Ashim Sharma vs State Of Tripura And Ors

[1] Heard Mr. A. Nandi, learned counsel appearing for the petitioner as well as Mr. D. C. Saha, learned counsel appearing for the respondent No.6 and Mr. Alik Das, learned counsel appearing for the respondent No.7. When the matter is called out, none appears for the official-respondents. However, they have filed their reply contesting the case of the petitioner.

[2] The petitioner's grievance falls within the short compass and as such the matter has been taken up for final disposal today. It is admitted fact that the petitioner and the respondent No.7 had made prayer seeking this appointment as the Fair Price Shop dealer for East Hurua Fair Price Shop. Such application was filed in response to the memorandum inviting application for appointment of the dealer for East Hurua Fair Price Shop. The vacancy was created for surrendering the license by the earlier dealer.

[3] According to Mr. Nandi, learned counsel appearing for the petitioner that on 06.02.2018 East Hurua Panchayat had adopted a resolution to issue No Objection Certificate (NOC) in favour of the respondent No.7, in terms of Annexure-2 of Schedule 2 of Food Safety and Standards Act, 2006. The Licensing Authority (Sub-Divisional Magistrate), Dharmangar, having considered the other eligibility of the respondent No.7, appointed him as the dealer of East Hurua Fair Price Shop by the Memorandum No.03(43)/SDM/DMN/FP/1997/1563-67 dated 21.01.2019 (Annexure-H to the writ petition). The petitioner has challenged the said memorandum, dated 21.01.2019, by means of this writ petition, on the solitary ground that no objection as was issued by the East Hurua Gram Panchayat in the meeting dated 06.12.2018 vide resolution No. 17/2018-19 has been recalled/revoked by their resolution No.23/2018-19 dated 01.03.2019, the relevant part of which reads as under:

"Reluctantly it is unanimously resolved in presence of all elected members that resolution dated 06.12.2018 was obtained illegally, forcibly which was otherwise illegal having no value in the eye of law".

[4] On the very day, another resolution was adopted by the said Panchayat that the petitioner be favoured with No Objection and he may be appointed as the dealer of East Hurua Fair Price Shop. After taking the said resolution by the communication dated 05.03.2019, revocation of No Objection was informed to the Sub-Divisional Magistrate, Food Civil Supplies & Consumer Affairs, Dharmangar, North Tripura. The said communication and the resolution have been brought in the record by the petitioner by way of filing an additional affidavit. The state-respondents have filed the reply on 29.04.2019, whereas the petitioner had filed the said additional affidavit on 11.03.2019.

[5] Over that aspect, the state-respondents has asserted that on the basis of the earlier resolution dated 06.02.2018, the respondent No.7 was offered the appointment as the Fair Price Shop dealer. They had not verified other antecedents of the said respondents. But, as it surfaces, the respondents have not traversed the averments in the additional affidavit, filed by the petitioner. The procedure for appointment of the Fair Price Shop dealer is available in the memorandum dated 30.06.2011 (Annexure-R1 to the reply filed by the official-respondents). It appears further therefrom that while appointing a dealer for any Fair price Shop under Tripura Food Grains (Distribution) Control Order, 1972 framed under Section 3 of the Essential Commodities Act, 1955, the Licensing Authority (Sub-Divisional Magistrate) shall make a request in writing to the concerned Gram Panchayat for their recommendation of the person whom they would recommend. Within 15 days from the day of making the request, the said local body shall issue their recommendation/no objection. As it appears from the records, after having the No Objection Certificate (NOC) from the Gram Panchayat, there took place an inquiry conducted by the Panchayat Secretary and only thereafter, the respondent No.7 was appointed as the dealer of the said Fair Price Shop.

[6] The petitioner filed the rejoinder to the said reply and reiterated that the said local body had already revoked their recommendation. The respondent No. 7 has filed his reply separately and he has asserted that there was no illegality in the recommendation made on 06.02.2018, but he has not stated anything about the resolution revoking the earlier no-objection/recommendation. He has asserted in Para 13 of his reply that no illegality has been unleashed by the Licensing Authority or any other person who had recommended his appointment as the dealer. The respondent No.7 has filed an additional reply in response to the additional affidavit filed by the petitioner. There he has stated nothing about the revocation but stated that on due enquiry he has been appointed as the dealer of the said Fair Price Shop.

[7] Mr. Alik Das, learned counsel appearing for the respondent No.7 has quite strenuously submitted that the recommendation was influenced and as such no authority shall take consideration of such consideration. Even, Mr. Das, learned counsel has submitted that if there was any coercion/subjugation by the petitioner, East Hurua Gram Panchayat or any of its member could have informed the police but no such record has been produced before this court.

[8] This has been already noted that none appears for the state. For East Hurua Gram Panchayat, Mr. D. C. Saha, learned counsel has appeared and stated that the resolution dated 06.02.2018 was obtained under coercion/threat, posed to the Panchayat Pradhan. Accordingly, in a subsequent meeting held on 01.03.2019, the said recommendation was revoked, recalled and cancelled. The Panchayat has communicated the content of the resolution, relevant for purpose of consideration of appointment of dealership to the Licensing Authority (Sub-Divisional Magistrate), Dharmangar. As it appears that on the basis of the said revocation, no further action has been taken by the competent authority, even though, a serious allegation has been made by the whole body of the Gram Panchayat in respect of procurement of the no objection/recommendation in favour of the respondent No.7. Having noted all these facts, relevant to the present controversy, this court is of the view that the Licensing Authority (Sub-Divisional Magistrate), Dharmangar shall make an independent inquiry and also request East Hurua Gram Panchayat to submit their opinion in writing to him and after that, he would firmly take fresh decision in respect of appointment of dealership for East Hurua Gram Panchayat in terms of the memorandum seeking the application for appointment of dealership for East Hurua Fair Price Shop.

[9] The Sub-Divisional Magistrate, Dharmanagar (the Licensing Authority) is permitted if on inquiry he is satisfied that the recommendation as made by East Hurura Gram Panchayat was obtained by exercise of coercion/subjugation, he may cancel the memorandum dated 21.01.2019 (Annexure-H to the writ petition) and may appoint any person competent to be appointed as the dealer of East Hurua Fair Price Shop in accordance with the laid down procedure. Before taking any decision, the respondent No.7 be provided a reasonable opportunity to lay his case before the Licensing Authority. Till any decision is taken, the respondent No. 7 shall continue to run East Hurua Fair Price Shop undisturbed.

In terms of the above, this writ petition stands allowed to the extent as indicated above.

There shall be no order as to costs.

A copy of this order be supplied to the counsel for the parties. Sub-Divisional Magistrate, Dharmangar, Licensing authority shall complete the entire exercise within a period of three months from the day of receipt of copy of this order.