M/S. Mahabir Traders vs Arunava Sasmal & Ors
2023 Latest Caselaw 6915 Cal

                   IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                           APPELLATE SIDE

BEFORE:
The Hon'ble Justice Soumen Sen
           and
The Hon'ble Justice Uday Kumar


                           MAT 71 of 2023
              M/s. Mahabir Traders, Tantigeria, Rangamati
                                  Vs.
                       Arunava Sasmal & Ors.
                                 With

                            FMA 110 of 2015
                         Ramesh Kumar Sharma
                                   Vs.
                       State of West Bengal & Ors.


For the Appellants            :     Mr. Saptangshu Basu, Sr. Adv.
in MAT 71 of 2023 &                 Mr. Debabrata Saha Roy, Adv.,
For the private respondents         Mr. Pingal Bhattacharyya, Adv.,

in FMA 110 of 2015                  Mr. Neil Basu, Adv.

For the Respondent no. 1      :     Mr. S.N. Mitra, Sr. Adv.,
in MAT 71 of 2023                   Mr.Timir Baran Saha, Adv.

For the Appellant             :     Mr.Timir Baran Saha, Adv.
in FMA 110 of 2015

For the State in              :     Mr. Susovan Sen, Adv.,
both the appeals                    Mr. Subir Pal, Adv.

Hearing concluded on          :     8th September, 2023

Judgment on                   :     10th October, 2023

1. Soumen Sen, J.:- Both the appeals involved common

question of law and facts are taken up together by consent of the parties

and disposed of by this common order.

2. For the sake of brevity, the appellant, M/s. Mahavir Traders,

is described as "partnership firm" and Ramesh Kumar Sharma, the

appellant in FMA 110 of 2015 is described as "Ramesh".

3. The genesis of the dispute with regard to the grant of

distributorship under West Bengal Distribution System (Maintenance &

Control), 2003 (hereinafter referred to as the "Control Order 2003") by

which a fresh licence was issued in favour of the partnership firm

reconstituted on 23rd August, 2010.

4. The appellant partnership firm would contend that it was only

a renewal of the existing distributorship licence whereas Arunava Sasmal,

the writ petitioner in WPA 2946(w) of 2016, would contend that it is a

fresh licence.

5. The partnership was originally constituted on 2nd November,

1965 and two supplementary agreements were executed thereafter, the

last of which was in September 1979. It appears that prior to 25th

October, 2004 the partnership was having only two partners, Sri

Omprokash Saksaria and Sri Jagadish Prosad Sharma. The said

partnership firm was carrying on business of grocery of wholesale and

M.R Distributor in partnership in the district of Paschim Medinipur in the

name and style of M/s Mahavir Traders.

6. On 25th October 2004, the partnership firm was re-

constituted with three partners, namely, i) Sri Omprokash Saksaria, ii) Sri

Jagadish Prosad Sharma and iii) Smt. Gita Devi Saksaria.

7. Due to financial contingencies the erstwhile partnership had

decided to induct a new partner namely, Smt. Gita Devi Saksaria in order

to carry with the wholesale and M.R Distributor in the name and style of

the said partnership firm. The re-constituted partnership firm

commenced on and from 1st February 2005. It is a partnership at will.

8. Prior to the dispute the partnership firm had three partners,

namely, i) Sri Omprokash Saksaria, ii) Sri Jagadish Prosad Sharma and

iii) Smt. Gita Devi Saksaria. The contribution of Omprokash and

Jagadish in the said partnership firm was Rs.40,000/- each, whereas,

Gita contributed Rs.3,00,000/- towards capital of the partnership firm.

9. The partnership deed in Clause 11 provides that in the event

of death of any partner during the continuation of partnership, his/her

heirs assigns legal representatives shall be partners in his/her place from

the date of such death and there need be no dissolution of partnership

but mere arrangement or adjustment of the respective shares shall be

enough for the purpose of carrying on partnership business.

10. The partnership was again re-constituted on 23rd August,

2010 consequent upon the death of Jagadish Prosad Sharma on 31st July,

2010. The reconstituted deed in the recital has stated that the legal heirs

of Jagadish have declined and expressed their unwillingness in writing

not to participate in the partnership business as successors of their

father.

11. Om Prokash expressed his unwillingness to continue due to

old age and recommended his son Arun to be inducted as a partner. Arun

contributed Rs. 5.50 lakhs after being inducted as an incoming partner.

Dinesh contributed of Rs.4,00,000/- towards capital. The capital

contributed by Gita had remained the same.

12. The induction of Dinesh in the partnership firm was

challenged by one of the sons of Jagdish, namely, Ramesh Kumar

Sharma. Jagadish was survived by six legal heirs out of which except

Jagadish none had challenged the induction of Dinesh in the partnership

business.

13. Upon such reconstitution, it appears that approval was given

by the Food and Supply Department on 10th April, 2012 to the

reconstituted firm in cancellation of the earlier licence. However, the

earlier licence and approval had not been disclosed in this proceeding.

14. The licence granted on 12th April, 2012 in favour of the

reconstituted partnership firm has been disclosed which, inter alia,

contains the following terms:-

"11. 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 liecensee in his business."

(emphasis supplied)

15. Ramesh has filed the writ petition in 2013. In his writ

petition, he has stated that the licence was issued in respect of the

reconstituted firm in the year 2011 depriving the legal heirs of Jagadish.

It is stated that in November, 2012, a representation was made on behalf

of Ramesh through his son, Suraj, alleging that when Ramesh went to

Office of the District Controller he was threatened to give no objection in

favour of one Dinesh who is an outsider and the share of Jagadish was

also withheld from the family of Ramesh till he signed such document. He

was compelled to sign an already prepared declaration and submit no

objection certificate on behalf of the legal heirs of Jagadish for

reconstitution of the firm by inclusion of Dinesh as partner thereof.

16. The learned Single Judge disbelieved the stand taken by

Ramesh due to absence of any contemporaneous report of such coercion

to any law enforcement agency and in view of the fact that belatedly in

November, 2012, the son of Ramesh in his representation had raked up

such story. The learned Single Judge, in fact, has recorded that Ramesh

and other legal heirs had received the capital contributed by Jagadish and

all other amounts that are payable to Jagadish at the time of his death

without any protest and have clearly evinced an intention not to associate

themselves with the partnership firm. The writ petition was filed by the

time the firm was reconstituted and carried on business on the strength of

the reconstituted partnership deed for almost two years.

17. The learned Single Judge dismissed the writ petition on the

ground that Ramesh cannot approbate and reprobate at the same time

having received capital and the share of Jagadish in the partnership firm

without demur. It cannot be contended that Ramesh is a partner

interested in the partnership firm and the exclusion of Ramesh in the

reconstituted partnership firm was illegal. The ground for challenge in the

writ petition appears to be exclusion of Ramesh in the reconstituted

partnership business and not really about the induction of Dinesh.

18. In the declaration of legal heirs/Jagadish Proshad Sharma of

the legal heirs have clearly stated that they have no objection if the share

of their deceased father is given to their relative Shri Dinesh and induct

him as a partner in the partnership business the said declaration was

made on 28th August, 2010. It appears that subsequent to the

reconstitution of the partnership firm a request was made for granting

approval for reconstitution of the M.R. Distributorship (partnership) firm

and on the basis of such request the OSD and Ex-officio special secretary

on 10th April, 2012 informed the director of DDP and S/SPIO and Supply

department that the Government of Food and Supply Department have

approved reconstitution of the M.R. Distributorship (partnership) firm

"M/s. Mahabir Traders" by inclusion of Shri Arun Kumar Seksaria and

Dinesh Kr. Agarwal.

19. In any event, it is an admitted fact that excepting Ramesh,

others have not challenged the reconstitution of the partnership firm.

20. Although an appeal was preferred it was not pursued until

during the hearing of MAT 71 of 2023 when the order in the writ petition

was brought to our notice and thereafter FMA No. 110 of 2015 filed by

Ramesh was tagged with the present appeal. In the appeal, we also could

not find any plausible reply for non-inclusion of the other legal heirs of

Jagadish or acceptance of the due share of Jagadish upon his death in the

partnership firm.

21. On such consideration, we feel that the appeal filed by

Ramesh deserves no merit for consideration.

22. The writ petition of Ramesh was dismissed on 25th July, 2014.

23. Almost after two years, one Arunava Sasmal filed a writ

petition challenging the issuance of licence in favour of the reconstituted

partnership firm on the ground that on the death of Jagadish, the vacancy

arose and the authorities concerned instead of declaring vacancy allowed

Dinesh to be inducted in the partnership firm in place of Jagadish which

is not permissible under the relevant provision of the Control Order of

2003.

24. It has been alleged by Arunava that since the vacancy arose

on account of death of one of the original partners of the partnership firm,

such vacancy has to be filled up from the legal heirs of the 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 of 2003. This writ petition was allowed on the ground that

licence granted to the reconstituted partnership firm is contrary to Clause

23 of the Control Order, 2003 as amended on March, 28, 2005 read with

Clause 11 of the impugned licence dated 12th April, 2012.

25. The learned Single Judge was of the view that the aforesaid

two clauses would make it clear that in the event of death of an existing

distributor, the legal heirs can be considered only on compassionate

ground and not otherwise. Moreover, reconstitution of the partnership

firm would result in cessation of the licence. The learned Single Judge has

also relied upon various communications exchanged by and between the

parties including the reply given through its SPIO which clearly states that

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

compassionate ground under the Control Order, 2003.

26. The learned Single Judge repelled the submission made on

behalf of the partnership firm that Arunava was set up by Ramesh and the

writ petition ought to have been dismissed on the ground of delay and that

too after the introduction of Control Order, 2013 by repealing the Control

Order, 2003 on the ground that the state respondents as well as the

partnership firm cannot take advantage of their own wrong.

27. This order is under challenge.

28. Mr. Saptangsu Basu, learned Senior Counsel appearing on

behalf of the partnership firm, has submitted that Jagadish died on 31st

July, 2010 and admittedly none of his legal heirs showed any interest to

become partner/(s) in the said distributorship business and had issued a

no objection in favour of Dinesh for inclusion of his name as partners in

the said partnership firm. It was on that basis Dinesh was included in the

reconstituted partnership firm. At the relevant time, there was no bar in

the West Bengal Public Distribution System (Amendment & Control)

Order, 2003 for induction of an outsider as partner in the partnership

firm. Clause 9 of the partnership deed permits that legal heirs of a partner

can assign their right in favour of another person and there need not to be

dissolution of the partnership firm but it would result in mere

arrangement or adjustment of their respective shares for the purpose of

carrying on partnership business. The said clause specifically refers to the

Partnership Act, 1932.

29. It was on the basis of such assignment by the legal heirs in

favour of the Dinesh that the Food & Supply Department following the

provisions of the Partnership Act accorded approval for reconstitution of

the firm incorporating the name of Dinesh in place and stead of the legal

heirs of Jagadish and upon such reconstitution being approved, the

partnership firm was granted licence to carry on M. R. Distributorship

business. In fact, the partnership firm was reconstituted on 23rd August,

2010 and the new licence was issued on 12th April, 2012 in favour of the

reconstituted firm under Control Order, 2003. On 8th August, 2013, the

Control Order, 2013 has come into force repealing the Control Order,

2003. After coming into force of Control Order, 2013 new licence has been

granted in favour of the reconstituted firm.

30. The writ petition was filed on 14th September, 2016

challenging the M. R. Distributorship licence of the appellant/ partnership

firm issued on 12th April, 2012 under the Control Order, 2003 i.e. nearly

after four and half years from the date of the lecence being issued in

favour of the partnership firm.

31. Arunava has not given any explanation for such delay in filing

the writ petition. Moreover, it is quite evident from the statements in the

writ petition filed by Arunava that he was set up by Ramesh. In the

absence of any explanation being offered, Mr. Basu submits that the writ

petition could not have been allowed. The learned Single Judge has failed

to appreciate that by reason of passage of time, valuable right has accrued

in favour of the reconstituted firm. The credibility of the writ petitioner

was not assessed and the learned Single Judge has failed to appreciate

that Arunava was an alter ego of Ramesh. Moreover, Ramesh did not show

any interest to pursue the appeal unless it was directed to be listed by this

Bench. Ramesh had kept quiet for so long although both Ramesh and

Arunava are represented by the same advocate. It is submitted that Indian

Partnership Act, 1932 never restricts induction of any outsider as partner

in an existing family partnership business unless there are specific

exclusionary clause in the partnership deed. The partnership deed has

allowed reconstitution of the firm and it clearly suggests that any legal

heirs of the deceased partner or any assignee may be inducted as partner

on death of a partner. It is submitted that learned Single Judge has

overlooked that the licence issued in the year 2012 has lost its force by

reason of promulgation of Control Order, 2013 repealing the Control

Order, 2003. The licence that was issued on 12th April, 2012 has lost its

force by reason of a fresh licence being issued in favour of the

reconstituted partnership firm upon promulgation of the Control Order,

2013. It is submitted that even for the argument sake, it is accepted that

inclusion of an outsider is not permissible then at best on the exclusion of

the third partner, other two existing partners can be allowed to continue

the business as partners in stead of cancellation of the licence. It is

submitted that the learned Single Judge has failed to appreciate that the

partnership firm consisting of three partners can never be dissolved either

on death of one of the partners or inclusion of an outsider as the wording

of the partnership deed suggests otherwise and the licence has been

granted in the name of the firm having separate identity. In any event the

partnership firm was not dissolved.

32. Mr. Susovon Sengupta, learned Counsel appearing on behalf

of the State respondents that the Control Order, 2003 does not restrict the

inclusion of any outsider in a partnership firm as unlike a sole

proprietorship business a partnership firm is consisting of several

partners and in the event the partnership deed is at will, the question of

dissolution does not arise. Unless the circumstances mentioned in the

Partnership Act giving rise to dissolution the firm arises, can never be

considered as ineligible for a licence merely on the induction of a third

person. It is submitted that Control Order, 2013 published on 8th August,

2013 has made it clear that in the case of induction of a new partner or

substitution or exclusion of any existing partner in an existing partnership

licence, the same may be considered on merit subject to the provision of

the Indian Partnership Act, 1932 as amended from time to time. This

would be clear from Clause 23 of the Control Order of 2003 as amended

on 28th March, 2005.

33. Mr. Sengupta however, submitted that the communication

made by SPIO and OSD and EO Joint Director, Food and Supply

Department, dated 17th June, 2016 where the said authority in answer to

a RTI application has stated that there is no such provision in the

W.B..D.S (M&C) 2003 Act to include any outsider as partner in M.R

Distributorship on compassionate ground does not invalidate the licence

granted to the partnership firm.

34. Mr. Sengupta submits that induction of Dinesh was not on

compassionate ground but on reconstitution of the partnership firm and

the reply of SPIO is to be read in that context.

35. Per contra Mr. S.N. Mitra submits that in view of Clause 11 of

the licence dated 12th April, 2012 once the firm is reconstituted the licence

ceased to operate. In the event, the licence ceased to operate a vacancy

arises and the only way of filling up is by public notification. Mr. Mitra

submits that when there is a violation of the norms prescribed by the

statute the question of locus standi pales into insignance. This has been

reiterated in paragraph 16 of the decision in Mehsana District Central

Cooperative Bank Ltd. & Ors. Vs. State of Jugarat and Ors., reported

in (2004)2 SCC 463. It reads as follows:-

"16. In the facts and circumstances stated above, the High Court by the impugned order issued a writ of mandamus, directing Respondents 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 prescribes 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 authorities concerned do not perform their statutory obligation, as in the present case, any aggrieved

citizen can always bring to the notice of the High Court 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. In the present case, the facts as alluded above, would clearly reveal that the High Court was clearly justified in issuing a writ of mandamus, which cannot be faulted."

36. Our attention is also drawn to paragraph 14 of Barun Ghosh

Vs. Goutam Kumar Saha & Ors., reported in (2011)4 WBLR (Cal) 231

to show that if it appears that the guidelines have not been properly

followed it should be presumed that the persons interested have been

deprived of participating in the process of selection of M.R Distributorship.

37. Mr. Mitra has also relied upon the answer to the RTI

application in which it was stated that the induction of an outsider as

partner to a partnership firm is not permissible.

38. The point and counter point canvassed in these appeals

essentially raise two issues, namely,:-

(i) locus of Arunava to challenge licence after four years,

(ii) whether licence could be granted to a reconstituted

partnership firm in view of the embargo in Clause 11 of the

licence issued under the Control Order, 2003.

39. A partnership firm is a conglomeration of its partners. It is

not a juristic person. Partnership firm is not an independent legal entity.

Firm name is only a compendious name given to the partnership and the

partners are the real owners of its assets. It is, in fact, a group of

individual persons described as partners. Essential ingredients of

partnership is that it consists of (a) persons, (b) a business carried on by

all of them or any of them acting for all and (c) an agreement between

those persons to carry on such business and to share its profits. Section

7 of the Partnership Act, 1932 clearly states that where no provision is

made by contract between the partners for the duration of their

partnership, or for the determination of their partnership, the partnership

is to be treated as "partnership at will".

40. Chapter V of the Partnership Act, 1932 deals with incoming

and outgoing partners which allows retirement of a partner in Section 32

and such retirement can take place without dissolution of the said firm if

the partnership agreement provides there for which in the instant case is

absent and thus retirement of a partner, would not result in the instant

case a dissolution of the firm.

41. The Partnership Act, 1932 in Chapter VI provides for

dissolution of a firm. The said Chapter would not be applicable in the

instant case as under Section 43 a partnership at will, can be dissolved by

any partner giving notice in writing to all the other partners of his

intention to dissolve the firm.

42. The Control Order, 2003 read with the amendment in 2005

does not refer to any partnership firm. If we read the expression "existing

distributorship" to mean a partnership firm unless the firm is dissolved

the question of vacancy would not arise. However, Mr. Mitra has argued

that for a partnership firm to be allowed to continue legal heirs of the

deceased could be considered on compassionate ground and in the instant

case the legal heirs have not been included in the partnership business. In

this submission we find an echo of Ramesh through a different voice.

Under the Control Order, 2013, the form of the licence is given in Form-

E. The relevant Clauses are 11 and 12. The said Clauses read as follows:

"11. The licence will cease to be valid in the event of death or resignation of the licence or re-constitution/dissolution of a firm formed by a group of people or dissolution of a Co-operative Society/Self Help Group.

12. The licence, unless and application for renewal of the licence is made within the period of validity, will stand revoked after the expiry of the period of validity and in that case the licence may be renewed by the licensing authority on realization of requisite fine within a further period of one month if he thinks that the reason for non-renewal of the licence was beyond the control of the license." (emphasis supplied)

43. However, in Clause 26 it, inter alia, provides that in the event

of dissolution of the firm formed by group of people the resultant vacancy

has to be notified by the District Controller (Food & Supplies) on prior

approval of the partner. The dissolution of a partnership firm would

depend upon the nature of the agreement between the partners as would

be discernable from the partnership deed or by any of the provisions of the

Partnership Act as stipulated in Chapter VI of the Partnership Act, 1932.

44. Control Order, 2013 deals with the engagement on

compassionate ground in Clause 26 (vi). It reads as follows:

"vi) Engagement on compassionate grounds: In case of vacancy arising out of death or incapacitation on medical ground of any existing distributor, such vacancy shall not initially be notified. Prayer of any of the family members of the deceased incapacitated distributor having no regular means of subsistence, will be considered with preference on compassionate ground provided such prayer along with formal application in Form 'G' along with the annexure I & II and requisite fee is submitted within 60 days from the occurrence of such vacancy. However, the applicant should be capable of running the Distributorship smoothly.

While applying the applicant shall have to furnish "No Objection from other family members in the form an Affidavit executed before a 1st Class Magistrate except in the following cases (o) if the applicant be the spouse of the deceased licensee (b) if the ex-licensee, because of his/her being incapacitated/infirm has opted for the applicant.

The District Controller. Food and Supplies shall arrange for on enquiry to verily the eligibility of the applicant and submit the report with his opinion to the Director, DDP&S While forwarding a case on medical ground the District Controller should satisfy himself/herself on examination of the medical prescription and certificate issued by a Registered Government Medical Practitioner that the ex-licensee is not in a position to run distributorship business considering his/her health ground. The Director, DDP&S, shall send the same with his comments to the Department for necessary approval. The District Controller, Food and Supplies after having Government approval, shall issue an offer letter in the approved candidate, directing him/her to furnish recent passport size photograph(s), security deposit and licensing fee is per Clause 27(1) and Schedule-B."

45. Clause 26(vii) deals with a partnership firm. The said clause

reads as follows:

"Distributorship run by any individual person shall not be allowed for inclusion of any partner(s) in the case of induction of a new partner or substitution or exclusion of an existing partner, in an existing partnership licence, the same may be considered on merit subject to the provision of the Indian Partnership Act 1932 as amended from time to time." (emphasis supplied)

46. The terms of the licence namely Clause 11 has to be read in

conjunction with Clause (vii) of Rule 26. The reconstitution of the

partnership firm ipso facto would not result in a resultant vacancy as it is

subjected to a consideration on merit by the District Administration which

would mean the District Controller (Food & Supplies) would consider such

application on merits subject to the provision of the Indian Partnership

Act, 1932. This discretion has to be exercised judiciously. This was, in our

view, implicit in the earlier Control Order, 2003 as amended in 2005 since

the object of making and framing such rules is to avoid trading on licence

by induction of an outsider without following the process of filling up

vacancy that might result due to reconstitution of the firm. The newly

constituted partnership cannot be used as a modicum to facilitate trading

in licence. The safeguards are in Clause 26(vii) of the Control Order 2013

dated 8th August, 2013.

47. On 9th June, 2016 Arunava made an application to the Director

of DDP and S/SPIO under the Right to Information Act, 2005 for an

information as to whether an outsider can be included as a partner and

can be appointed in M.R. Distributorship on compassionate ground for

excluding the legal heirs of the deceased partner as per the provision of the

Control Order, 2003.

In reply the S/SPIO and OSD and EO Joint Director, DDP and

S/SPIO on 17th June, 2016 informed that "there was no such provision in

the WBPDS (M & C) order, 2003 as to include any outsider as a partner in

M.R. distributorship on compassionate ground."

48. After the reconstitution of the firm on 2nd August, 2010 a fresh

licence was issued on 12th April, 2012. It appears that Dinesh was

inducted as the legal heirs of Jagadish declined to join the partnership

firm. The Control Order 2003 is silent on the point of induction of an

outsider consequent upon the death of one of the partners. In the instant

case, the death of the partner would not automatically result in dissolution

of the partnership firm. It was incumbent upon the State authorities

before granting a fresh licence in favour of the reconstituted firm to find

out whether it is permissible under the Control Order, 2003. In reply to

the RTI application it has been clarified that there is no provision to

include any outsider as the partners in MR Distributorship on a

compassionate ground. However, it does not necessarily exclude the

induction of a new partner and stands clarified by the Control Order 2013

which requires such induction to be considered on merit subject to the

provision of the Indian Partnership Act, 1932 as amended from time to

time. This consideration appears to be implicit in Control Order, 2003. In

any event, even if Dinesh was not allowed to be inducted the partnership

firm would have still survived with the two partners.

49. Although the control order 2003 does not have similar provision

it is quite evident that when a partnership firm is allowed a licence it

cannot cease to exist on re-constitution specially when it is a partnership

at will. This has been taken care in Clause (vii) of the Control Order, 2013.

However, checks and balances are to be exercised allowing renewal of

licence on re-constitution by induction of an outsider as the likelihood of

indulging in unscrupulous trading under the garb of re-constitution

cannot be ruled out. The State may issue necessary guidelines to be

followed in considering the grant/renewal of licence to a re-constituted

partnership firm where the incoming partner is an outsider. In the facts

and circumstances of this case it shall be presumed that the authority was

satisfied on merit with the induction of an outsider. In any event the

partnership with the existing partners before reconstitution could have

continued with the business.

50. Dinesh was not inducted on compassionate ground.

51. The writ petitioner, in our view appears to be set up by

Ramesh. The credibility of Arunava is not established. He appears to be an

interloper and a busy body. One has to aver and prove that in the event of

a declaration of vacancy, he had the wherewithal and infrastructure to

undertake the works to be performed as distributor. The pleadings are

vague and unsubstantiated.

52. FMA 71 of 2023 is allowed. FMA 110 of 2015 is dismissed.

53. There is no order as to costs. Urgent Photostat certified copy of

this order, if applied for, be given to the parties on an usual basis.

I agree

(Soumen Sen, J.)

(Uday Kumar, J.)