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2013 DIGILAW 225 (BOM)

Girijamata Magasvargiya Mahila Audyogik Sahakari Sanstha Limited v. Ravindra S/o Raosaheb Gaikwad @ Deshmukh

2013-01-29

A.H.JOSHI, SUNIL P.DESHMUKH

body2013
Judgment : A.H. Joshi, J. 1. By consent taken up for final hearing. 2. Summary of claim of the appellant is as follows: (a) A public notice was issued inviting applications for allotment of a fair price shop at village Dahigaon Bolka in Kopargaon Taluka. (b) In pursuance of the public notice, the District Supply Officer has granted fair price shop in favour of the appellant. (c) The respondent no. 1 had challenged the order of the District Supply Officer by filing appeal before the Deputy Commissioner (Supply), Nashik Division, Nashik. (d) The appellate authority has considered the record and the order passed by the Supply Officer and after taking into consideration the policy decision of the Government, dismissed the appeal. (f) The respondent no. 4 was aggrieved and dissatisfied with the order passed by the Deputy Commissioner(Supply). Therefore, he filed a revision application before the State Government. (g) The State Government considered both the orders of the subordinate authorities and by a detailed order rejected the revision application filed by the respondent no.1. (h) The respondent no.1 being aggrieved and dissatisfied with the orders passed by the Ministers for Civil Supplies, filed writ petition NO. 155 of 2006 in this Court, which was heard by learned Single Judge. (i) Learned Single Judge of this Court has allowed the writ petition. The orders passed by all the authorities are set aside with further directions that the permission given to the appellant is quashed and the respondents are directed to allot the fair price shop to the respondent No. 1 by cancelling kerosene dealership licence No. 17 issued to writ petitioner in the year 1985 and run by him. 3. Paragraph no. 8 of the order passed by the learned Single Judge of this Court in Writ Petition No. 155 of 2006 hurts the appellant-Society and hence it is before this Court. 4. It would be useful to quote paragraph no. 8 of the final order passed by learned Single Judge in said Writ Petition No. 155 of 2006. It reads as under:- “8. Considering the scheme prepared for distribution of the licenses for running of fair price shop, it is amply clear that the claim of an educated unemployed person is of highest priority. The District Supply Officer appears to have placed the petitioner at serial No. 8 in the list of priority. It reads as under:- “8. Considering the scheme prepared for distribution of the licenses for running of fair price shop, it is amply clear that the claim of an educated unemployed person is of highest priority. The District Supply Officer appears to have placed the petitioner at serial No. 8 in the list of priority. The petitioner could not be pushed to serial No. 8 in the priority list when his application itself showed that he claimed benefit of the scheme as unemployed educated person. The claim of the petitioner was rejected by the District Supply Officer i.e. the respondent no. 4 without considering the entitlement. It is observed by the District Supply officer in the impugned order dated 29th January, 2005 (Exh-C to the petition) that name of the petitioner was recommended by the Gram Sabha. It is also observed that as per the priority list, the position of the petitioner was over and above that of the respondent No. 4. If that is so, one does not get any peculiar reasons as to why the claim of the petitioner was sidetracked. The respondent No. 3 – District Supply Officer refers to the Government Resolution dated 8th September, 2003 and again observed that the priority number of the petitioner was 8 whereas the respondent No. 4 was at serial No. 4. So, the District Supply Officer initially considered the petitioner at priority position over and above the respondent no. 4 in accordance with the Government Resolution dated 14th March, 2002, but changed such priority positions in pursuance to the Government Resolution dated 8th September, 2003. Perusal of both these Government Resolutions go to show that the observations of the respondent no. 3 are factually incorrect. The Government Resolution dated 8th September, 2003 is in continuation of the earlier Government Resolution dated 14th March, 2002. The Government Resolution dated 8th September, 2003 (Exh. R1 to the petition) would show that the difficulties in implementing the scheme were considered and, therefore, modifications were made. The said Government Resolution does not refix the seniority position. the entire record shows that no good reasons were ascribed for rejecting the claim of the petitioner." (Quoted from Page No. 140 to 142) 5. It would be useful to refer to the challenge to the findings quoted in the foregoing sub-para. It is contained in ground No. III. It reads as follows: "III. the entire record shows that no good reasons were ascribed for rejecting the claim of the petitioner." (Quoted from Page No. 140 to 142) 5. It would be useful to refer to the challenge to the findings quoted in the foregoing sub-para. It is contained in ground No. III. It reads as follows: "III. That the Hon'ble Single Judge ought to have taken into consideration that the respondent no. 1 is not educated unemployed as he has already once availed the benefit of said category by getting the kerosene dealership licence No. 17 in the year 1985 and since then he is conducting the business of kerosene dealership and therefore, he is not educated unemployed. Therefore, could not have claimed the priority over the appellant." 6. The point argued by petitioner and opposed by the respondent no. 1 is as regards eligibility of the Writ Petitioner to have priority of superior merit ranking over the appellant. The foundation of claim is the status of the Writ Petitioner to be qualified to classify as educated unemployed. Thus, the issue involved in this case revolves around the question as to whether respondent no. 1 Shri Ravindra Raosaheb Gaikwad Deshmukh is really an educated unemployed person. 7. In order to test the merit of the submission, it is necessary, to advert to facts. 8. Admittedly, respondent no.1 Ravindra S/o Raosaheb Gaikwad Deshmukh was allotted kerosene dealership way back in 1985. Admittedly, he operates the said dealership. He has ceased to be unemployed no sooner he got the kerosene retail licence, and hence, after 1985 his status is that of a person, who is "self employed." 9. Learned Single Judge has directed that the earlier licence or dealership given to and availed by present respondent no. 1 Mr. Ravindra Raosaheb Gaikwad Deshmukh be cancelled and thereupon he be allotted subject-matter licence. 10. This direction given by learned Single Judge does not have any support or authority of law. It cannot be said that it is passed for doing effective justice between the parties. Any illegality or act of injustice whatsoever, had not occurred in the process of rejection of writ petitioner's claim. The Writ Petitioner's case was not of violation of any right or denial of an opportunity of consideration. It cannot be said that it is passed for doing effective justice between the parties. Any illegality or act of injustice whatsoever, had not occurred in the process of rejection of writ petitioner's claim. The Writ Petitioner's case was not of violation of any right or denial of an opportunity of consideration. In absence of illegality in orders passed by Government or other authorities, no grounds were made out for interference at the hands of learned Single Judge. 11. Respondent no. 1 the writ petitioner is bestowed the eligibility as an educated unemployed person due to judicial intervention i.e. impugned order i.e. due to direction that his licence be cancelled. 12. In order to substantiate the challenge as regards the eligibility of the appellant society, the learned Advocate for respondent no. 1 has argued that the appellant is not a village level society but is an enterprising society at Taluka level. A challenge on this point is not available to respondent no. 1, whose claim itself is based on a trick akin to fraud on the scheme of giving high ranking preference to an "educated unemployed" person. 13. Therefore, we decline to entertain the objection raised by the Writ Petitioner. He is not a whistle blower. We have not scrutinized the merit of objection, on the ground that the Writ Petition filed by respondent no. 1 herein, is not a Public Interest Litigation. The challenge to the eligibility of the present appellant-Society cannot be gone into at the behest of respondent no. 1 who himself is devoid of eligibility on individual right. He is not a bonafide and genuine objector in a public cause. A sermon of morality cannot lie in the mouth of the writ petitioner so long he has agenda of personal interest and a reason to grind an axe against the appellant. 14. In our considered view and with utmost humility we hold that the view of the learned Single Judge is not in tune with law, equity and justice. It is not based on sound legal foundation. Therefore, the appeal has to succeed. 15. Hence, the appeal is allowed with costs throughout. Judgment and order passed by the learned Single Judge is set aside. Writ Petition No. 155 of 2006 is dismissed with costs.