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2023 DIGILAW 163 (JK)

Umer Jan Beigh v. State Of J&K

2023-04-26

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged order No.156-DCAPDK of 2014 dated 06.03.2014, issued by respondent No.2, whereby licence for running a Fair Price Shop in favour of one Mudasir Nazir has been cancelled and, in his place, sanction has been accorded to grant of Fair Price Shop licence at Khrewan Lasipora, Kulgam, in favour of respondent No.8. 2. According to the petitioner, the official respondents vide order No.370-DCAPD of 2003 dated 17.10.2003, accorded sanction for grant of dealership on commission basis in favour of one Mudasir Nazir to cater to the consumers of Khrewan Lasipora. It is submitted that said Mudasir Nazir later on took up employment in J&K Police and transferred the dealership of Fair Price Shop in favour of respondent No.8 in terms of impugned order dated 06.03.2014 (supra). It is submitted that feeling aggrieved of the aforesaid order, the petitioner approached respondent No.2 with an application for conducting investigation into illegal transfer of dealership of Fair Price Shop in favour of respondent No.8 and on the basis of said application, respondent No.6 was directed to furnish factual report in this regard. 3. It has been submitted by the petitioner that he had applied for grant of licence for running Fair Price Shop at Khrewan Lasipora locality vide his application dated 09.11.2016 and a feasibility report dated 17.11.2016 has been submitted by respondent No.7 in this regard. It is also submitted that Auqaf Committee, Lassipora has issued a No Objection Certificate in favour of the petitioner. No Demand Certificates from other authorities have also been submitted by the petitioner with the respondents. 4. It has been submitted by the petitioner that the report regarding investigation relating to illegal transfer of dealership of Fair Price Shop in favour of respondent No.8 has been submitted by respondent No.6 vide his communication dated 25.01.2017. It has been contended that the private respondents have hatched a conspiracy with official respondents for getting fresh licence issued in favour of respondent No.9. 5. The petitioner has challenged the impugned order on the grounds that the same has been issued in violation of rules, regulations and the policy issued by official respondents, inasmuch as private respondent No.8 is a non-local candidate. It has been further contended that the impugned order has been issued by official respondents for extraneous considerations with mala fide intentions. 6. The petitioner has challenged the impugned order on the grounds that the same has been issued in violation of rules, regulations and the policy issued by official respondents, inasmuch as private respondent No.8 is a non-local candidate. It has been further contended that the impugned order has been issued by official respondents for extraneous considerations with mala fide intentions. 6. The writ petition has been contested by the official respondents by filing a reply thereto. In their reply, the official respondents have submitted that the impugned order issued by respondent No.2 is in accordance with law and due process has been followed before issuing the said order. It has been further submitted that the impugned order has been issued with the approval of the Administrative Department and that the same does not suffer from any illegality. 7. Private respondent No.8, in his reply, has submitted that the at the relevant time when the impugned order was issued in favour of the said respondent, there were no established rules, regulations and guidelines on the subject regarding transfer of Fair Price Shop dealership to legal heirs. However, it was decided by the official respondents that in the absence of legal heirs, the dealership of a Fair Price Shop has to be allotted after ascertaining views of the rationees attached to the concerned Fair Price Shop subject to the condition that the applicant is fulfilling conditions of the eligibility. It has been submitted that none of the legal heirs of the original allottee, namely, Mudasir Nazir, was ready to take up the dealership of Fair Price Shop and the rationees of the area sponsored/recommended the name of respondent No.8 in accordance with the guidelines of the Government issued on 27th January, 2011, whereafter the case was forwarded to the Administrative Department and sanction was accorded to transfer of Fair Price Shop dealership in favour of respondent No.8 and it is only thereafter that the impugned order came to be issued in his favour. It has been submitted that the Government policy issued vide order No.127-FCS&CA of 2016 dated 04.05.2016 operates only for the purpose of establishment of new Fair Price Shops in the given locality and the same has no retrospective effect, as such, the case of respondent No.8 cannot be tested in the light of the said policy. 8. It has been submitted that the Government policy issued vide order No.127-FCS&CA of 2016 dated 04.05.2016 operates only for the purpose of establishment of new Fair Price Shops in the given locality and the same has no retrospective effect, as such, the case of respondent No.8 cannot be tested in the light of the said policy. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The case of the petitioner is that the official respondents had no authority to transfer the licence for running the Fair Price Shop that was existing in the name of Mudasir Nazir, in favour of respondent No.8, who was, admittedly, not his legal heir. According to official respondents, Shri Mudasir Nazir, after having taken up Government employment, none of his legal heirs was interested in running the Fair Price Shop, as such, licence in his favour was cancelled, whereafter on the basis of the recommendation of the rationees of the area, the impugned order came to be issued thereby according sanction to the grant of licence for running the Fair Price Shop in favour of respondent No.8. It has been contended by the petitioner that the official respondents could not have, simply on the basis of the application of respondent No.8, issued the impugned order in his favour without inviting applications from the eligible candidates. 10. It is true that even in the absence of any policy for grant of licence for running a Fair Price Shop, the official respondents were bound to follow a transparent or fair criteria in granting the licence in favour of respondent No.8. It is also correct that the official respondents could not adopt a pick and choose method while granting licence for running a Fair Price Shop in favour of a person. There can be no quarrel with the proposition of law laid down by this Court in the case of Manzoor Ahmad Dar vs. State of J&K & Others in this regard. 11. However, in the instant case, the respondents have placed heavy reliance upon decision dated 10.01.2011 taken in a meeting headed by Minister for Consumer Affairs and Public Distribution, which was attended by Directors of CAPD, Jammu/Kashmir. 11. However, in the instant case, the respondents have placed heavy reliance upon decision dated 10.01.2011 taken in a meeting headed by Minister for Consumer Affairs and Public Distribution, which was attended by Directors of CAPD, Jammu/Kashmir. As per this decision, in a case where no legal heir is eligible or willing to take up the dealership in the family, then the choice of the rationees attached to the Fair Price Shop has to be ascertained by Assistant Director, CAPD concerned and if the person who has been chosen is fulfilling the other conditions of eligibility and is a rationee of the said locality, his/her case would be recommended by the Directors to the Administrative Department for accord of sanction to the transfer of dealership licence in such cases. So, it is not a case where there were no guidelines or policy in vogue at the relevant time but as per the record produced by the respondents, the cases relating to transfer of licence for running Fair Price Shops were to be governed by the decision taken in the meeting dated 10.01.2011. Respondent No.8 has, along with his reply, placed on record a copy of this decision and the same is also found in the record produced by the official respondents. No challenge has been thrown by the petitioner to the criteria laid down by the official respondents by amending the writ petition. In the absence of any challenge to the criteria adopted by the official respondents in cases of transfer of dealership licence prior to the publication of policy of 2016, it would not be open to this Court to quash the impugned decision taken by the official respondents, which is in accordance with the policy that was in vogue at the relevant time. 12. Apart from the above, respondent No.8 has been running the Fair Price Shop since the year 2014 and no stay of the impugned order has been granted by this Court in favour of the petitioner till date, meaning thereby that respondent No.8 continues to operate the Fair Price Shop for last more than nine years. In these circumstances, the equity tilts heavily in favour of respondent No.8 and in case the impugned order is interfered with, it will have serious and adverse consequences on the livelihood of the said respondent. In these circumstances, the equity tilts heavily in favour of respondent No.8 and in case the impugned order is interfered with, it will have serious and adverse consequences on the livelihood of the said respondent. Besides this, the petitioner has approached this Court belatedly after a lapse of more than three years of issuance of impugned order. For this reason also, the petition deserves to be dismissed. 13. For all what has been discussed hereinbefore, the petition is dismissed being without merit. 14. The record be returned to learned counsel for the official respondents.