Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Malik vs State Of J&K And Ors on 2 November, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND
LADAKH
AT SRINAGAR
OWP No. 1437/2017
Reserved on: 20.08.2021
Pronounced on: 02.11.2021
Mushtaq Ahmad Malik
.....Petitioner(s)
Through: Mr. Alla-ud-Din Ganai, Advocate
V/s
State of J&K and Ors. .....
Respondent(s)
Through: Mr. Sheikh Feroz, Dy. AG for
respondents 1 to 4
Mr. Bilal Ahmad Malla, Advocate for
respondent no.5
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Petitioner seeks quashment of Order No.FCS&CA/FPS/121/2017 dated 22-08-2017 issued by respondent no. 1 qua respondent no. 5 with a direction to the respondents to issue license in favour of the petitioner to run and establish Fair Price Shop (for short "FPS") at new location Mandujan District, Shopian.
2. The case set up by the petitioner is that he is unemployed educated youth and has done his 12th class. It is submitted that the State of Jammu and Kashmir decided to implement Food Security Act in the State of J&K with effect from February. 2016 and, therefore, in order to make the access of people to the rations easily, the respondent-State accorded sanction to the formulation of Revised Norms/guidelines for opening FPSs vide Government Order no. 127-FCS&CA of 2017 dated 04.8.2016.
Page 1 OWP no.1437/2017
3. It is further submitted that the Guidelines for opening of New FPSs on commission basis for distribution of PDS ration/sugar and other items, form part of Government Order No. 127- FCS&CA of 2016 dated 04.8.2016. It is submitted that the residents of petitioner's village Mandujan Shopian passed a resolution in favour of the petitioner for opening of FP Shop at the location Mandujan and unanimously decided that the petitioner should apply to the official respondents for issuance of license for establishment of the FPS at the proposed location where there was no FP Shop existing. Accordingly, petitioner applied for issuance of License before respondent no. 4 on 14.02.2017. The application was processed by the respondents and the Respondent No. 4, forwarded the petitioner's case to Respondent no. 2 on 18.02.2017 for issuance of license in favour of the petitioner. Besides Respondent no. 4 verified through TSO concerned who had reported that villagers of Mandujan were drawing their ration from sale centre Kanjiular, which clearly indicated that the village Mandujan did not have its own FPS.
4. Petitioner has also stated that respondent no.2, on the recommendations of respondent no. 4, forwarded the case of petitioner for issuance of FP Shop license to the Secretary to Govt. Food, Civil Supplies and Consumer Affairs (Respondent No.1), vide communication No. DFCS&CA/Plg.3941 dated 21.07.2017. The respondent no. 2 clearly admits that the petitioner's name has been approved by the Administrative Department for issuance of license for opening of FP Shop vide letter No. FCS&CA/FPS/121/2017 dated 10.07.2017. On the basis of these communications and recommendations, the approval for issuance of License was about to be finalized, but for the reasons best known to the respondents, the Respondent no. 1 issued an order under No. FCS&CA/FPS/121/2017 dated 22.08.2017, whereby approval for issuance of License has been Page 2 OWP no.1437/2017 granted in favour of the private respondent for opening of FPS at Mandujan.
5. It is also submitted by petitioner that instead of issuing license in favour of the petitioner, the respondent no. 1 has issued order under No. FCS&CA/FPS/121/ 2017 dated 22.08.2017 for issuance of FPS License in favour of private respondent no. 5. This order has been issued in gross violation of professed Policy of the Respondents inasmuch as the pre-conditions laid down in the Guidelines have not been followed by the official respondents but instead have issued license on pick and choose policy and purely on extraneous consideration.
6. Reply has been filed by respondents 1 to 4 in which they state that writ petition filed by the petitioner is misdirected and misconceived, in that the communication dated 22.08.2017 does not suffer from any vice as same has been issued by competent authority. It is also averred that competent authority while issuing impugned order has taken into consideration all relevant facts and record and applied its mind which in no way can be called arbitrary or in violation of any rule or law.
7. Reply has also been filed by respondent no.5, wherein, he has stated that writ petition is not maintainable, approval has been granted for issuance of FPS License in favour of respondent for location Mandujan. The said approval is in accordance with policy notified vide Government Order No. 127-FCS&CA of 2016 dated 04.08.2016. It is also stated that after grant of approval for establishment of new FPS in favour of respondent, an order in the shape of license was issued in his favour vide Order dated 16.09.2017, which has not been challenged. It is stated that petitioner by way of the present writ petition challenges the approval solely on the ground that petitioner's case was recommended by the inhabitants of the area. The said document which is placed on record as Annexure-B with the petition, does not mention any date, as such, the above said Page 3 OWP no.1437/2017 document cannot be relied upon. Moreso, the petitioner as per his own showing has applied for allotment of FPS on 14.02.2017 and the said application had been recommended by the respondents on 18.02.2017, whereas respondent has applied for allotment of FPS in the year 2016. It is also submitted that petitioner has annexed a document, i.e., rent agreement, in which there are insertions because name of lessor and his signature does not tally, thereby showing it as a fabricated document.
8. Heard and considered.
9. Counsel for the petitioner has stated that the impugned order, insofar as it pertains to respondent no.5, has been passed by respondents arbitrarily and in unfair manner and without following the principles of natural justice, as the petitioner had been duly recommended by the village community, which is the pre-requisite and fundamental of the policy and guidelines governing the field for opening of new FP Shop. He also states that not only the petitioner spent almost 7 months from January 2017 till date, following the case and completing the formalities. The petitioner even executed Rent Agreement with the Auqaf Committee, Mandujan, Shopian for establishment of FPS at a very convenient place in the village. It is contended that in terms of procedure if respondent-department receives more than one application for a location, then the principle of first come first serve is to be adopted for grant of FPS License. This principle laid down in the Govt. Order/Guidelines was also brushed aside in very arbitrary and whimsical manner. The respondent no. 5, in whose favour approval for issuance of license has been communicated, has applied for issuance of License after the petitioner applied for the same. The date on which the petitioner applied is 14.02.2017 and respondent no. 5 has applied on 20.02.2017.
10.Learned counsel for respondents 1 to 4 has stated that after implementation of Food Safety Act, the Government Order Page 4 OWP no.1437/2017 No.127-FCS & CA of 2016 dated 04.08.2016 read with Government order no. 137-FCS & CA of 2016 dated 02.09.2016, was issued for opening of FPSs under targeted Public Distribution System with a view to provide ration to the rationees at nearest door steps in terms of Rule 5 of the Food Security (Assistance to State Governments) Rules of 2015 notified by Government of India vide GSR 63 (E) dated 17.08.2015. The Government Order dated 04.08.2016, was first step in this direction as various FPSs have been sanctioned for the areas recommended by the field functionaries as per the viability of the areas vis-a vis demand for general public at large. He also submits that respondents vide Government Order No.127- FCS&CA of 2016 dated 04.08.2016, notified policy in terms of Rule 09 of PDS Control Order of 2015, and in consonance with the relevant provisions of Essential Commodities Act, 1955, and National Food Security Act, 2013, for issuance of FPS License in favour of incumbents, who would apply against sanctioned location of FPSs. Various other orders have also been issued by the respondents to achieve the desired objectives. The Government, while examining the procedures involving issuance of FPSs, has issued Govt. Order No. 70-FCS&CA of 2018 dated 12.03.2018, which aims at to streamline the system of Public Distribution and in supersession of Govt. order NO. 352- FCS&CA of 2017 dated 24.08.2017, issued fresh guidelines which are required to be followed while issuing the FPS License and respondent no. 2 has been designated as licensing authority for issuance of dealership license of FPSs. A Committee has also been constituted, comprising Director, Deputy Director and Assistant Director concerned of the Department, in this regard. Clause 6 of Govt. Order dated 12.03.2018, provides for review/reconsideration of any license issued under any of the previous orders on the subject. In view of the said Govt. Order Page 5 OWP no.1437/2017 dated 12.03.2018, the petitioner is within his rights to approach the committee for redressal of his grievances.
11.According to counsel for respondent no.5, the question of 'first come first serve' is also a principle which favours respondent no.5 as he has applied for the FPS in the year 2016 whereas petitioner has applied for FPS on 14.02.2017 and, therefore, petitioner has concealed the material facts in writ petition.
12.As is discernible from perusal of Government Order no.127- FCS&CA of 2016 dated 04.08.2016, a new FPS shall be opened for every 250 rationees, but existing FPS holder will retain more rationees if there is no feasibility of opening second FPS and that rationees should have FPS/Govt Sale Depots within radious of 1.5 to 2 kilometers from their residence subject to having 250 rationees to be bifurcated. Location of the FPS shall not be changed by FPS holder without the written permission of concerned Assistant Director and new FPS will be opened for every 200-250 families but if in a village there are lesser families opening of new FPS will not be a constraint. However, in case of hilly/inaccessible area, opening of FPS can be for lesser number of families. Selection of salesman for running of FPS shall be that he should be local youth of the village/area; he should have minimum qualification of matriculation. It is the Administrative Department, which will be the licencing authority and licence will be valid for two years.
13.In terms of Government Order no.70-FSC&CA of 2018 dated 12.03.2018, fresh guidelines have been issued. Director, Food Civil Supplies and Consumer Affairs has been designated as licencing authority to issue dealership licence of FPSs. A committee has also been constituted. Clause 6 of aforesaid Government Order dated 12.03.2018 for review/reconsideration of any licence issued under any of previous orders on the subject.
14.In the present case, as has also been stated by official respondents 1 to 4 that petitioner can approach them for redressal of his Page 6 OWP no.1437/2017 grievances. In such circumstances, it would be appropriate for petitioner to approach respondents with a written application/representation, projecting therein all his grievances. Upon receipt of the said representation, official respondents 1 to 4, before proceeding ahead and before taking any decision on the application/representation of petitioner, if they found such a consideration and decision in any way or manner affects rights of respondent no.5, shall also afford opportunity to respondent no.5 and only thereafter proceed and take a decision in the matter. Such an exercise shall be undertaken and concluded by respondents 1 to 4 expeditiously, preferably within a period of eight weeks, from the date copy of this order along with complete paper book is served upon them.
15.Disposed of in terms of above.
16.It is made clear here that all what has been said and observed above shall not influence respondents 1 to 4 in deciding the application/ representation of petitioner and/or shall not be taken as an opinion in favour of either of the parties.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR .11.2021 "Imtiyaz"
Whether the order is reportable: Yes/No Page 7 OWP no.1437/2017 IMTIYAZ UL GANI 2021.11.03 11:26 I attest to the accuracy and integrity of this document