ARUNAVA SASMAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India the writ petitioner is aggrieved by the decision of the District Controller (F and S) and Ex-Officio Director, Paschim Medinipur, who issued a licence dtd. 12/4/2012, in favour of the private respondent no.6 to act as a distributor under the provisions of West Bengal Public Distribution System (Maintenance and Control) Order, 2003 hereinafter referred to as the 'Control Order of 2003'. By the impugned licence no. 36/WB/PDS/MID(S) dtd. 12/4/2012, the aforementioned authority has permitted the private respondent no.6 which is a partnership firm to include one outsider namely; Dinesh Kumar Agarwala in place of deceased Jagadish Prasad Sharma. In this writ petition, it has been alleged by the writ petitioner that since a vacancy arose on account of the death of one of the original partners of the private respondent no.6 firm, such vacancy has to be filled up from the legal heirs of the said 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, 2003. At the time of hearing of the instant writ petition Mr. Saha, learned advocate for the writ petitioner draws attention of this Court to Clause 23 of the Control Order,2003. Attention of this court is also drawn to the impugned licence dtd. 12/4/2012, the photocopy of the reply letter dtd. 28/4/2016 as written by S.P.I.O of the State respondents indicating that an outsider cannot be included as a partner for M.R Distributorship on compassionate ground. Attention of this Court is also drawn on behalf of the writ petitioner to page 25 of the writ petition wherefrom it reveals that S.P.I.O of the State/respondents on an application made by the writ petitioner under the provisions of the Right to Information Act, clearly indicated that in 2003 Control Order there was no such provision to include an outsider as a partner in M.R Distributorship on compassionate ground. It is argued on behalf of the writ petitioner that since the inclusion of an outsider namely; Dinesh Kumar Agarwala in the partnership firm of private respondent no.6 in place and stead of one of the original partners namely; Jagadish Prasad Sharma is foreign to the Control Order, 2003, the State/respondents ought not to have issued the said licence dtd. 12/4/2012 in favour of the aforementioned reconstituted partnership firm i.e. private respondent no.6. It is further argued by Mr. Saha that in the event such licence was not issued in favour of the reconstructed partnership firm of private respondent no. 6, the present petitioner could have got the opportunity to make application for the said distributorship on a declaration of a fresh vacancy due to cessation of licence in favour of the newly reconstructed partnership firm of private respondent no.6. It is thus submitted that an appropriate writ be issued for declaration of the vacancy quashing the licence dtd. 12/4/2012.

(2.) In support of his contention Mr. Saha, learned advocate for the writ petitioner placed his reliance upon the following reported decisions:-

(3.) While opposing the contention of the writ petitioner Mr. Basu, learned Sr. Advocate on behalf of the private respondent no.6 argued that the present writ petitioner is not entitled to get any relief since on account of the inordinate and unexplained delay, the grant of relief as prayed for has become time barred. Drawing attention to the different provisions of Control Order,2003 vis-a-vis Control Order, 2013, it is argued that with the implementation of Control Order 2013, Control Order 2003 has been repealed and since the instant writ petition was filed long after repealing of Control Order, 2003 when Control Order, 2013 was in force the present writ petitioner cannot seek any relief under the repealed Control Order of 2003. Mr. Basu, learned Sr. Advocate for the private respondent no. 6 in course of his argument draws attention of this Court to the judgement as passed in WPA 17857(W)/13 by a Coordinate Bench of this Hon'ble High Court. It is argued that in the said judgement the reconstitution of the partnership firm of the private respondent no.6 was under challenge and by the said judgement dtd. 25/7/2014 this Hon'ble Court affirmed the reconstitution of the partnership firm of the private respondent no.6 and accordingly the present writ petitioner cannot raise the self same point in this writ petition afresh. It is argued further that since the vacancy arose on account of death of a partner of the private respondent no.6 partnership firm, in view of the provisions of the Clause 23 of 2003 Control Order, the State/respondents are very much justified in not issuing any fresh notification or vacancy. Mr. Basu, learned Sr. Advocate in course of his argument also submitted that under no stretch of imagination the present writ petitioner cannot be considered as a person aggrieved and thus the present writ petitioner is not entitled to any relief as prayed for. Mr.Basu, learned Sr. Advocate for the private respondent no.6 places his reliance upon the following three reported decisions namely:-