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2019 DIGILAW 193 (JK)

Zahoor Ahmad Badoo v. State of J&K

2019-04-05

ALI MOHAMMAD MAGREY

body2019
JUDGMENT : 1. Petitioner claims to have been allotted a fair price medical shop at Community Health, Kreeri, by the Respondent No. 4 in the year 2004 for a period of three years for auction amount of Rs. 4.95 lacs, out of which, he had deposited only Rs. 2.00 lacs. It is submitted that the petitioner was allotted the space comprising of two rooms in the old building of Community Health Centre, Kreeri and the term of the license period expired on 26.10.2007 and by that time, the petitioner, has deposited only Rs. 2.00 lacs instead of Rs. 4.95 lacs and has continued with the business beyond 2007, by retaining Rs. 2.95 lacs auction amount as also a huge amount on account of rent (Rs 13,000 per month), which on calculation comes to around Rs. 19.00 lacs. 2. Government of Jammu and Kashmir in order to regulate and streamline the procedure for allotment of existing Fair Price Medical Shops in various hospitals of Medical Education Department notified “Procedure and Guide Lines” vide Government order no. 108-HME of 2003 dated 04.06.2003. In terms of the Guidelines/Procedure the existing Fair Price Shops in various institution of Health and Medical Education Department were required to be allotted through a transparent system of open auction, duly published in the local press and electronic media. 3. On completion of the auction process, the highest bidder was required to be allotted the shop initially for a period of three years, extendable by another two years subject to satisfactory performance of the allottee, on the basis of highest premium offered in addition to monthly rent to be fixed by the Committee constituted for the purpose. Above said policy of the Government was supplemented by Government order No. 02-HME of 2004 dated 01.01.2004 by adding further terms and conditions of the allotment that the allotment shall be on licensee basis and the successful bidder licensee shall have to execute a Licensee Deed for the allotment of the sop with the allottee. 4. The relief prayed in the writ petition amounts to supplementing the terms and conditions of the allotment, which by no stretch of imagination can be incorporated. 5. 4. The relief prayed in the writ petition amounts to supplementing the terms and conditions of the allotment, which by no stretch of imagination can be incorporated. 5. Admittedly, the petitioner is using the room in the hospital beyond period of allotment, unauthorizedly, however, the petitioner having approached this Hon’ble Court earlier by medium of writ petition bearing OWP No. 1086/2011 and has succeeded in obtaining interim order of status quo, which was extended from time to time and in the instant petition, the petitioner has claimed the following reliefs;— “Certiorari/Mandamus, quashing the communication/orders annexure P-B and P-C as being illegal and against the orders of this Hon’ble Court and in operative and is against the right and interests of the petitioner further the respondents be commanded not to act upon the letter bearing No. Legal/Bla-372/650-51 dated 03.09.2013 annexure P-B and order No. BMO/ADM/1178-86 dated 20.09.2013 annexure P-C herein. Further, the respondents be directed to handover the possession of a newly constructed shop to the petitioner forthwith as the petitioner is the highest bidder and has paid the amount as mentioned in the writ petition and the petitioner be allowed to sale and supply the medicines accordingly.” 6. Admittedly, petitioner was allowed to use the premises on license basis and the Licensee has no right to claim extension in use of premises beyond the period of license, therefore, the petitioner has no right to claim extension in the allotment from this Court. 7. Petitioner is also seeking extension in the period of allotment of room for a further period of six years as envisaged by Government order no. 492-HME of 2008 dated 17.06.2008 issued by Respondent no.1 on the ground that the Government has revised policy for allotment of shops/space for use of Fair Price Shops/STD Booths/Canteen at State/Divisional/District/Sub-District/Block hospitals of Health and Medical Education Department and in the said order, initial period of allotment has been shown as five years extendable upto six years on the basis of performance to be vouched for by the concerned Medical Superintendent/CMO. Needless to mention that the room allotted to petitioner in Community Health Centre, Kreeri is solely on the basis of the policy notified by the Government in terms of orders dated 04.06.2003 and 08.03.2004, therefore, the allotment is governed by the said two Government orders and there is no scope for the petitioner to seek extension in the period of License beyond the one sanctioned by the competent authority which if accepted would amount to violation of policy itself. 8. Petitioner has failed to substantiate his right to seek extension in allotment of room in Government Hospital from this Court. None of the rights of petitioner, be it legal, fundamental or constitutional are violated, which warrants any interference or grant of relief. Petitioner is simply a Licensee holding the license to use the premises for three years which period has expired in 2007, immediately on expiry of the period petitioner has succeeded in obtaining the order of status quo from this Court in OWP No. 185/2008. 9. One fails to understand as to how the authorities at the helm of affairs have allowed the room existing in the hospital of running Fair Price shop for which there was no sanction accorded by the government in terms of the aforesaid orders. 10. In light of these observations, respondents in particular respondent no.1 is directed to examine the matter in light of the policy of the Government and if there is any need for opening of Fair Price shop in Community Health Centre, Kreeri, he shall work out the strategy and proceed accordingly. 11. Since this Court has arrived at a conclusion that petitioner has no right to claim extension in allotment of room in Community Health Centre, Kreeri, therefore, the authorities shall immediately ensure vacation of the room and the said room shall be used as a part of hospital for patient care. 12. In the above background, the writ petition being meritless, shall stand dismissed alongwith connected IA(s). Interim direction, if any, shall stand vacated.