SCA/2191/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2191 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= THE STATE OF GUJARAT & 2 - Petitioner(s) Versus SULEMAN MOHAMMAD HOKLA - Respondent(s) ========================================================= Appearance : MR HEMANG PARIKH AGP for Petitioner(s) : 1 - 3. MR SK BUKHARI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/07/2008 ORAL JUDGMENT 1. Rule. Mr.S.K. Bukhari, learned advocate waives the service of notice of rule on behalf of the respondent. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up SCA/2191/2008 2/9 JUDGMENT for final hearing. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners – State of Gujarat and others, have prayed for appropriate writ, order and/or directions for quashing and setting aside the judgement and order dtd.29/9/2007 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.64 of 2007 in allowing the same and quashing and setting aside the order dtd.23/7/2007 passed by the learned Principal Senior Civil Judge, Panchmahals at Godhara below application Ex.5 in Regular Civil Suit No. 545 of 2005. 4. The respondent herein – original plaintiff is having a fair price shop at village Kaliyakuva, Taluka Godhara, District Panchmahals. That the respondent – original plaintiff is granted license to run the fair price shop under the Pandit Din Dayal Grahak Bhandar Scheme of the State Government and he has been allotted 670 Ration Card Holders having population of 4000. That the respondent is a licensee under the provisions of the Essential Commodities Act, 1955 and is provided wheat, rice, oil, kerosene etc. for selling it to the poor people more particularly, to the people leaving Below Poverty Line SCA/2191/2008 3/9 JUDGMENT (BPL) as per the Government Policy at reasonable rate. That in the public interest, it was decided to have another fair price shop by way of division in two parts of the same village. Being aggrieved by the said decision, the respondent herein – original plaintiff filed Regular Civil Suit No.545 of 2005 for restraining the petitioners – original defendants from reducing the Ration Card Holders attached with his fair price shop of the plaintiff and restraining the petitioners – original defendants from opening any other fair price shop in the said village. In the said suit, the petitioner - original plaintiff filed application Ex.5 for interim injunction. It was contended on behalf of the original plaintiff that as per the Government Circular / Resolution, there should be minimum certain number of Ration Card Holders attached with a fair price shop looking to the population and it was further contended that if the Ration Card Holders are reduced, he will not get sufficient commission and it will not be possible for him to run the fair price shop. It was contended on behalf of the original plaintiff that the said action is in breach of the principles of natural justice as no notice or hearing has been afforded to the plaintiff. The application Ex.5 was SCA/2191/2008 4/9 JUDGMENT opposed by the petitioners herein – original defendants by submitting that the suit itself is not maintainable. It was also further submitted that as such the discretion is with the authority to allow the number of Ration Card Holders and/or to open the fair price shop looking to the need of the village people and in the public interest. It was submitted that the paramount consideration is the public interest, interest of the village people and the Ration Card Holders. It was further submitted that the licensee has no right, much less any legal right, to have particular number of Ration Card Holders. It was also further submitted that even in the Resolution relied upon by the plaintiff and as per the policy, it is provided that as far as possible, but certainly any licensee and/or fir price shop owner has no right, whatsoever, to ask for a particular number of Ration Card Holders. It was further submitted on behalf of the plaintiff that as per the Resolution, there shall not be new fair price shop within the radius of 3 Kms. The learned trial court dismissed the application Ex.5 by holding that there is no question of giving any opportunity to the plaintiff and it is the policy of the State Government and it will not be in the public interest to grant the interim injunction as prayed for and SCA/2191/2008 5/9 JUDGMENT balance of convenience is not in favour of the plaintiff. Being aggrieved by and dissatisfied with the order passed by the trial court below application Ex.5 in rejecting the same, the respondent herein – original plaintiff preferred an appeal before the appellate court and the learned appellate court, by the impugned judgement and order allowed the said appeal by holding that considering the documents on record, the appellate court is not agree with the findings and reasoning recorded by the trial court. The appellate while quashing and setting aside the judgement and order passed by the trial court below application Ex.5 has also directed both the parties to maintain status-quo as prayed in para 7(A) of the ad- interim injunction application till final disposal of the suit. Being aggrieved by the said order passed by the appellate court, the petitioners – original defendants have preferred the present Special Civil Application under Article 227 of the Constitution of India. 5. Mr.Hemang Parikh, learned Assistant Government Pleader appearing on behalf of the petitioners has vehemently submitted that the appellate court has materially erred in allowing the appeal and granting interim injunction as prayed for by the plaintiff and restraining the petitioners SCA/2191/2008 6/9 JUDGMENT - original defendants from reducing the Ration Card Holders attached with the fair price shop of the plaintiff and furthers restraining the petitioners – original defendants from either opening another fair price shop or division of existing fair price shop in the same village. It is submitted that what is provided in the Resolution is that as far as possible the distance and the Ration Card Holders should be maintained. However, in the larger public interest and in the interest of the village people and the Ration Card Holders, the same can be reduced. It is also further submitted that as such the suit itself is not maintainable, as it is realm of policy of the Government to open the fair price shop and to allot the Ration Card Holders to a particular fair price shop. It is also further submitted that there is no question of affording any opportunity to the licensee, as the licensee/fair price shop owner has no legal right to ask for particular number of Ration Card Holders. Therefore, it is requested to allow the present Special Civil Application and quash and set aside the order passed by the appellate court. 6. Mr.S.K. Bukhari, learned advocate appearing on behalf of the respondent – original plaintiff has submitted that before reducing the Ration Card Holders, no opportunity SCA/2191/2008 7/9 JUDGMENT has been given and/or no notice has been issued to the respondent – plaintiff and hence the said action is in breach of the principles of natural justice and the appellate court has rightly allowed the appeal and granted the interim injunction as prayed for by the plaintiff and has rightly directed both the parties to maintain status-quo till final disposal of the suit. Therefore, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocate appearing on behalf of the respective parties. 8. At the outset, it is required to be noted that the respondent – original plaintiff has no vested right to ask for a particular number of Ration Card Holders attached with his fair price shop. The plaintiff has been granted license to run the fair price shop under the scheme of the State Government and it is ultimately for the State Government to decide how many number of Ration Card Holders should be allotted to a particular fair price shop. The interest of the Ration Card Holders and the village people is the paramount consideration and as there is no vested legal right in favour of the plaintiff, there is no question of issuing any notice and/or giving any SCA/2191/2008 8/9 JUDGMENT opportunity to the respondent – original plaintiff before taking decision to reduce the Ration Card Holders. Prima facie, it appears that even the suit itself is not maintainable. However, without entering into the said larger question, it appears that the trial court has rightly refused to grant the interim injunction as prayed for. As such the relief granted prayed for by the plaintiff by way of interim relief, is the final relief sought in the suit. As held by the Hon'ble Supreme Court and this Court in catena of decisions, normally court should be slow in granting the interim relief, which may be ultimately final relief in the suit. In very very exceptional cases, final relief can be granted as an interim relief. Under the circumstances, the trial court has rightly refused to grant the interim relief, but the the learned appellate court has committed an error and/or exceeded its jurisdiction in allowing the appeal and granting application Ex.5 and and directing the parties to maintain status-quo till final disposal of the suit. On going through the judgement and order passed by the learned appellate court, it appears that no proper reasonings have been given by the learned appellate court to upset the order passed below application Ex.5. The appellate court has dealt with the SCA/2191/2008 9/9 JUDGMENT appeal in casual manner and perfunctory manner, which cannot be sustained. Under the circumstances, the appellate court has materially erred in upsetting the order passed below application Ex.5 and therefore, the same is required to be quashed and set aside. 9. For the reasons stated above, the petition succeeds. The impugned judgement and order dtd.29/9/2007 passed by the learned Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal No.64 of 2007 is quashed and set aside and the order dtd.23/7/2007 passed by the learned Principal Senior Civil Judge, Godhara below application Ex.5 in Regular Civil Suit No.545 of 2005 is restored. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik