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2018 DIGILAW 211 (JK)

Abdul Hameed Bhat v. State

2018-04-06

M.K.HANJURA

body2018
ORDER M.K. Hanjura, J. 1. By the medium of these writ petitions, the petitioners have sought the indulgence of this Court in quashing the Government order bearing No. 346-FCS & CA of 2017 dated 14-08-2017 (Annexure-E) with a further prayer of directing the respondents to provide preferential treatment to the petitioner in OWP 1290/2017 or his son while allotting the Fair Price Shop for distribution of ration to the consumers/villagers for the reason that he has provided free accommodation to them for running of the Retail Sale Outlet with further prayer to accommodate him or his son for adjustment in the Department in lieu of providing free accommodation to them for running the said retail shop. The petitioner in OWP 2176/2017 has prayed for a direction commanding the respondents to consider the case for grant of license for running of a Fair Price Shop at C.D. Pora, Badgam, in his favour. The brief facts, necessary for determination of these petitions, are that the petitioner - Abdul Hameed Bhat, along with the residents of the village Chitroo, Dangerpora, Badgam, approached the respondents for opening of a Fair Price Shop or a Retail Sale Outlet for distribution of ration in the said village. The request of the villagers found favour with the respondents, who sanctioned opening of a Retail Sale Outlet. The said petitioner provided the required accommodation for the purpose without charging any rent. It is stated that the outlet is running in the said accommodation from the last 17 years in the space provided by the said petitioner. He has further stated that in order to compensate the loss, which he has incurred because of providing rent free accommodation to the respondents, assurances were given to him by the respondents that he will be either allotted a new Fair Price Shop or he will be considered for adjustment in the respondent Department on some available vacancy. He has further stated that in order to compensate the loss, which he has incurred because of providing rent free accommodation to the respondents, assurances were given to him by the respondents that he will be either allotted a new Fair Price Shop or he will be considered for adjustment in the respondent Department on some available vacancy. He has stated further that instead of honoring their own commitment, the respondents have come up with an order, which has the effect of allotting the Fair Price Shop license to the private respondent, namely Javed Ahmad Wani, which is totally in violation of the Government Order No. 127-FCS & CA of 2016 dated 24-08-2016 and the guidelines made thereunder, by virtue of which, sanction has been accorded to the formulation of Revised Norms/Guidelines regarding opening of Fair Price Shops on commission basis and the first guideline whereof provides that the existing Fair Price Shop holder shall retain more RTs if there is no feasibility of opening a second Fair Price Shop. The petitioner - Abdul Hameed Bhat, has stated further that the allotment order favouring the private respondent is not only illegal and arbitrary but also in violation of the his rights and legitimate interests. He has, therefore, sought intervention of this Court for the grant of the aforesaid reliefs. 2. The petitioner in the clubbed writ petition (OWP 2176/2017) has stated that the Government order, in terms of which the Fair Price Shop has been allotted to the private respondent No. 4, is in violation of the Govt. Order No. 127-FCS & CA of 2016 dated 24-08-2016 and the guidelines laid thereunder. He has further stated that the allotment made in favour of the private respondent is illegal, arbitrary and in violation of his legitimate interests and rights, inasmuch as, he has filed the application form in the first instance and the private respondent has approached the respondents after him. The petitioner has, therefore, prayed that the writ petition be allowed and the reliefs sought therein be granted in his favour. 3. Disputing the maintainability of the writ petitions, the respondents, in their objections, have stated that since none of the rights of the petitioners have been violated or infringed, therefore, no cause of action has accrued to them for maintaining the writ petitions. 3. Disputing the maintainability of the writ petitions, the respondents, in their objections, have stated that since none of the rights of the petitioners have been violated or infringed, therefore, no cause of action has accrued to them for maintaining the writ petitions. It is further stated in the objections that the action of the petitioners is aimed at stalling the free flow of ration to the needy people of the village and there is no legal force in the contentions of the petitioners raised by them in their petitions. The respondents have proceeded to state that the Department of Food & Civil Supplies & Consumer Affairs is the best judge to take a final call on devising the ways and means of providing the ration supplies to the consumers and taking of any decision in relation to the policy matters is within the domain of the department itself. The respondents have further maintained in their objections that the order impugned, being in consonance with the earlier orders passed by the Government in this regard, does not suffer from any legal infirmity. No license or any permanent distributorship was ever allotted to the petitioners and they have willfully concealed the fact that the Retail Sale Outlet in question was opened by the Department by making an internal adjustment in terms of order bearing No. DFSK/DLG/STS-6717-6721 dated 01-01-2000, wherein it was made clear that the respondent Department cannot be compelled in future to regularize the sale centre in favour of anyone. The respondents have further averred that at the best the petitioners could have competed in the process of allotment of license for the fair price shop. Merely running of a sale outlet does not, ipso facto, clothe the petitioners with an absolute right to claim the license on permanent basis from the Department for distribution of ration to the consumers. Finally the respondents have prayed that the writ petitions, being devoid of any merit, be dismissed along with connected IAs. 4. Heard and considered. 5. Merely running of a sale outlet does not, ipso facto, clothe the petitioners with an absolute right to claim the license on permanent basis from the Department for distribution of ration to the consumers. Finally the respondents have prayed that the writ petitions, being devoid of any merit, be dismissed along with connected IAs. 4. Heard and considered. 5. Before looking into the merits of the controversy, it needs must be said that the settled law is that unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness or perversity or that the authority has intended to favour someone, the constitutional Court will not interfere with the decision making process or the decision of the Administrative Authorities. 6. Looking at the petitions of the petitioners from the above perspective, the Government of J & K, Directorate of Food & Supplies, Srinagar, by an office order dated 04-01-2000 (Annexure-B), directed as follows: "A Retail Sale Out let shall be opened by internal adjustment of staff at Chitroo, Dangerpora, Tehsil Badgam. The Assistant Director, Food, Badgam, will make necessary arrangements for sale and storage of food grains at the centre. The accommodation and watch and ward shall be provided by the inhabitants free of cost. They will not commit the department to regularize the sale centre on permanent basis." 7. On the face of the order aforesaid, what is palpable is that a Retail Sale Outlet was directed to be opened by an internal adjustment of the staff at Chitroo, Dangerpora, District Badgam. The order made it abundantly clear that the respondent Department cannot be committed to regularize the sale center on permanent basis. Under the cover of the said order, the petitioner, Abdul Hameed Bhat, cannot have the teeth to lay any claim for the grant of a license for running a Fair Price Shop in his favour for the simple reason that the terms and conditions evolved in the order aforesaid have been accepted by him on opening of a Retail Sale Outlet. The petitioner cannot now turn around and change colors like a chameleon by stating that the said condition is not acceptable to him and, therefore, the impugned order bearing No. 346-FCS & CA of 2017 dated 14-08-2017 is bad and perverse. The petitioner cannot now turn around and change colors like a chameleon by stating that the said condition is not acceptable to him and, therefore, the impugned order bearing No. 346-FCS & CA of 2017 dated 14-08-2017 is bad and perverse. In the other petition bearing OWP No. 2176/2017, suffice to say that the respondents, in issuing the impugned order, might have taken into consideration a variety of factors like the factual report, feasibility and viability in the allotment of the Fair Price Shop to the private respondent. The Court cannot interfere in a policy decision of the Government when it is not wrapped in arbitrariness, mala fides or perversity. The respondents are the best judges to take a final call and devise ways and means for providing the ration supplies to the consumers and taking such a decision is well within their domain, jurisdiction and power. 8. The contention of the petitioner in OWP 1290/2017 that he was assured by the official respondents that he will be provided a job is not borne out from any material placed on record. The writ Court cannot probe or delve on an issue which raises a disputed question of fact. In view of the preceding paragraphs, these writ petitions entail dismissal and are, accordingly, dismissed along with connected IAs. Interim directions, if any, shall stand vacated.