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SCA/9234/2008 8/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9234 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
STATE
OF GUJARAT & 3 - Petitioner(s)
Versus
NARENDRASINH
PARVATSINH RATHOD - Respondent(s)
=========================================================
Appearance
:
MR
HEMANG PARIKH ASST.GOVERNMENT PLEADER for
Petitioner(s) : 1 - 4.
MR SK BUKHARI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/07/2008
ORAL
JUDGMENT
Rule.
Mr.S.K. Bukhari, learned waives the service of notice of rule on
behalf of the respondent.
With
the consent of the learned advocates appearing on behalf of the
respective parties, the matter is taken up for final hearing.
By
way of this petition under Article 227 of the Constitution of India,
the petitioners ? State of Gujarat and others, have prayed for
appropriate writ, order and/or directions for quashing and setting
aside the judgement and order dtd.30/11/2007 passed by the learned
Presiding Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil
Appeal No.105 of 2007 in allowing the same and quashing and setting
aside the order dtd.8/10/2007 passed by the learned 3rd
Additional Senior Civil Judge, Godhara below application Ex.5 in
Regular Civil Suit No. 354 of 2007.
The
respondent herein ? original plaintiff is having a fair price shop
at village Sanoli, Taluka ; Kalol, District Panchmahals. That the
respondent ? original plaintiff is granted license to run the
fair price shop under the Pandit Din Dayal Grahak Bhandar Scheme of
the State Government and he has been allotted 782 Ration Card
Holders having population of 4011. That the respondent is a
licensee under the provisions of the Essential Commodities Act,
1955 and is provided wheat, rice, oil, kerosene etc. for selling it
to the poor people more particularly, to the people leaving Below
Poverty Line (BPL) as per the Government Policy at reasonable rate.
That in the public interest, it was decided to have another fair
price shop by way of division in two parts of the same village.
Being aggrieved by the said decision, the respondent herein ?
original plaintiff filed Regular Civil Suit No. 354 of 2007 for
restraining the petitioners ? original defendants from reducing
the Ration Card Holders attached with his fair price shop of the
plaintiff and restraining the petitioners ? original defendants
from opening any other fair price shop in the said village. In the
said suit, the petitioner – original plaintiff filed application
Ex.5 for interim injunction. It was contended on behalf of the
original plaintiff that as per the Government Circular / Resolution,
there should be minimum certain number of Ration Card Holders
attached with a fair price shop looking to the population and it was
further contended that if the Ration Card Holders are reduced, he
will not get sufficient commission and it will not be possible for
him to run the fair price shop. It was contended on behalf of the
original plaintiff that the said action is in breach of the
principles of natural justice as no notice or hearing has been
afforded to the plaintiff. The application Ex.5 was opposed by the
petitioners herein ? original defendants by submitting that the
suit itself is not maintainable. It was also further submitted that
as such the discretion is with the authority to allow the number of
Ration Card Holders and/or to open the fair price shop looking to
the need of the village people and in the public interest. It was
submitted that the paramount consideration is the public interest,
interest of the village people and the Ration Card Holders. It was
further submitted that the licensee has no right, much less any
legal right, to have particular Ration Card Holders. It was also
further submitted that even in the Resolution relied upon by the
plaintiff and as per the policy, it is provided that as far as
possible, but certainly any licensee and/or fir price shop owner has
no right, whatsoever, to ask for a particular number of Ration Card
Holders. It was further submitted
on behalf of the plaintiff that as per the Resolution, there shall
not be new fair price shop within the radius of 3 KMs. The learned
3rd Additional Senior Civil Judge, Godhara, after
hearing both the sides, vide order dtd.8/10/2007 rejected the
application Ex.5 holding that the if the plaintiff feels that no
opportunity of being heard is provided to the plaintiff, the
plaintiff should approach the defendants for redressal of his
grievance and in such event, the defendants will provide opportunity
to the plaintiff and take appropriate decision. The trial court also
held that the decision of the defendants is in the interest of the
public in general. Prima facie case and balance of convenience are
not in favour of the plaintiff and if the interim relief as prayed
for is not granted, no irreparable loss is likely to be caused to
the injunction. Holding accordingly, the trial court rejected the
application Ex.5 preferred by the plaintiff ? respondent herein.
Being aggrieved by and dissatisfied with the order passed by the
trial court below application Ex.5 in rejecting the same, the
respondent herein ? original plaintiff preferred an appeal before
the appellate court and the learned Presiding Officer, FTC No.2,
Panchmahals at Godhara, after hearing both the sides, vide judgement
and order dtd.30/11/2007 allowed the side appeal, by quashing and
setting aside the order passed by the trial court below application
Ex.5 and further directed the parties to maintain status-quo till
final disposal of the suit. The appellate court observed that
considering the documents on record, the appellate court is not
agree with the findings recorded by the trial court and the
plaintiff has prima facie case and the order passed by the trial
court is in breach of condition of government resolution and
against the principles of natural justice. Holding accordingly, the
appellate court allowed the appeal and quashed and set aside the
order passed by the trial court below application Ex.5 and directed
the parties to maintain status-quo till final disposal of the suit.
Against the said order passed by the learned appellate court, the
petitioners ? original defendants have preferred present Special
Civil Application under Article 227 of the Constitution of India.
Mr.Hemang
Parikh, learned Assistant Government Pleader appearing on behalf of
the petitioners has vehemently submitted that the appellate court
has materially erred in allowing the appeal and granting interim
injunction as prayed for by the plaintiff and restraining the
petitioners – original defendants from reducing the Ration Card
Holders attached with the fair price shop of the plaintiff and
furthers restraining the petitioners ? original defendants from
either opening another fair price shop or division of existing fair
price shop in the same village. It is submitted that what is
provided in the Resolution is that as far as possible the distance
and the Ration Card Holders should be maintained. However, in the
larger public interest and in the interest of the village people
and the Ration Card Holders, the same can be reduced. It is also
further submitted that as such the suit itself is not maintainable,
as it is realm of policy of the Government to open the fair price
shop and to allot the Ration Card Holders to a particular fair price
shop. It is also further submitted that there is no question of
affording any opportunity to the licensee, as the licensee/fair
price shop owner has no legal right to ask for particular number of
Ration Card Holders. Therefore, it is requested to allow the
present Special Civil Application and quash and set aside the order
passed by the appellate court.
Mr.S.K.
Bukhari, learned advocate appearing on behalf of the respondent ?
original plaintiff has submitted that as rightly held by the
learned appellate court, before reducing the Ration Card Holders,
no opportunity has been given and/or no notice has been issued to
the respondent ? plaintiff and hence the said action is in
breach of the principles of natural justice and the appellate court
has rightly allowed the appeal and granted the interim injunction as
prayed for by the plaintiff. Therefore, it is requested to dismiss
the present Special Civil Application.
Heard
the learned advocate appearing on behalf of the respective parties.
At
the outset, it is required to be noted that the respondent ?
original plaintiff has no vested right to ask for a particular
number of Ration Card Holders attached with his fair price shop.
The plaintiff has been granted license to run the fair price shop
under the scheme of the State Government and it is ultimately for
the State Government to decide how many number of Ration Card
Holders should be allotted to a particular fair price shop. The
interest of the Ration Card Holders and the village people is the
paramount consideration and as there is no vested legal right in
favour of the plaintiff, there is no question of issuing any notice
and/or giving any opportunity to the respondent ? original
plaintiff before taking decision to reduce the Ration Card Holders.
Prima facie, it appears that even the suit itself is not
maintainable. However, without entering into the said larger
question, it appears that the trial court has rightly refused to
grant the interim injunction as prayed for. As such the relief
granted prayed for by the plaintiff by way of interim relief, is the
final relief sought in the suit. As held by the Hon’ble Supreme
Court and this Court in catena of decisions, normally court should
be slow in granting the interim relief, which may be ultimately
final relief in the suit. In very very exceptional cases, final
relief can be granted as an interim relief. Under the
circumstances, the trial court has rightly refused to grant the
interim relief, but the the learned appellate court has committed an
error and/or exceeded its jurisdiction in allowing the appeal and
granting application Ex.5 and directing the parties to maintain
status-quo and therefore, the impugned order passed by the learned
appellate court requires to be quashed and set aside.
For
the reasons stated above, the petition succeeds. The impugned
judgement and order dtd.30/11/2007 passed by the learned Presiding
Officer, FTC No.2, Panchmahals at Godhara in Misc.Civil Appeal
No.105 of 2007 is quashed and set aside and the order
dtd.8/10/2007 passed by the learned 3rd
Additional Senior Civil Judge, Godhara below application Ex.5 in
Regular Civil Suit No.354 of 2007 is restored. Rule is made absolute
accordingly. In the facts and circumstances of the case, there shall
be no order as to costs.
[M.R.
SHAH, J.]
rafik
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