[ad_1]
Calcutta High Court (Appellete Side)
Ashok Kumar Ghosh vs The State Of West Bengal And Ors on 28 April, 2025
28.04.2025
Ct.No. 24
Sl.No. 8
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPA 7396 of 2025
Ashok Kumar Ghosh
VS
The State of West Bengal and ors.
Mr. RamAnand Agarwala, ld.Sr. Adv.
Ms. Nibedita Pal
...for the petitioner
Ms. Sonal Sinha
Mr. Dwaipayan Basu Mallick
...for the State respondents
1. The petitioner is an existing ration dealer. He
is catering about 3000 ration card holders of
village-Keshabpur, 2500 cards holder of
village-Begri and 1150 cards holder of village-
Bipanpara. It is the case of the petitioner that
the concerned respondent authority has
issued a vacancy notification inviting
application for grant of new FPS licence in
respect of village-Keshabpur. It the firm
contention of the petitioner that if one new
ration card holder was appointed in respect of
Keshabpur area, his 3000 PDSs would be de-
tagged from his business and his business
would be economically viable. So he filed the
instant writ petition seeking mandamus upon
the respondent authority to cancel/set aside
2
the vacancy notification dated 8th of January,
2025.
2. Learned counsel appearing on behalf of the
State respondents at the motion stage has
raised the point of maintainability of the
instant writ petition.
3. Ms. Sonal Sinha, learned Additional
Government Pleader submits that it is the
decision of the State authority to engage a new
dealer for a particular area only for smooth
functioning of the distribution of PDS in the
locality. She submits that the decision of the
authority is to declare a new vacancy is
covered under policy decision of the State
which is reflected from a Memo dated 28th
March, 2023 issued by the Director of District
Distribution Procurement and Supply (for
short DDP&S), Government of West Bengal.
4. In support of their contentions, the State
authority cited a decision of a co-ordinate
Bench of this court passed in Abdul Khaleque
Dafadar Vs. State of West Bengal & Ors. (WPA
12446 of 2023). Ms. Sonal Sinha further
submits that the co-ordinate Bench of this
court has disposed of the writ petition with
specific view that new vacancy notification
which was issued in terms of vacancy order by
the DDP&S being memo dated 28th March,
3
2023, the State authority is authorised to
issue such vacancy notification. The relevant
paragraph 8 of the co-ordinate Bench decision
in Abdul Khaleque Dafadar is read as follows:
“After having heard the arguments of the
Learned Counsel at length, it is the
opinion of the Court that the respondents
have not acted in an arbitrary manner
while decreasing the ration card holding
population to 5000 for existing FPS
dealers. While it is true that the petitioner
would have to deal with a lesser number
of population and it could lead to some
financial losses, this administrative action
does not violate any legal right of the
petitioner. While taking out the new
notification for the vacancy, the
Department of Food and Supply,
Government of West Bengal acted within
their power and authority delegated to
them by the State Government under the
National Food Security Act, 2013. The
Primary objective and expansion of Public
Distribution System in India is to provide
necessary consumer food items at
subsidized and cheap prices, protecting
the consumers from increasing prices of
goods. Therefore, it is in furtherance of
4this objective that such administrative
decisions are taken which would benefit
the public at large and not just cater to the
interest of a selected few.”
5. Ms. Sonal Sinha also placed her reliance
upon a decision of Hon’ble Apex Court
reported in District Collector and Another Vs.
B. Suresh and Others (1995)5 Supreme Court
Cases 612). She submits that Hon’ble Apex
Court has observed that no right of a dealer
was infringed or no right to trade under Article
19(1)(g) of the Constitution of India being
affected by the policy decision of a State to
reduce the number of cards per dealer.
“3. The short question that arises for
consideration in this appeal is whether
the respondents, who were appointed as
Fair Price Shop Dealers under the Andhra
Pradesh Scheduled Commodities
(Regulation of Distribution by Card
System) Order, 1973, can claim a right to
be noticed when the State Government
decides to bifurcate the shops and reduce
the number of cards. The High Court by
the impugned judgment, being of the
opinion that such Fair Price Ship Dealers
are to be noticed before any alteration is
made, has quashed the decision of the
5Government. The State assails the
aforesaid judgment of the High Court.
4. Under the provisions of the Andhra
Pradesh Scheduled Commodities
(Regulation of Distribution by Card
System) Order, 1973, which order has
been framed under the provisions of the
Essential Commodities Act, 1955 a Fair
Price Shop Dealer has no right to be
appointed as such dealer. The licence
which such dealer has obtained under the
provisions of the Act to deal with the
commodities has not been cancelled. The
right to trade under Article 19(1)(g) of the
Constitution of India is not being affected
in any manner. The Government, as a
policy decision, decided to reduce the
number of cards per dealer. Such
decision does not affect the rights, if any,
of the Fair Price Shop Dealers and as such
the High Court was in error to hold that
they were to be given any notice prior to
the impugned decision of the State
Government.”
6. Ms. Sonal Sinha has also cited a decision of a
Division Bench of this court passed in Gour
Chandra Gorai and Ors. Vs. State of West
Bengal and Ors. reported in 2017 SCC OnLine
6
Cal 5182 wherein a decision of the State
authority was under challenge when the State
authority has passed a direction for
distribution of ration articles through separate
agencies in Left Wing Extremist affected area
of Districts of Paschim Medinipur, Bankura
and Purulia through different agencies by
curtailing ration card from the existing ration
dealers.
7. The Division Bench after thorough
deliberation has observed that the decision of
the authority regarding smooth distribution of
ration articles amongst those and poor classes
of people residing Left Wing Extremist affected
areas is not illegal.
“We find that the Joint Secretary,
Department of Food and Supplies under
Momo No. 4776-FS/FS/Sectt/Food/13A-
02/2011 dated 5th July, 2011 has not
been challenged by the appellants
whereby and whereunder the Government
took the policy for distribution of ration
commodities to the section of the poor in
the Left Wing Extremist (LWE) affected
areas of West Midnapore, Bankura and
Purulia for distribution of ration
commodities in some far flung areas at 23
Blocks of those Districts from a few
7temporarily identified outlets, in addition
to the existing M.R. Dealers, as the ‘Micro
Plans’ to be prepared by the concerned
District Magistrates in consonance with
the discussions held in the meeting with
the Chief Secretary on 4th July, 2011 and
in the meantime such decision was taken
to tag the ration cards of those poor class
in the Left Wing Extremist (LWE)
affected areas with the existing M.R.
Dealers to facilitate the distribution of
ration commodities to them. Therefore, it
can safely be said that by virtue of the
said notification of the Government the
writ petitioners/appellants cannot claim
a legal right to maintain writ in the
nature of mandamus, commanding the
respondents, each one of them, their
servants, agents and/or assigns to
rescind, cancel and/or withdraw
purported memo bearing no. 3584(3)
FMR/11S-3/2012 dated 02.09.2013
issued by the Director, DDP & S, Food &
Supplies Department, Government of
West Bengal and the memo declaring
vacancy bearing no. 1020/S.C.F &
S/MDN/13 dated 23.09.2013 issued by
the Sub-Divisional Controller (F & S),
8Medinipur Sadar and restraining the
respondent authority from engaging
and/or appointing anybody/
association/Group in respect of the
additional outlet/special counters and
distributing ration articles to their
permanently tagged ration card holders
and further from giving any effect and/or
further effect to the memo bearing no.
1020/S.C. F&S/MDN13 dated
23.09.2013 of Sub-Divisional Controller
(F & S), Medinipur Sadar inasmuch as
the self-help groups are being given
preferential term as provided in
Paragraph 20(ii) of the Control Order,
2013 and for the reasons that if
Government so desires it may give such
opportunity to only self-help groups or
others and especially to the socially and
economically backward including women
to carry out the objects enshrined in
Article 15 of the Constitution of India.
We are of the view that decision of the
Government cannot be faulted with,
which has been taken in the larger
interest of the poor public of the far flung
area of Jungle Mahal in the district of
Midnapur, Bankura and Purulia. We
9further hold that the authority which
issues grants can very well recall and
rescind the decision within the meaning
of Section 21 of General Clauses Act.”
8. Ms. Sonal Sinha further argued that the
impugned new vacancy notification dated 8th
January, 2025 was issued in terms of decision
of State declaration through the Director,
DDP&S on 28th March, 2023. Such decision
of the State cannot challenge in a writ petition.
She further submits that moreover, decision of
the concerned DDP&S dated 28th March, 2023
is not under challenge before this court.
Thus, the instant writ petition is not
maintainable.
9. Mr. Ram Anand Agarwala, learned counsel
appearing on behalf of the petitioner submits
that the decision of the State authority is not
actually under challenge in this writ petition
but only the vacancy notification dated 8th
January, 2025 is under challenge. He
submits that by virtue of the said new vacancy
notification if one ration dealer is appointed
for the area Keshabpur his number of PDS
would be less than 5000. He also submits
that if the decision of the authority appeared
at memo dated 28th March, 2023 can truly
considered it would be appeared that 5000
10
PDSs can at least be maintained the existing
ration dealers.
10. It has been argued on behalf of the State
Authority that by such decision the existing
ration dealers may retain PDS from 3000 to
5000. It has been firmly argued before this
court on behalf of the State authority that
the State has issued such vacancy
notification considering the local scenario,
the convenience and inconvenience of the
beneficiaries and it is only purely in the
larger interest of the PDS in the locality.
11. Heard the learned counsels for the parties.
12. In Abdul Khaleque Dafadar (Supra) a co-
ordinate Bench of this court has observed
that the State authority while acting in terms
of vacancy order dated 28th March, 2023, the
policy decision cannot be called in question
in a writ petition.
13. In District Collector and Another (Supra) it
was the question before the Hon’ble Supreme
Court that whether the existing ration dealer
have any right of hearing before de-tagging
his ration cards by the State authority. The
Hon’ble Apex Court has decided that the
right to trade under Article 19(1)(g) of the
Constitution of India is not affected. Thus, a
dealer has no right to audience before
11
issuance of a policy decision of the State to
reduce the number of ration cards per dealer.
14. In Gour Chandra Gorai & Ors., the Division
Bench of this court has decided an issue that
exigencies the State has the authority to pass
such an order which can actually allow the
other agency to distribute the ration articles
apart from the ration dealers in a particular
area.
15. After hearing both the parties and after
careful perusal of the instant writ petition it
is the grievance of the petitioner that by
declaration of a new vacancy notification his
right to business has been infringed.
16. Learned counsel appearing on behalf of the
State authority tried to demonstrate before
this court that the decision of the State
authority is a policy decision for proper
distribution of the articles in the locality
which cannot be called in question before a
writ court.
17. The petitioner is running a business with 3
areas i.e., Keshabpur, Begri and Bipanpara.
It is only the apprehension of the petitioner
that by issuance of new vacancy notification
his entire PDS of Keshabpur would be de-
tagged. It is quite dark before this court that
how many PDS of Keshabpur would be de-
12
tagged from the existing ration dealer that is
the petitioner. Thus, at this juncture, the
petitioner has approached this court only on
the basis of the apprehension. He is
distributing the ration articles amongst 6650
ration cards holder of 3 villages, amongst
them, for Keshabpur area, there is no new
vacancy notification, Petitioner or the State
authority could not demonstrate before this
court, how many ration cards of the
petitioner would be de-tagged. Thus, at this
juncture, I find no justification to pass an
interim order in the writ petition. The
petitioner has no right at present to ventilate
his grievances before this court until and
unless business of the petitioner has
crunched by the decision of the authority, I
think his writ petition is appeared to be
premature one. Thus, I hold that the
decision of the State authority for issuance of
new vacancy notification on 8th January,
2025 cannot be put on hold at this stage.
18. By virtue of a memo dated 28th March, 2023
the State authority has decided that the DRC
population retained with an existing FPS may
be less than 5000. However, the said
decision is appeared to me not similar to that
of the policy decision of the State authority
13
vide order dated 3rd September, 2021 as well
as 11th February, 2022. In that orders, the
retained populations has some upper limit
and lower limit; in the instant notification
dated 28th March, 2023, there are no such
lower limit of PDS which can be retained by
the existing ration dealers. The issue can
only be decided on affidavits.
19. Let the State authority be directed to file an
affidavit-in-opposition within 4 weeks and
reply thereto, if any, by the petitioner be filed
within 2 weeks thereafter.
20. Point of maintainability as raised by the
State authority kept open to be decided at
the final stage.
21. Let the matter go out of list.
( Subhendu Samanta, J. )
[ad_2]
Source link