1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6666 of 2009 Smt. Sheetal Rajenda Khaire ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Mr. Sanjay Thokade i/b Mr.S.B.Kalel for Petitioner Mr.S.P.Kangua a/w Mr. H.P.Vyas and Mrs.Poonam Bhosale i/b Mrs. Sapna Nath for Respondent No.4 Mr.R.M.Patne AGP for Respondent Nos.1 to 3 CORAM : SMT.ROSHAN DALVI, J. DATED : 12th January, 2010 P.C. : 1. All the parties have been heard and their documents are considered. Hence Rule. By consent made returnable forthwith. 2. The Petitioner as well as Respondent No.4 applied for allotment of a ration shop in Mariam Nagar, Worli, Mumbai, pursuant to an advertisement for opening a new ration shop 2 in the said area, issued by the Deputy Collector of Rationing, Mumbai. The officers of Respondent No.3 inspected their premises as well as the documents submitted and filed an inspection report before Respondent No.3. Respondent No.3 allotted the ration shop to the Petitioner. Respondent No.4 filed Revision Application before the Minister- Respondent No.2. Respondent No.2 set aside the order of Respondent No.3 and allotted the shop to Respondent No.4. The Petitioner has challenged the order of the Minister- Respondent No.2 dated 21.07.2009, allotting the rationing shop to the Respondent No.4. 3. The advertisement interalia requires an Agreement for the premises alongwith Affidavits, duly notarized and registered, to be submitted by the last date of the application. It further requires an affidavit to be filed, no objection of the local authorities to be given stating that any breach of the laws and rules of the local authority would result in allotment of the shop being canceled. 3 4. The advertisement makes any applicant, whose family member has a ration shop, ineligible to apply. 5. Respondent No.4 applied under priority No.3 as an educated unemployed Petitioner. The Petitioner applied in the general category which is priority No.9. Since Respondent No. 4 claimed priority No.3, she was required to file an Affidavit stating that she has not taken benefit of any Government facility for educated unemployed persons and thereafter, the allotment of the shop, she would not take such benefit of any facilities for educated unemployed persons. 6. Respondent No.3 considered the cases of the applicants including the Petitioner and Respondent No.4. He took note of the documents submitted by both the parties. He rejected the application of Respondent No.4 on the ground that she had not submitted the affidavit that she has not taken any benefit of any government facility for educated unemployed persons and will not take any such benefit. He also held that the proof 4 relating to the shop submitted by Respondent No.4 was not valid as the person who executed the documents was not the Owner. 7. He accepted the documents submitted by the Petitioner and upon rejection of the other claim, allotted the Ration shop to the Petitioner. 8. Respondent No.4 challenged this order before Respondent No.2. It has been her contention that the documents in respect of her shop were valid since they were executed by the person granting her license of the shop under a valid Power of Attorney of the owner of the shop. The Owner of the shop was her father-in-law and her husband was the Constituted Attorney of her father-in-law. Prima facie there appears to be no fault in such contention. 9. It is also contended by her that her claim was rejected on the ground that her documents did not show her proper surname. Her documents viz. her Employment Card and Degree Certificate, showing that she was an 5 educated unemployed person, were in her maiden name. She had married thereafter. Consequently, her documents showed the addition of the marital surname. That also need not have been a ground for rejection of her documents. 10. It was also contended by her that the affidavit which was required to be given was not mandetorily required to be given at the time of the application and could be given when she was allotted the shop. Such an affidavit could have been given to her. The advertisement, however, requires the affidavit to be given while applying under the conditions mentioned in the advertisement. Respondent No.2 has considered the documents of Respondent No.4 and accepted them as correct. He has not considered the lack of affidavit of Respondent No.4. 11. The contention most strongly pressed by the Petitioner is that Respondent No.4 suppressed a material fact from Respondent No.3 as well as Respondent No.2. Her father- 6 in-law has a ration shop. Her father-in-law is her family member. She is, therefore, ineligible to apply for any ration shop at all. This contention goes to the root of the dispute. Ineligibility criteria is the primary aspect to be seen. 12. It is not disputed that the father-in-law of Respondent No.2, has a ration shop. In the written arguments before Respondent No.2, the Petitioner has also mentioned the number of ration shop of her father-in-law being shop No.21-A-101. It would have to be seen whether her father-in-law would be her family member. 13. The Petitioner has produced a copy of a resolution of the Government of Maharashtra dated 01.07.1999, which shows the extent of the term family . The resolution includes the daughter-in-law whether or not she resides with her parents-in-law. Consequently, Respondent No.4 is a member of the family of her father-in-law and vice versa. Since the father-in-law has a ration shop, Respondent No.1 is rendered ineligible 7 to apply for another ration shop. The restriction is reasonable and fair. Respondent No.2 has failed to consider this aspect mentioned in the written arguments of the Petitioner before him. Consequently, the impugned order of Respondent No.2 suffers from illegality. 14. It is deserves to be set aside. Hence Rule is made absolute in terms of prayer clause (b). 15. No order as to costs. (SMT.ROSHAN DALVI, J.)