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SCA/9231/2008 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9231 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT & 3 - Petitioner(s)
Versus
HIMMATBHAI
KOHYABHAI BARIYA - Respondent(s)
=========================================================
Appearance
:
MR
HEMANG PARIKH ASST.GOVERNMENT PLEADER for
Petitioner(s) : 1 - 4.
MR SK BUKHARI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/07/2008
ORAL
JUDGMENT
RULE.
Mr.S.K. Bukhari, learned advocate appearing waives the service of
notice of rule on behalf of the respondent.
With
the consent of the learned advocate appearing on behalf of the
respective parties, present Special Civil Application is taken up
for final hearing.
By
way of this petition under Article 227 of the Constitution of India,
the petitioners ? State of Gujarat and others, have prayed for
appropriate writ, order and/or directions for quashing and setting
aside the judgement and order dtd.30/11/2007 passed by the learned
Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil
Appeal No.102 of 2007 in allowing the same and quashing and setting
aside the order dtd.3/10/2007 passed by the learned 6th
Additional Senior Civil Judge, Godhara below application Ex.5 in
Regular Civil Suit No. 224 of 2007.
The
respondent herein ? original plaintiff is having a fair price shop
at village Sajora, Taluka Ghoghamba, District Panchmahals. That the
respondent ? original plaintiff is granted license to run the
fair price shop under the Pandit Din Dayal Grahak Bhandar Scheme of
the State Government and he has been allotted 437 Ration Card
Holders having population of 3730. That the respondent is a
licensee under the provisions of the Essential Commodities Act,
1955 and is provided wheat, rice, oil, kerosene etc. for selling it
to the poor people more particularly, to the people leaving Below
Poverty Line (BPL) as per the Government Policy at reasonable rate.
That in the public interest, it was decided to have another fair
price shop by way of division in two parts of the same village.
Being aggrieved by the said decision, the respondent herein ?
original plaintiff filed Regular Civil Suit No. 224 of 2007 for
restraining the petitioners ? original defendants from reducing
the Ration Card Holders attached with his fair price shop of the
plaintiff and restraining the petitioners ? original defendants
from opening any other fair price shop in the said village. In the
said suit, the petitioner – original plaintiff filed application
Ex.5 for interim injunction. It was contended on behalf of the
original plaintiff that as per the Government Circular / Resolution,
there should be minimum certain number of Ration Card Holders
attached with a fair price shop looking to the population and it was
further contended that if the Ration Card Holders are reduced, he
will not get sufficient commission and it will not be possible for
him to run the fair price shop. It was contended on behalf of the
original plaintiff that the said action is in breach of the
principles of natural justice as no notice or hearing has been
afforded to the plaintiff. The application Ex.5 was opposed by the
petitioners herein ? original defendants by submitting that the
suit itself is not maintainable. It was also further submitted that
as such the discretion is with the authority to allow the number of
Ration Card Holders and/or to open the fair price shop looking to
the need of the village people and in the public interest. It was
submitted that the paramount consideration is the public interest,
interest of the village people and the Ration Card Holders. It was
further submitted that the licensee has no right, much less any
legal right, to have particular Ration Card Holders. It was also
further submitted that even in the Resolution relied upon by the
plaintiff and as per the policy, it is provided that as far as
possible, but certainly any licensee and/or fir price shop owner has
no right, whatsoever, to ask for a particular number of Ration Card
Holders. It was further submitted
on behalf of the plaintiff that as per the Resolution, there shall
not be new fair price shop within the radius of 3 KMs. The
learned 6th Additional Senior Civil Judge, Godhara, after
hearing both the sides, vide order dtd.3/10/2007 rejected the
application Ex.5 holding that the Collector has jurisdiction to
open to forward proposal for opening new fair price shop and the
same is in consonance with the Government Resolutions, and
therefore, the interference by the Civil Court is not required. The
trial court further observed that the plaintiff can pray for hearing
before the competent officer but it appears from the record that the
plaintiff has not submitted any documents on record to show that he
has made any representation to the competent officer. The trial
court further observed that if the interim injunction is granted,
the entire suit will be allowed at the interim stage. It is also
observed that if the interim injunction is granted, the same would
adversely affect to the interest of the public at large and on the
contrary, if new fair price shop is opened, the plaintiff is not
likely to be adversely affected and if any loss is caused to the
plaintiff, the plaintiff can pray for damages. The trial court held
that the Collector has jurisdiction and therefore, it will not be
proper to interfere and grant the interim injunction. The trial
court held that prima facie case and balance of convenience are not
in favour of the plaintiff and if the interim relief as prayed for
is not granted, the plaintiff is not likely to suffer irreparable
loss which cannot be compensated in terms of money. Holding
accordingly, the trial court rejected the application Ex.5 preferred
by the plaintiff ? respondent herein. Being aggrieved by and
dissatisfied with the order passed by the trial court below
application Ex.5 in rejecting the same, the respondent herein ?
original plaintiff preferred an appeal before the appellate court,
and the appellate court, after hearing both the sides, vide
judgement and order dtd.30/11/2007 allowed the side appeal, by
quashing and setting aside the order passed by the trial court below
application Ex.5. The appellate court observed that no opportunity
of being heard is given to the plaintiff before taking decision to
open new fair price shop. The decision of reduction of the Ration
Card Holders and opening new fair price shop, is in breach of the
principles of natural justice, as no notice has been issued upon the
plaintiff ? respondent and that as per the Government Resolution
there cannot be a second fair price shop within the radius of 3 KMs.
The appellate court further directed the original defendants ?
petitioners herein not to open any new fair price shop at village
SAJORA, Taluka; Ghoghamba, District Panchmahals and not to
reduce the essential commodities and Ration Card Holders of the
plaintiff, till final disposal of the suit. The appellate court
further directed the trial court to dispose of the suit within six
months. Being aggrieved by the judgement and order passed by the
appellate court in allowing the appeal and quashing and setting
aside the order passed below application Ex.5, the petitioners ?
original defendants have preferred present Special Civil Application
under Article 227 of the Constitution of India.
Mr.Hemang
Parikh, learned Assistant Government Pleader appearing on behalf of
the petitioners has vehemently submitted that the appellate court
has materially erred in allowing the appeal and granting interim
injunction as prayed for by the plaintiff and restraining the
petitioners – original defendants from reducing the Ration Card
Holders attached with the fair price shop of the plaintiff and
furthers restraining the petitioners ? original defendants from
either opening another fair price shop or division of existing fair
price shop in the same village. It is submitted that what is
provided in the Resolution is that as far as possible the distance
and the Ration Card Holders should be maintained. However, in the
larger public interest and in the interest of the village people
and the Ration Card Holders, the same can be reduced. It is also
further submitted that as such the suit itself is not maintainable,
as it is realm of policy of the Government to open the fair price
shop and to allot the Ration Card Holders to a particular fair price
shop. It is also further submitted that there is no question of
affording any opportunity to the licensee, as the licensee/fair
price shop owner has no legal right to ask for particular number of
Ration Card Holders. Therefore, it is requested to allow the
present Special Civil Application and quash and set aside the order
passed by the appellate court.
Mr.S.K.
Bukhari, learned advocate appearing on behalf of the respondent ?
original plaintiff has submitted that as rightly held by the
learned appellate court, before reducing the Ration Card Holders,
no opportunity has been given and/or no notice has been issued to
the respondent ? plaintiff and hence the said action is in
breach of the principles of natural justice and the appellate court
has rightly allowed the appeal and granted the interim injunction as
prayed for by the plaintiff. Therefore, it is requested to dismiss
the present Special Civil Application.
Heard
the learned advocate appearing on behalf of the respective parties.
At
the outset, it is required to be noted that the respondent ?
original plaintiff has no vested right to ask for a particular
number of Ration Card Holders attached with his fair price shop.
The plaintiff has been granted license to run the fair price shop
under the scheme of the State Government and it is ultimately for
the State Government to decide how many number of Ration Card
Holders should be allotted to a particular fair price shop. The
interest of the Ration Card Holders and the village people is the
paramount consideration and as there is no vested legal right in
favour of the plaintiff, there is no question of issuing any notice
and/or giving any opportunity to the respondent ? original
plaintiff before taking decision to reduce the Ration Card Holders.
Prima facie, it appears that even the suit itself is not
maintainable. However, without entering into the said larger
question, it appears that the trial court has rightly refused to
grant the interim injunction as prayed for. As such the relief
granted prayed for by the plaintiff by way of interim relief, is the
final relief sought in the suit. As held by the Hon’ble Supreme
Court and this Court in catena of decisions, normally court should
be slow in granting the interim relief, which may be ultimately
final relief in the suit. In very very exceptional cases, final
relief can be granted as an interim relief. Under the
circumstances, the trial court has rightly refused to grant the
interim relief, but the the learned appellate court has committed an
error and/or exceeded its jurisdiction in allowing the appeal and
granting application Ex.5 and therefore, the impugned order passed
by the learned appellate court requires to be quashed and set aside.
For
the reasons stated above, the petition succeeds. The impugned
judgement and order dtd.30/11/2007 passed by the learned Presiding
Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal
No.102 of 2007 is quashed and set aside and the order
dtd.3/10/2007 passed by the learned 6th
Additional Senior Civil Judge, Godhara below application Ex.5 in
Regular Civil Suit No.224 of 2007 is restored. Rule is made absolute
accordingly. In the facts and circumstances of the case, there shall
be no order as to costs.
[M.R.
SHAH, J.]
rafik
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