SWAPAN KUMAR PAL v. ACHINTYA KUMAR NAYAK AND ORS

Citation: [2007] 11 S.C.R. 428

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SWAPAN KUMAR PAL v. ACHINTYA KUMAR NAYAK AND ORS.pdf

Judgment text

--(---1 SWAPAN KUMAR PAL v. ACHINTYA KUMAR NAYAK AND ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] ' . 1 Constitution ofIndia, I950: y 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 calledfor as hefuljilled the relevant criteria-Public Distribution System. Administrative Law: Decision making process-Interference with-Scope of- )---- Discussed 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 ofFirst respondent. Pursuant thereto, the Collector granted MR dealership to him. Appellant filed writ petition before High Court. Single judge allowed the same. First respondent successfully appealed before the Division Bench ofthe High Court.

1- In appeal to this Court, appellant contended that the Division Bench committed a manifest error in reversing the judgment of the Single Judge insofar as it took into consideration irrelevant factors, namely, educational qualifications ofthe candidates; and that the First respondent did not own a godown on the date offiling ofthe application which was the determinative factor for grant ofthe dealership and the appellantfulfilled the said criteria and hence was entitled thereto. NAYAK ~-.. ,.. Dismissing the appeal, the Court HELD: 1. Grant ofMRdealership in the State ofWest Bengal is notgoverned by any statute orstatutory rules. Appropriate Authority, however, have issued a notification on or about 21. 11. 2000 pursuant whereto, both, the appellants and the first respondent, filed1 their applications. The appellant is owning a godown ofwhich he had b~en 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 ofa godown which had been donated to him by his uncle. [Para 9] [432-D, E] 2. The Sub-Divisional ControllerofFood and Supplies, upon taking . into consideration the relevant criteria for grantofMRdealership, made recommendations in favour ofthe first respondent. An enquiry thereto was also made. 'A spot visit was made by the competent authority. Qualifications and experiences ofthe respective candidates were taken -~ into consideration ~d the first respondent was recommended by the Competent Authority on or about26. 2. 2001. [Para 10] [432-F, G[ 3. 1. The criteria which were relevant for grant ofMR dealersflip, were: financial solvency, possession ofGodown and trade proficiency. It may be true that the candidates were not required to have ~my particular educational qualification.

Workable knowledgewas sufficient It, however, appears from the counter affidavit ofthe first respondent that the scheme in question was meant for the Educated Unemployed -'! People. The Competent Authority, therefore, was to consider the respective cases ofthe parties upon application ofthe 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 has been produced before this Court. Relevant criteria therefor, -~ however, can be ascertained from the form ofthe applications filed by the parties. The sites ofthe shop and the capacity ofthe godown as also a valid document for possession thereof were some of the relevant criteria besides trade proficiency and the period during which the \ applicantwas in business. Ownership ofthe godownwas not an essential condition but the possession thereofwas. [Paras 15and16] [434-E,F] 4. 1.

SingleJudge ofthe High Court, therefore, misdirected himself in posinga wrong question namely,ownership ofthe godownwhichwas not ofmuch relevance. [Para 17] [434-F, G] . '. 4. 2. The Division Bench ofthe 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 subsequent event, namely execution ofa deed ofgift in favour of the first respondent by his uncle, but even if the same are left out of consideration therewould notbeany changein the position ofthe parties. Ifany recommendation has been made in favour ofthe first respondent having regard to the sites of the shopj 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 otthe first respondent relying on oron the basis ofthe said criteria. [Para 18] [434-G, 435-A, B] 5.

In a case ofthis nature, ordinarily, the High Court would not exercise its discretionary jurisdiction under Article 226 of the Constitution. For exercising the power ofjudicial review, the Court has a limited role to play. It could interfere onlyifany legalerror has been committed in the decision making process. It could not enter into the merit ofthe decision. [Para 19) [435-C] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4865 of 2007. 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. Ranjit Kumar Jaiswal, Pradeep Mukherjee, Sarla Chandra, T. C. ·--)- Sharma, Neelam Shanna and Rajeev Shanna for the Respondents. The Judgment ofthe Court was delivered by "' S. B. SINHA, J. I. Leave granted. 2. The parties hereto were contenders for grant of a Modified 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 y distribution of Kerosene. An enquiry in regard thereto was conducted. His licence was suspended. He preferred an appeal thereagainst. The Appellate Authority while continuing the suspension of licence for kerosene, however, directed restoration ofdealership in respect ofether 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 ofthe said proceedings, a regular selecti9n for appointment process ofMR dealers at Sasanga village was conducted.

There were three contenders, one ofthem being one Ms. Sarama Mondal left the fray in the midway. Between rest ofthe two, recommendatiori. s were made by the competent authority to grant MR dealership ofSasanga to Achintya. Pursuant to the said recommendations, the Collector (District _y 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 ofthe 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 ofthe impugned judgment dated I ·--'- 9,11,2006. 6. The appellant is, thus, before us. ) ~ 7. Mr. S. B.

Sanyal, learned senior counsel appearing on behalfof the appellant, inter alia, submitted that the Division Bench committed a manifest error in reversing thejudgment ofthe learned Single Judge insofar as it took into consideration irrelevant factors, namely, educational qualifications ofthe 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 ofthe dealership and the appellant herein l having fulfilled the said criteria was entitled thereto. ""( t-- 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 ofjudicial 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 whereto, both, the appellants and the firstrespondent, filed their applications. So far as the appellant is concerned, he is said to be owning godown ofwhich 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 ofa godown which had been donated to him by his uncle. 10. The Sub-Divisional Controller ofFood and. Supplies, upon taking into consideration the relevant criteria for grant ofMR dealership, made 1recommendations in favour ofthe first respondent. An enquiry thereto was also made. A spot visit was made by the competent authority.

Qualifications and experiences ofthe 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: "In due deference to the direction ofHis Lordship Hon'ble Justice Ashim Kumar Banerjee in the High Court of Kolkata regarding 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 oftheir credentials rival contentions.

While appointing qf MR Dealer, salient aspect of suitability of storage space of MF Commodities, sound financial potentiality experience and workable 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 ofSri AK. Nayak over the other. Sub-Divisional Controller, Food & Supplies, Burdwan being the appertaining (sic for appointing) authority ofthe MR Dealer in the like extent case would proceed accordingly and also ensure obtaining approval ofthe MR vacancy by the Government which is deficient in this case. " 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 ofownership or tenancy in respect ofthe godown and the said order of the Collector could not be sustained.

It was directed : · "I, thus, find that the petitioner is the only other person who has. all the requisite qualifications as the case ofthe other one need not be considered as per the order ofAshim 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 within a period offortnight from the date ofcommunication ofthis order. " 12. As noticed hereinbefore, the Division Bench ofthe said High Court reversed the said decision. 13. The criteria which were relevant for grant of MR dealership, inter alia, were : 1. Financial Solvency 2. Possession ofGodown 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 ofthe first respondent that 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 been produced before us. Relevant criteria therefor, however, can be ascertained from the fonn ofthe applications filed by the parties. 16. It appears that sites ofthe shop and the capacity ofthe godwon as also a valid document for possession thereofwere some ofthe relevant criteria besides trade proficiency and the period during which the applicant was iri business. Ownership ofthe godown was not an essential condition but the possession thereofwas. 17. Learned Single Judge ofthe High Court, therefore, in our opinion, misdirected himself in posing a wrong question.

He had taken into consideration a factor, namely, ownership ofthe godown which was not of much relevance. 18. The Division Bench ofthe High Court might have committed an error in taking into consideration the respective educational qualifications ofthe petitioner and the fist respondent and might have also erred in taking into consideration a subsequent event, namely execution ofa deed ofgift in favour ofthe first respondent by his uncle, but even the same are left out ofconsideration there would not be any change in the position ofthe 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 ofthe first respondent relying on or on the basis of the said criteria. I 19.