SCA/5385/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5385 of 2007 With CIVIL APPLICATION No. 3817 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 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 ? ========================================================= JAISWAL RUPAL SUDHIRKUMAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR NK MAJMUDAR for Petitioner(s) : 1, MR.CHHAYA, ASST. GOVERNMENT PLEADER for Respondent No.1 and 2. MS.SANGITA PAHWA FOR M/S THAKKAR ASSOC. for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 07/02/2008 ORAL JUDGMENT The present petition has been filed under Article 226 and Articles 14 and 19 of the SCA/5385/2007 2/10 JUDGMENT Constitution of India praying for appropriate writ, order or direction to quash and set aside the order dated 31/01/2007 passed by the respondent No.1 (Annexure – H) allowing the application / appeal preferred by the respondent No.3. 2. Mr.N.K.Majmudar, learned Advocate for the petitioner has submitted that vide order dated 24/01/2006 the petitioner was allotted licence to run a fair price shop in Gotri, Ganganagar area of City of Vadodara under the scheme of Pandit Dindayal Grahak Bhandar Yoja. The said allotment was made by the authorities on account of fulfillment of all the relevant criteria by the petitioner. However, the respondent No.3 herein lodged grievance in form of appeal by application dated 27/01/2006 against the order passed by the Collector allotting fair price shop to the present petitioner. 2.1 It is further submitted that the petitioner placed his case before the respondent No.1-appellate authority, but respondent No.1 was pleased to pass the order under challenge dated 31/01/2007 and same SCA/5385/2007 3/10 JUDGMENT has been assailed by the petitioner. The impugned order has been challenged on various grounds as mentioned in memo of petition but Mr.Majmudar, learned Advocate for the petitioner has concentrated his argument mainly on two grounds; that when the Collector had changed the sequence in the recommendation made by the District Advisory Committee, respondent No.3 had not adequate financial strength and evidence produced at subsequent stage of regaining financial adequacy ought not to have been taken into consideration by the appellate authority viz., the Joint Secretary and; that the Joint Secretary has treated the petitioner disqualified merely because she got married to a person in the period in between i.e. after the date of inviting applications for allotment of fair price shop by the Government and the date of order under challenge. 3. The Collector had decided to allot a fair price shop to the present petitioner and petitioner was running a fair price shop, but after filing of the present petition, as the petitioner was not granted any interim relief, on the strength of the order under challenge the respondent No.3 has been SCA/5385/2007 4/10 JUDGMENT allotted the said fair price shop. 4. Undisputedly, the respondent No.3 is running a fair price shop but on plain reading of the documents tendered and as pointed out by the learned Advocates appearing for the respective parties, following facts have emerged which needs consideration. I. The petitioner applied on 30/10/2004 after publication of the advertisement by the Government for allotment of licence to run a fair price shop in various areas of City Vadodara under the scheme of Pandit Dindayal Grahak Bhandar Yoja. II.The petitioner was allotted one of the shop in the area mentioned in the advertisement as Kotri under the order passed by the Collector, ignoring the recommendations made by the District Advisory Committee on 24/01/2006. However, during the said interregnum period, the petitioner got SCA/5385/2007 5/10 JUDGMENT married to one person residing in the nearby vicinity of Gotri area and therefore on the date of allotment of licence to run a fair price shop, the petitioner was enjoying status of being a married woman. III. According to me, the petitioner ought to have disclosed this fact before the Collector when the proceedings were pending and applications were under scrutiny, otherwise the Collector may have selected either respondent No.3 or a person who was recommended at Sr.No.3 by the District Advisory Committee. This fact is sufficient to observe that the petitioner has not been held disqualified for allotment of licence to run a fair price shop, merely because she got married after making an application. The act of getting married would not incur any disqualification itself. But, if the marriage was solemnized prior to the allotment of licence to run a fair price shop and pending the proceedings, the SCA/5385/2007 6/10 JUDGMENT Government can consider this vital aspect as one of the relevant factor and it appears that the respondent No.1 has taken into consideration this aspect being relevant while allowing the appeal preferred by the respondent No.3. IV. It also emerges that during scrutiny, the present petitioner was not able to say positively that she is already enjoying possession of a shop or premises to start a fair price shop, if she would be allotted a licence to run the same. The petitioner had simply given assurance to the Collector that, if she is allotted licence to run a fair price shop then she would arrange for premises. It is clear from the record that respondent No.3 was already having a shop in the area for the purpose and had also made arrangement while the applications were under scrutiny before the Committee as well as before the Collector. SCA/5385/2007 7/10 JUDGMENT V. It is also pointed by Ms.Sangita Pahwa, learned Advocate appearing for the respondent No.3 that real brother of the present petitioner had also applied for a fair price shop licence under the very scheme for different area and he has been given licence to run a fair price shop and at present the brother of the petitioner is running the same. In support of this, the relevant documents are also produced and in rejoinder affidavit this fact has been admitted by the present petitioner. VI. It is rightly submitted by Mr.Chhaya, learned Asst. Government Pleader appearing for the respondents No.1 and 2 that one of the embargo in the scheme would not make the present petitioner entitle to allot a fair price shop, because prior to resolution of the dispute before the Joint Secretary, the brother of the petitioner was allotted licence to run a fair price shop. The petitioner ought to have disclosed this fact SCA/5385/2007 8/10 JUDGMENT before the Joint Secretary so that this fact also could have been taken into account by the Joint Secretary. VII. As per policy of the Government, it has been decided not to allot a fair price shop to the second member of the same family. In the present case, it appears that two members of the same family viz., the brother and sister-petitioner herein had applied and on being successful candidates, their names were recommended in the select list by the Taluka and District Advisory Committees. 5. It is not possible for this Court to accept the argument of Mr.Majumdar that when the husband of the petitioner is resident of area Gotri then the question of period of her residence in the said area Gotri would be irrelevant. This argument cannot help the petitioner because in that case the Taluka and District Advisory Committees could have ascertained the fact altogether that whether the husband of the petitioner is really residing in the said area Gotri SCA/5385/2007 9/10 JUDGMENT for more than ten years or not in accordance with the policy existing in the year 2007. The criteria of consideration would have changed materially. The Government also could have inquired as to whether the husband of the petitioner is financially well off or not and; whether the petitioner really needs any employment even at her in-law's house. Because, ultimately the scheme under which the petitioner was allotted licence to run a fair price shop, is carved out with a view to see that at least one educated unemployed person of a family gets something which can be said to be employment or an economic activity. 6. In aforesaid view of the matter, the Court is of the view that the Collector, ought not to have recommended and allotted a shop to the present petitioner at all. It seems that the Collector was not provided information that brother of the petitioner has been allotted licence to run a fair price shop in different area of city Vadodara so also the present petitioner has not replied satisfactorily that she was in possession of shop / premises to run a fair price shop, if licence is allotted to her. The petitioner had not disclosed two major important facts pending the proceedings before the authorities SCA/5385/2007 10/10 JUDGMENT and subordinate working in the Civil Supply Department of District Collectorate so also failed in informing that her brother has been allotted a fair price shop in different area or is in a queue as selected candidate for allotment of fair price shop. At one point of time both were the members of same family and in the list of successful candidates as suggested by the Taluka and District Advisory Committee for allotment of a fair price shop. This aspect would not have been missed from the mind of the officials. There is no need to comment on method adopted in the present case. 7. For short, there is no merits in the petition and petition requires to be dismissed and is accordingly dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only). 8. As the present petition is dismissed, the Civil Application No.3817 of 2007 does not survive and is accordingly disposed of. (C.K.BUCH, J.) sompura