1. Heard learned advocate for the petitioner. The petitioner has approached this Court under Article 226 of the Constitution of India for following reliefs :
"A. Your Lordships be pleased to admit and allow this petition.
B. Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondent No.1 to hear and decide the appeal and stay application dated 17.1.2012 and allow petitioner to run his fair price shop till final disposal of appeal.
C. Pending admission, hearing and final disposal of Appeal dated 17.1.2012, Your Lordships be pleased to stay the further operation, implementation, execution of order dated 21.12.2011 passed by the respondent No.2, and permit the petitioner to run his fair price shop.
D. Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the further operation, implementation, execution of order dated 21.12.2011 passed by respondent No.2, and permit the petitioner to run his fair price shop.
E. Be pleased to pass other orders in the interest of justice."
2. In short, the petitioner has preferred this petition for issuance of writ of mandamus or any other appropriate writ or order against the respondent No.1 that respondent No.1 may hear and decide the appeal and stay application dated 17.1.2012. The petitioner had to file the appeal as vide order dated 21.12.2011, the licensing authority - Deputy Director, Food and Civil Supply, Ahmedabad cancelled and revoked the licence and authorization to run fair price shop by the petitioner. The petitioner preferred an appeal on 17.1.2012 along with stay application. It is at this stage required to be noted that the revocation of licence was on account of various irregularities on part of petitioner and on finding that the essential commodities were dealt with in a manner contrary to the provisions of law, which was treated as patent disqualification of the petitioner to continue with fair price shop licence. The order dated 21.12.2011 is absolutely clear qua the reasons for revoking the licence. In these circumstances, the stay application for staying the order is also preferred along with the appeal challenging the very order. As the appeal and stay application have not been heard, the petitioner has approached this Court under Article 226 of the Constitution of India with the prayers mentioned hereinabove.
3. On advance copy being served, Ms.Asmita Patel is appearing and on instruction submitted that regular incumbent in the office is not available and the charge is held by Shri D. K. Baria, who happens to be the officer who had passed the order impugned in appeal and therefore, it is under consideration as to whether any other officer can be deputed to decide this appeal. Besides this, learned Assistant Government Pleader submitted that there exists no time frame or time limit prescribed for deciding the appeal and the time elapsed between presenting of appeal and presenting of the petition, in no case be said to be unreasonable so as to give cause of action to the petitioner to file this petition.
4. In view of this, learned advocate for the petitioner contended that the citizen is not concerned with the internal arrangements that may be made and non deciding of appeal is amounting to violating the civil right of the petitioner and relying upon the decision of the Apex Court in case of Smt. Maneka Gandhi v. Union of India & Anr., reported in AIR 1978 SC 597, it is contended that the inaction on part of the authority deserved to be deprecated as it amounts to breach of principle of natural justice. Learned advocate for the petitioner has placed on record notification dated 16.6.2003 and submitted that there exists no power in the Revoking Authority to revoke the licence for the reasons stated in the order and therefore, the petition is required to be entertained and it cannot be dismissed summarily in limine.
5. This Court is of the considered view that the petition is hopelessly meritless and therefore, it is required to be dismissed for following reasons, viz. :
(I) The petitioner has filed appeal only on 17.1.2012 and without seeking any information whatsoever from the concerned authority as to why the appeal is not being disposed of or the stay application is not being heard, he has straightway approached this Court under Article 226 of the Constitution of India seeking writ of mandamus. Instead the petitioner could have approached the authority and attempted to ascertain as to what is the reason for not deciding the appeal and/or deciding the stay application. Merely filing of appeal and stay application would not in itself entitle the petitioner to approach this Court for seeking writ of mandamus and as otherwise also, the writ of mandamus under Article 226 of the Constitution of India is the remedy which is discretionary remedy and in this peculiar facts and circumstances of the case where the petitioner has shown unreasonable impatience in straightway moving the Court without taking due care to ascertain from the authority as to why the appeal is not being decided, this Court may not exercise discretionary jurisdiction in favour of petitioner.
(II) It is relevant to note, at this stage, that the learned Assistant Government Pleader's instructions in respect of the present incumbent being the very same officer, who has passed the order also is the very valid reason which would go against the petitioner's contention with regard to inaction or so called inaction on part of the respondent authorities. The time gap is not so large or inordinate as to indicate deliberate inaction and/or inertia on part of the authority. Rather it shows lack of requisite patience on part of petitioner or lack of due care in obtaining appropriate information from the authority. If this Court starts exercising jurisdiction in such an issue and case, then the appellate authority will have no room whatsoever to carry out or function independent of any supervision. The High Court is admittedly not a supervisory authority so far as the process of deciding the appeal is concerned. The submission made by learned advocate qua breach of civil right is wholly misconceived and deserved outright rejection, as case of Smt. Maneka Gandhi (supra) has no applicability to the facts of the present case. The attitude of the petitioner in making application and appeal before the authority and straightway rushing to this Court could not countenance and petition is, therefore, required to be dismissed in limine.
(III) The contention with regard to lack of power relying upon same notification is unfortunately not forming part of the challenge, as can be seen from the prayers. The prayers would govern the ultimate challenge and reliefs sought. The prayers in unequivocal term show that there exists no challenge on the ground of notification which is sought to be made out by making oral submissions at the bar and passing of the notification across the bar. Had there been a challenge, same should have been incorporated in the memo of petition by way of appropriate pleadings. The notification, therefore, is of no avail as on date to the petitioner, as this petition is required to be considered in light of the prayers made.
(IV) This Court (Coram : S. R. Brahmbhatt, J.) in another petition being Special Civil Application No.3512 of 2012 dated 13.4.2012 has unequivocally observed that impatience of such nature which is evinced by the petitioner cannot be considered as a cause of action so as to maintain the petition under Article 226 of the Constitution of India.
6. For the foregoing reasons, the petition being bereft of merits for the aforesaid discussions, deserves rejection and is accordingly rejected with costs.
(S.
R. BRAHMBHATT,J.) (vipul) Top