(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 This Appeal is heard as per the Order dated 14th March, 2011, passed by the Supreme Court in Civil Appeal No.2540 of 2011, by which the Order dated 24th November, 2009 passed by this Court (Coram: Hon'ble the Then Acting Chief Justice Mr. Mohit S. Shah and Hon'ble Mr. Justice Anant S. Dave) in the present appeal i.e. Letters Patent Appeal No.2223 of 2009, was quashed and set aside and the matter is remitted to the Division Bench of this Court for fresh disposal considering the documents which were produced before the Apex Court. While disposing of the Civil Appeal, the Apex Court has observed as under:
“In our view, it will be in the interest of justice if the High Court is requested to re-examine the issue of eligibility of respondent No.3 in the light of documents which have been produced before this Court and then decide whether he was entitled to be allotted fair price shop at Timbi.
In the result, the appeal is allowed. The impugned order is set aside and the matter is remitted to the Division Bench of the High Court for fresh disposal of the Letters Patent Appeal filed by the appellant against the order of the learned Single Judge.”
2 In view of the above directions, we have heard Mr. P.P. Majmudar, learned Advocate for the appellant and Mr. N.J. Shah, learned AGP for respondents No. 1 and 2. Though, notice was issued, respondent No.3 refused to accept and has chosen not to remain present before the Court.
3 The brief facts arising from the case are as under:
That the Collector of District-Vadodara, invited applications for opening of fair price shop at village Timbi, Taluka–Jetpur-Pavi, District–Vadodara, on 1.10.2004 by publishing an advertisement in the “Sandesh” daily newspaper. The fair price shop which was to be opened at Timbi village. It was made clear that, the shop shall be covered the residents of village Timbi as well as village Jivanpura.
That pursuant to the said advertisement, appellant as well as respondent No.3 applied for the allotment of fair price shop. Since the respondent No. 3 had better qualification of B.A., B.P.Ed. as against the qualification of the present appellant of B.A., the authority granted licence to run the fair price shop to respondent No.3 since he was having better qualifications. This Order was challenged by the present appellant by way of a Special Civil Application No.15921 of 2008, which was dismissed by the learned Single Judge, vide Order dated 27.7.2009, which was challenged by way the present Letters Patent Appeal No.2223 of 2009 which was also dismissed on 24.11.2009, as stated here-in- above. The order dated 24.11.2009 passed by the Division Bench in Appeal No. 2223 of 2009 reads as under:
“This appeal under clause 15 of the Letters Patent is directed against the judgment dated 27.7.2009 of the learned Single Judge dismissing the appellant's petition challenging the decision of the respondents to grant authorization for the fair price shop to respondent No.3.
There have been various litigations in respect of grant of authorization for the fair price shop at village Timbi in Jetpur Pavi taluka of Baroda district. The learned Single Judge has considered all the arguments including the fact that respondent No.3 had better qualifications of B.A, B.P. Ed. as against the appellant having the qualification of B.A.. The scheme of granting such authorization for fair price shop provides that preference be given to educated unemployed. The authorities have examined all the relevant aspects and the learned Single Judge has found no merit in the challenge. We are, therefore, not inclined to entertain this appeal.
The appeal is summarily dismissed.
Since the appeal is dismissed, the civil application is also dismissed.”
4 As stated here-in-above, the appellant raised a contention before the Supreme Court relying upon the policy of the Government that as per the policy of the Government dated 2.8.2004, he being the resident of village Timbi, as per Clause-5 of the said Policy, he was entitled for the fair price shop and since respondent No.3 is the resident of another village, namely, Jivanpura and the authorities ought not to have allotted the fair price shop to him. He has produced documents showing that the revenue limits of these two villages, namely, village–Timbi and village–Jivanpura are different and, therefore, the fair price shop which is being opened at village – Timbi, the appellant is entitled for the shop. He has also relied upon Clause-7.13 of the Policy which provides that the fair price shop shall be allotted to the resident of village where the fair price shop is to be opened. It does not include another village which is having different revenue site.
Keeping in view of this factual aspect, the Apex Court quashed and set aside the order dated 24.11.2009 passed by the Division Bench of this Court and remitted the matter for fresh hearing.
5 We have gone through the documents which were produced before the Apex Court as well as before this Court by way of an additional affidavit dated 17th June, 2011.
6 A further affidavit-in-reply on behalf of the respondents - authorities was filed before the Apex Court. Relevant paragraphs of the said Affidavit are as under:
“ At the outset, it is stated that the distance between the village Jivanpura and village Timbi is approximately 1 km and village Jivanpura forms a part of the group/unit for the purpose of allotment of Fair Price Shop at village Timbi.
It is stated that the respondent No. 3 who is a resident of village Jivanpura is a local resident as clarified in Clause 7.13 of the resolution dated 2.8.2004.
It is not disputed that village Timbi and village Jivanpura are separate revenue villages. It is only for the purpose of opening ration shop, Jivanpura is linked with Timbi group. It is further stated that presently, Jivanpura village is clubbed with Timbi village and Kukna village of Taluka Pavi Jetpur.
I say that the documents marked and filed as Annexure-P/9 with the petition do not find place on the files pertaining to this case, however, the fact remains that both the villages are separate revenue villages. It is only on account of less population and close proximity from village Timbi, village Jivanpura is clubbed with village Timbi for the purpose of sanctioning fair price shop. The records further reveal that Mamlatdar, Pavi-Jetpur had issued certificate stating that Jivanpura village is clubbed with the fair price shop sanctioned at village Timbi under the Timbi Head Quarter.”
7 It is clear from the Affidavit filed by the respondents – authorities that the distance between the two villages is approximately 1 km and these two villages are clubbed for the purpose of fair price shop. That means, the residents of these two villages can take advantage of this fair price shop. We are not in agreement with the submission made by the learned Advocate for the appellant that the respondent No.3 is a resident of village Jivanpura and is not a local resident of the village where the shop is going to be established. In our opinion, when two villages are clubbed together for having benefit of fair price shop, local resident of any of these two villages can be treated as a local resident and, therefore, the respondent No.3, who is a resident of village Jivanpura, having better qualifications than the appellant, was entitled for the licence which was rightly granted by the authorities below. The word `local resident' used in Clause 5 and 7.3 of the Policy of the Government is required to be read in the peculiar facts and circumstances of the case and in the present case when the two villages are clubbed together for allotment of fair price shop, resident of any of these two villages is to be held as a local resident of the village.
8 In view of the aforesaid, we do not find any merit in the present appeal and the same deserves to be dismissed. The appeal is, therefore, dismissed accordingly. There shall be no order of costs.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair