SCA/8743/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8743 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= CHHAGANLAL RAMESHCHANDRA PRAJAPATI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR HR PRAJAPATI for Petitioner(s) : 1, MR HEMANG PARIKH Ld. AGP for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 01/07/2008 ORAL JUDGMENT
1. The
present petition has been preferred against the order dated 19th
December, 2005 passed by the State Government, b y which the
application of the petitioner has been rejected without giving an
opportunity of being heard.
2. I
have heard the learned counsel for the petitioner who has mainly
submitted that in pursuance of the policy/resolution of the
respondent authority dated 2nd August, 2004, (Annexure ýSBýý
to the memo of the petition), there is a provision of transfer of
fair price shop from one zone to another zone as per clause 11(4).
The respondent authorities have not properly appreciated the policy
under sub-clause and has, unilaterally decided the application
preferred by the petitioner for transfer of the fair price shop dated
16th July, 2007. Neither District Supply Advisory
Committee nor the State Government has heard the petitioner before
passing the impugned order, whereby the application for transfer of
fair price shop was rejected. Thus, there is a violation of
principles of natural justice. Similarly situated another person’s
application has been allowed which order is at Annexure ýSEýý to
the memo of the petition. Thus, arbitrary usage of power has led to
discrimination and hence the impugned order is violative of Article
14 of the Constitution of India and the same deserves to be quashed
and set aside. Had an opportunity of being heard been given to the
petitioner, the order like Annexure ýSEýý would not have been
pointed out to the respondent authorities. This opportunity has not
been given and therefore, the impugned order deserves to be quashed
and set aside.
3. I
have also heard the learned Assistant Government Pleader, who has
fairly submitted that opportunity of being heard shall be given to
the petitioner and a fresh decision shall be taken by the respondent
authorities.
4. In
view of this submission, the impugned order dated 30th
May, 2008 passed by the respondent no. 1 (Annexure ýSDýý to the
memo of the petition) is hereby quashed and set aside, as the same
has been passed without affording any opportunity of being heard to
the petitioner. Neither the committee as referred hereinabove nor the
respondent no.1 has heard the petitioner. Thus, the petitioner shall
be heard by the concerned respondent authority and thereafter, a
fresh order shall be passed after taking into consideration all the
necessary documents including report/opinion dated 26th
July, 2007 given by the Mamlatdar, Taluka Choryasi, Surat and other
other relevant documents which the petitioner shall present before
the concerned respondent authorities. Rule made absolute to the
aforesaid extent with no order as to costs. It is needless to say
that the respondent authority empowered under Gujarat Essential
Articles (Licensing, Control and Stock Declaration) order, 1981 shall
pass a fresh order. A grievance has been ventilated about the
authority of the concerned officer like section officer. All care
shall be taken by the highest head that the designated authority
should pass the order. Direct service permitted.
(Z.K.
SAIYED, J.)
mandora/