Kumar Pal Vs. Achintya Kumar Nayak & Ors  Insc 1088 (12 October 2007)
Sinha & Harjit Singh Bedi
out of SLP (C) No.21732 of 2006) S.B. Sinha, J.
parties hereto were contenders for grant of a Modified Rationing (MR) Shop. The
MR shop in question situated in village Sasanga was given to one Abdul Salim
who was appointed as a MR dealer. He was found to have been committed some
irregularities in relation to distribution of Kerosene. An enquiry in regard
thereto was conducted. His licence was suspended. He preferred an appeal thereagainst.
The Appellate Authority while confirming the suspension of licence for
kerosene, however, directed restoration of dealership in respect of other items
like rice, wheat, sugar etc.
filed a writ petition which ultimately came up for hearing before a Division
Bench. Keeping in view the fact that in the mean time MR dealership at village Sasanga
was given to the first respondent herein, the Division Bench give liberty to Salim
to make him as a party in the appeal preferred before the appellate authority.
During the pendency of the said proceedings, a regular selection for
appointment process of MR dealers at Sasanga village was conducted.
were three contenders, one of them being one Ms. Sarama Mondal left the fray in
the midway. Between rest of the two, recommendations were made by the competent
authority to grant MR dealership of Sasanga to Achintya. Pursuant to the said
recommendations, the Collector (District Controller) granted MR dealership to
the first respondent by an order dated 15.2.2002.
writ petition filed by the appellant herein was allowed by a learned Single
Judge of the High Court. However, on an intra-court appeal having been
preferred by the first respondent herein, a Division Bench of the Court allowed
the same by reason of the impugned judgment dated 9,11,2006.
appellant is, thus, before us.
S.B. Sanyal, learned senior counsel appearing on behalf of the appellant, inter
alia, submitted that the Division Bench committed a manifest error in reversing
the judgment of the learned Single Judge insofar as it took into consideration
irrelevant factors, namely, educational qualifications of the candidates. It
was urged that the learned Single Judge having taken into consideration the
fact that the respondent did not own a godown on the date of filing of the
application which was the determinative factor for grant of the dealership and
the appellant herein having fulfilled the said criteria was entitled thereto.
Jaiswal, learned counsel appearing on behalf of the first respondent, on the
other hand, supportted the impugned judgment urging that the learned Single
Judge, in a case of this nature, could not have exercised the power of judicial
Grant of MR dealership in the State of West Bengal does not appear to be governed by any statute or statutory
rules. Appropriate Authority, however, have issued a notification on or about
21.11.2000 pursuant whereto, both, the appellants and the first respondent,
filed their applications. So far as the appellant is concerned, he is said to be
owning a godown of which he had been in possession. He financial solvency was
stated to be Rs.50,000/- and the trade proficiency and experience in running
the business for about five years. First Respondent had, however, in his
application stated that he had been in possession of a godown which had been
donated to him by his uncle.
The Sub-Divisional Controller of Food and Supplies, upon taking into
consideration the relevant criteria for grant of MR dealership, made
recommendations in favour of the first respondent. An enquiry thereto was also
made. A spot visit was made by the competent authority.
and experiences of the respected candidates were taken into consideration and
the first respondent was recommended by the Competent Authority on or about
26.2.2001. The District Controller of Food and Supplies thereafter passed an
order on 15.2.2002 granting dealership in his favour, stating :
due deference to the direction of His Lordship Honble Justice Ashim Kumar Banerjee
in the High Court of Kolkata regarding the WP No.18364(W) of 2001 held the
personal hearing of Sri Swapan Kumar Pal writ petitioner and Sri Achintya Kumar
Nayak, the private respondent No.7 in my office chamber on 4.2.02 at 12 noon.
Kumar Pal was represented by his learned counsel while Sri Achinta Kumar Nayak
represented himself personally. Both the parties were heard exhaustively and
were allowed to disclose all their credentials papers and documents in support
of their credentials rival contentions.
appointing of MR Dealer, salient aspect of suitability of storage space of MF
Commodities, sound financial potentiality experience and workable educational
qualifications are generally taken into consideration. Both the candidature
were examined on the above light and I found that Sri Achintya Kumar Nayak has
fulfilled the aforesaid criteria and I do not find any point to negate the edge
of Sri A.K. Nayak over the other.
Controller, Food & Supplies, Burdwan being the appertaining (sic for
appointing) authority of the MR Dealer in the like extent case would proceed
accordingly and also ensure obtaining approval of the MR vacancy by the
Government which is deficient in this case.
a writ petition filed by the appellant herein, a learned Single Judge arrived
at a finding that the first respondent had no valid title either by way of
ownership or tenancy in respect of the godown and the said order of the
Collector could not be sustained. It was directed :
thus, find that the petitioner is the only other person who has all the
requisite qualifications as the case of the other one need not be considered as
per the order of Ashim Kumar Banerjee, J. which is binding upon the parties.
therefore, set aside the order impugned and direct the State-respondent to
appoint the petitioner in place of the private respondent subject, however, to
approval of the vacancy as indicated in the order impugned. Formal order should
be passed within a period of fortnight from the date of communication of this
noticed hereinbefore, the Division Bench of the said High Court reversed the
The criterias which were relevant for grant of MR dealership, inter alia, were
Possession of Godown
may be true that the candidates were not required to have any particular
educated qualification. Workable knowledge was sufficient. It, however, appears
from the counter affidavit of the first respondent that the scheme in question
was meant for the Educated Unemployed People. The Competent
Authority, therefore, was to consider the respective cases of the parties upon application
of the relevant criterias so far as the candidates are concerned.
statutory order or any notification operating in the field has been produced
before us. Relevant criterias therefor, however, can be ascertained from the
form of the applications filed by the parties.
appears that sites of the shop and the capacity of the godwon as also a valid
document for possession thereof were some of the relevant criterias besides
trade proficiency and the period during which the applicant was in business.
Ownership of the godown was not an essential condition but the possession
Learned Single Judge of the High Court, therefore, in our opinion, misdirected
himself in posing a wrong question. He had taken into consideration a factor,
namely, ownership of the godown which was not of much relevance.
The Division Bench of the High Court might have committed an error in taking
into consideration the respective educational qualifications of the petitioner
and the fist respondent and might have also erred in taking into consideration
a subsequent event, namely execution of a deed of gift in favour of the first
respondent by his uncle, but even the same are left out of consideration there
would not be any change in the position of the parties. If any recommendation
has been made in favour of the first respondent having regard to the sites of
the shop, possession of the godown and trade proficiency as also the period
during which candidates were in business, there cannot be any doubt whatsoever
that the Competent Authority could grant MR dealership in favour of the first
respondent relying on or on the basis of the said criteria.
a case of this nature, ordinarily, the High Court would not exercise its
discretionary jurisdiction under Article 226 of the Constitution. For
exercising the power of judicial review, the Court has a limited role to play.
could interfere only if any legal error has been committed in the decision
making process. It could not enter into the merit of the decision.
We, therefore, are of the opinion that there is no infirmity in the impugned
judgment. This appeal is, therefore, dismissed. However, in the facts and
circumstances of the case, there shall be no order as to costs.