Gauhati High Court
Mala Das vs The State Of Assam And 4 Ors on 19 June, 2020
Equivalent citations: AIR 2020 GAUHATI 150, AIRONLINE 2020 GAU 218
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/6
GAHC010016942019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 558/2019
1:MALA DAS
D/O. SRI SAMBHU NATH DAS, W/O. LT. BISWAJIT ROY, R/O. BHAKARIVITA,
WARD NO. 7 OF BONGAIGAON TOWN, P.O. AND DIST. BONGAIGAON, PIN-
783380, ASSAM.
SERVING PARTNER OF M/S RENUKA STORE.
VERSUS
1:THE STATE OF ASSAM AND 4 ORS.
THROUGH THE COMMISSIONER AND SECRETARY TO THE FOOD AND
CIVIL SUPPLY DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR
FOOD AND CIVIL SUPPLY AND CONSUMER AFFAIRS
BHANGAGARH
GUWAHATI-5
ASSAM.
3:THE DEPUTY DIRECTOR
FOOD AND CIVIL SUPPLY AND CONSUMER AFFAIRS
BHANGAGARH-5
ASSAM.
4:THE DEPUTY COMMISSIONER
BONGAIGAON
ASSAM.
5:MRINAL KANTI SARBABIDYA
S/O. LATE MOHIT RANJAN SARBABIDYA
R/O. BAKARIVITA NEAR NATUN MUKH CLUB OF RAILWAY COLONY
DIST. BONGAIGAON
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ASSAM
Advocate for the Petitioner : MS. S KANUNGOE
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 19-06-2020 Heard Ms. S. Kanungoe, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned counsel for the respondents No. 1 to 4. None appears for the respondent No.5 inspite of receiving notice and taking time on earlier occasions to file affidavit in opposition.
2. The father of the respondent No.5 was operating a fair price shop bearing Trade Licence No.NSS (R) /62. The father of the respondent No.5 and the petitioner entered into a deed of partnership dated 09.01.2007 providing that the father of the respondent No.5 had proposed to adopt the petitioner as a partner to run the business of the fair price shop bearing the aforementioned licence number and the petitioner agreed to accept the proposal of the father of the respondent No.5 and accordingly, both the parties agreed to run the fair price shop jointly for the interest of fair distribution of essential commodities.
3. Clause 12 and 13 of the said agreement dated 09.01.2007 are extracted below:-
"12. That in the event of death of any partner/party, the other party/partner shall have all rights to run the said firm/fair price shop under the said Licence No.NSS (R) 62 and one legal heir of the deceased party may be inducted in his/her place.
13. That in case of any dispute between the parties, the aggrieved party shall be at liberty to take legal shelter.
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4. The father of the respondent No.5 died on 04.12.2017. In the circumstance by an order dated 20.01.2018 the In-Charge Director of Food, Civil Supplies and Consumer Affairs at Bongaigaon required the writ petitioner Mala Das to enter a fresh deed of partnership with the respondent No.5 for further carrying out the business of fair price shop which was operated in the name and style of M/s Renuka Store. As the direction in the order dated 20.01.2018 was not complied with by the petitioner Mala Das, subsequent order dated 20.02.2018 was passed by the Deputy Commissioner, Bongaigaon. By the order dated 20.02.2018, the Deputy Commissioner took the view that as the petitioner had not complied with the earlier direction to enter a fresh deed of partnership, there was a violation of the provision of Clause-26 of the Assam Public Distribution of Articles Order 1892 as well as the condition No.4 of the PDS licence No. NSS(R) /62 which was issued in favour of M/s Renuka Store.
5. By the order dated 20.02.2018 of the Deputy Commissioner, there was also a suspension of the fair price shop M/s Renuka Store and its customers were ordered to be tagged with some other fair price shops.
6. Being aggrieved, the petitioner Mala Das instituted WP(C) 1230/2018 against the order dated 20.02.2018 of the Deputy Commissioner, Bongaigaon.
7. The said writ petition was given a final consideration by the order dated 18.09.2018 by which the Deputy Commissioner was directed to take a decision as to whether the respondent No.5 being the legal heir of late Mohit Ranjan Sarbabidya would be entitled to continue as a partner on the death of his father. Consequent thereof, the order dated 08.01.2019 was passed by the Deputy Commissioner, Bongaigaon. The relevant portion of the order dated Page No.# 4/6 08.01.2019 is extracted below:-
"The Partnership Deed executed on 31-05-07 before Notary has been perused. It says that 1st Party Mohit Ranjan Sarbabidya proposed to include 2 nd party Smt. Mala Das in the Fair Price Shop run by the 1st Party under Licence No.NSS (R) 62. As per the Deed, 1 st Party to act as managing partner. The clause 12 of the Deed says that in the event of Death of one party, the other Party shall have right to run the Firm and one Legal heir may be included in his or her place.
The 2nd Party Mala Das pointed out that the word "May" appearing in the clause gives her right to include or not to include the legal heir of Mohit Ranjan Sarbabidya.
The learned Advocate for Smt Mala Das, during the hearing stressed that the word "Shall" will prevail over the word "may". The 1 st Party Mrinal Kanti Sarbabidya is hostile to Mala Das. She, being women, can not work with this kind of man.
On the other hand, the learned Advocate for Mrinal Kanti Sarbabidya says that initially Mrinal Kanti Sarbabidya's farther started the business and only due to financial hardship he entered into a Partnership with Mala Das............
I treat clause 12 of the Deed dated 31.05.2007 as desire of both parties that in the event of death of either party the legal heir of deceased be included. If either party did not desire replacement of legal heir in the event of death, there would not have appeared, in the agreement of the deed, the lines which stats legal heir may be included.
Mere absence of the word "Shall" does not debar the deceased is heir to get replaced. Both parties should respect the agreement.
As such Smt Mala Das is directed to execute fresh partnership Deed in line with the Deed of 31.05.07 incorporating Mrinal Kanti Sarbabidya as Partner replacing Mohit Ranjan Sarbabidya who died on 04.12.17. In my opinion based on facts above Mrinal Kanti Sarbabidya has every right to get replaced with this direction.
With this, the direction of Hon'ble High Court dated 18/09/18 in WP(C) No.1230/18 is disposed.
The prayer dated 26/02/2018 of Mrinal Kanti Sarbabidya which is at Page No.101/C of this file is considered and accepted. 2 month time given to Smt Mala Das to execute fresh Deed. Appropriate step will be taken if Smt Mala Das fails to execute fresh Deed."
8. The order dated 08.01.2019 is being assailed in this petition. Ms. S. Kanungoe, learned counsel for the petitioner reiterates the stand taken before the Deputy Commissioner that the word "may" appearing in Clause-12 of the agreement between the parties gives a discretion to the writ petitioner to either include or not to include the respondent No.5 who is the legal heir of late Mohit Ranjan Sarbabidya who in fact was the original partner of the writ Page No.# 5/6 petitioner. A further contention is raised that the respondent No.5 is hostile to the writ petitioner and she being a woman cannot work with him. As regard the first contention, we have to read the word "may" appearing in Clause-12 of the agreement dated 09.01.2007 conjointly with the other provision of Clause-12 that in the event of death of one of the partner, the legal heir of the deceased partner would also have a legal right to continue with the partnership business.
9. We have also taken note of that the business of the fair price shop was initially started by the father of the respondent No.5 but because of some financial difficulties he had faced, he had incorporated the petitioner Mala Das as a partner. If we accept the contention of the petitioner that because of the word "may" she has a discretion to either/or disallow the respondent No.5 to remain in partnership business, we are of the view that same would amount the writ petitioner usurping upon the partnership business, taking advantage of the provision in the agreement that it is her discretion whether she would like to include the respondent No.5 in the partnership business or not. As regard the other contention that the petitioner is hostile to the writ petitioner and she being a woman would have difficulty in working with him, we specifically direct the respondent No.5 that he shall not be hostile to the writ petitioner being a woman in any manner, particularly his behavior should not be inimical to work with a woman. The Deputy Commissioner, Bongaigaon is directed to ensure that the respondent No.5 maintains a proper behavior with the petitioner and in the event any complain is made and upon verification it is found that the allegation against the respondent No.5 would be true, the Deputy Commissioner may take any action against the respondent No.5.
10. As submitted by the petitioner, the partnership business order would continue as per Page No.# 6/6 the same terms and conditions as stipulated in the original deed of partnership dated 09.01.2007. The fresh agreement be entered only for the purpose of incorporating the respondent No.5 as a partner.
11. Writ petition stands disposed of in the above terms. Interim order passed earlier stands vacated.
JUDGE Comparing Assistant