1. Heard learned advocates for the parties. Looking to the controversy involved in this petition, learned advocates amidst the submission on merits agreed to have final disposal of the matter and, on that basis the submissions were canvassed. Hence RULE. Rule is waived by learned AGP Ms. Asmita Patel for respondent nos. 1 to 3, and Shri Joitabhai Patel, learned advocate for respondent no.4 and Shri Ashish Dagli, learned advocate for respondent no.5 respectively, and the same is fixed forthwith as agreed by learned advocates for the parties.
2. The petitioner has approached this Court under Article 226 of the Constitution of India with following prayers:-
“(A) The Hon'ble Court may be pleased to issue an appropriate writ, order or direction, quashing and setting aside the impugned orders dated 3.8.2011 and 3.7.2010 passed by respondent no.1 and 2 respectively and further be pleased to direct the respondent authorities to grant the License of fair price shop to the petitioner, in the interest of justice.
(B) The Hon'ble Court may be pleased to stay the implementation, operation and execution of impugned orders dated 3.8.2011 and 3.7.2010 passed by respondent no.1 and 2 respectively, pending the admission, hearing and final disposal of this petition;
(C) The Hon'ble Court may be pleased to grant such other and further relief(s), as are deemed fit and proper by this Hon'ble Court, in the interest of justice.”
3. Thus, by way of this petition the petitioner has challenged the order dated 3/7/2010 passed by respondent no. 2 in issuing license of fair price shop in favour of respondent no.4, where under the fair price shop at Village Sarsoli was decided to be allotted to respondent no.4, and the order dated 3/8/2011 passed by respondent no.1, i.e. appellate authority in appeal no. 58/2010, where under the appeal preferred by the petitioner challenging the decision of the Collector and District Supply Committee was questioned.
4. Facts in brief, leading to filing this petition deserve to be set out as under.
The District Rural Development Agency ('DRDA' in short) , Sabarkantha at Himmatnagar, resolved by way of resolution dated 26/11/2008 to allot 53 licenses for fair price shops to Sakhi Mandal / Swasahay Juth, and accordingly applications were invited through advertisement dated 18/11/2009. The applicants aspiring to acquire license were to fulfill conditions appended to the advertisement which the petitioner has enumerated in para no. 3.2. The concerned Mamlatdar who was to receive applications from the aspirants for license, received total 3 applications, one by the petitioner and two applications by respondent no.4 & 5. At this stage it is required to be mentioned that learned advocate for the petitioner has submitted that respondent no.5 happened to be husband of petitioner and he is a formal party, though unfortunately averment to such effect have not been made in the memo of the petition. Respondent no.4 also has not objected in any manner questioning the bonafide of present litigants. At this stage it is also required to be noted that Shri Patel, learned advocate appearing for respondent no.4 has fairly submitted that no ground qua non-disclosure of relationship between petitioner and respondent no.5 is taken up in the memo of the petition and there is no whisper with regard to suppression of fact and or bonafide of the petitioner on that count.
The applications were to be submitted on or before 18/12/2009 and it was one of the conditions prescribed in the advertisement inviting applications that applications either not accompanying with necessary documents supporting the claim or an incomplete application will be rejected outright. Respondent no.2 passed an order on 3/7/2010 deciding to accord license to respondent no.4 for running fair price shop at village Sarsoli, taluka Bayad, district Sabarkantha. As the license in question was granted contrary to the provision of law and as respondent no.4 was not eligible to receive the license on number of counts said order was challenged by the petitioner on 27/7/2010 by preferring appeal. During pendency of appeal filed by the petitioner challenging the order dated 3/7/2010 respondent no.3 allotted fair price shop to respondent no.4 as per the order of respondent no.2 and license was issued, though it was on a condition that the decision arrived at by respondent no.1 shall be binding on respondent no.4. Said letter was issued on 2/11/2010. The appeal preferred by the petitioner challenging the order dated 3/7/2010 being Appeal No. 58/2010 came to be rejected by respondent no.1 vide its order dated 3/8/2011, without appreciating the contentions raised by the petitioner for challenging the order dated 3/7/2010. Hence this petition.
5. Learned advocate appearing for the petitioner invited this Court's attention to the grounds mentioned in the memo of the petition for assailing the action of according fair price shop license to respondent no.4 and contended that the authority concerned, namely District Collector, as well as the authority in the State, unfortunately did not address themselves to the very important issue with regard to respondent no.4's ineligibility in acquiring the license, nor was it taken into consideration by the appellate authority that the respondent no.4's application did not deserve to be accepted as the same can be said to be an incomplete application and, therefore, it was hit by the conditions embedded in the invitation for application that incomplete application would be rejected outright.
6. Learned advocate for the petitioner contended that the applications were invited for village Sarsoli for the category of shops to be allotted to from the eligible self- help group for allotment of license of fair price shop. Petitioner's application did accompany all the requisite documents, though said application did not make mention on the face of it that it was an application on behalf of the self-help group, which is narrated as “Swasahay Juth” , herein after referred to as “Self-Help Group”. The accompanying document to the petitioner's application unequivocally go to show that the application could not have been treated as an application made in an individual capacity. Alternatively it was submitted on behalf of the petitioner that, even assuming for the sake of arguing that petitioner's application was made in an individual capacity, then also the petitioner could not have been permitted to be side-tracked in preference to respondent no.4, as the respondent no.4 did not have eligibility nor did his application was complete in any manner and therefore, same was required to be rejected outright.
7. Learned advocate for the petitioner further contended that the respondent no.4 does not belong to village Sarsoli and as per the clear stipulation in the invitation to apply, only local residents and domicile were eligible for receiving license. In the instant case respondent no.4 happens to be a resident and domicile of Netradiya, which is not admittedly falling part of village Sarsoli in any manner. These facts were unfortunately ignored by the Collector and District Supply Advisory Committee and the respondent no.4 was recommended to be most eligible candidate out of the aspirants contrary to their own advertisement and therefore, the selection of allotment of fair price shop qua respondent no.4 deserves to be quashed and set aside.
8. Learned advocate for the petitioner further contended that respondent no.4's application copy was required to be furnished to the petitioner under the provision of Right to Information Act, and after the same is perused, it revealed that respondent no.4's application could not have been even considered for comparing with others, as the said application was incomplete in many respects. Xerox copy of the said application is tendered and the same is taken on record. Xerox copy of this application also clearly indicate that many vital columns were left blank by respondent no.4. Learned advocate for the petitioner has made specific averment in the memo of the petition and also before the appellate authority that respondent no.4 did not submit all the relevant documents required to be submitted along with the application. Yet, not only the application was considered but license of fair price shop was also granted which was contrary to law and therefore the same is required to be quashed and set aside.
9. Petitioner's advocate further submitted that the averments to this effect made in the petition have not been denied categorically and an attempt is made to explain this fact by making averments in the reply by respondent no.4 that atleast before the authority relevant documents were produced.
10. Petitioner's advocate submitted that the certificate produced by respondent no.4 along with his application was issued by Taluka Extension Authority (Taluka Vistran Adhikari), Gram Bayad which cannot be said to have been a certificate issued by DRDA, to which learned advocate for respondent no.4 submitted that even respondent no.4's group is in fact registered with DRDA as could be seen from the document he passed on across the bar which is taken on record. However petitioner's advocate submits that it was not a document accompanying the application for fair price shop and therefore same cannot be taken into consideration by this Court.
11. Petitioner's advocate further submitted that respondent no.4 was otherwise also not eligible to be considered for license for fair price shop as he did not answer the criterion of age. The age of the applicant is to be within age group of 18 to 35 years and admittedly respondent no.4 is 42 years when the application for fair price shop was made, hence on that count also petitioner's application and candidature should have been accepted and she should have been granted on the ground of self- help group.
12. Learned advocate appearing for respondent no.4 contended that petitioner's application as could be seen from the face of it would go to show that the application was not made as if it was made on behalf of the self-help group/juth and hence the authorities were right in treating respondent no.4 to be sole applicant eligible for awarding license. So far as village Sarsoli is concerned applications were invited only from the self-help group and the petitioner's application being not on account or on behalf of self-help group, same could not have been preferred over respondent no.4's application which was styled in the name of the group (juth) and respondent no.4 happened to be President of the group. Therefore, this petition itself is misconceived.
13. Respondent no.4's advocate further contended that the application of the petitioner was in individual capacity while the appeal is preferred before the appellate authority under the name of Shree Laxmi Sakhi Mandal and the petition is preferred again by the petitioner in her individual capacity. Therefore this petition is misconceived and it requires to be dismissed.
14. Learned advocate for respondent no.4 invited this Court's attention to page no. 114 i.e. communication from Mamlatdar, Bayad to District Supply Officer, Sabarkantha district at Himmatnagar, in which it is clearly mentioned that ration cards of village Netradiya are connected with fair price shop of Sarsoli village and the respondent no.4 is also holding ration card of village Sarsoli. Copy of ration card was submitted and based upon this communication it was canvassed on behalf of respondent no.4 that the resident & domicile of village Netradiya when they hold ration card of village Sarsoli were entitled in their own stead in being considered for granting of fair price shop license at village Sarsoli. Had it not been the case, then, nothing prevented the authority from outrightly rejecting the same. The authorities have not only required to grant license to respondent no.4 and therefore respondent no.4 belonging to village Netradiya cannot be said to be a substantial defect going to the root of the matter. Even the appellate authority has not addressed itself to it as the same ground cannot be said to be so significant a ground as to vitiate grant of license in favour of respondent no.4.
15. Learned advocate appearing for respondent no.4 thereafter invited this Court's attention to certificate issued by competent authority indicating that respondent no.4's as self help group known as Shri Navyuvak Purush Bachat Mandal Juth, which is registered with DRDA right from 17/2/2009 and thus it cannot be said that, that group was not eligible to apply. Respondent no.4 had passed SSC in 1987 and his HSC in 1989, thus he on behalf of the self-help group was eligible to receive license which was rightly given to him and therefore this Court may not interfere with the same.
16. Learned advocate for respondent no.4 thereafter contended that prayer made in para no. 9(A) contains prayer with regard to assigning license in favour of petitioner. This prayer cannot be granted as the petitioner cannot succeed in receiving license only on highlighting defects and or lacunas in case of respondent no.4, i.e. grantee of license, and for succeeding in totality in this petition it was duty cast upon the petitioner to establish her own eligibility and unless & until she is establishing the same the Court may not grant the prayer 9(A) in its entirety.
17. Learned AGP in support of the action of District Collector as well as that of appellate authority contended that the application of the petitioner was rightly considered to be an application made in her individual capacity and not as part & parcel of her group and so far as village Sarsoli is concerned, applications were invited only from the self-help group and not from the individual and, therefore, when respondent no.4 was the only self- help group it was rightly decided to be accorded lincense in favour of respondent no.4.
18. Learned AGP further submitted that respondent no.4 is a self-help group and the application made by respondent no.4 also clearly indicate that it was made on behalf of self-help group and therefore, it cannot be said that the petitioner who had applied in her individual capacity was required to be considered in preference to respondent no.4.
19. Learned AGP further submitted that the factom of ration card held by respondent no.4 is attached to fair price shop of Sarsoli, respondent no.4 was eligible to be considered and it cannot be said that he was not eligible of being considered for granting license, he being a resident of Netradiya.
20. This Court heard learned advocates for the parties and perused the documents attached there with. The following indisputable aspects emerging there from is required to be set out before adverting to rival contentions of learned advocates for the parties, namely :
(1) Annexure-A on page-13 is a communication dated 26/11/2008 addressed to Taluka Development Officer, wherein it is mentioned that as per instruction from Collector 53 fair price shop licenses are required to be issued. This licenses are to be issued to “Sakhi Mandal” / “Self-Help Group” interested in obtaining license and in that very communication it is indicated that, what is essential for obtaining license / shops is that Sakhi Mandal / Self-help group are to be registered with DRDA. Said group should be active and functional atleast from one year. Any one of the member should have passed 10th standard. The members of group / the member obtaining license of the group should be domicile and in that area since last ten years he/she should be holding ration card. The applicant's age should be within the age group of 18 to 35. The group should have minimum savings of Rs.10,000/-. The members of the group should be local or within five kilometers area. Out of the group the candidate who has passed 10th standard has to apply in his name.
(2) The advertisement contain name of village Sarsoli and name of the village to be given by that shop, they have been mentioned as Kanjarikambo-Butalkampo, and the category is shown to be general category 'self-help group'. Said application inviting advertisement also contains stipulation that in case of non-availability of local as self-help group or educated unemployed is not available, then, the application made by persons not falling under that category and locally recognized & co- operative society's application will also be considered as per the prescribed priority and preference.
(3) It is also mentioned that the applications submitted beyond time or application incomplete in any detail would be rejected. Said advertisement also contains stipulation that application has to accompany with all the documentary evidences sought to be relied upon for making the application.
(4) The annexure to the application also contains in unequivocal terms that in case the applications are not accompanying with requisite evidence in support thereof and certificates, then those applications will not be considered and will be treated as cancelled and no representation / complaints will be entertained thereon. In that annexure it is nowhere stated that application is to be made by group nor has it been said that when a member of group is applying for license on behalf of group, name of the group is required to be stated.
(5) In the said annexure, the other conditions with regard to eligibility of age, educational qualifications, are mentioned. In that very advertisement at annexure item no. 8 indicate that categories where 'educated unemployed candidate' is not available then allotment to women self-help group will be considered. In short the alternative consideration is very much provided for in case of non availability of eligible candidate or group.
(6) Respondent no.2 District Collector vide his order dated 3/7/2010 held respondent no.4 to be eligible by considering present petitioner to be an individual applying in her individual capacity and respondent no.4 being also applying in his individual capacity.
(7) That, only three applicants were in the fray, and respondent no.4 figures at the top, petitioner figures at sr. no.2 and respondent no.5 figures at sr. no.3.
(8) Petitioner's appeal to the concerned authority tendered to the Court during the time of arguments contain specific allegations and averments with regard to incomplete application put up by respondent no.4 and allegation with regard to respondent no.4 not being eligible to apply on account of he not being belonging to village Sarsoli and he is not answering age criterion and that the application of petitioner was the group known as Shree Laxmi Sakhi Mandal.
(9) The respondent no.1 has not adverted to these conditions at all and proceeded on sole basis as if the other conditions were of no use, and petitioner being not eligible to apply, and therefore the eligible group i.e. respondent no.4 group was rightly given license.
21. Against this backdrop of indisputable aspects, question arises as to whether the action of according license to respondent no.4 can be said to be justifiable in the eye of law. The answer would be an emphatic NO. The reason for this conclusion are as under.
(a) The petitioner's advocate has contended that the petitioner cannot succeed on the ground of weakness in candidature of respondent no.4 alone, but this contention is required to be examined in view of the fact that the petitioner has made prayers in which it is prayed for a direction to issue license in favour of petitioner and any other and further reliefs. Thus the petitioner being in the fray was justified in complaining about the inherent weakness and or defects in the candidature of respondent no.4. Respondent no.4, has suffered the following handicaps which ought to have been considered by the District Advisory Committee and District Collector before deciding to award license in favour of respondent no.4.:-
(i) The application put up by respondent no.4, xerox copy thereof is furnished would persuade a man of ordinary prudence to feel that utmost care and caution is taken when the decision for licenses will be considered. The application as per learned advocate for the respondent no.4 rightly contains many columns which were not filled in.
(ii) The Court also to accept submission made on behalf of the petitioner that respondent no.4's application did not accompany the request documentary evidence for meriting its consideration. The certificate accompanying the application was not issued by DRDA admittedly. The subsequent application was given by respondent no.4 with copy of DRDA sanction in 2011 which was the functional year and it had sufferance from year 2009, should be of no avail to respondent no.4 as it was directly hit by condition stipulated in the disclosure. It was specifically mentioned that incomplete application and application not accompanying with requisite document be treated as cancelled or no application in eye of law.
(iii) The perusal of advertisement and terms & conditions mentioned there under also go to show that the contention of respondent no.4 that the age criterion is not applicable to applicant applying on behalf of self- help group is incorrect and misconceived. Plain reading as it is stated herein above of the advertisement go to show that even in case of self-help group and or Sakhi Mandal the applicant was to be an individual applicant only and that individual applicant was required to be fulfilling the criterion of age, namely when he or she is to be falling within the age group between 18 to 35 age. Admittedly the respondent no.4 who had applied on behalf of the self-help group as asserted was not falling in the group and he has crossed upper age limit of 35 years. This aspect therefore go to the root of the matter which should have warranted rejection of application of respondent no.4 outright.
(iv) The Court is of the view that in case if the respondent no.4 was required to be considered eligible on account of the holding ration card attached to a fair price shop in village Sarsoli, then nothing prevented the authorities, namely District Collector and appellate authority to unequivocally state the same justifying their action of granting license qua respondent no.4. Unfortunately both the authorities have chosen not to file any reply though respondent no.1 was served on 1/12/2011 and respondent no. 2 & 3 were served on 8/12/2011 respectively. That apart, the fact remains to be noted that respondent no.4 does not reside in village Sarsoli, that is the local area in which applicant is to be residing and that fact itself was sufficient to reject the application of respondent no.4. Assuming for the sake of examining without holding that the ration card holding of village Sarsoli should have been sufficient to clothing respondent no.4 with eligibility requirement, then also, as it is stated herein above, nothing prevented appellant authority to advert to it unequivocally and justify the stand of the respondent no.4 on that count also. It is reiterated at the cost of repetition that appellate authority's order is conspicuously silent on this aspect. Therefore, this Court will have to accept the submission on the part of the petitioner that respondent no.4 was ineligible on account of he not belong to village Sarsoli or not being domicile of village Sarsoli.
22. The aforesaid infirmities and defects in the candidature of respondent no.4 should have persuaded the responsible officer like District Collector and those who are incharge of considering applications for rejecting the same outright, as this application of respondent no.4 did not answer the requirements embedded in the advertisement. Unfortunately, respondent no.4's candidature is considered and accepted which in my view was palpably wrong, illegal and contrary to the provisions of law and hence same is required to be deprecated and quashed and set aside.
23. Next question arises as to when the candidature of respondent no.4 is declared to be incompetent by this Court on account of the aforesaid defects, would this Court be justified in issuing direction for assigning license in favour of the petitioner. The answer is 'YES' for the following reasons.
(a) The entire exercise undertaken by the authorities go to show that even if assumed that the application of the petitioner was to be treated as an individual application, then also such an application was not totally debarred and therefore when the authorities have enlisted her application and when there is stipulation in the advertisement for applicant that in case non availability of eligible category candidate the other eligible candidate should be considered, in that eventuality the case of the petitioner merits consideration and acceptance.
(b) This Court hasten to add here that the application put up by the petitioner though did not disclose name, in fact it was an application on behalf of Sakhi Mandal as sought to be pressed into service by accompanying documents along with the application which pre- eminently indicate that the application was in fact made on behalf of the group and hence same was required to be treated as such. The respondents authorities were not justified in treating the application of the present petitioner to be that of an individual only. As could be seen from the instruction for applicants appended to the advertisement, one would come to know that the candidature in his individual capacity has to make an application even if he is applying for a group. The only requirement is that the application on behalf of candidate who is applying on behalf of the group has to be accompanied with requisite documents justifying the application, namely registration with DRDA etc. In the instant case it is nobody's case that the application of petitioner did not accompany with these documents as required. The question arise as to whether when said application made on behalf of women group was placed on record before the authority, the authority with imputation ignored the same on the weak and lame submission that the application did not disclose the group name, though the accompanying documents did unequivocally show that application was made on behalf of Sakhi Mandal. This turning of blind eyes to the documents betrays either lack of requisite sensitivity on the part of concerned or deliberate omission on their part. Be that as it may; the Court may not delve elaborately on this aspect at this stage.
24. Petitioner thus being the applicant fully eligible and entitled for and on behalf of the self-help group and as she was applying on behalf of self-help group called Shree Laxmi Sakhi Mandal, her candidature could not have been over looked in preference to respondent no.4 whose application was fraught with aforesaid defects and lacunas. Therefore, this Court has no reason not to accept the petition in its totality. Accordingly, the action of respondent nos. 1 & 2 in according license to respondent no.4 and confirming the same vide order dated 3/7/2010 and 3/8/2011 are hereby quashed and set aside. It is declared that respondent no.4 was ineligible to have his candidature considered by the committee only on the grounds of defects as narrated herein above in his application, and as a result thereof, the petitioner who has been declared to be absolutely eligible candidate to apply on behalf of the group is said to be eligible and respondents preference to respondent no.4 is declared to be illegal. The respondent nos 1 & 2 are hereby directed to issue license in favour of petitioner in her capacity as a Self-Help Group, namely Shree Laxmi Sakhi Mandal and do the needful of awarding contract etc., within a period of two weeks, i.e. on or before 6/2/2012.
25. Petition is allowed in above terms. Rule made absolute to the aforesaid extent. However, there shall be no order as to costs. Direct service permitted.
26. Shri Patel, learned advocate for the respondent no.4 at this juncture requested for staying operation and implementation of the order for a period of two weeks. The request is not accepted, as otherwise also the Court has granted two weeks time to respondents to comply with this order. Therefore, it goes without saying that, in case if any orders are obtained from the Division Bench in Letters Patent Appeal, the same shall be governing the field.
[ S.R. BRAHMBHATT, J ] /vgn