M.M. Enterprise & Anr. v. The State of West Bengal & Ors.

Thereafter the petitioner came to know on the first week of September 2023, that the respondent authority had issued approval in favour of private respondent No. 6 for his engagement as MR distributor for the location Samserganj. The petitioner immediately has submitted representation with the authority concern regarding his objection against the appointment of Respondent No. 6 stating therein that Respondent No. 6 is not the eligible candidate. His representation was not considered; Hence this writ.

The ground for challenging the appointment of Respondent No. 6 is as follows. i) That godown of the respondent No. 6 was constructed without sanctioned plaint of Samserganj Zilla Parishad. ii) The land over which private respondent has constructed the godown is “aush” in nature. iii) There are no open baranda in the godown of private respondent as per G.O. iv) Ventilation of the godown is not proper. v) The land for construction of office and godown was purchased by the private respondent much later than the last date of submission of the application. 3

To deal with the challenges in the writ petition the private respondent No. 6 used affidavit- in- opposition. It is the positive fact of the respondent No. 6 that he constructed godown-cum-office after obtaining sanction plan from the concerned authority; the said plan was submitted along with the application form.

It is the further pleadings of the respondent No. 6 that the godown was constructed after conversion of the land from “Aush” to “Viti”. Respondent No. 6 denied the fact that the land was purchased after the last date of submission of the application. It is the positive fact of the private respondent No. 6 that his godown is more specious than the petitioner. The authority concern after making enquiry has found the private respondent no. 6 to suitable. Thus the private respondent was appointed as distributor.

The said respondent No. 1 to 5 submitted two reports in the form of affidavit against the writ petition. It is the positive fact of the state respondent that the proposed shop-cum-godown of the petitioner and the private respondent No. 6 was inspected by the concern authority. After such inspection respondent No. 6 found to be eligible candidate for getting license of MR distributor as he obtained highest mark in aggregate in view of all credentials required for fulfilling eligible criteria and got selected by the competent authority of 4 the department of Food and Supply Government of West Bengal. It is the case of the State Authority that area of the petitioner’s godown is 6462 square feet but the area of godown of respondent No. 6 as 7280 Square feet. State Authority also pleaded in comparison with one another, the respondent No. 6 is more eligible than the petitioner in terms of financial solvency. The condition of godown and any other eligible criteria for which the respondent No. 6 has obtained 83 marks where the petitioner obtained 82 marks. Thus the competent authority has given final approval and recommended respondent No. 6 for MR distributorship license. In dealing with the challenges in the writ petition, it appears that the private respondent has annexed a copy of sanction plan for is proposed godown together with the affidavit opposition. The sanction plan was issued by Tin Pakuria Gram Panchayet, Samserganj, Murshidabad.

In reply dated 18.09.2023 against a RTI application of the petitioner, Murshidabad Zilla Parishad, has informed that the said Zilla Partishad has not approved any plan favour of Md. Basir Ali (respondent No.6) construction of a godown over plot No. LR 164 and 165 under Mouja Ghoramar. The same Zilla Parishad has also replied that the plan of godown of Mukul SK. (petitioner) on plot No. LR 2537 under Samserganj was sanctioned by the Murshidabad Zilla Parishad. 5

Impugned Notification dated 01.09.2022, in Part 4 (10) (n) has specifically mentioned that the application must upload scanned copies of sanction plan of the proposed godown. Now it is question before the writ court whether the plan of godown which was sanctioned by the Tin Pakuria Gram Panchayat in favour of respondent No. 6 is valid or whether it can be accepted for the purposes of the alleged notification dated 01.09.2022.

Mr. Kalyan Banerjee, Learned Senior Counsel, appearing for the respondents submits that the plan of the godown was sanctioned by the office of the Gram Panchayat the Gram Panchayat is a competent authority to sanction the plan; whether the plan is valid or not, is not a question in the writ Court, thus the same issue cannot be raised in this writ petition. He further argued that the as the Gram Panchayat is competent authority to issue a sanction plan of godown the concerned authority had correctly accepted the same. Moreover the impugned notification does not stated that only sanction plan of Zilla Parishad would be accepted thus, Mr. Banerjee submits that the allegation raised by the petitioner is not justifiable.

Mr. Debabrata Saha Ray Learned Counsel, submits that the Gram Panchayet had no authority to sanction a plan of construction which is more than 6,000 square feet. The concern Zilla Parishad is the competent 6 authority. According to the Panchayet Act, the Authority of Gram Panchayat cannot issue such a plan, accordingly the plan issued in favour of the respondent No. 6 is not at all a valid document.

Mr. Saha Ray, further argued that a plan is not valid according to the law, how the Government Authority accepted the said godwn to be constructed properly, which would be used for distribution of huge food grains to the beneficiaries at large.

Mr. Saha Ray further submits that the authority concern has acted illegally by accepting the proposed godown of private respondent No. 6 on the basis of the said sanction plan of a construction more that 6,000 Square Ft.. In this case the vacancy notification dated

01.09.2022 disclosed that copy of sanction plan of the proposed godown must have to be uploaded with the application Part -4 (n) and (o) stated about the sanction plan and lay out map. According to the law, the sanction plan issued in favour of the respondent No. 6 by the GP is not valid; the godown is required to be used to store huge food grains, which will be distributed to the dealers. It would be admitted consideration for all purposes and under the Control Order 2013 that the food grain are required to be stored safety and securely in a well build godown, if one Government Authority which do not authorised to issue sanction plan, had issued the same 7 on behest to respondent No. 6, it has to be undersand that the authority concern had acted beyond their scope on that score. If future, the godown and construction thereof appears to be faulty, the authority issued the sanctioned plan, beyond jurisdiction, cannot held liable. Thus for benefit of the public interest, the sanction plan, as required under part 4(9) and (10) should have been a valid sanction plan. Mere not mentioning the requirement of filing valid sanction plan, which does not mean that any person, whether competent or not, may prepared plan for the construction of a godown which is required for the purpose of storing food grains for public benefit. Under this observation I am of a view that if the godown formed by the respondent No. 6 is used for the purpose of storing food grains, the sole purpose of the Control Order would be violated.

In that score the first challenge in the writ petition appears to me justified.

The private respondent No. 6 submits that the writ petitioner having knowledge of its rejection, did not challenge its rejection but file this writ petition challenge the approval of respondent No. 6. It is submitted by respondent No. 6 that petitioner is otherwise ineligible and has no right to challenge the selection of another on 8 the ground that person selected also had no eligible criteria. Judgment relied on ............... a) (1998) 3 SCC Page 694 (Para’s 13 and 14) b) (2008) 4 SCC Page 171 (Para’s 6, 8 and 9) c) (2010) 12 SCC Page 576 (Para 16) d) (2012) 12 SCC Page 106 (Para’s 19 and 20)

Having heard the Learned Counsel for the private respondent it appears that in the entire selection process the private respondent as well as the petitioner was the eligible candidate. The private respondent has scored more mark. Thus he was selected (though the act was deprecated by this Court as above). So it cannot be said that the present petitioner is not eligible candidate. The observation of Hon’ble Apex Court in the cited decisions are factually different and are not applicable in the present facts.

Before going to the other points on considering the supplementary report in the form of affidavit of respondent No. 1 to 5, it appears that the said report of the State Authority has annexed the report of enquiry of godown of petitioner as well as the private respondent. A score sheet was prepared during the enquiry of the proposed godown of petitioner as well as private respondent. In that prefixed tabulated marking system- under the heading of nature of possession- 5 marks was 9 fixed for ownership and 3 marks was provided for lease hold rights. In that specification, the petitioner was given 3 marks as his godown was constructed over lease hold land while private respondent was given 5 marks as his godown was constructed over his own land. It has been challenged by the petitioner that private respondent became owner of that land after the last date of submission of application. The petitioner has placed a copy deed of sale dated 23rd March, 2023, wherein it appears that the private respondent No. 6 became owner of the plot of land bearing LR 165 under Mouja Ghoramari on 23rd March 2023. It is surprising, why it was noted in the report that he is the absolute owner over the plot of lands. If further appears the respondent No. 6 has scored ‘0’ marks as there are no top ventilation in his godown according to the GO. He scored also ‘0’marks, as there are no baranda outside the proposed godown. On that score, after the enquiry, the petitioner has scored 80 marks and the respondent No. 6 has scored 75 marks. When the said score sheet was placed before the concern authority (Directorate Level Selection Committee) for giving final marks, which they were required to be dealt with only 10 marks; the authority has given 08 marks to the private respondent and given only 02 marks to the present petitioner. Thus the aggregate marks out of 100 appears for private 10 respondent 75+ 8=83 marks, for petitioner 80+2= 82 marks. It appears to me highly surprising how the Directorate Level Selection Committee has given 80% marks to the private respondents when the proposed godown has no proper ventilation or no baranda.

I know the dictum of law that a writ court cannot intrude itself into the decision making process of the competent authority, but the act of the competent authority concerned has obviously shaken the conscience of this court. Moreover, it appears that the competent authority has given 80% marks to a person who has no proper godown according to the GO and only given 20% marks to the person who placed the godown according to the specification of GO Providing 80% marks to a person having no proper godown cannot be accepted through having specious godown.

Under the above observation the act of authority concern invites discretion of this court the interfere with the decision making process of the competent authority. Under the above observation it appears to me that the specification of the godown of private respondent, specially the ventilation and the baranda is not at per G.O. Thus the respondent No. 6 is not at all an eligible candidate according to the vacancy notification. The competent authority without considering the report of the enquiry officers has selected the respondent No. 6 for the 11 appointment of distributor license. In my view the act and action of the competent authority concerned cannot said to be appropriate or unbias.

Under the above observation I find the justification to entertain the writ.

One submission was made on behalf of the State respondent that the petitioner has disclosed himself as an unemployed person but when he filed the application, he annexed a partnership deed wherever it appears that he was engaged in business. It is the pleading of the State Authority that the present petitioner has stated incorrect fact regarding his employment. So he is not at all eligible.

Such plea of the State Authority cannot be entertained in the writ petition. The State Authority is only to demonstrate about the correctness of his action, not to attack the writ petitioner. Moreover, if they are of view that the writ petition is incompetent person, they had every option to reject the application of the petitioner, in its inception. How, during the pendency of the writ petition, they formulate such a defence; more over it appears to me, a person can not actually termed as employed, if he engaged in different business. The term “employed” means and includes a person having specific earnings”. Business with unspecified income by 12 a person cannot held him disentitled to apply for a distributor license.

Under the above score the plea of the private respondent as well as the state is not at all tenable.

Under the above observation the instant writ petition is disposed of. The selection of private respondent for grant of MR distributorship licence against the vacancy notification dated 01.09.2022 by the concerned authority and approval for engagement issued on 25.04.2023 in favour of the private respondent is hereby quashed.

The concerned authority is directed to issue/ grant MR distributorship license in favour of the petitioner against the vacancy notification dated 01.09.2022. within 6 weeks from date, by passing an appropriate order if the petitioner is found to be eligible according to law.

WPA is disposed of. Connected applications if pending are also disposed of.

Learned counsel appearing on behalf of the private respondent no.6 submits that since the private respondent no.6 has been appointed as a distributor over the notification dated September 1, 2022 and he is conducting the business. So, at this juncture, the petitioner intends to go before the Hon’ble Division Bench against the order. So, he prayed for necessary order of stay of the instant order. 13 Learned counsel appearing on behalf of the petitioner raised strong objection. Having heard learned counsel appearing on behalf of the parties and considering entire facts and circumstances of the case, I find no justification to pass an order of stay. Accordingly, the order of stay as prayer for the respondent no.6 is turned down at this stage.

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.)