Masadul Sk vs Md. Firoz Muktadir Hossain And Ors
2023 Latest Caselaw 7278 Cal

18.10.2023
Court No. 13
Item No. 6
AP
                                  MAT 2127 of 2023
                                        With
                                IA NO: CAN 1 of 2023

                                   Masadul Sk.
                                       Vs.
                        Md. Firoz Muktadir Hossain and Ors.

               Mr. Sagar Bandyopadhyay
               Ms. Soma Kar Ghosh
               Mr. Arabinda Pathak
                                                    .... For the Appellant.

               Mr. Debabrata Saha Roy
               Mr. Pingal Bhattacharyya
               Mr. Neil Basu
                                 .... For the writ petitioner/Respondent.

1. A server copy of the judgement and/or order of

the Single Bench dated 16th October, 2023 filed in Court

today is taken on record.

2. Despite service of notice, the State is not

represented. A copy of the notice given to the State is

also kept with the record.

3. The appeal is directed against a judgment and

order dated 16th October, 2023 passed by a Single Bench

of this Court in WPA 23327 of 2023. By the impugned

judgement, the Single Bench has set aside a licence for

FPS dealership granted to the appellant, who was a

private respondent in the writ petition. The learned

Single Bench further directed licence to be granted to the

writ petitioner/respondent herein.

4. Admittedly, no affidavits have been called in the

writ petition. The decision was passed on the basis of a

report of the State. Such report was not circulated to

either parties.

5. The brief facts relevant to the case are that the

writ petitioner/respondent as well as the appellant were

competing under a vacancy notice dated 3rd February,

2023 for issuance of a FPS licence. Both the appellant

and the writ petitioner/private respondent fulfilled all

criteria under the notification and received 71 marks

each. The rules in the notice of vacancy anticipated such

eventuality and provided certain guidelines for the

purpose of selecting between candidates, who obtained

equal marks.

6. Applying such guidelines the appellant was found

more suitable as opposed to the writ

petitioner/respondent herein and has issued licence for

FPS dealership by the State authorities.

7. However, the Single Bench placed reliance upon a

report filed by the State in allowing the writ petition to

cancel the appellant's licence and directed licence to be

issued in favour of the respondent/writ petitioner. The

report was not furnished to any of the parties. No

opportunity was given to any party to file objection

thereto.

8. This Court is of the view that the impugned order

is vitiated by a fundamental principle of administrative

law. The principle is that if two views are possible on a

subject and the administrative authority has taken one

of such views, a Court cannot, does not and should not

impose the other view on the administrative authority.

There are other procedural lacuna that have been

broadly indicated hereinabove.

9. In that view of the matter, this Court is of the

view that the impugned judgement cannot be sustained.

The judgement and order dated 16th October, 2023 shall

stand set aside.

10. Counsel for the State before the Single Bench

shall furnish a copy of the report filed by the State to the

appellant as well as the writ petitioner/respondent

herein.

11. In the event such copies are not furnished within

a week from date, both the parties are entitled to obtain

a certified copy of the report along with annexures from

the record before the Single Bench from the Registry.

12. The appellant shall be entitled to file affidavit-in-

opposition to the main writ petition as also file an

objection to the report of the State within a period of one

week after the long Puja vacation.

13. Likewise, the writ petitioner/respondent herein

shall also be entitled to file affidavit-in-reply within a

period of one week after the date of receipt of affidavit-in-

opposition from the appellant. The writ petitioner may

file an objection to the report of the State.

14. The writ petition shall be heard afresh after

receiving affidavits and objections. A suitable decision

may be taken thereafter. The Single Bench shall proceed

to decide the matter independently. The observations

made hereinabove, shall be deemed as tentative and ad

interim in nature and only for the purpose of disposal of

this appeal.

15. The appeal is allowed and disposed of.

16. In view of the disposal of the main appeal,

connected pending applications, if any, shall also stand

disposed of.

17. There shall be no order as to costs.

18. All parties shall act on the server copy of this

order duly downloaded from the official website of this

Court.

(Rajasekhar Mantha, J.)

(Supratim Bhattacharya, J.)