Dayal Batta and Sh. Ashok Diwan vs State of Himachal Pradesh and Others

Justice Dharam Chand Chaudhary, J.—The only grievance as brought to this Court by filing the present writ petition is that the petitioner irrespective of being legal heir of his mother Smt. Santosh Batta and eligible for allotment of fair price shop and kerosene oil depot at Kandaghat, has not been allotted the same and to the contrary the fair price shop and kerosene oil depot have been allotted to District Cooperative Marketing and Consumer Federation Limited, Solan, the 5th respondent by the District Level Public Distribution Committee in its meeting held on 15th June, 2009. The allotment of fair price shop to the 5th respondent is stated to be highly illegal, arbitrary, unconstitutional and violative of principles of natural justice. If coming to the pleadings on record, one kerosene oil depot was in existence at Kandaghat. The same was allotted to Smt. Santosh Batta, the mother of the petitioner. She passed away on 11th February, 2008. The factum of her death was brought to the notice of the 4th respondent by the petitioner. A request was also made to transfer the said depot in his name. The request so made by the petitioner was not acceded to and to the contrary, the District Level Public Distribution Committee in its meeting held on 3.5.2008 had taken a decision to assign the work of distribution of kerosene oil also to the 5th respondent through its already existing fair price shop at Kandaghat. The decision so taken by the Committee was conveyed to the 5th respondent vide letter dated 14th May, 2005, Annexure R5A to the reply filed in this writ petiton on behalf of the 5th respondent.

Later on, pursuant to the directions of this Court in CWP No. 1037/2003, LPA No.12/2007 and LPA No. 14/2007, the Department of Food and Civil Supplies and Consumer Affairs to the Government of H.P. had framed guidelines and circulated the same vide circular dated 5th August, 2008 Annexure R1/5C. Impending framing of the guidelines, the petitioner had made an application dated 26.5.2008 Annexure P-1 to respondent No. 4 with the request to allot a fair price shop with kerosene oil depot at Kandahgat. In view of large number of ration card holders in and around Kandaghat, the only fair price shop, being run by the 5th respondent, was not found to be sufficient to cater to their needs. Hence, the District Level Public Distribution Committee in its meeting held under the Chairmanship of the 3rd respondent on 1st September, 2008, had decided to open another fair price shop there. Consequently, the notice dated 4th October, 2008, Annexure R2/R5D to the reply filed on behalf of respondents No. 1 to 4, inviting thereby applications on or before 27th October, 2008, came to be issued for the information of general public. Impending issuance of notice, the petitioner had made application dated 26th July, 2009 to the 3rd respondent. Another application alongwith supportive documents, Annexure R5E (Colly) for allotment of the shop in question was made by the 5th respondent. There being only two applicants, viz., the petitioner and the 5th respondent, their applications were considered by the District Level Public Distribution Committee in its meeting held on 15th June, 2009 and the shop in question was ordered to be allotted to the 5th respondent. The decision so taken by the Committee was conveyed to the 5th respondent vide letter dated 27th July, 2009, Annexure R5F to the reply filed on behalf of the said respondent.

The challenge to the allotment order Annexure R5F is only on the sole ground that the deceased mother of the petitioner was earlier running a kerosene oil depot at Kandaghat and he being her legal heir, had the preferential right under the guidelines for allotment of the fair price shop and also kerosene oil depot as compared to the 5th respondent.

Ms. Anjana Khan, learned counsel representing the petitioner has forcefully contended that the allotment of fair price shop to the 5th respondent is highly illegal, arbitrary and violative of the principles of natural justice as well as the guidelines framed by the respondent-department qua allotment of the same. On the other hand, Ms. Shubh Mahajan, learned Deputy Advocate General and Ms. Ritta Goswami, representing the respondents have strenuously contended that it is not the petitioner who is having a preferential right for allotment of fair price shop and rather it is the 5th respondent, a Cooperative Society, which is entitled to the allotment thereof under the guidelines.

In order to buttress the claim and counter claim, the learned counsel on both sides, have made reference to their respective pleadings and the documents referred to hereinabove. In order to avoid repetition, it is not desirable to make reference to the facts detailed supra, which are not in controversy.

As a matter of fact, the controversy, which needs adjudication, lies in a narrow compass because with the help of the material available on record, the only point in issue is whether it is the petitioner who had preferential right qua allotment of the fair price shop, in question, or the allotment thereof to the 5th respondent is in accordance with the guidelines Annexure R1/5C.

In order to set the controversy at rest, it is desirable to take note of the guidelines relevant for the purpose of adjudication of the above point in issue, which read as under:

Independent kerosene depots will henceforth not be permitted and kerosene oil depots will be a part of the regular PDS shop.

First Priority: Cooperative Sector- Within the Cooperative Sector, Cooperative Societies of Women and Ex-Servicemen will be given priority.

Second Priority: Ex-Servicemen/Physically Handicapped person/Unemployed Educated person with no family member in regular employment.

Third Priority: H.P. State Civil Supplies Corporation.

The legal heirs of a Fair Price Shop Licensee may be given preference in allotment of the Fair Price Shop in the event of the death of the licensee subject to suitability.

It is seen that vide the guidelines, extracted hereinabove, the old system of allotment of a fair price shop and kerosene oil depot separately has been discontinued and the kerosene oil depots have been made part of regular PDS shop. In the matter of allotment of shop and depot, the first priority has been assigned to the Cooperative Sector, whereas second to Ex-Servicemen/ Physically handicapped person/ unemployed educated person and the 3rd to H.P. State Civil Supplies Corporation. Besides, legal heirs of a fair price shop licensee can also be given preference in the matter of allotment of such shop in the event of death of the licensee, however, subject to their suitability.

Mother of the petitioner was not a licensee of a fair price shop, however, kerosene oil depot. Thus, in terms of guidelines, he cannot claim preference over and above the 5th respondent in the matter of allotment of fair price shop, in question, particularly when his claim for allotment of kerosene oil depot, after the death of his mother, was not inclined by the respondents and rather that work was also assigned to the 5th respondent vide letter Annexure R5A. Above all, under the guidelines, the 1st priority in the matter of such allotment has to be given to the Cooperative Sector. If the District Level Public Distribution Committee in its meeting held on 15.6.2009 has taken a decision qua allotment of the shop in question to the 5th respondent, a Cooperative Society, no illegality or infirmity can be attached thereto nor such decision can be termed as illegal, arbitrary or violative of principles of natural justices, because the application submitted by the petitioner was also duly considered by the said Committee.

The instance qua allotment of a fair price shop to the legal heirs of deceased Suresh Gupta at Kasauli quoted in the writ petition is hardly of any help to the case of the petitioner for the reason that as per the reply to the writ petition, no doubt a fair price shop was allotted to one Vivek Kumar Gupta, son of Suresh Gupta aforesaid at Subathu, however, not merely because of he being a legal heir of said Shri Suresh Gupta, but after due deliberation and discussion on his application submitted consequent upon issuance of a public notice by the Public Distribution Committee and no Cooperative Institution had applied for allotment of fair price shop. The contentions so raised in reply to the writ petition thus demolish the plea of discrimination raised by the petitioner.

I thus find the present a fit case where the petitioner has miserably failed to establish that the allotment of fair price shop to the 5th respondent vide letter dated 27.7.2009, Annexure R5F is illegal, arbitrary and violative of the guidelines and also the principles of natural justice. The petitioner is thus not entitled to the grant of relief sought in this writ petition and the same rather being devoid of any merit deserves dismissal. In view of the above discussion, the writ petition fails and the same is accordingly dismissed, so also the pending application(s), if any. No order as to costs.