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SCA/13641/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13641 of 2010
=========================================================
JAYKANT
RAVJIBHAI PATADIYA - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR.D
M.DESAI for
Petitioner(s) : 1,MR VIJAY H NANGESH for Petitioner(s) : 1,
MR
AMIT PATEL AGP for Respondent(s) : 1,
None for Respondent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/10/2010
ORAL
ORDER
Heard
learned advocate Mr. VH Nangesh on behalf of petitioner, learned AGP
Mr. Amit Patel appearing for respondent.
In
present petition, petitioner has made an application for allotment
of Fair price shop in his favour but that allotment has been made in
favour of respondent no. 4 Mayurkumar S Ranva by order dated
9/5/2006 by District Collector, Amreli page 14 Annexure A. This
order was challenged by petitioner before this Court in SCA no.
24994/2006 where this Court by order dated 9/8/2007 disposed of
petition because petitioner is having alternative effective remedy
to approach higher authority. Thereafter, petitioner has approached
to higher authority being Appeal no. 75/2007 Annexure C page 16
which appeal has been allowed by Appellate authority – Joint
Secretary respondent no. 1 and remanded matter back to District
Collector, Amreli by order dated 9/1/2008. Thereafter, both
respective parties made their written submissions before District
Collector, Amreli. After receiving remanded order from Appellate
authority, District Collector Amreli has decided remanded Appeal no.
75/2007 Annexure E page 25 by order dated 17/1/2009, where
application made by petitioner has been rejected and confirmed
earlier order passed by District Collector in favour of respondent
no. 4 Mayurkumar S. Ranva by order dated 9/5/2006.
The
petitioner has approached to Appellate authority by application
dated 10/2/2009 page 29 Annexure F and written submissions is made
by petitioner on 24/9/2009. The Appellate authority has decided
Appeal no. 16/2009 preferred by petitioner page 39 Annexure H. The
Appellate authority has given reasonable opportunity of hearing to
petitioner as well as respondent. Thereafter, contention raised by
petitioner has been considered by Appellate authority that
agriculture being a business and respondent no. 4 was holding land
in his name, therefore, he is not entitled to have allotment of Fair
price shop in his favour. The respondent no. 4 is not an educated
unemployed person, against which on behalf of respondent no. 4, who
has given details that land belonging to father of respondent no. 4,
where his name was inducted by his father. Subsequently, that land
in question was sold to other person on 7/3/2008. The respondent
no. 4 has also produced certain documents and also letter that card
holders are in his favour and also pointed out that nature and
conduct of petitioner as such who is harassing to other person and
demanded unauthorized amount from various person.
The
appellate authority has considered this written submissions made by
both parties and come to conclusion that agriculture land which was
belonging to father of respondent no. 4 and name of respondent no.
4 was inducted as joint owner of land, which land has been
subsequently sell to other person. The Appellate authority has come
to conclusion that it is very difficult to consider agriculture work
being business or can not be treated as business and it can not
consider to be an employment of such person and while keeping in
mind Government resolution dated 2/8/2004 para 2.9, according to
that respondent no. 4 is covered by definition of unemployed
educated candidate. Merely agriculture land is in name of respondent
no. 4 can not consider that he is an earning member or earning
person. The contention raised by petitioner has been rejected and
Appeal preferred by petitioner has been also rejected while
confirming earlier order passed by District Collector on 17/1/2009.
Learned
advocate Mr. Nangesh submitted that Appellate authority has
committed gross error in rejecting appeal and also committed an
error in allotment of Fair price shop in name of respondent no. 4.
He submitted that agriculture land belonging to respondent no. 4 it
must be considered that income must have to be received by such
person. Therefore, item no. 2.9 of Government resolution dated
2/8/2004 has been wrongly interpreted by Appellate authority.
I
have considered submission made by learned advocate Mr. Nangesh and
I have also considered relevant provision of Government circular
dated 2/8/2004 page 43 para 2.9 where being an educated unemployed
person must be SSC or having equal qualification and not to have any
service or business and also not to have any kind of income means at
the time when application was made by respondent no. 4, he was
satisfying this item no. 2.9 and accordingly at that occasion Fair
price shop was alloted in favour of respondent no. 4. However,
considering fact which found from record and each authority has
decided factual aspect in favour of respondent no. 4. This being a
concurrent finding of fact by both authority normally this Court can
not interfere in such administrative order which has been passed by
Administrative authority while considering fact which are on record.
This Court can not Act as an Appellate authority ultimately this
Court has to examine decision making process while exercising power
under Article 226 of Constitution of India. The view taken by Apex
Court in such circumstances in case of Union of India and
Another Vs. K. G. Soni reported in 2006 (6) SCC 798 para 13
and 14 are quoted as under:
13. In
Union of India v. G. Ganayautham this Court summed up the position
relating to proportionality in para 31, which read as follows: (SCC
pp. 478-79)
31. The
current position of proportionality in administrative law in England
and India can be summarized as follows:
(1)
To judge the validity of any administrative order or statutory
discretion, normally the Wednesbury test is to be applied to find
out if the decision was illegal or suffered from procedural
improprieties or was one which no sensible decision maker could, on
the material before him and within the framework of the law, have
arrived at. The court would consider whether relevant matters had
not been taken into account or whether irrelevant mattes had been
taken into consider whether decision was not bona fide. The court
would also consider whether the decision was absurd or perverse.
The court would not however go into the correctness of the choice
made by the administrator amongst the various alternatives open to
him. Nor could the court substitute its decision to that of the
administrator. This is the Wednesbury test.
(2) The
court would not interfere with the administrator’s decision unless
it was illegal or suffered from procedural impropriety or was
irrational in the sens that it was in outrageous defiance of logic
or moral standard. The possibility of other tests including
proportionality being brought into English administrative law in
future is not ruled out. These are the CCSU principles.
(3)(a)
As per Bugdecay, Brind and Smith as long as the Convention is not
incorporated into English law, the English Courts merely exercise a
secondary judgment to find out if the decision maker could have, on
the material before him, arrived at the primary judgment in the
manner he has done.
(3)(b) If
the Convention is incorporated in England making available the
principle of proportionality, then the English courts will render
primary judgment on the validity of the administrative action and
find out if the restriction is disproportionate or excessive or is
not based upon a fair balancing of the fundamental freedom and the
need for the restriction thereupon.
(4)(a)
The position in our country, in administrative law, where no
fundamental freedoms as aforesaid are involved, is that the
courts/tribunals will only play a secondary role while the primary
judgment as to reasonableness will remain with the executive or
administrative authority. The secondary judgment of the court is to
be based on Wednesbury and CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the executive or
administrative authority has reasonably arrived at his decision as
the primary authority.
(4)(b)
Whether in the case of administrative or executive action affecting
fundamental freedoms, the courts in our country will applied the
principle of proportionality and assume a primary role, is
left open, to be decided in an appropriate case where such action is
open, to be decided in an appropriate case where such action is
alleged to offend fundamental freedoms. It will be then necessary
to decide whether the courts will have a primary role only if the
freedoms under Articles 19, 21, etc are involved and not for Article
14.
14. The
common thread running through in all these decision is that the
could should not interfere with the administrator’s decision unless
it was illogical or suffers from procedural impropriety or was
shocking to the conscience of the court, in the sense that it was in
defiance of logic or moral standards. In view of what has been
stated in Wednesbury case the court would not go into the
correctness of the choice made by the administrator open to him and
the court should not substitute its decision to that of the
administrator. The scope of judicial review is limited to the
deficiency in the decision making process and not the decision.
In
view of aforesaid decision given by Apex Court and considering
reasoning given by each authority as District Collector, as well as
Appellate authority, according to my opinion no error is committed
by either of authority and both orders are passed on fact being fact
finding given by authority this Court can not disturb it while
exercising power under Art. 226 of Constitution of India.
Therefore,
contention raised by learned advocate Mr. Nangesh can not be
accepted hence rejected. There is no substance in present petition.
Accordingly, present petition is dismissed.
(H.K.RATHOD,
J)
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