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SA/179/2005 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 179 of 2005
with
CIVIL
APPLICATION No. 7595 OF 2005
=========================================
BHARATKUMAR
MANCHANDBHAI SHAH - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Defendant(s)
========================================
Appearance :
MR
UI VYAS for Appellant(s) : 1,
None for Defendant(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 18/10/2005
ORAL
ORDER
1. The
appellant in this Second appeal had preferred suit before the Trial
Court seeking a declaration that allotment of licence for running a
fair price shop to one Mohammed Hussain Bachubhai is illegal and
against the rules, and a mandatory direction on the
respondents-defendants to grant licence to the appellant for running
fair price shop. The suit was partly decreed, where the mandatory
direction sought by the appellant-plaintiff was refused, but a
declaration was given to the effect that allotment of licence to
Mohammed Hussain Bachubhai was not in accordance with law and,
therefore, the same be ordered to be set aside.
1.1 The
said decree was challenged by the respondents by preferring Regular
Civil Appeal No.100 of 2000 in the District Court, at Bhavnagar,
under Section 96 of the Code of Civil Procedure. By judgment and
decree dated 28th September, 2004, the District Court
allowed the appeal and set aside the judgment and decree of the Trial
Court.
1.2 The
present appellant-original plaintiff had not challenged that part of
the decree which had gone against him nor had he preferred any
cross-objections.
2. Aggrieved
by the said judgment and decree of the District Court, present Second
Appeal is preferred and following questions are suggested as
substantial questions of law in the memo of appeal :-
(1) Whether the
impugned judgment and decree dated 28.9.2004 by the learned Joint
District Judge, Fast Track Court No.3, Bhavnagar, in Regular Civil
Appeal No.100 of 2001 is in consonance with the evidence on record
and in accordance with the policy of the respondent Government?
(2) Whether the
impugned judgment and decree dated 28.9.2004 passed by the learned
Joint District Judge, Fast Track Court No.3, Bhavnagar, in Regular
Civil Appeal No.100 of 2001 is just, proper and in accordance with
law?
None
of the two questions can be treated as substantial questions of law
and the appeal must fail only on this count.
3. Learned
Advocate, Mr. Vyas, has raised several contentions on the aspect that
it is not established that Mohammed Hussain Bachubhai belong to Baxi
Panch category, whereas the petitioner fall into the relevant
criteria of Physically Handicapped Person and that he was the only
candidate eligible to be considered for allotment of licence for
running fair price shop.
4. As
can be seen, the first factor that might come in the way of the
appellant is that the suit is filed without issuance of notice under
Section 80 of the Code of Civil Procedure. Further, it would also be
relevant to note, as can be seen from the judgment of the Appellate
Court, that, while passing the decree of declaration and setting
aside the allotment of licence, the Trial Court overlooked the
aspect that the affected party, namely, Mohammed Hussain Bachubhai,
was not a party to the suit. It also appears that the First
Appellant Court also noticed that the advertisement inviting
applications containing conditions was not forming part of the
record. Against this, it is indicated that the conditions were
placed on record at Exh.35. Be that as it may, even if that is so,
it would again be a question involving facts and cannot be termed as
a neat question of law calling for consideration by this Court in
exercise of powers under Section 100 of the Code of Civil Procedure.
It is also relevant to note that the appellant had not produced his
certificate of physical impairment along with the application but he
produced it at a later point of time, after receiving letter from the
respondent authorities.
5. All
the factors considered, in the opinion of this Court, the appeal must
fail and is dismissed.
6. In
view of the dismissal of the appeal, no order on Civil Application.
[
A. L. DAVE, J. ]
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