Md. Amiruddin Sk. vs The State of West Bengal and Others

I.P. Mukerji, J.—Dealership of a fair price shop is granted under the West Bengal Public Distribution System (Maintenance & Control) Order, 2003. One Pranab Kumar Das was proposed to be appointed as such fair price dealer in Ratanpur village in West Bengal. The writ petitioner challenged such proposed appointment by instituting a writ application in this Court being W.P. No. 26648(W) of 2008, Md. Amiruddin Sk. v. The State of West Bengal and Ors. It was alleged in the writ petition that the proposed appointee had some disqualification. That writ application was taken up for final hearing before Aniruddha Bose, J. on 19th November 2008. He disposed it of by directing the District Controller (Food and Supplies), District of Murshidabad to consider the case of the writ petitioner upon hearing the parties. That order was received by the said District Controller on 22nd December 2008. By a notice dated 1st January 2009 he asked the writ petitioner to appear in his chamber on 14th January 2009 at 12 noon along with documents. On 15th January 2009 the writ petitioner wrote a letter to this District Controller. It is very hard to decipher the contents of that letter or to understand them. It appears that he wanted a copy of a ''statement'' and had some objection to an alleged opinion of Khadya O. Sarbaraha Sthayee Samity having been considered by the District Controller. This District Controller passed an order on 2nd March 2009 which is under challenge in this writ application.

Despite directions for affidavits no affidavit has been filed by the State. But at the time of hearing of this application Mr. Arabinda Chatterjee, represented the State and tried to uphold the decision of the District Controller. The main submission of Mr. Arabinda Chatterjee for the State is that the life of the said selection process is over and that since such life is over the writ petitioner has to compete with all other contenders for the ration shop. He says that there is no infirmity in the order. The District Controller had cancelled the whole selection process and requested the director of D.C.F. & S to give approval of fresh vacancy for a fair price shop owner in that particular village.

Learned Counsel for the petitioner has placed all the facts. He has challenged the decision of the District Controller on various grounds which will appear in my discussion below.

Discussion and Conclusions:

By an office memorandum No. 5214/FS dated 22nd August 2008, which is mentioned in the body of the decision of the District Controller (Food and Supply), Murshidabad, the Food and Supply Department of the Government of West Bengal had approved setting up of an ''M.R. Shop'' (hereinafter referred to as "the ration shop") in Ratanpur village. Ten applications were received from persons desirous of running such ration shop. Further, it appears in the body of the decision that S.C.F. & S., Jangipur had recommended one Pranab Kr. Das in preference to the writ petitioner on the ground that "Sri Das is an educated young man and he has eight years experience to deal in M.R. Business."

Several infirmities are noticed in the order of the said District Controller, dated 2nd March 2009. There is reference to a spot enquiry having been conducted by D.C.F & S. Murshidabad on 18th February 2009. Now, the date of hearing as mentioned in the above notice is 14th January 2009. Therefore, this inspection was done after the date of hearing. There is also reference to an alleged finding in such enquiry about the location and area of Ratanpur village and that the proposed godown of the petitioner was situated in a "very southern side" of the village. Now, this inspection was made in the absence of the writ petitioner. The writ petitioner contends that his godown is situated in just the opposite direction, that is, the northern side of the village.

Mr. Arabinda Chatterjee, on behalf of the State submits that this is determination of facts and the writ court should not enquire into its correctness. I would have been of a different view if this inspection had been carried out in the presence of the writ petitioner, his claim that his proposed shop was on the northern side recorded and thereafter a finding arrived at that the godown was on the southern side. But the inspection has been carried in the absence of the writ petitioner, a finding has been recorded which is diametrically opposite to what the writ petitioner asserts. In such cases, the court has, I think, the power to disbelieve such finding on the ground that there was no proper evidence to arrive at it.

Thereafter, a discussion is sought to be made in the decision about the respective locations of the ration shops of the erstwhile dealer Nilratan Das and the two contenders, namely, the writ petitioner and Pranab Kumar Das. This exercise of considering the feasibility of the location of the writ petitioner''s shop is apparently actuated by a notion that the ration shop in question should be located in the middle of the village for convenience of the ration card holders. The distance that the ration card holders would have to travel if the dealership was granted to each of the said two applicants is discussed in some detail. I have invited the parties to place before me any rule or administrative instruction requiring location of a ration shop in a particular part of the village or in the middle of the village. No such rule or administrative instruction could be placed before me. The locational factor taken into account by the decision maker to disqualify the writ petitioner is not a relevant factor at all. It could have been relevant if the distance was such that it would have been quite unfeasible for villagers to obtain ration from the writ petitioner''s shop because of the unreasonably long distance to be travelled by a majority of them. There is nothing to show in this decision that the distance to be travelled by the majority of villagers entitled to obtain ration would be very unreasonable or that the location of the ration shop of the writ petitioner for the majority of such people was such that it was not feasible to obtain ration from it.

Therefore, in my opinion, both the above grounds on which the candidature of the writ petitioner has been rejected are untenable. Therefore, this decision maker has come to the first part of the decision without proper evidence and has taken into account irrelevant materials in coming to his finding in the second part of the order.

However, I do note that the District Controller has rejected not only the petitioner''s case but also the case of his rival.

Although, Mr. Arabinda Chatterjee submits that the time to fill up the above vacancy has expired and that there should be a fresh selection process, I am unable to accept such submission, as the same is not borne out from the available records and that no affidavit has been filed by the respondents. From the recital in the decision I find that the approval to appoint an M.R. dealer for Ratanpur village was accorded by the Government on 22nd August 2008. There is no time limit to fill up that vacancy.

Since there was an earlier writ application and an order was passed by this Court as noted above, directing the District Controller (Food and Supply) Murshidabad to consider the case of the petitioner and pass a reasoned order, it was the duty of the District Controller to make a decision correctly by taking into account relevant materials and applying correct principles. Since he has not done so, his decision has been challenged before me. For the reasons given by me above, the decision dated 2nd March 2009 cannot be sustained and is quashed. Therefore, I direct the District Controller and E.O. Joint Director (Food and Supply) Murshidabad to pass a fresh decision on the self same case by giving a hearing to the writ petitioner and all other interested parties and to pass a reasoned order within a period of eight weeks from the date of communication of this order. The writ application is accordingly allowed to the above extent.

Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.