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CASE NO.: Appeal (civil)  4865 of 2007

PETITIONER: Swapan Kumar Pal

RESPONDENT: Achintya Kumar Nayak & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.21732 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      The parties hereto were contenders for grant of a Modified Rationing  (MR) Shop.  The MR shop in question situated in village Sasanga 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 Appellate Authority  while confirming the suspension of licence for kerosene, however, directed  restoration of dealership in respect of other 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 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 selection 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, recommendations were  made by the competent authority to grant MR dealership of Sasanga to  Achintya.  Pursuant to the said recommendations, the Collector (District  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 the Court  allowed the same by reason of the impugned judgment dated 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 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.   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 appear  to be governed by any statute or statutory rules.  Appropriate Authority,  however, have issued a notification on or about 21.11.2000 pursuant

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whereto, both, the appellants and the first respondent, 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  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  recommendations 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  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 : \023In due deference to the direction of His Lordship  Hon\022ble Justice Ashim Kumar Banerjee in the  High Court of Kolkata regarding the WP  No.18364(W) of 2001 held the personal hearing of  Sri Swapan Kumar Pal writ petitioner and Sri  Achintya Kumar Nayak, 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 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 of MR Dealer, salient aspect of  suitability of storage space of MF Commodities,  sound financial potentiality experience and  workable educational qualifications are generally  taken into consideration.  Both the candidature  were examined on the above light and I found that  Sri Achintya Kumar Nayak has fulfilled the  aforesaid criteria and I do not find any point to  negate the edge of Sri A.K. 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.\024

11.     On a writ petition filed by the appellant herein, a learned Single Judge  arrived at a finding that the first respondent 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 :  \023I, 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 State-respondent 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 within a period of fortnight from  the date of communication of this order.\024

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

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reversed the said decision.   13.     The criterias which were relevant for grant of MR dealership, inter  alia, were : 1.      Financial Solvency 2.      Possession of Godown 3.      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 the  scheme in question was meant for the \021Educated Unemployed People\022.  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 been  produced before us.  Relevant criterias therefor, however, can be ascertained  from the form 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 criterias  besides trade proficiency and the period during which the applicant was in  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,  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 of the  petitioner and the fist respondent and might have also erred in taking 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 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 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.