Calcutta High Court (Appellete Side)
‐ vs ‐ on 12 March, 2015
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
12.03.2015.
rc
W.P. No. 3380(W) of 2015
Tapas Ghosh & Anr.
‐Vs‐
The State of West Bengal & Ors.
Mr. Haradhan Banerjee
Mr. Debabrata Saha Roy
Mr. Pingal Bhattacharjee ..For the petitioner
Mr. Kishore Dutta
Mr. Susovan Sengupta
Mr. S. Bandopadhyay ... For the State
This writ application is directed against an order dated April 25,
2011 passed by the Inspector (Food & Supply), Mograhat, District -
South 24‐Parganas (at page 54 of this writ application), an order dated
July 11, 2014 by the respondent no. 5 (at page 62 of this writ
application) as also an order dated December 30, 2014 by the respondent no. 4 (at page 73 of this writ application).
By virtue of the first impugned order dated April 25, 2011 the ration cards attached to the fair price shop no. 44 lying and situate at Village and Post Office - Boichberia, Police Station - Usthi, District - South 24‐Parganas were tagged temporarily with a nearby fair price shop.
The second impugned order was a show cause notice issued in connection with proceeding initiated in respect of the fair price shop licence under reference on the grounds mentioned therein.
The third impugned order was passed considering the renewal of the licence of fair price shop under reference. The above order was passed in compliance of an order dated November 10, 2014 passed in the matter of Tapas Ghosh & Anr. Vs. State of West Bengal & Ors. (In Re: W.P.No. 27755(W) of 2014).
By virtue of the impugned dated December 30, 2014 the respondent authority further took a decision to initiate a proposal for 2 declaration of fresh vacancy for issuing fair price shop licence for the area concerned within three months from the date of passing the above order.
It is submitted by Mr. Haradhan Banerjee, learned advocate appearing on behalf of the petitioners that the licence of fair price shop was granted in favour of a partnership firm. The petitioners and the respondent no. 6 were partners of the above partnership firm. According to Mr. Banerjee an on‐line application submitted by the petitioners for renewal of the fair price shop licence under reference.
By virtue of the impugned order the authority decided not to renew the above licence taking into consideration the submissions made before the authority by the respondent no. 6. She prayed for renewal of the fair price shop licence in her name alone.
According to Mr. Banerjee the above decision should not have been taken in view of the provisions of section 4 of the Indian Partnership Act, 1932. According to him, there is no alternative but to renew the above licence in favour of the partnership firm.
It is submitted by Mr. Kishore Dutta, learned senior advocate, appearing on behalf of the State‐Respondents, that the fair price shop licence under reference was issued in the joint names of the petitioners as also the respondent no. 6. It was issued in favour of a partnership firm. There is no scope for raising any claim for renewal of the fair price shop licence under reference in favour of the partnership firm. According to Mr. Dutta the dispute in between the licencees of the fair price shop licence cannot be decided by the respondent authority. It may be considered by the appropriate judicial forum. According to Mr. Dutta in absence of joint prayer made on behalf of the three licencees of the fair price shop under reference could not be renewed. Mr. Dutta draws the attention of this Court to the provision of Section 22 of the Partnership Act, 1932 in support of his submission.
Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of this case 3 I find that the respondent authority did not take into consideration the relevant factors as submitted by the learned counsel appearing on behalf of the petitioners and the State‐Respondents.
Let it be recorded that inspite of service a copy of this writ application upon the respondent no. 6 nobody appears before this Court at the time of hearing of this matter. Therefore, the allegations made against the respondent no. 6 stands uncontroverted.
In view of the discussions and observations made hereinabove, the impugned order dated December 30, 2014 is quashed and set aside directing the respondent authority to take a decision afresh with regard to the application submitted by the petitioner for renewal of the licence of fair price shop under reference in accordance with law taking into consideration the observations made hereinabove within a period of six weeks from the date of communication of this order after giving opportunity of hearing to the petitioners and the respondent no. 6 and to communicate such decision to all concerned within a week thereafter.
Upon consideration of the submissions made by Mr. Haradhan Banerjee with regard to the survival of the operation of the order of stay of the above show cause notice dated July 11, 2014 consequent upon the setting aside the impugned order dated December 30, 2014, this Court is of the opinion that in view of the admitted fact of temporary tagging of the ration cards of the fair price shop under reference with a nearby fair price shop the above temporary arrangement should continue till a final decision is arrived at in terms of the aforesaid directions.
Since no affidavit in opposition is filed by the respondents the allegations made against them are to be treated as denied by them.
I make it clear that I have not entered into the merits of this case and all points are kept open.
This writ petition stands disposed of.
There will be, however, no order as to costs.
4Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )