Calcutta High Court (Appellete Side)
Wpa 22080 Of 2016 vs The State Of West Bengal & Ors on 23 August, 2024
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present: - Hon'ble Mr. Justice Subhendu Samanta.
IN THE MATTER OF
WPA 22080 of 2016
With
IA No. CAN 1 of 2023
Nazia Begam
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Ram Anand Agarwal, Adv.,
Ms. Nibedita Pal, Adv.
Mr. Anand Gopal Mukherjee, Adv.,
Mr. Soumen Roy Adv.
For the State : Mr. T.M. Sidiqui, Adv.
Mr. Amritalal Chatterjee Adv.
Reserved on : 15.07.2024
Judgment on : 23.08.2024
Subhendu Samanta, J.
1. One Munshi Jahanara Khatoon wife of Imtajuddin of Shabalsinghapur owned one MR License No. 1080/MR & S.K Oil License/113/K/DK/09. The said Munshi Jahanara Khatoon submitted petition with the concern authority on 16.06.1998 for induction of 2 partner namely Najia Begum (petitioner) due to financial problem. On the basis of such application, hearing was conducted on 15.06.1999 wherein a partnership deed was produced which contend that the partnership would have 90% share of Najia Begum. After concluding of the hearing, MR & SK Oil License were issued in the name of two partners Najia Begum and Munshi Jahanara Khatoon jointly on of 24.03.2000 cancelling the previous license of maintaining formalities on the basis of the partnership deed.
2. On 17.11.2011 Munshi Jahanara Khatoon submitted a prayer before the concern authority to surrender her ownership from MR and SK Oil License Kerosene oil business. Her application for surrender of ownership was accepted by the concern authority.
3. The petitioner submitted a representation with the concern authority to continue the license in her name in individual capacity, such prayer was not considered thus 3 she moved this court being WP No. 1105 of 20111 for renewal of his kerosene license and another writ petition being WP No. 41 of 2012 for renewal of MR dealership license. In both the writ petitions, this court has passed an interim order directing the authority to renew the license of the present petitioner till a particular period. Both the matter was heard together and the said writ petitioners are disposed of by this court directing the concern authority (SCFS) Arambag to take decision in accordance with law. The concern authority has given a reasonable opportunity of hearing to both the parties and has passed the impugned order on 2nd September 2016 against which the instant writ petition was preferred.
4. The State authority submitted a report in the form of affidavit against the writ petition. It is the case of State Authority that according to the direction of this court the said respondent has given the appropriate scope of hearing to both the parties and after hearing the parties the 4 impugned order was passed. It is the positive case of the State that there is no provision in the West Bengal Public Distribution System (Maintenance and Control) Order 2013 to allow the petitioner to run the business individually. The law has decided by this court in Amitava Dutta Vs. State of West Bengal is not applicable in this case.
5. Mr. Ram Anand Agarwal, Learned Counsel, appearing on behalf of the petitioner submits that the impugned order passed by the concern authority is illegal in the eye of law. The issue has been well settled by this court. In Amitava Datta Vs. State of West Bengal, a co- ordinate Bench of this court while deciding the issue has specifically held that when the license was issued in the joint name, after demise any of the license, the other person may carry out the business in his individual capacity. 5
6. For better appreciation, the observation of this court in Amitava Datta is set out as follows:-
The petitioner's prayer for grant of licence in his own name, however, has been rejected on the ground of dissolution of the partnership firm on death of one partner, where the total number of partners were two. Since the licence in this case was granted in joint names of the petitioner and his deceased sister and not in firm name, I do not think principle of dissolution of partnership can be applied in the instant case. It is not clear to this Court on what basis the deed of partnership was executed and to what extent the authorities relied on the same, but the fact remains that licence was issued jointly, in favour of the petitioner and his deceased sister.
7. Mr. Agarwal also cited a decision of the Divison Bench of this court passed in Utpal Ghosh and State of West Bengal and submits that the Divison Bench of this court has directed the concern authority to issue license of MR Dealership in the name of a private individual which stood in the name of a partnership farm. 6
8. Mr. Agarwal also cited a decision of Hon'ble Suprme Court reported in State of Uttar Pradesh Vs. Arvind Kumar Srivastava and Ors. (2015) 1 SCC 347. Mr. Agarwal argued that the present petitioner is similarly situated persons to that of the petitioner in Amitava Datta Vs. State of West Bengal as well as Utpal Ghosh Vs. State of West Bengal thus the petitioner is entitled to the relief.
9. Heard the Learned Advocate. Perused the observation of this court in the earlier writ petitions. Let me consider whether the business was actually conducted by the present petitioner and Munshi Jahanara Khatoon as a partnership business or in the joint name. The State respondent No. 5 has filed a report in the form of affidavit sworn on 25th day of April, 2024. The State Authority has annexed a copy of license which was issued in favour of the petitioner and Munshi Jahanara Khatoon in the year 2006. On perusing the said license it appears that the license was issued in the joint name. The place 7 required to mention the name of partnership farm or co-operative society in the said license (Form B) left vacant, rather the name of Munshi Jahanara Khatoon and Najia Begam (the present petitioner) was written, where the name of the owner of the business under the individual capacity is required to be mentioned.
10. On perusal of the said certificate it appears that the case of the present petitioner is correctly and squarely covered the judgment of this court passed in Amitava Datta Vs. State of West Bengal.
11. The West Bengal Public Distribution System (maintenance and control) order 2013, did not provide anything alike the prevailing circumstances when a license was issued in favour of joint name and if any one of them surrendered his license what would be the effect of the said license. The answer was properly given in the case of Amitava Datta. The concern authority has denied to take cognizance of the direction of this court passed in Amitava Datta 8 only on the ground that in case of Amitava Datta the partnership was running in the name of two sisters and among them, one expired.
12. Non-participation of business by one partner due to the death or due to the resignation, shall have the same effect regarding the consideration of the State Authority as to whether the said business can be allowed to be proceeded by the surviving co-license. In my view the principal enumerated by this court in Amitava Datta is correctly applicable in this case. Moreover the licence was issued not in the name of partnership farm but in the joint name of the present petitioner as well as Munshi Jahanara Khatoon. By issuance of such license, the status of the petitioner became co-license Munshi Jahanara Khatoon has surrendered her license with authority and the authority has accepted her surrender. It further appears that the petitioner was conducting the business by virtue of the direction of this court for a quite ling time and there is no complaint from any 9 corner regarding conduction of business of petitioner. Thus, in my view the true purport and meaning of the Control Order, 2013, would be sub-served, if the petition was allowed to carry out the FPS, for which, distribution of food grains to the public at large in the locality shall not be hampered anywhere. Under the above observations, the instant writ petition it appears to be meritorious and the same is allowed.
The impugned memorandum dated 2nd September, 2016 passed by the Sub-Divisional Controller Food and Supply, Arambag, Hooghly is hereby quashed.
13. The concern State Authority is directed the issue the license of the FPS in favour of the petitioner within 03 weeks from the date of communication of this order.
14. Under the above observations the instant writ petition is disposed of. Any Govt. Order/Notification issued in connection with the impugned location are hereby also cancelled. 10
15. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.
(Subhendu Samanta, J.)