Writ petition challenging award of a food parcel scheme dealership to another applicant, alleging an unusable site near a burial ground and deficient shop area. The court found an easement right provided access and held the State's administrative suitability decision was neither biased nor illegal.
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IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side
Present: - Hon’ble Mr. Justice Subhendu Samanta.
WPA 25040 of 2023 IN THE MATTER OF
Puspa Begam
Vs.
The State of West bengal & Ors. For the Petitioner : Mr. Ram Anand Agarwal, Adv., Ms. Nibedita Pal, Adv., Mr. Ananda Gopal Mukherjee Adv., Ms. Sonam Ray Adv.
For the private respondent: Mr. Debartha Saha Roy, Adv. Mr. Pingal Bhattacharyya, Adv. Mr. Subhankar Das, Adv. Mr. Neil Basu, Adv. Mr. Sankha Biswas Adv.
For the State : Mr. Supratim Dhar, Adv., Ms. Rajyashree Mukherjee Adv. Reserved on : 02.07.2024 Judgment on : 02.08.2024
Ms. Rajyashree Mukherjee Adv.
Subhendu Samanta, J.
Supplies, Government of West Bengal issued FPS, Vacancy notification on 5th February, 2023 in the location of Mollabari, Janamdol, Jama Masjid, P.O.Bishanpur, P.S.- Harishchandrapur, District- Malda.
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Present petitioner, private respondent No. 5 and other
persons applied for the said vacancy.
petitioner came to know that the concern authority had issued an offer letter for dealership in respect of the said vacancy in favour of private respondent No.
follows:-
1. Offered land of private respondent is surrounded by burial ground, there is not approach road for egress and ingress to the offered godwon from public road.
2. The area of offered shop room is not at par with the notification.
Chanchal, submitted a report in the form of affidavit against the writ petition.
opposition against the writ petition; petitioner filed affidavit-in-reply against both the affidavits filed by the respondents.
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Point No. 1 It is the case of the petitioner that
respondent no. 5 offered godown and showroom over LR plot No. 400. There is no approach road for loading and unloading of ration articles. Moreover, the said land was surrounded by a burial grounds (plot no399). Mr. Agarwal submits that the burial ground is a sacred place thus it cannot be used for the purpose of FPS dealership. It is the further case of the petitioner that the concern respondent authority has overlooked the situation and awarded the dealership in favour of respondent No. 5 which is the case of biasness.
behalf of the private respondent submits that which beside the offered plot No. 400, plot No. 399 is situated. The said plot of land (399) is vested to the government of West Bengal and being used by the local people for conducting “Urus” mela. It is the further submission of Mr. Saha Ray, that there are other shops situated at the same place; one Nursery School is also being run in the said plot of land. It is the further case of the respondent No. 5 that for the better purpose of egress and ingress from the offered
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land to the public road, the right to way over plot No. 398 which is connecting over plot no. 400 and the public road, has been declared by one Rejaul Haque & others by way of a deed of declaration. It is the submission of the private respondent that “the right of easement to way” has been declared in favour of the petitioner thus there is no obligation to run FPS dealership over the offered plot no. 400.
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circumstances the respondent no. 5 appears to be more suitable and his candidature was approved by the competent authority.
pleading of the parties and also perused the necessary
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documents it appears that the plot no. 399 is recorded as Kabarsthan but it is also the fact that “Urus Mela” is conducted over the said burial ground. The respondent has placed a deed of declaration, declaring easement right of the respondent no. 5 from offered plot no. 400 to the public road. It is argued by the Learned Advocate, that the petitioner that, notarial deed of declaration is anti dated, the connecting documents of the notarial certificate itself proved that the information was obtained on 27.10.2023 whereas, the notarial certificate was issued on 25.04.2023.
It is true that the notarial certificate has
annexed some documents which is itself after the date of 24.05.2023 but that does not itself invalidated the
deed of declaration executed by the donor in favour of the private respondent on 25th April 2023. Whether the plot no. 399 was forcefully grabbed by unscrupulous persons including the present petitioner, is not the issue involved herein. The only fact emerges the pleadings of the parties that apart from the proposed godown of private respondent no. 5, there are some other shop rooms in/about the
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burial ground. It is the report of the State that no person was buried there since last 50 years. Considering the same it appears to me that just beside offered land of the private respondent there exist a huge open ground which was recorded by a burial ground, but that itself cannot disentitle the private respondent to have license according to the law. Moreover, the approach road for egress and ingress from the offered godown to the public road is also there by virtue of deed of declaration in favour of the private respondent. Thus I find no justification in the objection raised by the petitioner.
Point No. 2 Mr. Agarwal submits that the notification disclosed that “the applicant should possess a suitable godown with minimum area of 400 square feet along with covers space of 200 square feet adjacent to the godwon for office purpose and shed in front of shop to accommodate at least 20 people who may wait in the que”. He submits that the offered land of the private respondent specifically the shop room is not consisting area of 200 Sqft.
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was submitted by the State along with their affidavit and submits that there is arithmetic error by the concern officer who conducted enquiry. He submits that the size of area of sales counter was mentioned in the report as length- 7.80 ft.; width- 10.50 ft. and height- 10.70 ft.; the area was mentioned as 213.15 sqft. Mr Agarwal submits that the only area of the said sales counter according to the correct mathematical calculation would be 186.9 sqft. He submits that the State Authority was biased in considering the application of the private respondent actually the private respondent is an ineligible candidate according to the notification but he was allowed the license. The state submits that the offered godown and the sales counter of the private respondent is according to the specification.
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godown of the present petitioner; after conducting the inquiry it appears to the State Authority that the Private respondent No. 5 is a suitable candidate. It is the view of the State Authority that storage godown of the private respondent No. 5 is more specious than the present petitioner and it is located more nearer than the petitioner from the ‘Central point of vacancy location’. The State Authority is to determine the candidature of persons who applied for the vacancy. In deciding said issue the State Authority has opted view that private respondent no. 5 is more suitable candidate than the petitioner. The area of the sales counter of respondent no 5. may be less than the specification of the notification, but the State Authority thinks it necessary and deems it fit to give a license for the purpose of smooth public distribution system of the food grain to the locality. The authority to select and domain to determine suitability is only upon the State to determine the candidature of any person. In the writ petition it is only to looked into whether the decision of the State Authority is biased, purposive or illegal. Considering the entire facts and
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circumstances it appears to me that the State Authority is the competent Authority to determine the suitability of candidates, the decision of the State Authority is purely administrative in nature. Though there are may have some ineligible imperfection according to the notification, but administrative the decision as arrived at by the State cannot be said to be biased decision.
the concerned Dept. on usual terms and conditions.
(Subhendu Samanta, J.)
2 issues framed by the court
Whether the offered plot for FPS dealership was unsuitable due to adjacency to a burial ground and lack of access road.
Whether the private respondent's shop area falling short of the notified specification made her ineligible and the State's selection biased.
Puspa Begam
The State of West Bengal
Subhendu Samanta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
