name of the wife and son of respondent No.6 and the

document relating to decorating business of the son of the respondent

No.6 were not placed before the learned Sub-divisional Controller. There

was no inquiry with regard to the fact as to whether the bank account

maintained in United Bank of India, Suisa Branch, being Account

No.0719010126700 stands in the name of the respondent No.6 or not.

From the representation relied on by the respondent No.6 it is ascertained

that he earns his livelihood as a cultivator and also works in Hundred

Days Work scheme. Thus, it is not in dispute that the respondent No.6

earns his livelihood by cultivation. On the other hand, all other brothers

and sisters of the petitioner except respondent No.6 affirm affidavit

declaring that the present petitioner is unable and they have no objection

if MR dealership is granted in favour of the petitioner on compassionate

grounds.

13. In view of such circumstances, the instant writ petition is disposed

of on contest directing the Sub-Divisional Controller, Food and Supplies

Department, Jhalda to consider the following facts:-

i) Whether the respondent No.6 purchased land by his

own money in the name of his wife and son.

            ii)    Whether    respondent    No.6     maintains   account

                   No.0719010126700 in United Bank of India, Suisa

                   Branch.