Tariq Ahmad Shiekh vs State Of J&K And Ors

Rajnesh Oswal, J

01/ The petitioner through the medium of present writ petition has claimed the following reliefs:

a. Issue a writ of Certiorari or any other appropriate writ, order or directions, for quashment of communication bearing No. FCS&CA/FPS/120/2017 dated 22/09/2017 and the order No. ADFCS&CA/Kup/2-7/6866 dated 07/11/2017 issued by the official respondents so far as it relates to the respondent No.5.

b. Issue a writ of mandamus commanding the respondents to strictly adhere to the terms and conditions as mentioned and promulgated by virtue of policy in terms of government Order No. 127-FCS&CA of 2016 dated 04/08/2016 and consequently directing the respondents to grant fair Price shop license in favour of the petitioner on the report submitted by the respondent No. 3 to respondent No. 2.

02/ It is stated that the petitioner was fulfilling the eligibility criteria and as such applied for grant of fair Price shop dealership license for the location Gund Drugmulla. The official respondents acting upon policy in terms of government order dated 04/08/2016 issued a communication bearing No. FCS&CA/FPS/120/2017 dated 22/09/2017, in terms of which, among others, approval for issuance of fair Price shop license in favour of respondent No. 5 has been granted and subsequently the respondent No. 3 issued order No. ADFCS&CA/Kup/2-7/6866 dated 07/11/2017, whereby sanction has been accorded for issuance/opening of new fair Price shop license in favour of respondent No. 5.

03/ The petitioner being aggrieved of both the communications i.e. FCS&CA/FPS/120/2017 dated 22/09/2017 and ADFCS&CA/Kup/2-7/6866 dated 07/11/2017, has impugned the same on the following grounds:

A. That the approval and consequent license in favour of respondent No. 5 has been granted on political influence because of the reason that the said respondent is not otherwise eligible for grant of license for the said location as he is not local youth of said location. The tehsildar has submitted its report dated 22nd of December 2017 to the respondent No. 3, indicating therein that the respondent No. 5 was resident of village Anderhamma.

B. That the respondent No. 3 has submitted to the respondent No. 2 vide communication dated 11/07/2018 that the respondent No. 5 is not the resident of Gund Drugmulla and the inhabitants of the village are not allowing him to make the said fair Price shop functional and the inhabitants have recommended that the fair Price shop license granted in favour of respondent No. 5 be cancelled and be approved in favour of the petitioner who is the local resident of the area.

04/ The petitioner has placed on record the copy of government order dated 04/08/2016, communication dated 06/07/2018 issued by Tehsil Supply Officer to respondent No.3 along with application of the petitioner with supporting documents and the various communications of the respondents as also the report of the Tehsildar dated 13/12/2017.

05/ The official respondents submitted the reply in which it is stated that the respondent No. 5 was covered under the guidelines/policy notified vide government order dated 04/08/2016 and accordingly the case of the private respondent was considered for Fair Price shop dealership license being eligible in terms of law/rules governing the subject and the formal orders were issued. It is also stated that the petitioner too fulfils the criteria for grant of license for fair Price shop dealership. It is further stated that the inhabitants of Gund Drugmulla made a representation before the respondent No.1 with the plea that the respondent No. 5 is not resident of Gund Drugmulla and the approval granted in his favour may be looked into. The Administrative Department vide letter dated 24/07/2018 asked the respondent No. 2 for a factual report. On the basis of report furnished by the respondent No. 3, the administrative department was apprised vide letter dated 08/09/2018 that section of consumers of village Gund Drugmulla are not ready to draw their ration from the newly opened fair Price shop and are demanding for providing ration through the existing government Sale Centre till fresh license is issued in favour of some unemployed youth belonging to the said locality. It was further intimated that the petitioner being a local resident be allotted the fair Price shop license for the said location. In turn, the Administrative Department sought certain documents but in the meanwhile this Court passed the interim order dated 15th of October 2018. It is also stated in the response filed by the official respondents that vide government order dated 12/03/2018, a committee has been constituted for review/reconsideration of any license issued under any of previous orders on the subject and in view of the said order the petitioner is within his rights to approach the said committee for redressal of his grievances.

06/ The respondent No. 5 in his response has stated that the petitioner has raised disputed questions of facts those cannot be considered while considering the present writ petition and further that the respondent No. 5 had applied for issuance of license for running fair Price shop at Gund Drugmulla being the resident of the said area. The license was issued in favour of the respondent No. 5 after scrutinizing all the documents furnished by the respondent No. 5 and rather the petitioner is not the resident of Gund Drugmulla but Pati Gund Drugmulla. It is further stated that because of the interim order, his supplies were stopped by the official respondents. Further the villagers of Gund Drugmulla had already recommended the case of the respondent No. 5 as he was the resident of same area. It is the brother of the respondent No. 5 who is residing in village Anderhamma. It is also stated that if the license is cancelled on the mere saying of some people then all the licenses issued in this behalf will be put to cancellation. The respondent No. 5 has placed on record the unemployment certificate issued by Tehsildar dated 22/08/2017, PRC, Identity Card issued by Election Commission of India, Ration Card, Adhaar card and other documents to demonstrate that the respondent No.5 is a resident of Gund Drugmula.

07/ Mr. Faisal Qadri, Ld. Senior Counsel appearing for the petitioner vehemently argued that the respondent No. 5 is not the resident of village Gund Drugmulla and as such no license could have been issued in his favour and further the petitioner is the resident of the same area and as such was entitled to the issuance of license for running fair Price shop at village Gund Drugmulla. Mr. Qadri laid much stress on the report of Tehsildar, as also the various communications of the official respondents.

08/ Per contra, Mr. Feroz, Ld. DAG, submitted that the license was issued in favour of the respondent No. 5 on the basis of the documents and in accordance with the Government order dated 04/08/2016. He further submitted that the writ petition is premature as the representation of the inhabitants was under active consideration of respondent No. 1 and further that in case the petitioner has any grievance, he can represent before the committee as constituted by the government order dated 12/03/2018.

09/ Mr. Wani, Ld. counsel appearing for the respondent No. 5 submitted that the license has been validly issued in favour of the respondent No. 5 being the resident of Village Drugmulla and the petitioner had not even applied for the issuance of license when the respondent No. 5 applied for the issuance of license and even when the license was issued in favour of the respondent No. 5.

10/ Heard and perused the record.

11/ The contention of the petitioner is that the respondent No. 5 is not resident of village Gund Drugmulla and that is duly substantiated by the report of Tehsildar. A perusal of the report of Tehsildar reveals that it is dated 22/12/2017 and was communicated to respondent No. 3 whereas the license stood issued in favour of respondent No. 5 prior to the said report. No doubt in the said report it is mentioned that the respondent No. 5 at present is residing in Village Anderhama but it cannot be said to be a conclusive proof that the respondent No. 5 was not residing in the village Gund Drugmulla, when the license was issued and sanctioned in favour of the respondent No. 5. From the communications between the official respondents it transpires that respondent No. 3 vide communication dated 20/08/2018 requested the Tehsildar concerned about the residence of the license holder whereas the report of Tehsildar is dated 22/12/2017 i.e. prior to the communication of respondent No. 3. Further vide communication dated 08/09/2018 of respondent No. 2 addressed to respondent No.1 representation of the inhabitants of Village Gund Drugmulla was forwarded to respondent No.1 for further action. Before the respondent No.1 could consider and pass any order, the petitioner filed the present writ petition for cancellation of the license issued in favour of respondent No. 5 and for grant of license in his favour. The documents relied upon by the respondent No. 5 such as PRC, Adhaar card, Identity Card issued by the Election Commission of India etc. disputes the claim of the petitioner that respondent No. 5 is not the resident of the same village for which fair Price shop has been sanctioned. More so, from the record it is evident that the application of the petitioner for issuance of license was forwarded by respondent No. 4 vide his communication dated 06/07/2018 when the license stood already issued in favour of respondent No. 5. The license issued in favour of the respondent No. 5 has not been cancelled/revoked by the official respondents and particularly in view of the fact that the dispute has been raised with regard to the residence of the respondent No. 5 and the matter was/is under consideration of respondent No.1, this Court does not deem it proper to show any indulgence and leave it at the discretion of the respondent No.1 to take the appropriate decision on the basis of rules governing the field. Needless to say the petitioner also has a remedy to approach the committee constituted by the government vide order dated 12/03/2018.

12/ The writ petition is accordingly disposed of and interim directions stand vacated.