SCA/7915/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7915 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE STATE OF GUJARAT & 3 - Petitioner(s) Versus P S DESAI - Respondent(s) ========================================================= Appearance : MR VIPUL A.MISTRY ASST.GOVERNMENT PLEADER for Petitioner(s) : 1 - 4. MR SK BUKHARI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 07/08/2008 ORAL JUDGMENT 1. RULE. Mr.S.K. Bukhari, learned advocate appearing waives the service of notice of rule on behalf of the respondent. 2. With the consent of the learned advocate appearing on SCA/7915/2008 2/10 JUDGMENT behalf of the respective parties, present Special Civil Application is taken up for final hearing. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners – State of Gujarat and others, have prayed for appropriate writ, order and/or directions for quashing and setting aside the judgement and order dtd.22/10/2007 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.87 of 2007 in allowing the same and quashing and setting aside the order dtd.31/8/2007 passed by the learned 6th Additional Senior Civil Judge, Godhara below application Ex.5 in Regular Civil Suit No. 210 of 2007. 4. The respondent herein – original plaintiff is having a fair price shop at village Moti Ubharavn,, Taluka Halol, District Panchmahals. That the respondent – original plaintiff is granted license to run the fair price shop under the Pandit Din Dayal Grahak Bhandar Scheme of the State Government and he has been allotted 700 Ration Card Holders having population of 3600. That the respondent is a licensee under the provisions of the Essential Commodities Act, 1955 and is provided wheat, rice, oil, kerosene etc. for selling it to the poor people SCA/7915/2008 3/10 JUDGMENT more particularly, to the people leaving Below Poverty Line (BPL) as per the Government Policy at reasonable rate. That in the public interest, it was decided to have another fair price shop by way of division in two parts of the same village. Being aggrieved by the said decision, the respondent herein – original plaintiff filed Regular Civil Suit No.210 of 2007 for restraining the petitioners – original defendants from reducing the Ration Card Holders attached with his fair price shop of the plaintiff and restraining the petitioners – original defendants from opening any other fair price shop in the said village. In the said suit, the petitioner - original plaintiff filed application Ex.5 for interim injunction. It was contended on behalf of the original plaintiff that as per the Government Circular / Resolution, there should be minimum certain number of Ration Card Holders attached with a fair price shop looking to the population and it was further contended that if the Ration Card Holders are reduced, he will not get sufficient commission and it will not be possible for him to run the fair price shop. It was contended on behalf of the original plaintiff that the said action is in breach of the principles of natural justice as no notice or hearing has been SCA/7915/2008 4/10 JUDGMENT afforded to the plaintiff. The application Ex.5 was opposed by the petitioners herein – original defendants by submitting that the suit itself is not maintainable. It was also further submitted that as such the discretion is with the authority to allow the number of Ration Card Holders and/or to open the fair price shop looking to the need of the village people and in the public interest. It was submitted that the paramount consideration is the public interest, interest of the village people and the Ration Card Holders. It was further submitted that the licensee has no right, much less any legal right, to have particular Ration Card Holders. It was also further submitted that even in the Resolution relied upon by the plaintiff and as per the policy, it is provided that as far as possible, but certainly any licensee and/or fir price shop owner has no right, whatsoever, to ask for a particular number of Ration Card Holders. It was further submitted on behalf of the plaintiff that as per the Resolution, there shall not be new fair price shop within the radius of 3 KMs. The learned 6th Additional Senior Civil Judge, Godhara, after hearing both the sides, vide order dtd.31/8/2007 rejected the application Ex.5 holding that the Collector has jurisdiction to open to forward proposal SCA/7915/2008 5/10 JUDGMENT for opening new fair price shop and the same is in consonance with the Government Resolutions, and therefore, the interference by the Civil Court is not required. The trial court further observed that the plaintiff can pray for hearing before the competent officer but it appears from the record that the plaintiff has not submitted any documents on record to show that he has made any representation to the competent officer. The trial court further observed that if the interim injunction is granted, the entire suit will be allowed at the interim stage. It is also observed that if the interim injunction is granted, the same would adversely affect to the interest of the public at large and on the contrary, if new fair price shop is opened, the plaintiff is not likely to be adversely affected and if any loss is caused to the plaintiff, the plaintiff can pray for damages. The trial court held that the Collector has jurisdiction and therefore, it will not be proper to interfere and grant the interim injunction. The trial court held that prima facie case and balance of convenience are not in favour of the plaintiff and if the interim relief as prayed for is not granted, the plaintiff is not likely to suffer irreparable loss which cannot be compensated in terms of money. Holding accordingly, the SCA/7915/2008 6/10 JUDGMENT trial court rejected the application Ex.5 preferred by the plaintiff – respondent herein. Being aggrieved by and dissatisfied with the order passed by the trial court below application Ex.5 in rejecting the same, the respondent herein – original plaintiff preferred an appeal before the appellate court, and the appellate court, after hearing both the sides, vide judgement and order dtd.22/10/2007 allowed the side appeal, by quashing and setting aside the order passed by the trial court below application Ex.5. The appellate court observed that no opportunity of being heard is given to the plaintiff before taking decision to open new fair price shop. The decision of reduction of the Ration Card Holders and opening new fair price shop, is in breach of the principles of natural justice, as no notice has been issued upon the plaintiff – respondent and that as per the Government Resolution there cannot be a second fair price shop within the radius of 3 KMs. The appellate court further directed the original defendants – petitioners herein not to open any new fair price shop at village Moti Ubhvaran and not to reduce the essential commodities and Ration Card Holders of the plaintiff, till final disposal of the suit. The appellate court further directed the the parties to cooperate the SCA/7915/2008 7/10 JUDGMENT trial court in early disposal of the suit. Being aggrieved by the judgement and order passed by the appellate court in allowing the appeal and quashing and setting aside the order passed below application Ex.5, the petitioners – original defendants have preferred present Special Civil Application under Article 227 of the Constitution of India. 5. Mr.Vipul A.Mistry, learned Assistant Government Pleader appearing on behalf of the petitioners has vehemently submitted that the appellate court has materially erred in allowing the appeal and granting interim injunction as prayed for by the plaintiff and restraining the petitioners - original defendants from reducing the Ration Card Holders attached with the fair price shop of the plaintiff and furthers restraining the petitioners – original defendants from either opening another fair price shop or division of existing fair price shop in the same village. It is submitted that what is provided in the Resolution is that as far as possible the distance and the Ration Card Holders should be maintained. However, in the larger public interest and in the interest of the village people and the Ration Card Holders, the same can be reduced. It is also further submitted that as such the suit itself is not maintainable, as it is realm of policy of the Government SCA/7915/2008 8/10 JUDGMENT to open the fair price shop and to allot the Ration Card Holders to a particular fair price shop. It is also further submitted that there is no question of affording any opportunity to the licensee, as the licensee/fair price shop owner has no legal right to ask for particular number of Ration Card Holders. Therefore, it is requested to allow the present Special Civil Application and quash and set aside the order passed by the appellate court. 6. Mr.S.K. Bukhari, learned advocate appearing on behalf of the respondent – original plaintiff has submitted that as rightly held by the learned appellate court, before reducing the Ration Card Holders, no opportunity has been given and/or no notice has been issued to the respondent – plaintiff and hence the said action is in breach of the principles of natural justice and the appellate court has rightly allowed the appeal and granted the interim injunction as prayed for by the plaintiff. Therefore, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocate appearing on behalf of the respective parties. 8. At the outset, it is required to be noted that the respondent – original plaintiff has no vested right to ask SCA/7915/2008 9/10 JUDGMENT for a particular number of Ration Card Holders attached with his fair price shop. The plaintiff has been granted license to run the fair price shop under the scheme of the State Government and it is ultimately for the State Government to decide how many number of Ration Card Holders should be allotted to a particular fair price shop. The interest of the Ration Card Holders and the village people is the paramount consideration and as there is no vested legal right in favour of the plaintiff, there is no question of issuing any notice and/or giving any opportunity to the respondent – original plaintiff before taking decision to reduce the Ration Card Holders. Prima facie, it appears that even the suit itself is not maintainable. However, without entering into the said larger question, it appears that the trial court has rightly refused to grant the interim injunction as prayed for. As such the relief granted prayed for by the plaintiff by way of interim relief, is the final relief sought in the suit. As held by the Hon'ble Supreme Court and this Court in catena of decisions, normally court should be slow in granting the interim relief, which may be ultimately final relief in the suit. In very very exceptional cases, final relief can be granted as an interim relief. Under the SCA/7915/2008 10/10 JUDGMENT circumstances, the trial court has rightly refused to grant the interim relief, but the learned appellate court has committed an error and/or exceeded its jurisdiction in allowing the appeal and granting application Ex.5 and therefore, the impugned order passed by the learned appellate court requires to be quashed and set aside. 9. For the reasons stated above, the petition succeeds. The impugned judgement and order dtd.22/10/2007 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.87 of 2007 is quashed and set aside and the order dtd.31/8/2007 passed by the learned 6th Additional Senior Civil Judge, Godhara below application Ex.5 in Regular Civil Suit No.210 of 2007 is restored. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik