(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present appeal under Clause-15 of the Letters Patent, the appellant–original respondent No.4 of the petition, has challenged the oral judgment and order dated 25.01.2012, passed by the learned Single Judge in Special Civil Application No.17533 of 2011, by which the petition filed by the respondent No.1 was allowed by quashing and setting aside the orders passed by the Collector and confirmed by the State by which the allotment of fair price shop in favour of the present appellant - respondent No.4 was confirmed in appeal and revision.
2 Since the question of allotment of fair price shops which would, ultimately, beneficial to the people at large in the area, we have taken up this appeal for final hearing with the consent of the learned Advocates appearing for the parties.
3 The appeal was admitted by this Court on 3.2.2012 and ad-interim relief staying the operation of the Order passed by the learned Single Judge was granted till the hearing of the present appeal. During the pendency of the appeal, the respondent No. 1 filed a Civil Application No. 2046 of 2012 under Article 226 (3) of the Constitution of India for vacating the ad interim relief which was granted by this Court on 3.2.2012, as stated here-in-above.
4 The brief facts arising from the case are 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 licence were to fulfill conditions appended to the advertisement. The concerned Mamlatdar who was to receive applications from the aspirants for licence, received total 3 applications, one by the respondent No.1 – original petitioner and two applications by the appellant– original respondent No.4 and respondent No.5 – Parmar Kiritbhai Dhirubhai. 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 applications will be rejected outright. Respondent No.2 passed an order on 3/7/2010 deciding to accord licence to the present appellant-respondent No.4 for running fair price shop at village Sarsoli, Taluka Bayad, District Sabarkantha. As the licence in question was granted contrary to the provision of law and as the appellant-respondent No.4 was not eligible to receive the licence on number of counts, the said order was challenged by the present respondent No.1 – original petitioner on 27/7/2010 by preferring appeal. During pendency of appeal filed by the original petitioner – respondent No.1 herein challenging the order dated 3/7/2010, respondent No.3 allotted fair price shop to the present appellant - respondent No.4, as per the order of respondent No.2 and licence was issued, though, it was on a condition that the decision arrived at by respondent No.1 shall be binding on the appellant - respondent No.4. The said letter was issued on 2/11/2010. The appeal preferred by the present respondent No.2 – original 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.
5 Being aggrieved with these two orders, the captioned petition was filed by present respondent No.1. The same has been allowed and the orders allotting the fair price shop to the appellant herein have been quashed by the learned Single Judge by judgment and order dated 25.1.2012 which is under challenge in the present appeal.
6 The learned Counsel for the appellant has also produced certain documents like the Registration Certificate and a policy of the government along with this Letters Patent Appeal, which were not produced before the learned Single Judge and tried to advance his arguments relying upon the same. Since these documents were not produced before the learned Single Judge, this Court is not inclined to consider the said documents.
7 The learned Single Judge, after hearing the learned Advocates appearing for the respective parties at length and after perusing the record of the case, came to the conclusion that the appellant (original respondent No.4) was not entitled for allotment of fair price shop but respondent No.1 (original petitioner) was legally entitled for the same.
The relevant observations in para-21 of the judgment reads as under:
“ Against this backdrop of indisputable aspects, question arises as to whether the action of according licence 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.”
8 As far as the allotment of fair shop to the respondent No.1/original petitioner is concerned, the learned Single Judge has, by reasons, directed the authorities to cancel the licence to run a fair price shop granted in favour of the appellant , which are as under:
1. 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.”
9 We have heard learned Advocate Mr. H.R. Prajapati for the appellant, learned Advocate Ms. Shilpa Shah for respondent No.1 and learned AGP Ms. Jirga Jhaveri for respondents No. 2 to 4.
10 Learned Advocate Mr. Prajapati appearing for the appellant has mainly contended that the learned Single Judge has erred in accepting the departmental directions as if the same were required to be followed stricto facto since the Communication dated 26.11.2008 (produced at Annexure-A to the petition) by which the District Rural Development Agency, Sabarkantha at Himmatnagar, under the instructions of the Collector had informed the Taluka Development Officer to follow the procedure laid down in the said letter. For the ready reference, the criteria laid down by the authorities by Communication dated 26.11.2008 are reproduced here-in-below:
1. The Sakhi Mandal/Swasahay Juth must be registered under DRDA i.e. District Rural Development Agency;
2. The said institution must be in operation since one year;
3. Any of the members from the said institution must be at least Matric Pass (10th Standard);
4. The person desirous of obtaining the licence must be resident of that village for 10 years and also must be holding a ration card;
5. The applicant must be aged between 18 to 35 years;
6. The institution should have at least a savings of Rs. 10,000/-;
7. That the person applying for the licence should be an owner or a tenant of a shop admeasuring 200 sq. feet;
8. The other members of such institution should be local resident or should be residing within 5 kms of the area;
9. If the application is made by a Sakhi Mandal/Swasahay Juth, then, the person who is 10th Pass should be the applicant.
11 It was argued that the criteria mentioned in the Letter dated 26.11.2008 are departmental instructions which are not issued pursuant to any rules or regulations or under any government policy and therefore learned Single Judge has erred in accepting the same in deciding the case.
12 We are afraid to accept this submission since learned Advocate for the appellant has neither produced any rules/regulations before the learned Single Judge nor has brought to our attention about any such rules framed by Government by which we can come to the conclusion that the departmental instructions are contrary to the rules. It is clear from the record that the appellant was aware about the necessity of supply of information which were published in the advertisement. It is pertinent to note that the departmental instructions dated 26.11.2008 were never challenged by the appellant before any authority. As stated here-in-above and as stated by the learned Single Judge and after perusing the application which was produced by learned AGP Ms. Jirga Jhaveri, it is clear that the application which was submitted by the appellant was not a complete one. The appellant had neither mentioned his educational qualification, his age nor any certificate issued by DRDA which was necessary for processing of the application submitted by the appellant.
13 In our view, the details/criteria are necessary to run a fair price shop. Running a fair price shop needs good education, so that accounts, etc. can be properly maintained. Even if a member of the Self-help Group/Sakhi Mandal is not a Matric passed (10th Standard), it would be difficult to run a fair price shop and maintain accounts of the shop. In the present case, the appellant has not mentioned his educational qualification and has not mentioned that one of the members of the Self-help Group is a Matric (10th Standard) passed member.
14 As per the schedule produced by the original petitioner – respondent No.1 along with the petition, which specifically shows that, along with the application, all certificates and supporting documents are necessary for consideration of the application. In the present case, as stated here-in-above, it is an admitted fact that, the appellant had failed in producing the certificate and other necessary documents. Even if the administrative instructions are not mandatory, when the authority deems it fit to issue certain directions to see that the fair price shops are run and managed by capable persons, the appellant is bound to comply with such directions and the authorities are also expected to adhere to the administrative instructions.
15 In view of the aforesaid factual aspect, we are unable to accept the contention raised by the learned Advocate for the appellant that the appellant is not bound to supply the details which were necessary for getting the licence to run a fair price shop. When the applicant was aware about the criteria, based on which, the application shall be considered by the authority, the appellant ought to have produced all necessary documents along with the application.
16 Mr. Prajapati, the learned Advocate for the appellant has relied upon a decision of the Apex Court in the case of Swapan Kumar Pal vs. Achintya Kumar Nayak, as reported in 2008 (1) SCC 379 and submitted that in case of allotment of ration shops, if the authorities have committed any error, there would be limited scope for judicial review of the decision taken by the authorities. We are in complete agreement with the aforesaid principle laid down by the Apex Court, however, the Apex Court in the said decision has held that if any legal error has been committed in the decision making process, the court can certainly interfere with the orders passed by the authorities below. As stated here-in-above, the authorities below have committed error in allotting the fair price shop to the appellant since the authority itself did not adhere to their own guidelines/directions issued by the Department while submitting the application for allotment of fair price shop. Therefore, in our opinion, the aforesaid decision of the Apex Court would not be helpful to the present appellant.
17 Mr. Prajapati, learned Advocate for the appellant, has further relied upon a decision of this Court in the case of Pagi Jesingbhai Zalabhai vs. Collector (Civil Supply Department), as reported at 2011GLHEL-HC 225756, and drawn our attention to para-10 of the said judgment, in which the learned Single Judge has relied upon a decision of the Apex Court in the case of Dolly Chhanda vs. Chairman, Jee and Ors., (2005) 9 SCC 779 and particularly paragraph-7 which has been quoted in the said judgment. We are in agreement with the principle laid down by the Apex Court in the aforesaid decision that depending upon the facts of the case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. In the present case, the facts are totally different. The application form which was submitted by the appellant was almost a blank one and it does not show the age and the educational qualification of the appellant. The appellant has also not annexed the certificate of registration with the application. Therefore, in our opinion, the said decision of the Apex Court would not be applicable in the facts of the present case.
18 On the other hand, learned Advocate Ms. Shilpa Shah appearing for the respondent No.1 and learned AGP Ms. Jirga Jhaveri, appearing for the respondents No. 2, 3 and 4 have supported the judgment and order passed by the learned Single Judge and prayed to dismiss the appeal and to vacate the interim relief granted in favour of the appellant.
19 In view of the aforesaid factual as well as legal aspect of the matter, we, therefore, of the opinion that there is no infirmity in the impugned judgment and order passed by the learned Single Judge which would call for interference by this court. This appeal is, therefore, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
20 In view of the aforesaid order passed in Appeal, Civil Application No.1516 of 2012 for stay filed by the appellant does not survive and stands dismissed accordingly. Interim relief granted earlier, if any, shall stand vacated forthwith. Rules is discharged.
21 Consequently, the Civil Application No.2046 of 2012 filed by the respondent No.1 would not survive in view of the order passed in the appeal and stands disposed of accordingly.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair