SW APAN KUMAR PAL --(---1

ACHINTYA KUMAR NA YAK AND ORS.

OCTOBER 12, 2007

[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] '

. 1 Constitution of India, I 950: y c Article 226-Modified Rationing dealership-Name of First respondent recommended by competent authority for grant of dealership-Grant thereof-Inte1ference by High Court under Article 226-Held: Not called for as he fuljilled the relevant criteria-Public Distribution System.

D Administrative Law:

Decision making process-Interference with-Scope of- )---- Discussed

E The Selection process for the grant of MR dealership was conducted wherein both appellant and the First respondent filed their respective applications. The competent authority recommended the name of First respondent. Pursuant thereto, the Collector granted MR dealership to him. Appellant filed writ petition before High Court. Single

F judge allowed the same. First respondent successfully appealed before the Division Bench of the High Court.

In appeal to this Court, appellant contended that the Division 1-

Bench committed a manifest error in reversing the judgment of the Single Judge insofar as it took into consideration irrelevant factors, G namely, educational qualifications of the candidates; and that the First respondent did not own a god own on the date of filing of the application which was the determinative factor for grant of the dealership and the t-, appellant fulfilled the said criteria and hence was entitled thereto.

H 428

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SW APAN KUMAR PAL v. ACHINTYA KUMAR 429

NA YAK

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Dismissing the appeal, the Court A

HELD: 1. Grant of MR dealership in the State of West Bengal is not 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 1 their B applications. The appellant is owning a god own of which he had ben in

f . possession. His financial solvency was stated to be Rs. 50,000/- and ..,../ the trade proficiency and experience in running the business for $bout 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 c by his uncle. [Para 9] [432-D, E]

2. 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. D

-~ Qualifications and experiences of the respective candidates were taken into consideration d the first respondent was recommended by the Competent Authority on or about 26.2.2001. [Para 10] [432-F, G[

3.1. The criteria which were relevant for grant of MR dealersflip, E were: financial solvency, possession of Godown and trade proficiency.

It may be true that the candidates were not required to have my particular educational 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 F -'!

People. The Competent Authority, therefore, was to consider the respective cases of the parties upon application of the relevant criteria so far as the candidates are concerned.

[Paras 13and14] (434-B, C, DJ

3.2. No statutory order or any notification operating in the fieJd G has been produced before this Court. Relevant criteria therefor,

-~ however, can be ascertained from the form of the applications filed by the parties. The sites of the shop and the capacity of the godown as also a valid document for possession thereof were some of the relevant criteria besides trade proficiency and the period during which the H

A applicant was in business. Ownership of the godown was not an essential condition but the possession thereof was.

[Paras 15and16] [434-E, F]

4.1. Single Judge of the High Court, therefore, misdirected himself B in posing a wrong question namely, ownership of the godown which was not of much relevance. [Para 17] [434-F, G]

4.2. The Division Bench of the High Court might have committed an error in taking into consideration the respective educational qualifications and might have also erred in taking into consideration a C subsequent event, namely execution of a deed of gift in favour of the first respondent by his uncle, but even if 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 shopj possession of the god own and D 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 otthe first respondent relying on or on the basis of the said criteria.

E [Para 18] [434-G, 435-A, B]

5. In 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. It could interfere only if any legal error has been F committed in the decision making process. It could not enter into the merit of the decision. [Para 19) [435-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4865 of 2007.

G From the Judgmem and final Order dated 29.11.2006 of the High Court at Calcutta in F.M.A. No. 787 of2004.

S.B. Sanyal, Rana Mukherjee, D. Bharat Kumar, Chandra Bhushan Prasad, Indrani and Abhijit Sengupta for the Appellant.

H Ranjit Kumar Jaiswal, Pradeep Mukherjee, Sarla Chandra, T.C.

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SWAP AN KUMAR PAL v. ACHINTYA KUMAR 431

NA YAK [SINHA, J.]

Sharma, Neelam Shanna and Rajeev Shanna for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted.

2. The parties hereto were contenders for grant of a Modified B Rationing (MR) Shop. The MR shop in question situated in village Sasapga 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 c Appellate Authority while continuing the suspension of licence for kerosene, however, directed restoration of dealership in respect of ether items like rice, wheat, sugar etc.

3. Salim filed a writ petition which ultimately came up for hearing before a Division Bench. Keeping in view the fact that in the mean time D 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.

4. During the pendency of the said proceedings, a regular selecti9n E for appointment process of MR dealers at Sasanga village was conducted.

There were three contenders, one of them being one Ms. Sarama Mondal left the fray in the midway. Between rest of the two, recommendatiori.s were made by the competent authority to grant MR dealership of Sasanga to Achintya. Pursuant to the said recommendations, the Collector (District F Controller) granted MR dealership to the first respondent by an order dated 15.2.2002.

5. A 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 G the Court allowed the same by reason of the impugned judgment dated

I ·--'- 9,11,2006.

6. The appellant is, thus, before us.

7. Mr. 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 B 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. ""( l t-- c

8. Mr. 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 review.

9. Grant of MR dealership in the State of West Bengal does not D 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 firstrespondent, 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 E 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.

10. The Sub-Divisional Controller of Food and.Supplies, upon taking into consideration the relevant criteria for grant of MR dealership, made 1recommendations in favour of the first respondent. An enquiry thereto was also made. A spot visit was made by the competent authority.

Qualifications and experiences of the respected candidates were taken into

G 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:

"In due deference to the direction of His Lordship Hon'ble Justice H

SWAPAN KUMAR PAL v. ACHINTYA KUMAR 433

NAY AK [SINHA, J.]

Ashim Kumar Banerjee in the High Court of Kolkata regarding A the WP No.18364(W) of2001 held the personal hearing of Sri Swapan Kumar Pal writ petitioner and Sri Achintya Kumar Nay~ the private respondent No.7 in my office chamber on 4.2.02 at 12 noon. Sri Swapan Kumar Pal was represented by his learned counsel while Sri Achinta Kumar Nayak represented himself B 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. While appointing qf MR Dealer, salient aspect of suitability of storage space of MF Commodities, sound financial potentiality experience and workable C educational qualifications are generally taken into consideratiort.

Both the candidature were examined on the above light and I found that Sri Achintya Kumar Nayak has fuifilled the aforesaid criteri11 and I do not find any point to negate the edge of Sri AK. Nayak over the other.

Sub-Divisional 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." E

11. On a writ petition filed by the appellant herein, a learned Single Judge arrived at a finding that the first responde1:1t 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 :

 F

"I, 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.

I, therefore, set aside the order impugned and direct the Staterespondent 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

A within a period of fortnight from the date of communication of this order."

12. As noticed hereinbefore, the Division Bench of the said High Court reversed the said decision.

13. The criteria which were relevant for grant of MR dealership,

inter alia, were :

Financial Solvency

Possession of Godown

Trade Proficiency.

14. It 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 D 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.

15. No statutory order or any notification operating in the field has E been produced before us. Relevant criteria therefor, however, can be ascertained from the fonn of the applications filed by the parties.

16. It 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 F criteria besides trade proficiency and the period during which the applicant was iri business. Ownership of the godown was not an essential condition but the possession thereof was.

17. Learned Single Judge of the High Court, therefore, in our opinion, G 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.

18. The Division Bench of the High Court might have committed an error in taking into consideration the respective educational qualifications

SW APAN KUMAR PAL v. ACHINTYA KUMAR 435

NAYAK [SINHA, J.]

of the petitioner and the fist respondent and might have also erred in taking A 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 B 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.

19. In 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

c I

to play. It 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.

20. 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.

D.G.

E Appeal dismissed.