Calcutta High Court (Appellete Side)
Sukumar Ghosh vs State Of West Bengal & Ors on 20 June, 2011
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
20.06.2011 W.P. 11922(W) of 2005
ss
Sukumar Ghosh
Vs.
State of West Bengal & ors.
Mr. Amal Kumar Sen
Mr. Sabyasachi Mondal
... For the petitioner
Mr. Bikash Kumar Mukherjee
Mr. Sourav Kumar Mukherjee
... For the respondent nos. 5 & 6
Mr. Arjun Ray Mukherjee ... For the State The writ petitioner is aggrieved by the impugned order passed by the Sub-Divisional Controller, Food & Supplies (Suri, Birbhum) dated 9th December, 2004 wherein the said Sub-Divisional Controller rejected the prayer for cancellation of provisional M.R. dealership granted to the respondent Prolay Chandra Ghosh.
The fact of this case is that the writ petitioner claimed that he is a power of attorney holder of Manik Chandra Ghosh, M.R. dealer at village of Dhagoria under G.P. Loba, P.S. Dubrajpur, District Birbhum. On the basis of such power of attorney the writ petitioner was running the M.R. dealership since 1974. According to the petitioner this was approved by the concerned authorities and the dealership was being run by the writ petitioner for a long time. A dispute arose in 1993 and the writ petitioner filed a suit being Title Suit No.62 of 1993. In that suit the writ petitioner prayed for a declaration of his right and title of running of M.R. dealership on the basis of the alleged power of attorney which was disputed by the respondent no.5 and injunction application was moved, interim order was passed which was affirmed later on. However, during 2 pendency of that suit the writ petitioner moved one writ application and obtained an ex parte interim order in his favour for running of M.R. dealership which was questioned by the respondent no.5 by filing an appeal before the appeal court and both the appeal and the stay application were disposed of by recording that since the M.R. dealership has been provisionally transferred in the name of Prolay Chandra Ghosh, he should be allowed to continue until the injunction application is finally disposed of. However, the said writ petition was disposed of by one learned Single Judge of this Hon'ble Court thereby recording the following findings :
"I am unable to accept the submission of Mr. Sen and since the authority have knowingly permitted the petitioner to manage the affairs of the shop pursuant to the submission of the power of attorney in 1974 the petitioner is entitled to allotment".
The learned Single Judge has recorded that it appears from the office records that the allotment of M.R. serials was always made in favour of Manik Ghosh, M.R. dealer and not in favour of the writ petitioner and it was specifically held by the learned Single Judge that according to the State there is nothing on record to show that the said power of attorney is with the authority concerned though Mr. Sen submitted that a copy of the power of attorney was furnished with the authority in 1974. It was recorded that it is disputed question of fact which cannot be adjudicated in the writ petition and ultimately a direction was given by the learned Single Judge which reads as follows :
" Therefore, I dispose of the writ petition by granting liberty to the petitioner to make a representation before the authority 3 concerned annexing all the documents in support of his contentions. If such a representation is made the authority concerned shal within a period of six weeks from the date of furnishing such representation dispose of the same after hearing the petitioner, the private respondent nos.7 and 8 and by passing a reasoned order within a period of two weeks thereafter.
I make it clear that I have not gone into the merits of the case.
The writ application is thus disposed of. No order as to costs."
On that basis a hearing was given to the writ petitioner against his representation and the Sub-Divisional Controller by his order dated 9th December, 2004 recorded that the hearing was given pursuant to the order of this Hon'ble Court. It was recorded in the said order that on interrogation as to his present occupation the writ petitioner deposed that he has been carrying on function, for about five years or so, as Director of a Co-operative named The Dubrajpur Co-operative Agricultural Marketing Society Ltd., Khyrasole Branch, District Birbhum which is an M.R. Distributor appointed earlier by the Food & Supplies Department to cater to the supplies of PDS Commodities from the said Co-operative to the tagged M.R. Dealers of the area. According to the writ petitioner he is being a constituted functionary of the said co-operative, looks after actively the function of M.R. Distributor i.e. of the Co-operative in the matter of lifting of indented quantity of food grains etc., from the Food Corporation of India/State Government Godowns etc. and storage of them in Co- operative godown and accordingly issue of such P.D.S. commodities 4 to the M.R. dealers so tagged.
The writ petitioner was again asked to justify his claim for dealership and accordingly he was asked to produce authentic papers in support of his claim. Despite specific request, he could neither produce any authenticated/certified copy of much stressed power of attorney, nor could he produce any document showing permission of Sub-Divisional Controller (Food & Supplies), Suri against the reported power of attorney, which is a must to act on behalf of M.R. dealer and that too on temporary basis as per Government orders and in this connection the said Sub-Divisional Officer referred paragraph 4 of the judgement dated 18th August, 2004 passed by the learned Single Judge of this Court.
Thereafter he has come to a conclusion that the office of the respondent has always maintained and even now maintaining in consultation of office records that no such power of attorney was received from any corner. Also the allotment of M.R. commodities was always made in favour of the Manick Chandra Ghosh, M.R. dealer during the material time and not in favour of the applicant, the writ petitioner herein. The Sub-Divisional Controller also recorded the statement of Manik Chandra Ghosh, the erstwhile M.R. dealer who has stated that he had never executed power of attorney in favour of said Sukumar Ghosh, the writ petitioner. He depossed that owing to his ill health on medical ground, the matter of transfer of M.R. dealership took place in favour of his son Proloy Chand Ghosh, the respondent no.6 as per procedure of the Government. Proloy Chand Ghosh stated in his deposition that he has started M.R. shop business due to his father's ill health since 1998 and 5 continues the same. He also recorded that the spot of M.R. business of Proloy Chand Ghosh is being maintained in a place/room other than the disputed shop as per order dated 25th September, 1998 of the Hon'ble High Court, Calcutta. Ultimately, the Sub-Divisional Officer concluded that a receipt dated 17th November, 1974 as shown by the writ petitioner in respect of the power of attorney claiming to had been issued by the then Inspector (Food & Supplies), Dubrajpur is hardly having any base due to the reason that the erstwhile M.R. dealer, Manick Chandra Ghosh, the concerned person in the deal, has in unambiguous terms denied of execution of power of attorney in favour of Sukukar Ghosh, the writ petitioner.
It was concluded that the old office record reveals that on the above score, my predecessors have disputed the said matter and accordingly responded to appropriate ends and he concluded further that he did not find any merit in the prayer of Sukumar Ghosh, the writ petitioner and he has rejected the representation after careful consideration.
Mr. Sen, learned Counsel appearing for the writ petitioner submits that although the suit was filed on the basis of the power of attorney and the claim was based on the power of attorney issued by the respondent no.5 and an interim order was granted by the Civil Court in favour of the writ petitioner but this is a different cause of action against the issuance of provisionally appointment of M.R. dealership in favour of the respondent no.6, the son of the respondent no.5 who was the original M.R. dealer and his client moved this Hon'ble Court and this Hon'ble Court directed the writ petitioner to make a representative before the Sub-Divisional 6 Controller who was directed to consider the case of the writ petitioner.
Mr. Sen further submitted that although the case of the writ petitioner, as regards power of attorney, was considered by the Sub- Divisional Controller, he failed to consider the other aspect of the matter that the provisional appointment was given illegally and the Sub-Divisional Controller is not the authorised person to issue such order of appointment of provisional M.R. dealership in favour of the private respondent no.6.
Mr. Sen submitted that there is judgement of this Hon'ble Court to the effect that the concerned authority cannot delegate its power and the authority is vested on the Director only. Therefore, no other person than the Director can issue such M.R. dealership licence.
Mr. Mukherjee, the learned Counsel for the respondent nos.5 and 6 submitted that this is a new story created by the writ petitioner. He submitted that the entire effort of the writ petitioner is to grab the business and to run the M.R. dealership side by side with the co-operative society in which he is a Director, which he himself has admitted. It was also submitted that the petitioner tried to take shelter of a forged power of attorney somewhere he has mentioned as deed no.9308 and deed no.9309. He submitted that deed no.9308 of which a certified copy was obtained from the Registrar's office shows this was a sale deed and the respondent no.5 has lodged a criminal case which is pending before the criminal court and a charge-sheet has been issued and as it appears in the charge-sheet that the petitioner is absconding. The case under 7 Sections 467 and 471 of I.P.C. is pending before the Criminal Court. He submitted that investigation report shows on the strength of the investigation on record orally and documentary a criminal case under sections 467 and 471 of I.P.C. has been established against the writ petitioner who is absconding and a warrant of arrest was recommended for issuance dated 4th September, 1998.
The learned Counsel also submits that the power of attorney which was disclosed in the writ petition bearing a different deed no.9309 is also a sale deed and his client has withdrawn a certified copy of the said deed and a xerox copy of the same was produced before the Court which shows that it was not a power of attorney. He submitted that the effort on the part of the writ petitioner is to grab the business of the writ petitioner which he is not successful and it was also submitted as per the Government circular in the case of incapacitation on medical ground of the existing dealer the prayer for legal heirs can be considered with preference on compassionate ground on the basis of terms and conditions. He submitted that all these requirements have been complied with and the respondent no.6 was appointed provisionally as M.R. dealer in place of his father on medical ground. The learned Counsel cited one judgement of the Hon'ble Supreme Court in the case of Swapan Kumar Pal Vs. Achintya Kumar Nayak & ors., reported in (SC; Suppl.) 2008(2) C.H.N. 75 wherein the Hon'ble Supreme Court has decided the scope of judicial review and it was submitted by the learned Counsel that the Sub-Divisional Controller is the appointing authority of the M.R. dealer which was recorded in that judgement.
It was further submitted by the learned Counsel for the 8 respondent that the writ petitioner has no locus standi to move this Court and he has no right whatsoever in respect of the M.R. dealership and as such, he cannot move the writ petition against the provisional appointment of M.R. dealership of the respondent no.6.
At the time of dictation of this judgement the learned Counsel for the State-respondents appeared and submitted that since 1993 the petitioner's contention is based on the alleged power of attorney which was never received by the department and is no longer relevant in view of the fact on medical ground, provisional appointment was given in favour of the private respondent no.6 who is running the M.R. dealership.
It was submitted that the allegation against granting of provisional licence to the private respondent no.6 was never taken before the Sub-Divisional Controller, Food & Supplies, Suri, Birbhum. The ground taken therein is solely based on the alleged power of attorney which has never seen the light of the day and on that basis the Sub-Divisional Controller, Food & Supplies was not required to decide any other ground except the claim made by the writ petitioner on the basis of alleged power of attorney.
It was also submitted that for the first time in this writ petition the plea of appointment on medical ground was questioned by the writ petitioner failing to get any relief on the alleged plea of having a power of attorney.
The learned Counsel for the State-respondents submits that there is nothing wrong in this order impugned which was passed upon giving reasonable opportunity of being heard and as such, there is no scope of judicial review under the discretionary writ 9 jurisdiction of Article 226 of the Constitution of India.
Heard the submissions made by the learned Counsel appearing for the respective parties and considered the materials available on record.
It appears to me that the plea of having a power of attorney and submission of the same before the concerned respondents and having their permission to run the business, was never proved before any Forum by the writ petitioner. The concerned State respondents including the rationing authority have affirmed the affidavit in the earlier writ proceeding and it was clearly stated that all the goods were released and actions were taken in the name of the respondent no.5, the erstwhile M.R. dealer and therefore, there is no scope for giving any such permission to the writ petitioner to run the said M.R. dealership.
Admittedly the writ petitioner was a Director of the Co- operative and he was doing his business and there is no scope to run M.R. dealership along with the co-operative.
It appears that the number of alleged power of attorney which was disclosed is in fact, a sale deed. Therefore, in my opinion there is no such power of attorney which was ever filed before the rationing authority or the writ petitioners were ever permitted by the rationing authority to run such dealership. The claim of the writ petitioner is based on the alleged power of attorney only and in my view the writ petitioner is not entitled to claim on that basis.
It appears that the writ petitioner was doing the similar business on behalf of the co-operative as their Director. He has never been able to prove his case before the said Sub-Divisional 10 Controller, Food & Supplies and the alleged plea of provisional appointment given to the respondent no.6 contrary to the rules is an after-thought which was not at all taken as a ground before the Sub- Divisional Controller, nor it was ever argued before him. Had it been argued before the Sub-Divisional Controller the order would have reflected the same. Thus it can safely be concluded that the sole claim of the writ petitioner was based on the alleged power of attorney.
On the facts and circumstances of the case, I hold that no right of the writ petitioner has ever been violated and therefore, this writ petition is not at all maintainable.
I also do not find any illegality in the order passed by the Sub-Divisional Controller. The order was passed upon giving proper opportunity of hearing to the writ petitioner and the issue raised by the writ petitioner was properly dealt with and decided.
On the foregoing reasons, I do not find any merit in this writ petition. This writ petition is dismissed. There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.
(Ashoke Kumar Dasadhikari, J.) 11