JUDGMENT :

Bibek Chaudhuri, J.

1. One Rathindra Nath Singha was a licensee of fair price shop of village Banagram within Jalandi Gram Panchayat in the district of Birbhum. During his lifetime on 8th March, 2011 he made an application stating, inter alia, that he is unmarried and living with the family of his brother Bamacharan Singha. It is also stated in the said application addressed to the Sub-Divisional Controller, Food & Supplies (Bolpur, Birbhum) that as a result of various ailments he became incapacitated to run the said fair price shop and requested the authority to change/transfer the licence of F.P.S. in the name of his brother Bamacharan. Subsequently, on 17th June, 2011 the said licensee had expired. On 29th August, 2011 the present petitioner filed an application in appropriate form for granting licence of F.P.S. which stood in the name of his unmarried elder brother in favour of him. The said application was filed along with an affidavit of one Krishna Singh being the sister of Rathindra Nath, since deceased and Bamacharan. The concerned authority who has been arraigned as respondent No.5 failed to dispose of the said application filed by the petitioner till 27th November, 2013. When it is informed by him that other legal heirs have not submitted any ‘no objection’ certificate in favour of the present petitioner and, therefore, as per direction of the District Controller, Food & Supplies (Birbhum), respondent No.4 the petitioner was directed to submit ‘no objection’ certificate duly affirmed by the other legal heirs. The petitioner had complied with the said requirement also. Subsequently on 20th April, 2014 the respondent No.5 informed the petitioner that his file was returned again as per order of the respondent No.4 dated 28th March, 2014 with a direction to the petitioner to resubmit his application in connection with his prayer for issuance of F.P.S. license on compassionate ground following the West Bengal Public Distribution System (Maintenance and Control) Order, 2013.

2. Being aggrieved against the said letter and decision of the District Controller as communicated by the Sub-Divisional Controller, Food & Supplies vide letter dated 24th April, 2014 the petitioner has filed the instant writ petition.

3. Be it mentioned here that before filing of the writ petition the petitioner was informed that as per control order of 2013 a brother of a deceased F.P.S. dealer cannot be regarded as a family member as defined in Clause 2 (m) of West Bengal Public Distribution System (Maintenance and Control) Order 2013 and, therefore, the application of the present petitioner cannot be allowed.

4. Though this day when the matter is taken up for hearing, the State respondents are not represented by their learned advocate. However, on the previous occasion, i.e., 17th February, 2023 the Sub-Divisional Controller affirmed an affidavit in the form of a report in compliance of the order passed by this Court on 13th February, 2023 stating, inter alia, that the petitioner cannot be regarded as a member of the family within the meaning of Clause 2 (m) of the Control Order of 2013 and secondly the Sub-Divisional Controller asked the petitioner on 27th November, 2013 to submit ‘no objection’ certificate from all the family members of ex F.P.S. dealer which he failed inasmuch as the original F.P.S. dealer had a brother who predeceased the original F.P.S. dealer. According to the Sub-Divisional Controller ‘no objection’ certificate of the legal heirs of the said predeceased brother of the original F.P.S. dealer is required to be filed by the present petitioner.

5. In course of argument it is submitted by the learned advocate for the petitioner that prior to promulgation of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013 the control order of 2003 used to operate in the field. Clause 19 (ii) of the said Control Order, 2003 states:-

“In case of vacancy arising out of death incapacitation on medical ground of an