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SCA/19777/2007 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 19777 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
BHABHLUBHAI
JIVABHAI NAJANI
Versus
THE
STATE OF GUJARAT & others
======================================
Appearance :
MR
DC SEJPAL for Petitioner
Mr.
Vipul Mistry, Assistant Government Pleader, for respondent Nos.1 to 3
None
for respondent No.4
======================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 22/10/2008 ORAL JUDGMENT
1 By
way of the present petition under Article 226 of the Constitution of
India, the petitioner challenges the order dated 2nd June
2007 passed by respondent No.1 in Appeal No.11 of 2005 filed by
respondent No.4, wherein, the said appeal filed by respondent No.4 is
allowed and she is granted the fair price shop [Pundit Din Dayal
Grahak Bhandar] for the village Medi, Taluka & District Amreli.
2 In
pursuance of the public notice dated 11.9.2004, the petitioner and
respondent No.4 applied for allotment of fair-price shop. By order
dated 1st March 2004, the Collector allotted the
fair-price shop to respondent No.4. The petitioner filed an appeal
before the State of Gujarat challenging the order dated 1st
March 2004 of the Collector, which was allowed on 20.7.2006 and the
petitioner was allotted the fair-price shop. Respondent No.4 filed
Special Civil Application No.18628 of 2006 before this Court wherein,
by order dated 27.11.2006, the Court [Coram: D.N. Patel, J.) remanded
the matter back to respondent No.1 on the ground that the respondent
No.4 was not given enough opportunity of hearing. Thereafter,
respondent No.1 passed the order dated 2nd June 2007,
which is impugned in the present petition.
3 Heard
learned counsel for the petitioner and learned Assistant Government
Pleader. Though served, none appears for respondent No.4, despite
several opportunities were afforded.
4 There
are mainly three criteria for allotment of a fair price shop, namely,
educational qualification,unemployment in spite of education and
local inhabitance of the village. The Authority held that the
petitioner is a local resident of the village and that the petitioner
is better educationally qualified than respondent No.4. However, for
the third criterion of being educationally employed, the Authority
held that, since the petitioner has not produced certificate from the
Employment Exchange in that regard, he cannot be held to be
unemployed. The petitioner produced certificate dated 25.5.2007
issued by the Talati/Sarpanch of village Medi certifying the
petitioner as educationally unemployed person. Mr. Sejpal, learned
counsel for the petitioner, has rightly relied upon the public
advertisement dated 11.9.2004 in support of his submission that there
is no specific requirement of production of certificate only from
Employment Exchange. He also drew attention of the Court to
identification card of the petitioner [Annexure ?SC??] issued by
the Employment Exchange and submitted that the petitioner is already
registered with the Employment Exchange since the year 1996 but in
view of the advertisement which did not require the applicant to
produce such specific evidence, the identification card was not
produced along with the application. By earlier order dated 20th
July 2006, respondent No.1 clearly held that the petitioner was a
local resident of the village and when such order was set aside only
on the ground of not providing hearing to respondent No.4, it was not
open for the Authority now to hold that the petitioner is not local
resident of the village, particularly when the Authority has held in
favour of the petitioner in respect of other two criteria. The
learned Assistant Government Pleader was not able to point out under
what rules and regulations, an applicant has to only produce a
certificate of the Employment Exchange.
5 Considering
the above, this petition deserves to be allowed. The order dated 2nd
June 2007 passed by respondent No.1 in Appeal No.11 of 2005 filed by
respondent No.4, is quashed and set aside. Consequently, the
respondents-Authorities are directed to permit the petitioner to run
the fair-price shop at village Medi, Taluka & District Amreli.
6 Rule
is made absolute with no order as to costs. D.S. Permitted.
(ANANT
S. DAVE, J.)
(swamy)
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