Debashis Bhattacharjee vs State Of West Bengal & Ors
2023 Latest Caselaw 3533 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                  Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 26016 of 2022
                          Debashis Bhattacharjee
                                    Versus
                        State of West Bengal & Ors.



For the petitioner            :       Mr. Debabrata Saha Roy
                                      Mr. Pingal Bhattacharyya
                                      Mr. Subhankar Das
                                                             .....Advocates
For the State                 :       Mr. Sirsanya Bandopadhyay
                                      Mr. Arka Kr. Nag
                                                             .....Advocates


Heard lastly on               :       28.02.2023

Judgment on                   :       18.05.2023

Jay Sengupta, J.:

1.    This is an application under Article 226 of the Constitution of India,

inter alia, praying for direction that the definition Clause 2(m) of the West

Bengal Public Distribution System (Maintenance and Control) Order, 2013,

as amended vide notification date 14.12.2020, was ultra vires Articles 14,

19(1) (g) and 21 of the Constitution of India, to include nephew in the
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definition and to cancel and withdraw the order dated 03.08.2022 issued by

the Director of Rationing, West Bengal.

 2.   Mr. Saha Roy, Learned counsel for the petitioner, submitted as

 follows. The father's brother (uncle) of the petitioner namely, Rama Prasad

 Bhattacharjee, (since deceased) was a fair price shop dealer. The

 petitioner's father died long back. Rama Prasad Bhattacharjee was a

 bachelor and had been residing with the family of the petitioner's father

 (since deceased) and the entire joint family was fully dependent upon the

 income of the said dealership business. He died on 17.12.2020. After his

 death, there was no other source of income of the said joint family.

 Immediately after death of petitioner's uncle, the petitioner made a

 representation on 21.12.2020, intimated the death of his uncle and also

 requested to transfer the said dealership license on compassionate ground

 in favour of the petitioner. The Rationing Officer, Behala East vide memo

 dated 23.12.2020 de-tagged the entire ration cards and tagged the same

 with the nearby F.P. shop dealer on temporary basis. The petitioner made

 application on 14.01.2021 in the prescribed form, enclosing therewith all

 required documents and legal heir's certificate issued by the Councillor to

 get the dealership license on compassionate ground and the same was

 submitted on 15.01.2021. The Rationing Officer, Behala East instructed

 the Inspector (F & S) concerned to cause enquiry and submit report. After

 conducting enquiry through Inspectors, F & S, the Rationing Officer,

 Behala East forwarded the file to the Director of Rationing for obtaining

 approval. The petitioner, to his utter shock and surprise, received an order
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dated 03.08.2022 whereby the prayer of the petitioner for engagement on

compassionate ground in place of his uncle had been rejected by the

Director of Rationing since the petitioner being the nephew (brother's son)

was not coming under the definition of family members under the Control

Order, 2013. The consequences of the death of a bachelor dealer had not

been taken note of in the Control Order, 2013, as amended. Such

lacuna/silence in the Control Order, 2013 was elaborately dealt with by a

Co-ordinate Bench of this Court in WPA 11518 of 2021. It was quite

natural that a bachelor brother, residing with his elder brother's family as

'joint family' member had been granted dealership license and the entire

'joint family' maintained their livelihood from the said dealership business

as family business. Since the petitioner's father (brother of the deceased

bachelor dealer) was entitled to get his bachelor brother's dealership

license on compassionate ground, had he been alive, in terms of

Government circular dated 17.09.2021, the petitioner should also been

entitled to get such license on compassionate ground to look after the

entire   family.   All   present   infrastructure   shop-cum-godown    as   per

prescription, bank balance, especially experience to run dealership

business that too consumers were costumed with the present dealership.

Section 8 of the Hindu Succession Act, 1956 in no uncertain term

suggested that if there was no first class legal heir then class II legal heirs

(brother's son) should be entitled to get benefit of the deceased. In the

present case there were no class I legal heir of the deceased dealer and all

remaining other class II legal heirs of the deceased dealer had given 'NOC'
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in favour of the petitioner. At least on two occasions, 'Definition' clause of

Control Order, 2013 had been amended, including married daughters and

brother and sisters as family member of the deceased dealer. So, it could

not be said that the Control Order, 2013 was untouchable. Accordingly, in

a case like the present one, the writ court has enough power to direct the

respondents to consider the case of the petitioner. Reliance was placed on

the unreported judgment dated 19.09.2019 passed by this Court in WP No.

449 of 2019 (Anjana Modak versus State of West Bengal & Ors.),

unreported judgment dated 02.09.2021, passed by the this Court in WPA

No. 11518 of 2021 (Smt. Durga Das versus State of West Bengal & Ors.)

and 2012 (6) SCC, Brijmohan Lal versus Union of India & Ors. "Certain

tests were there to decide whether this Court should or not interfere in the

policy decision of the State." In the instant case Clause 2 (m) of the Control

Order, 2013 was not only contrary to the Hindu Succession Act, 1956, but

also ran counter to the philosophy behind these provisions. The

submission of the State that clause 2 (xa) of the amended provisions of the

Control Order, 2013 was not under challenge in the writ petition and only

clause 2 (m) of the Control Order, 2013 was not tenable. When joint family

members maintained their livelihood, from the earnings of a dealer, they

could not be deprived of getting the dealership license on the death of such

bachelor dealer and clause 2 (m) of the Control Order, 2013 was required

to be amended accordingly. There was no confusion about the relation of

'nephew' in the case. As regards the decision reported in 2009 (13) SCC

600, first, the said judgment dealt with service matter. While paragraph 12

of the judgment stated only that compassionate appointment was not a

matter of right, para 13 said if any scheme was there the same must be

followed. In the said case there was no challenge thrown against the vires

of the Scheme. So far as paragraphs 17 and 18 of the judgment reported at

2011 (14) SCC 752 were concerned, there was no mandatory provision to

give employment to the family member of the deceased employee, but in

the regular selection process, relative of the deceased employee might be

given some priority.

3. Mr. Bandopadhyay, learned counsel representing the learned

Advocate General, submitted as follows. The petitioner claimed to be the

nephew of one Rama Prasad Bhattacharjee, who was a fair price shop at 57,

Basantalal Saha Road, Kolkata - 700056 under Behala East Sub-Area. The

said Rama Prasad Bhattacharjee died on December 17, 2020 and on

December 21, 2020, the petitioner intimated the death of his uncle to the

Rationing Officer, Behala East and prayed for transfer of the license of the

fair price shop. Under the West Bengal Urban Public Distribution System

(Maintenance and Control) Order, 2013 as well as the West Bengal Kerosene

Control Order, 1968, only a family member of the deceased/incapacitated

dealer, who did not have any regular means of income, might be considered

for the dealership on the compassionate ground if he/she made his/her

application in a proper format. The petitioner's application for

compassionate appointment in place of his deceased uncle Rama Prasad

Bhattacharjee was rejected by the respondent authorities as the petitioner

claimed to be the nephew of the Late Rama Prasad Bhattacharjee and the

word "nephew" did not come within the purview of the "family member (s)"

as defined in the West Bengal Urban Public Distribution System

(Maintenance and Control) Order, 2013 as well as the West Bengal Kerosene

Control Order, 1968. The petitioner had only challenged the vires of

amended Clause 2(m) of the 2013 Control Order i.e., the definition of a

family member. The petitioner did not challenge the vires of amended Clause

2(xa) of the 2013 Control Order which defined the term relative and hence,

the scope of this petition should only be limited to ascertaining the validity

of amended Clause 2(m) of the 2013 Control Order which defined family

member. Be that as it may, the contention of the petitioner at paragraphs

13, 17, 19, 23 and 25 of the petition were not true. The West Bengal Urban

Public Distribution System (Maintenance and Control) Order, 2013 debarred

any person whose relative already was a dealer or distributor or wholesaler

license. However, it did not create any bar on the petitioner for applying in

respect of any of the vacancies for the fair price shop as none of the relatives

of the petitioner was an existing dealer or distributor or wholesaler license.

The petitioner's apprehension that he would be debarred from participating

in respect of any of the vacancies was ill-founded as the FPS and B.

Bhattacharjee & Co. Dealership license of the Late Rama Prasad

Bhattacharjee ceased to exist after his demise. The Hon'ble Supreme Court

in the decision rendered in the case of State of Chattisgarh versus Dhirjo

Kumer Sengar reported in (2009) 13 SCC 600 had, inter alia, held that

appointment on compassionate ground should not be granted as a matter of

course. The Hon'ble Apex Court in this case held the nephew of the

deceased employee, was ineligible for the grant of compassionate

appointment. Furthermore, the Hon'ble Supreme Court once again in

Kandarpa Sarma versus Rajeswar Das, reported at (2011) 14 SCC 752A,

held that a joint family could be considered to be a family only when they

were sharing a common residence and common mess. To give an extended

meaning to mean any "nephew" would also be inappropriate for the word

"nephew" is a very vague expression for it could include not only nephew

being the son from the own brother, but it could also be nephew being the

son not only from the sister but being the son of even from the cousin

brothers or sisters. If the vague term nephew or if the term "brother's son"

was included in the amended Clause 2 (m) as per the prayer of the writ

petitioner, then it would also pave way for the inclusion of the term "niece"

or "brother's daughter" as both the relations stood on a similar footing.

Inclusion of the vague terms nephew or niece in the definition of a family

member would thereafter seriously jeopardise the genuine cases of

compassionate appointment in future under the 2013 Control Order. The

applicant in addition to his/her application for compassionate appointment

in the proper format was also required to submit the "No Objection" form all

the other family members in the form of an affidavit to be sworn before a

Magistrate. Thus, extending the definition of "family member" to include

"nephew" and "niece" would make the entire process cumbersome as the

applicant would have to run from pillar to post for getting the "no objection"

of all his/her distant relatives. Thus, allowing the prayers in the writ

petition and including the word "nephew" or "niece" in the amended clause

2(m) would make the entire process of compassionate appointment highly

impractical. Decisions rendered in WOP No. 449 of 2019 (Anjana Modak v.

State of West Bengal and Others) and in WPA 11518 of 2021 (Smt. Durga

Das versus The State of West Bengal and Others) did not favour the case of

the petitioner herein as in those cases the question of including "nephew" in

the definition of "family member" did not arise. In WPO No. 449 of 2019 it

was held that all daughters should be considered for compassionate

appointment irrespective of their marital status. In WPA 11518 of 2021

siblings of a bachelor and/or spinster dealer were directed to be considered

for compassionate appointment. Though in paragraph 24 of the writ petition

the petitioner canvassed the point that as per the provisions of the Hindu

Succession Act, 1956, the brother's son is a Class-II heir, but in the second

paragraph at page 11 of the judgment rendered in WPA 11518 of 2021, this

Hon'ble Court consciously specified that the Court was not ad-idem with the

submission of the petitioner that all Class II heirs were to be considered for

compassionate engagement and only the case of full-blooded relationship

was required to be taken into consideration for a compassionate

appointment if otherwise eligible. Therefore, as per the observation made by

the Hon'ble Court in WPA 11518 the case of the petitioner who claimed to be

the nephew of the deceased dealer and was thus a Class-II heir was not

required to be considered for compassionate appointment. Also, as per the

observations contained in the second paragraph at page 11 of the judgment

rendered in WPA 11518 of 2021 the impugned provisions being Clause 2 (m)

of the 2013 Control Order also stood the test of vires on the touchstone of

constitutionality. Being a Class II legal heir of the deceased dealer whose

none of the Class I legal heirs were surviving, the only benefit which the

petitioner could derive was that he could obtain a Succession Certificate

with respect to his properties. A conjoint reading of Paragraphs 13, 22 and

23 of decision rendered in State of Chattisgarh versus Dhirjo Kumar Sengar

reported in (2009) 13 SCC 600 would clarify the mandate of the Hon'ble

Apex Court which had categorically stated that a Succession Certificate did

not confer any right on the certificate holder. The certificate holder only

became a trustee entitled to distribute the amounts, payable to the

deceased, to his heirs and legal representatives. On the death of a dealer, a

person could not seek engagement on compassionate grounds by dint of

being a Class II legal heir of the deceased dealer. The petitioner had stated

that his case should be considered for compassionate appointment as no

Class I legal heir of the deceased dealer was surviving. Therefore, it

appeared that the petitioner was claiming the engagement on compassionate

grounds as a matter of inheritance, which was not permissible in law.

Unless it was proved that the amended Clause 2 (m) of the 2013 Control

Order harboured an extreme vice of arbitrariness or irrationality, it must be

presumed to be constitutional. Unless one reached far beyond unwisdom to

absurdity, irrationality, colourability and the like, the Court must keep its

hands off from declaring any provision ultra vires of the Constitution of

India.

4. I heard the learned counsels for the parties and perused the writ

petition, the affidavits and the written notes of submissions.

5. It is an admitted position that the petitioner being the nephew of the

petitioner is not entitled to compassionate appointment in respect of fair

price shop cum kerosene oil dealership as per the West Bengal Public

Distribution System (Maintenance and Control) Order, 2013 as a nephew or

a brother's son does not come within the definition of a family member.

6. Merely because a married daughter and a brother and a sister have

subsequently been brought within the definition of a family member, it does

not necessarily mean that a nephew too has to be brought within its ambit.

7. First, the usual closeness of relationship that can be associated with a

daughter, married or unmarried, or a brother or a sister may not be

comparable to that with a nephew.

8. Secondly, the class of heirs as contained in the Hindu Succession Act

would not govern the subject as, among other things, a dealership is not a

heritable property.

9. Moreover, as was rightly pointed out by the respondents, in WPA

11518 of 2021, this Court consciously specified that it was not ad idem with

the submission of the petitioner that all class II heirs were to be considered

for compassionate engagement and only the case of full-blooded relationship

was required to be taken in to consideration for compassionate

appointment.

10. Nephew could mean a brother's son or a sister's son or a cousin's son

or could extend to even more distant relations. It is indeed quite a vague

term. Reliance is placed on Kandarpa Sarma (supra).

11. Besides, an unduly expansive definition of a family member would

create enormous practical problems for a genuine claimant as he then has

to take no objection certificates from so many others and the respondent

authorities also have to make special efforts to find out whether those others

were also eligible or whether their no objections are genuine.

12. Thus, the proposition of including a nephew in the definition of a

family member is neither practicable nor is supported by any legal premise.

13. In the instant case, even on the question of suffering exclusion for

being a relative yet not getting the benefit as a family member, after the

demise of the erstwhile FPS dealer, it was open to the petitioner nephew to

apply for a dealership on the publication of a vacancy notification.

14. In view of the above discussions, I not find any merit in this

application.

15. Therefore, the writ petition is dismissed. However, there shall be no

order as to costs.

16. Urgent certified copy of the order shall be supplied to the parties, if

applied for.

(Jay Sengupta, J.)

S.M