SCA/30420/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 30420 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= JADAV VITTHALSINH KALYANSINH - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR PARSOTAM GAMBHAVA for Petitioner(s) : 1, MS PUNANI, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 4. MR RJ GOSWAMI for Respondent(s) : 5, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 11/07/2008 ORAL JUDGMENT 1. Rule. Ms.Punani, learned AGP waives service of notice of Rule for respondents No.1 to 4 and SCA/30420/2007 2/9 JUDGMENT Mr.Goswami, learned Counsel waives service of notice of Rule for respondent No.5. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 2. The short facts of the case appear to be that the procedure for grant of authorization for a fair price shop in the scheme of the Government known as 'Pandit Dindayal Grahak Bhandar Yojna” was undertaken. It appears that initially the authorization was granted in favour of respondent No.5 vide order dated 7.9.2005. It appears that thereafter the matter was also carried before the State Government and vide order dated 25.1.2006 the Joint Secretary of the State Government had passed the order by setting side the order of the Collector and it was observed that after the recording the statement of reliable persons fresh procedure be undertaken by the Collector, Banaskantha. The matter was thereafter considered by the District Collector and ultimately vide order dated 8.8.2006 he found that the respondent No.5 was SCA/30420/2007 3/9 JUDGMENT not personally looking after the shop and, therefore, he directed for undertaking a fresh procedure for giving authorization in accordance with law. The matter was carried in appeal by respondent No.5 before the State Government and vide order dated 25.10.2007, the State Government found that there is no complaint against the functioning of respondent No.5 and, therefore, the appeal was allowed and it was observed that the authorization be granted to respondent No.5 by setting aside the order of the Collector dated 8.8.2006. It is under these circumstances the petitioner, who is one of the applicants for authorization of the shop, has approached this Court by preferring the present petition. 3. Heard Mr.Rana for Mr.Gambhava, learned Counsel for the petitioner, Ms.Punani, learned AGP for the State Authorities and Mr.Goswami, learned Counsel for respondent No.5. 4. It deserves to be recorded that the essential purpose for grant of authorization is two folds; one is to provide employment to the person, who SCA/30420/2007 4/9 JUDGMENT is educated and the another is to make available the essential items at a subsidized rate to the needy class of the society. So far as the second part is concerned, there is no dispute, but as it appears, the Collector exercised the power on the ground that though the authorization was granted to respondent No.5, he was not looking after the same or personally attending the same and it was being looked after by others. It does appear that the approach on the part of the Collector is just or rather in furtherance to the policy of the Government to grant authorization for running fair price shop as per the Scheme. However, as the State Government reversed the order of the Collector without assignment of proper reasons, the matter has been brought before this Court. 5. It deserves to be recorded that this Court (Coram: C.K. Buch, J.), after issuance of the notice, on 28.4.2008 had passed the following order:- To avoid multiplicity of proceedings and protraction litigation of nature, it would be proper for this Court to pass SCA/30420/2007 5/9 JUDGMENT interim relief directing the District Supply Officer, Dist: Banaskantha of Palanpur to inquire into the matter as to whether the shop allotted to Barot Upendra Dahyalal at Village Raner-3, Tal. Kankrej, Dist: Banaskantha is run by him or anybody else. A panchnama shall be prepared and the statements of the minimum ten cardholders be recorded. Necessary relevant documents to be scrutinized which are being prepared by the District Civil Supply Department and Government godowns while issuing stock to such fair price shop holder. After evaluating all these documents, the District Supply Officer shall tender his report as to whether Barot Upendra Dahyalal is running a fair price shop or has handed over the administration of the shop to anybody else. The situation as on 11/01/2008, the date on which Notice was issued is brought before the Court. The District Supply Officer, Palanpur- respondent No.4 shall submit his report to this Court on or before 07/05/2008 and the present matter be listed for hearing on 08/05/2008. D.S. Permitted.” 6. The learned AGP during the course of the hearing has placed on record the report received by her SCA/30420/2007 6/9 JUDGMENT office from the office of the Collector, Banaskantha, whereby the statement of about 13 persons were recorded and as per the said report and the panchnama prepared, it appears that the shop is being looked after by one Prafulkumar Dahyalal Barot, who is brother of respondent No.5 and another person, S. K. Barot. The aforesaid as such and the record produced of such report go to show that the shop is not being looked after under the personal supervision of respondent No.5, who has been granted authorization. It may be that for rendering assistance, the person who has been granted authorization may engage the other staff, but such would not permit the dispensation of requirement of personal supervision by the person, who has been granted authorization. If such laxity is read or the lenient view is taken, the resultant effect would be that the one who is not eligible is conferred with the benefit of authorization and the eligible person may not get the authorization. As per the report, Prafulkumar SCA/30420/2007 7/9 JUDGMENT Dahyalal Barot, who is the brother of respondent No.5 is getting the benefit, whereas the authorization has not been granted to him. 7. Such circumstances can be said as not in furtherance to the Scheme as framed by the Government. 8. Mr.Goswami, learned Counsel for respondent No.5, submitted that he is not admitting the contents of the report, but he has submitted that if fresh procedure is ordered to be undertaken as per the order of the Collector, he has no objection, but the respondent No.5 should also be at liberty to apply, subject to fulfilling all the relevant eligible criteria as and when fresh procedure is undertaken. 9. It appears to the Court that on the face of the report submitted pursuant to the order of this Court the exercise of power by the State Government as per the impugned order cannot be maintained. However, if the respondent No.5 is so fulfilling the eligible criteria as and when fresh advertisement is given, he may apply but his eligibility is to be considered together SCA/30420/2007 8/9 JUDGMENT with the other eligible candidates, who may apply pursuant to the fresh advertisement. 10.At the same time, since the matter is pertaining to supply of the essential items to needy class of the Society, until fresh procedure is undertaken of giving the authorization, the existing situation may be continued by way of an interim measure, without creating any additional rights in favour of respondent No.5. 11.In view of the above, the impugned order passed by the State Government – Annexure A dated 25.10.2007 is quashed and set aside by maintaining the order passed by the Collector dated 8.8.2006. It is also observed that as a consequence, fresh procedure for grant of authorization of fair price shop shall be required to be undertaken by the Collector. All eligible candidates fulfilling the eligibility criteria shall be at liberty to apply and the Collector shall decide the same in accordance with law. The aforesaid procedure shall be completed within a period of four months from the date of receipt of the order of this Court. SCA/30420/2007 9/9 JUDGMENT Until fresh authorization is granted as per the aforesaid procedure, the existing authorization shall continue, but without creating any additional rights in favour of respondent No.5. 12.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Direct service is permitted for respondent No.3. 11.7.2008 (Jayant Patel, J.) vinod