SCA/822520/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8225 of 2008 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 ? ========================================================= MOHANSINH BHILABHAI CHAUHAN - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR PINAKIN M RAVAL for Petitioner(s) : 1, MS B. KOTECHA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR AM PAREKH for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 04/08/2008 ORAL JUDGMENT 1. Rule. Ms.Kotecha, learned AGP waives service of notice of Rule for respondents No.1 and 2 and SCA/822520/2008 2/10 JUDGMENT Mr.Parekh, learned Counsel waives service of notice of Rule for respondent No.3. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard. 2. The short facts of the case appear to be that the Government wanted to allot fair price shop authorization to the unemployed persons as per the Scheme of the Government known as 'Pandit Dindayal Grahak Bhandar Yojna'. The petitioner as well as the respondent No.3 together with the other persons had applied. The District Collector vide order dated 1.3.2007 allotted the shop to Respondent No.3. The petitioner preferred appeal before the State Government being Appeal No.51 of 2007 and ultimately in the said appeal, after hearing both the sides, the State Government found that the petitioner is more qualified in comparison to respondent No.3 and further Mamlatdar had shown in the report that the shop is situated outside the Village site and both are financially sound and, therefore, the matter was remanded to the Collector for reconsideration. It appears that SCA/822520/2008 3/10 JUDGMENT the Collector thereafter vide order dated 19.3.2008 found that the petitioner is more qualified in comparison to respondent No.3 and passed the order for allotment of the shop to the petitioner. The Respondent No.3 once again preferred appeal being Appeal No.21 of 2008 before the State Government and the another Secretary of the State Government vide order dated 12.5.2008 examined the grounds, which were not earlier examined and passed the order of setting aside the order of the Collector and maintained the order for allotment of the shop to respondent No.3. It is under these circumstances, the present petition before this Court. 3. Heard Mr.Gaurav Mehta, learned Counsel with Mr.Raval for the petitioner, Ms.Kotecha, learned AGP for the State Authorities and Mr.Parekh, learned Counsel for respondent No.3. 4. It appears that once the State Government had already exercised the appellate power vide order dated 15.1.2008, the only aspects, which were required to be considered were as mentioned in SCA/822520/2008 4/10 JUDGMENT that order and not beyond the same. Perusal of the order dated 15.1.2008 shows that the reasons recorded were; (i) the petitioner had more marks in 12th standard though both the candidates have failed in the graduation; (ii) the shop as per the advertisement by the Mamlatdar is for village site; (iii) both are financially sound; and (iv) there is representation of the local residents, which has not been examined. On the aforesaid grounds, the matter was remanded to the Collector. 5. The District Collector, vide order dated 19.3.2008, has considered the ground of education and has found that the petitioner is more qualified since he is having more percentage of marks in 12th Standard. It is also mentioned in the order that the other aspects, which were to be examined are examined and the authorization is granted to the petitioner. The State Government in appellate jurisdiction once again considered the matter afresh as if it is a fresh exercise of power by the Collector for the first time and has allowed the appeal. SCA/822520/2008 5/10 JUDGMENT 6. Once the appellate power was exercised by the State Government against the order of the Collector for allotment of fair price shop authorization and if the matter is remanded for examination of certain aspects, even if subsequent order after remand of the Collector was to be considered in appellate jurisdiction once again by the State Government, it would require examination of those aspects only for which the matter was remanded and not the matter afresh, unless the remand order is on all aspects. The perusal of the order passed by the State Government, which is impugned in the present petition shows that the State Government has exercised the appellate power as if the matter is to be considered on all aspects than the aspects as were ordered in the earlier order of the very State Government. 7. It deserves to be recorded that the exercise of the quasi judicial power by the State Government would bind to the State Government even if the matter is subsequently considered by it. All other contentions than those, which were found SCA/822520/2008 6/10 JUDGMENT valid at the time of entertainment and decision of the appeal for the first time would stand concluded after the decision of the appeal and the remand, if any, is to be considered as per the specific order of the remand and not beyond the grounds, which are not accepted or not found valid by the State Government at the time when the appeal was entertained and decided for the first time. If such principles are not read, the sanctity of the exercise of the quasi judicial power by the State Government will be lost and it would also result into anomalous and uncertain situation. Like Court order binding to the other Courts of the coordinate or concurrent jurisdiction, the orders of the State Government in exercise of the quasi judicial power would bind to the State Government in the subsequent litigation though the officer exercising the power on behalf of the State Government may be different. Reading of such principles would not only be in the larger public interest, but it would maintain the sanctity of the exercise of the quasi judicial SCA/822520/2008 7/10 JUDGMENT power and also would maintain certainty in the implementation of the law and would avoid anomalous situation ruling out the arbitrariness in exercise of the power. Such can be read on the principle analogous to that of constructive res judicata on the point which ought to have been raised is deemed to have been concluded once the decision is rendered by the Court. There is no reason to make departure in applicability of such principles to the exercise of power by the State Government as quasi judicial authority. 8. If the matter is examined in light of the aforesaid, it appears that the State Government in the impugned order has considered the aspect of priority not given at the district level by the Advisory Committee. The said consideration can be said as exceeding the jurisdiction and would dilute the sanctity of the earlier order passed by the State Government in its appellate jurisdiction. Further, even on the aspects of the eligibility due to holding respective offices, the State Government has transgressed SCA/822520/2008 8/10 JUDGMENT its jurisdiction, which was not available to it. Therefore, the order of the State Government on the aforesaid two aspects can be said as error in exercise of the jurisdiction apparent on the face of record, which may attract the power of this Court under Article 227 of the Constitution of India. 9. If the other grounds, which were considered by the State Government in the impugned order to the extent the matter was remanded, are considered, it appears that the State Government took into consideration the marks of failure in the examinations at graduation, which was totally irrelevant consideration. The ground of knowledge in computer was not the part of the eligibility criteria when the applications were considered and processed and the decision was to be taken. Such consideration on the face of it can be said as extraneous to the policy of the Scheme of the Government. 10.On the aspects of allocation in village site, the State Government has misdirected itself by giving weightage to the resident of the SCA/822520/2008 9/10 JUDGMENT petitioner, which could not be considered as the proper site for opening the fair price shop. The resident of the petitioner has the relevance for fulfilling the eligibility criteria being local person of that particular area, more particularly because the petitioner is staying at the falia, which is also a portion of the very village or that there is a distance between the village site and the residence of the petitioner would not be a valid ground to treat the person as disqualified for allotment of the fair price shop. Such, therefore, can be said as an error apparent on the face of record committed by the State Government. 11.In view of the above, the impugned orders passed by the State Government cannot be sustained and is quashed and set aside. Consequently, the order of the Collector shall be required to be implemented. 12.The petition is allowed to the aforesaid extent. Rule made absolutely accordingly. No order as to costs. 13.Mr.Parekh, learned Counsel for respondent No.3 SCA/822520/2008 10/10 JUDGMENT prays for staying the operation of the present order, so as to enable the respondent No.3 to approach before the higher forum. 14.Considering the facts and circumstances, the present order shall remain stayed for a period of two weeks from today. 4.8.2008 (Jayant Patel, J.) vinod