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LPA/2265/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2265 of 2009
In
SPECIAL
CIVIL APPLICATION No. 9678 of 2009
=========================================
SANTOSHKUMAR
CHUNILAL SELAR - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH DEPUTY SECRETARY R R CHAUHAN & 2 -
Respondent(s)
=========================================
Appearance :
MR
HR PRAJAPATI for the Appellant.
Mr. N.J.Shah, Assistant GOVERNMENT
PLEADER for the Respondent Nos. 1 and 2.
MR MM SAIYED for
Respondent no.3.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 02/02/2010
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
1. The
State Government issued scheme known as Pandit Din Dayal Grahak
Bhandar Yojna by Resolution dated 2nd August, 2004, wherein it was
decided to grant licences of Fair Price Shops in favour of educated
unemployed persons, who, otherwise fulfil other conditions. Pursuant
to an advertisement for such allotment dated 21st December, 2004,
the appellant submitted application on 1st January,2005 and the
licence for Fair Price shop was allotted on 3rd/4th May, 2005. The
3rd respondent on challenging the same, the allotment in favour of
the appellant was cancelled and the matter was remanded to the
Collector on 27th November, 2006. The said order was challenged by
the appellant in Special Civil Application No. 26364 of 2008 which
was disposed of on 30th April, 2007 directing the 2nd respondent to
decide the matter taking into consideration all aspects of the case.
Thereafter, the 2nd respondent decided to invite fresh applications
and cancelled the allotment made in favour of the appellant which was
challenged before the Appellate Authority, who, again remanded the
matter, wherein, after taking into consideration all records, the
application of the appellant was rejected which was affirmed by the
Appellate Authority on 6th August, 2009. Learned Single Judge, having
upheld the said order, present Letters Patent Appeal has been
preferred.
2. It
is not in dispute that the appellant was the owner of an auto
rickshaw registered as taxi. That was the ground noticed by the
authorities to cancel the licence holding that he was not educated
unemployed, as held by the learned Single Judge.
3. Learned
counsel appearing on behalf of the appellant submitted that the
appellant was not running the auto rickshaw. In fact, it was taken by
his maternal uncle, but those factual aspects cannot be noticed for
determination of issue whether the appellant had actual earning out
of the auto rickshaw or not.
4. Under
definition clause 2(9), educational unemployed means a person having
minimum qualification of S.S.C. or equivalent and having no job or
employment or no any income whatsoever in nature, subject to age
limit of 35 years. The question of gainful employment came for
consideration before Supreme Court in the case of North-East
Karnataka Road Transport Corporation vs. M.Nagangouda, in (2007) 10
SCC, 765 where the Supreme Court held as follows:
“17. On
the said question, we are unable to accept the reasoning of the
Labour Court that the income received by the respondent from
agricultural pursuits could not be equated with income from gainful
employment in any establishment. In our view, “gainful
employment” would also include self-employment wherefrom income
is generated. Income either from employment in an establishment or
from self-employment merely differentiates the sources from which
income is generated, the end use being the same. Since the respondent
was earning some amount from his agricultural pursuits to maintain
himself, the Labour Court was not justified in holding that merely
because the respondent was receiving agricultural income, he could
not be treated to be engaged in “gainful employment”.
Same view was taken by the Supreme Court in Niranjan
Cinema vs. Prakash Chandra Dubey and another, reported in (2007) 14
SCC 349, wherein the Court held that gainful employment
also includes self-employment as income is generated from that
source.
5. In
the present case, on hearing parties, as we find that the appellant
is the owner of a taxi i.e. auto rickshaw, he cannot be held
unemployed being self-employed in the eye of law. We find no
illegality in the order passed by the Appellate Authority or the
learned Single Judge.
6. So
far as the 3rd respondent is concerned, he having not challenged the
order of the Appellate Authority, or order passed by the learned
Single Judge, we are not deliberating on the question whether his
case was rightly rejected or not. There is no merit. The appeal is
dismissed. There should be no order as to costs.
(S.J.Mukhopadhaya,C.J.)
(Anant
S.Dave,J)
***vcdarji
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