JUDGMENT :

(Jay Sengupta, J.) :

1. This is an application under Article 226 of the Constitution of India, inter alia, praying for direction that the definition Clause 2(m) of the West Bengal Public Distribution System (Maintenance and Control) Order, 2013, as amended vide notification date 14.12.2020, was ultra vires Articles 14, 19(1) (g) and 21 of the Constitution of India, to include nephew in the definition and to cancel and withdraw the order dated 03.08.2022 issued by the Director of Rationing, West Bengal.

2. Mr. Saha Roy, Learned counsel for the petitioner, submitted as follows. The father’s brother (uncle) of the petitioner namely, Rama Prasad Bhattacharjee, (since deceased) was a fair price shop dealer. The petitioner’s father died long back. Rama Prasad Bhattacharjee was a bachelor and had been residing with the family of the petitioner’s father (since deceased) and the entire joint family was fully dependent upon the income of the said dealership business. He died on 17.12.2020. After his death, there was no other source of income of the said joint family. Immediately after death of petitioner’s uncle, the petitioner made a representation on 21.12.2020, intimated the death of his uncle and also requested to transfer the said dealership license on compassionate ground in favour of the petitioner. The Rationing Officer, Behala East vide memo dated 23.12.2020 de-tagged the entire ration cards and tagged the same with the nearby F.P. shop dealer on temporary basis. The petitioner made application on 14.01.2021 in the prescribed form, enclosing therewith all required documents and legal heir’s certificate issued by the Councillor to get the dealership license on compassionate ground and the same was submitted on 15.01.2021. The Rationing Officer, Behala East instructed the Inspector (F & S) concerned to cause enquiry and submit report. After conducting enquiry through Inspectors, F & S, the Rationing Officer, Behala East forwarded the file to the Director of Rationing for obtaining approval. The petitioner, to his utter shock and surprise, received an order dated 03.08.2022 whereby the prayer of the petitioner for engagement on compassionate ground in place of his uncle had been rejected by the Director of Rationing since the petitioner being the nephew (brother’s son) was not coming under the definition of family members under the Control Order, 2013. The consequences of the death of a bachelor dealer had not been taken note of in the Control Order, 2013, as amended. Such lacuna/silence in the Control Order, 2013 was elaborately dealt with by a Co-ordinate Bench of this Court in WPA 11518 of 2021. It was quite natural that a bachelor brother, residing with his elder brother’s family as ‘joint family’ member had been granted dealership license and the entire ‘joint family’ maintained their livelihood from the said dealership business as family business. Since the petitioner’s father (brother of the deceased bachelor dealer) was entitled to get his bachelor brother’s dealership license on compassionate ground, had he been alive, in terms of Government circular dated 17.09.2021, the petitioner should also been entitled to get such license on compassionate ground to look after the entire family. All present infrastructure shop-cum-godown as per prescription, bank balance, especially experience to run dealership business that too consumers were costumed with the present dealership. Section 8 of the Hindu Succession Act, 1956 in no uncertain term suggested that if there was no first class legal heir then class II legal heirs (brother’s son) should be entitled to get benefit of the deceased. In the present case there were no class I legal heir of the deceased dealer and all remaining other class II legal heirs of the deceased dealer had given ‘NOC’ in favour of the petitioner. At least on two occasions, ‘Definition’ clause of Control Order, 2013 had been amended, including married daughters and brother and sisters as family m