SCA/10956/2007 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10956 of 2007 with CIVIL APPLICATION No. 458 of 2008 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 ? ========================================= PATELIYA RAMESHBHAI MANGABHAI - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR SIRAJ R GORI for Petitioner(s) : 1, MR SATYAM CHHAYA, LD.ASST.GOVERNMENT PLEADER for Respondent(s) : 1, MR PS CHAUDHARY for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 28/03/2008 COMMON ORAL JUDGMENT 1. By way of this petition, the petitioner has prayed for issuance of appropriate writ, order or direction invoking jurisdiction of this SCA/10956/2007 2/9 JUDGMENT Court under Article 226 of the Constitution of India, mainly in terms of paragraph no.9(B) of the petition. The other relief prayed for by the petitioner in paragraph no.9(C) of the petition is in reference to the main relief. The said main relief prayed for in paragraph no.9(B) of the petition is reproduced hereinbelow for the sake of brevity and convenience : “9(B) Be pleased to issue a writ of certiorari or a writ in nature of certiorari, any other appropriate writ, order or direction quashing and setting aside the order passed by the respondent no.1 dtd.30.3.2007 and order passed by the respondent no.2 dtd.4.10.2006 and further be pleased to direct the respondent nos.1 and 2 not to disturb the petitioner in running the fair price shop.” SCA/10956/2007 3/9 JUDGMENT 2. It is submitted that the respondent-State has floated a scheme for giving subsidiary employment to the educated unemployed in the State of Gujarat. The petitioner and the respondent no.3 had approached the respondent no.2-Collector along with other candidates in respect of the same. Ultimately, the petitioner herein was given licence to run the fair price shop vide order dated 30th July 2005 passed by the respondent no.2. The said order was carried in appeal being Appeal No.118 of 2005 by the respondent no.3 herein. The Appellate Authority remanded the matter to the respondent no.2 by way of its order dated 26th June 2006 with a direction to the respondent no.2 to pass appropriate orders after taking into consideration the educational qualification of both the parties. After hearing the parties and taking into consideration the educational qualification of the parties, the respondent no.2 decided to issue licence in favour of the respondent no.3 herein vide order dated 04th October 2006. SCA/10956/2007 4/9 JUDGMENT Being aggrieved by the said order dated 04th October 2006, the petitioner herein preferred an appeal being Appeal No.64 of 2006 before the respondent no.1-Appellate Authority. Ultimately, the respondent no.1 vide its order dated 30th March 2007 confirmed the order dated 04th October 2006 passed by the respondent no.2. 3. It is submitted that in the meanwhile, along with the said Appeal No.64 of 2006, a stay application was also preferred by the petitioner. However, as no orders were passed in the said application, the petitioner herein preferred Special Civil Application No.2267 of 2007 before this Court making grievance against the respondent-State machinery that the appeal preferred by the petitioner is not being decided and other reliefs. This Court vide its order dated 09th February 2007 disposed of the said petition with a direction to the respondent no.1 to decide the appeal SCA/10956/2007 5/9 JUDGMENT preferred by the petitioner within a period of four weeks. 4. The respondent no.2 was supposed to consider the educational qualification of both these rival contestants. During the said proceedings, the respondent no.3 made a statement that he is possessing five vighas of agricultural land. Focusing this admission made by the respondent no.3, the petitioner has hammered on the order under challenge and submitted that this admission puts the respondent no.3 away from the zone of consideration because he cannot be said to be a person unemployed. He can be said to be a person employed in the agricultural activities and, therefore, the order confirming the issuance of licence to run the fair price shop in favour of respondent no.3 is required to be quashed and set aside. 5. To do the substantive justice, this Court decided to enter into the factual aspects and SCA/10956/2007 6/9 JUDGMENT directed the respondent no.1 to inquire into the matter with the help of the Mamlatdar of concerned Taluka and to find out as to whether the respondent no.3 is holding and cultivating the agricultural land admeasuring five vighas. The detailed submissions have been made and the Mamlatdar has categorically stated that actually the respondent no.3 does not hold any agricultural land and it is not possible for him to state that the respondent no.3 cultivates the said five vighas of agricultural land in his individual capacity. A copy of the letter dated 01st March 2008 addressed by the Civil Supply Officer, Sabarkantha District, to the learned Assistant Government Pleader, on the contrary states that if all the survey numbers are considered to be owned by the family of the grandfather of the respondent no.3, the father of the respondent no.3 would get 01-H-12-A-00-G agricultural land and he cultivates the said land. Notionally, the petitioner may get about 00-H-56-A-00-G agricultural land. He has SCA/10956/2007 7/9 JUDGMENT specifically stated that the respondent no.3, resident of village Muloj, does not have any agricultural land. 6. It is clear from the record that none of these two candidates i.e. petitioner and respondent no.3, can be said to have cleared Third Year B.A. Examination. The petitioner at the relevant point of time was studying in Third Year B.A. but as he was not able to clear the examination of previous year i.e. Second Year B.A., he can be said to be lesser educated than the respondent no.3 since the respondent no.3 had cleared Second Year B.A. However, the respondent no.3 had failed in clearing his Third Year B.A. Examination. According to Shri Chhaya, learned Assistant Government Pleader, the Government in a given case considers even a single mark when the allotment of fair price shop mainly rests upon the educational merits. Once pending the proceedings, the respondent no.3 was also granted quota of fair price shop, but thereafter on account of other SCA/10956/2007 8/9 JUDGMENT orders passed by the Court, the respondent no.3 was not released any quota of fair price shop mainly because the petitioner was once granted 'Parwana' by the respondent no.2. 7. Having considered the rival contentions and aforesaid discussion, it is difficult for this Court to accept that there is any substance in this petition and the respondent no.1 had erred in holding that the respondent no.3 is the person entitled to get 'Parvana' i.e. Licence, to run the fair price shop. Even if the Court ignores the examinations cleared by both the candidates, it is also clear that the respondent no.3 had secured 56% of marks in Std.XII as against 54% of marks secured by the present petitioner. So the finding recorded by the respondent no.1 is required to be confirmed whereby the respondent no.1 has confirmed the order passed by the respondent no.2 which is an appropriate decision and therefore, there is no need to invoke inherent SCA/10956/2007 9/9 JUDGMENT powers vested in the Court under Article 226 of the Constitution of India. 8. In view of aforesaid, the present petition stands dismissed as there is no substance and Civil Application No.458 of 2008 also stands disposed of in view of aforesaid decision. The order dated 30th March 2007 passed by the respondent no.1 confirming the order dated 04th October 2006 passed by the respondent no.2 is hereby confirmed. Notice is discharged so far as both the matters are concerned. (C.K. Buch, J) Aakar