SCA/7547/2004 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7547 of 2004 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 ? ========================================================= MANGALSINH NAVALSINH PARMAR - Petitioner(s) Versus MAMLATDAR & 1 - Respondent(s) ========================================================= Appearance : MR SATYEN B RAWAL for Petitioner MS DS PANDIT, ASST. GOVERNMENT PLEADER for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 23/01/2008 ORAL JUDGMENT 1. Counter affidavit to the additional affidavit submitted on 21st January, 2008 tendered by learned counsel for the petitioner is taken on SCA/7547/2004 2/15 JUDGMENT record. Petitioner Mangalsinh Navalsinh Parmar is also present in the Court. 2. Heard Mr. Sayten B. Raval, learned counsel for the petitioner and Ms. D.S.Pandit, learned AGP for the respondents. 3. This is a typical case where State authority, instead of cancelling the fair price shop license issued in favour of the petitioner, decided to shift 251 ration cards of the shop of the petitioner to a fair price shop situated in neighbouring village at a distance of about eight to ten kilometers. The petitioner has prayed for appropriate writ, order or direction to the effect that the respondent no.1 be directed to retransfer all 251 ration cards to the fair price shop of the petitioner situated at village Kukda and has also prayed that the order dated 6th December, 2003 [PARWANA-VA-BHA-DA 4341/03] be quashed and set aside. 4. Mr. Raval has pointed out that the petitioner, once had a problem with the Mamlatdar, Taluka- Muli, District-Surendranagar and had represented against the said Mamlatdar to the superiors SCA/7547/2004 3/15 JUDGMENT alleging that Mamlatdar, Muli was not cooperating with him well and was not even passing appropriate orders of retransferring ration cards to his shop situated at village Kukda which were temporarily transferred to a fair price shop situated at village Shekhpar. It was alleged that the Mamlatdar was not cooperating in issuing permit so as to enable the petitioner to obtain supplies from the govt. godown and to sell and distribute the same amongst the card holders of his village. Therefore, from that day onwards, the Mamlatdar had started showing negative interest. It is alleged that for passing order under challenge dated 6th December, 2003, certain documents were considered. According to Mr. Raval, these documents were considered on merit by the Collector while evaluating the alleged grievance placed against the petitioner by the so-called village people. It is alleged that some political leaders of Taluka Panchayat were taking active interest and therefore under the influence of Mamlatdar as well as Taluka SCA/7547/2004 4/15 JUDGMENT Panchayat President, order under challenge dated 6th December, 2003 came to be passed. There is no allegation of malpractice or black marketing or non-supply of goods by the petitioner nor were there complaints against the petitioner prior to arrival of Mamlatdar who had started vindictive behaviour against the present petitioner who was distributing food grains and other materials to the village card holders since 1988. That the petitioner had reason to believe that when the Collector had rejected the so-called grievance placed before him, nothing adverse would happen to him and he would be able to carry on his business on strength of the license issued to him to run the fair price shop at village Kukda. When the petitioner had gone on leave, the Mamlatdar, on magnifying the grievance of some of the people of village Kukda, decided to pass administrative order resulting into serious prejudice to the petitioner. Under the said administrative order, the Mamlatdar directed to shift 251 ration cards to fair price shop situated at Shekhpar SCA/7547/2004 5/15 JUDGMENT village and that too to a shopkeeper who was given advantage to sell the goods to villagers of village Kukda. It is alleged that the said fair price shopkeeper of village Shekhpar was obviously interested in getting about 250 ration cards of another village and therefore, he had acted against the present petitioner and was able to obtain signatures on the so-called representation prepared against the present petitioner. The documents produced along with the petition clearly suggests that most of the documents were of the date prior to the order passed by the Collector dated 13.10.2003, while ordering restoration of the ration cards to the shop of the petitioner and issuing direction to the concerned authority, namely, Mamlatdar. The said order is passed by the District Supply Officer, however, it indicates that the same is passed at the instance of the direction of the Collector. This shows that the two authorities at the district level were of the view that the petitioner should continue his fair price shop at village Kukda and there is no reason to ask SCA/7547/2004 6/15 JUDGMENT the villagers to go to other village at a distance of eight to ten kilometers to fetch their food grains available under the public distribution system. In short, it is submitted by Mr. Raval that this Court should issue appropriate writ, order or direction of mandatory nature as prayed for in the petition. 5. On the other hand, it is submitted by Ms. D.S.Pandit, learned AGP for the respondents that Mamlatdar, being representative of the State at Taluka Headquarters, is supposed to look to the matter of public convenience. It is submitted that Mamlatdar is the first officer concerned with public distribution system of each village within his taluka and therefore, he has to inquire in to the matter and if need be, by visiting a particular village or fair price shop. It is submitted that he is the first person to know the ground realities and when the Mamlatdar was satisfied that the villagers were not keen to get their food grains from the fair price shop of the petitioner and as there were no other material irregularities or SCA/7547/2004 7/15 JUDGMENT illegalities committed by the petitioner which could allow the Mamlatdar to cancel or suspend the license of the petitioner, in larger interest of the people of village Kukda, Mamlatdar decided administratively to shift the ration cards in question to fair price shop of the neighbouring village. It is submitted that the order under challenge is purely administrative in nature and cannot be reversed by this Court in exercise of writ jurisdiction vested in this Court. It is further submitted that before passing the order under challenge, Mamlatdar as well as one more officer had been to village Kukda and a rojnama was drawn which was shown to the petitioner, who himself has signed the said rojnama and had agreed that he would improve his behaviour with the card holders and had assured of smooth running of the fair price shop. Thus, it was clear that the people of village Kukda were not ready to accept the petitioner as their fair price shopkeeper. They had expressed their desire even to continue to go to neighbouring village. It is therefore SCA/7547/2004 8/15 JUDGMENT submitted that it would not be appropriate or legal for this Court to hold that the order passed by the Mamlatdar is otherwise bad or illegal or prejudicial to the interest of the petitioner. It is submitted that once such serious complaint was made against the present petitioner, the entire chapter was taken up to the Collector level and in the month of October, 2003, the Collector had decided to issue an order in favour of the present petitioner. But this decision by itself, would not make the order under challenge either bad or illegal. It is submitted that the Mamlatdar was ultimately to deal with the public distribution system and as a responsible govt. officer, if he decided that the people would be more comfortable if their ration cards were shifted to fair price shop of neighbouring village, then, there was nothing wrong on his part in passing the order under challenge without cancelling or suspending the license of the petitioner. 6. I have considered various aspects from which the SCA/7547/2004 9/15 JUDGMENT following facts cannot be ignored:- [1] That there are no allegations against the petitioner which can be said to be of the nature of irregularity committed while dealing with the entire public distribution system. [2] There is no allegation of any malpractice or black marketing against the petitioner. [3] That the petitioner is running his fair price shop since 1988 and there is nothing on record to show that he was ever served with any notice of committing any irregularity or illegality in connection with distribution of food grains etc. to the ration card holders. [4] Collector as competent officer had never issued order suspending or cancelling license of the petitioner. [5] Mamlatdar himself had never recommended that because of the conduct of the fair price shop dealer [petitioner herein], his SCA/7547/2004 10/15 JUDGMENT license should be cancelled otherwise, it would have been reflected in the reply affidavit filed by the Mamlatdar. [6] The material documents considered by the Mamlatdar were already available before the Collector when the Collector had passed orders in favour of the present petitioner in the month of October, 2003. [7] Out of 251 ration card holders, only about 40 to 50 persons were present before the authorities when the authorities visited village Kukda after October, 2003 and before 6th December, 2003, that is, the date of passing of the impugned order, and most of the persons had put their thumb impressions. [8] The petitioner had attempted to explain the circumstances under which he had given assurance to the officer that there shall be smooth running of the fair price shop and if need be, he may improve his behaviour. This does not show that he had admitted any act of misbehaviour or SCA/7547/2004 11/15 JUDGMENT arrogance with the card holders. The order is obviously found administrative in nature, but it is penal and has negative effect on the right of the petitioner to carry on his business on strength of the license issued by the government/Collector for running a fair price shop. It is rightly argued that shifting of total 251 ration cards to fair price shop of neighbouring village is nothing but as good as revocation of license though there were no adequate good reasons to do so. [9] It is not the choice of the people that who would run the fair price shop in particular area of a village. It is the privilege of the government and State authorities to select the shopkeeper as per policy including number of cards and so also the shop wise. Further, if any card holder is dissatisfied with the behaviour/conduct of the shopkeeper of the fair price shop, then, he can make a complaint with specific allegations to the SCA/7547/2004 12/15 JUDGMENT govt. authorities so that the shopkeeper can meet with the allegations. Here, no such complaint is on record of the present case. 7. In view of the above, the order under challenge dated 6th December, 2003 passed by the Mamlatdar requires to be quashed and set aside. However, while exercising constitutional powers vested in this Court, it is to be seen that if beneficiaries of the public distribution system are not able to get their food grains and other material from their respective fair price shop smoothly, then, they should not be forced to go to a person whose behaviour is not good and therefore, this Court is of the view that such decision on inquiry should be left to the Collector, Surendranagar so that he can ascertain the ground realities prevailing in this regard at village Kukda and if need be, he may decide to restore the entire lot or a portion of ration cards to the fair price shop of the petitioner with the help of the present SCA/7547/2004 13/15 JUDGMENT Mamlatdar, Muli, and other officers not below the rank of Mamlatdar, may be, a Taluka Development Officer. They may be sent to village Kukda. By now, certain changes also must have taken place in the structure at village Panchayat and therefore, opinion of the village Panchayat also can be considered by the Collector while passing the order of restoration of ration cards to the fair price shop of the petitioner. An Appropriate decision would be that the shopkeeper is restored with all the ration cards of village Kukda and the villagers should not be compelled even indirectly to go to neighbouring village for fetching their food grains. It appears that number of villagers may be facing hardship and inconvenience in going to neighbouring village for fetching their food grains. In many cases, according to family budget some card holders are required to go to the fair price shop, even twice or thrice in a month. Keeping this totality in mind, if the Collector decides this aspect of the matter, then, it would meet the ends of justice. The SCA/7547/2004 14/15 JUDGMENT Court is of the view that fair price shop dealer, normally should not be deprived of his right and entitlement to enjoy the business of all the card holders allotted to him. 8. In view of the above, the Collector, Surendranagar is hereby directed to ascertain the ground realities with the help of Mamlatdar, Taluka Development Officer or any other officer of the similar rank selected by him and on receipt of the report, the Collector may decide whether the entire lot of ration cards should be restored to the present petitioner or not. This decision shall be taken within 90 days by the Collector from the date of receipt of writ of this Court. It is however, clarified that the Collector shall pass a speaking order while recording his findings and with a privilege to the petitioner to challenge the same in a competent forum including this Court. It is necessary to observe that while recording a finding, the Collector shall also give an opportunity to the petitioner so that he can also also produce relevant documents and SCA/7547/2004 15/15 JUDGMENT evidence if the petitioner so desires. 9. The petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted. [C.K. BUCH, J.] pirzada/-