Ketanbhai vs State of Gujarat

V.M. Sahai, Actg. C.J.

This Public Interest Litigation has been filed by the petitioner for the following reliefs:

[a] to allow this petition and to enjoin upon the respondents nos. 1 and 2 to cancel the allotment of the Fair Price Shop in favour of the respondent no. 3 in view of the fact that the respondent no. 3 has committed fraud on the system and to direct that the benefits obtained by the respondent no. 3 be recalled and that criminal prosecution be launched the respondent no. 3;

[b] to grant appropriate interim relief and to direct that the respondent no. 3 shall forthwith cease to run the Fair Price Shop during the pendency of the present application by making alternative arrangement;

[c] to dispose this application expeditiously;

The brief facts are that, Mafatbhai Motibhai Vaghela, respondent no. 3 herein is a resident of village Kevadiya colony of Taluka Nandod, District Narmada. In the district of Narmada, State authorities decided to issue licenses for running fair price shops in different villages. The State authorities, therefore, issued a public advertisement on 13.11.2004 in the local newspaper Sandesh inviting eligible persons to apply for grant of licenses in various villages. Kevadiya colony was one such village in which such license was to be issued as per the said advertisement. A particular shop was earmarked for general category applicants.

Though the respondent no. 3 belonged to Scheduled Caste community, believing that he was duly qualified for obtaining the license in question, he applied for the same in response to the advertisement dated 13.11.2004.

The Government has issued consolidated guidelines making detailed provisions for consideration and grant of such licenses by its resolution dated 2.8.2004.

This resolution makes extensive provisions for grant of license for running fair price shops. Beside other things, it provides for necessary qualifications and other conditions for grant of such licence. Para 5 of the said resolution provides, inter alia, that a candidate seeking such licence must have a qualification of SSC or equivalent. It further provides that educated unemployed graduates shall be given top most priority. The resolution also provides for reservation in favour of different reserved categories in rural and urban areas. Para 5.1.4 of the said resolution provides, inter alia, that after providing for reservation in favour of different reserved categories, shops in the remaining villages shall be allotted to educated unemployed candidates belonging to other classes. Para 8.20 of the said resolution provides for preparation of list of 3 candidates per every shop for which licence is to be granted so that if the first candidate fails to open the shop, then order can be passed for second candidate and so on.

The application of the respondent no. 3 was accepted by the Mamlatdar and was placed before the Advisory Committee (Committee for short) for making selection of a suitable candidate for granting of such a license. As per the above mentioned resolution dated 2.8.2004, the Committee prepared a list of three candidates in the order of priority for granting the license and the respondent no. 3 was placed at Sr. No. 1 in the said list prepared for being granted licence in Kevadiya colony.

The grant of license in favour of respondent no. 3 was challenged by one Gunjankumar Kiritbhai Malaviya by filing Special Civil Application No. 18163 of 2006. The said writ petition was allowed by the learned Single Judge by order dated 29th August, 2006. The said order dated 29th August, 2006 passed by the learned Single Judge was challenged by the respondent no. 3 by filing Letters Patent Appeal No. 1222 of 2006. Division Bench of this Court, by judgment and order dated 19th July, 2007, allowed the said appeal and set aside the order passed by the learned Single Judge and thus, the order passed by the licensing authority of grant of fair price shop in favour of respondent no. 3 was restored. Thereafter, review petition no. 2914 of 2008 was filed by the said Gunjankumar K. Malaviya, which was dismissed by the Division Bench by judgment dated 24th April, 2009. Thereafter, Gunjankumar K. Malaviya filed S.L.P. CC No. 14405-14407 of 2009 which was dismissed summarily by the Apex Court on 5th October, 2009 on the ground of delay. Thus, the order passed by the Division Bench of this Court became final. Thereafter, the petitioner has filed this Public Interest Litigation stating therein that the fair price shop has wrongly been allotted to the respondent no. 3 as he was not the resident of the village. He was neither the applicant before the respondents nor did he contest the proceedings at any stage. His main case is that the allotment of fair price shop in favour of respondent no. 3 is fraud on the system. The fair price shop was allotted to the respondent no. 3 by the licensing authority which order was affirmed by the Division Bench of this Court as well as by the Apex Court.

It appears that the petitioner moved an application dated 8th November, 2011 before the District Supply Officer, Nadiad, who rejected the said application by order dated 24.7.2012 stating therein that as order has already been passed by the High Court in favour of the respondent no. 3, nothing is required to be done in the matter. Thereafter, the petitioner filed this Public Interest Litigation, wherein, in Ground "C" on page 16, it is stated as under:

"xxx In fact, the moot question is as to what would be fraud upon the authorities and consequently upon the Court, if such suppresio veri and suggestio falsi is not so. It is case of stark fraud in respectful submission of the petitioner. In view of the above, the judgment cannot be legally sustained and the same deserves to be reviewed/recalled."

It is relevant to point out here that earlier, Gunjankumar K. Malaviya has also raised the similar contention in the review petition filed before a Division Bench, wherein in para-4 of the judgment dated 24th April, 2009 passed by the Division Bench, the Division Bench has observed as under:-

"Though the learned counsel for the applicant vehemently submitted that respondent No. 3 has committed fraud, we are of the view that the judgment requires no review. All factual as well as legal aspects raised before the Court were considered in detail while rendering the decision on merits. Such factual aspects cannot be sought to be reopened at this stage, particularly, when after this Court disposed of Letters Patent Appeal on 19.7.2007, the authority also considered the objections raised by the present applicant regarding residence of respondent No. 3. We are informed that respondent No. 3 had been running fair price shop since long."

Therefore, it appears that after losing the battle by Shri Gunjankumar K. Malaviya, the present petitioner has come up with a statement in this Public Interest Litigation that the judgment is vitiated by fraud and liable to be reviewed as fraud. If such Public Interest Litigations are permitted to be filed by persons who are not parties to the litigation, then, it will vitiate the entire judicial atmosphere and will open a pandora''s box and the sanctity of the judgment which has become final cannot be allowed to be robbed by such frivolous Public Interest Litigation. Therefore, such Public Interest Litigations have to be dealt with an iron hand.

In view of the above, the writ petition is dismissed. Notice is discharged.

In our opinion, by filing such frivolous petition, the petitioner has challenged the judgments of Division Bench and the Apex Court which have become final, such petitions are to be to be dismissed with exemplary costs. Thus, in this case, while dismissing the writ petition, we impose cost of Rs. 25,000/- upon the petitioner for filing such type of frivolous Public Interest Litigation, which is nothing but an abuse of process of law. The costs shall be deposited by the petitioner before the Registrar General of this Court within a period of one month, which in turn, shall be transmitted to the High Court Legal Services Authority. In case, the cost of Rs. 25,000/- is not deposited within the aforesaid period before the Registrar General, the Registrar General shall issue recovery certificate to the Collector who shall recover the said amount as arrears of land revenue.