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SCA/25688/2006 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 25688 of 2006
=========================================================
AMRUTLAL
JASMATBHAI PAGHADAR. - Petitioner(s)
Versus
STATE
OF GUJARAT THRO'SECRETARY, & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BD KARIA for
Petitioner(s) : 1,
Mr J. K Shah Asstt. GOVERNMENT PLEADER for
Respondent(s) : 1 - 2.
MR AMAR D MITHANI for Respondent(s) : 3,
MR
DEEPAK P SANCHELA for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 08/02/2010
ORAL
ORDER
1. The
petitioner has prayed for a direction to quash and set aside the
impugned order dated 27th November 2006 passed by the
respondent No. (1) in appeal No. 79 of 2005.
2. The
petitioner is a handicapped person suffering from Polio since
childhood. The petitioner has completed his graduation as Bachelor
of Arts in Hindi in the year 2001 from Saurashtra University. The
petitioner is registered with the Employment exchange of District
Junagadh.
3. Pursuant
to the advertisement appeared in Daily news Paper in February, 2005
inviting applications from local educated unemployed persons in
general category for allotment of new fair price shops at village
Simasi, the petitioner made an application along with respondent No.
3 and other three candidates.
4. After
petitioner being found eligible the respondent No. 2 issued order to
allot Fair Price shop to the petitioner.
5. The
petitioner was granted license pursuant to order dated 4th
June 2005 by the competent authority to run fair price shop at
village Simsi Taluka Mendarda. The petitioner also executed
necessary agreement.
6. The
respondent No. 3 preferred appeal No. 79 of 2005 before the
respondent No. 1. The petitioner appeared before the respondent No.
1 through his power of attorney holder during the course of the
hearing of the above appeal. The petitioner submitted his affidavit
dated 24th November 2005, copy of power of Attorney
dated 11th August 2005 and certificate from Gram
Panchayat as well as representation signed by village people that
petitioner is running Fair Price Shop.
7. After
a period of one year respondent No. 1 allowed the appeal No. 79 of
2005 filed by the respondent No. 3 on the ground that as the
petitioner is 80% physically challenged and is not capable of running
the Fair Price Shop and directed the respondent No. 2 to allot Fair
Price Shop to respondent No. 3. Hence this petition.
8. Learned
advocate for the petitioner has contended that the respondent No. 1
has brushed aside the recommendations of both Taluka and District
level Committee to allot fair price shop to the petitioner who is
more qualified than the respondent No. 2. It is also submitted that
village people are getting food supply without any problem and the
petitioner is only running the fair price shop and the Gram
Panchayat is satisfied with the working of the petitioner.
9. Learned
advocate for the petitioner has contended that the petitioner has
not committed any breach and without taking into consideration
this aspect the authority has wrongly arrived at a conclusion that
the petitioner is not competent to carry on the business of the fair
price shop.
10. As
a result of hearing and perusal of the record, I am of the view
that even if there is a disability, a person can run the fair price
shop and on the ground of disability, he cannot be denied his
valuable right. Admittedly the Taluka and District level committee
has recommended the case of the petitioner. There is a certificate
of Simasi gram Panchayat and joint representation of the signatures
of the village people to the effect that the people of village Simasi
are getting regular supply of food without any problem. The Gram
Panchayat is satisfied with the working of the petitioner. There
are no allegations that the petitioner has not committed breach of
any of the conditions of grant of license. I am therefore, of the
view that the case of the petitioner cannot be disregarded merely
on the ground that he is a handicapped person. It is also required to
be noted that as per the provisions of Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Act, 1995 the petitioner is entitled to get the benefit of priority.
There is nothing on record to show that the petitioner is not able to
carry on running the fair price shop in a satisfactory manner. When
there is no complaint it would not be appropriate for the authority
to disturb the license of the petitioner. I am therefore of the
view that the appellants authority has committed an error in passing
the impugned order.
11. In
the premises aforesaid, the impugned order dated 27th
November 2006 passed by the respondent No. 1 in Appeal No. 79 of 2005
is hereby quashed and set aside. Rule is made absolute accordingly
with no order as to costs.
12. It
is clarified that if the petitioner has committed any breach, it will
be open to the respondent to take action against the petitioner in
accordance with law.
(K.S.
Jhaveri,J.)
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