Allahabad High Court
Tahir Ali vs State Of U.P. And 4 Others on 13 December, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court no.-- 28
Case :- WRIT - C no. - 55883 of 2016
Petitioner :- Tahir Ali
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sanjay Singh
Counsel for Respondent :- C.S.C.,Amresh Singh
Hon'ble Pramod Kumar Srivastava,J.
1. The petitioner Tahir Ali was fair price shop dealer of Gaon Sabha Nandgaon. A new Gaon Sabha of Sheesham Kheda was carved out from Gaon Sabha Nandgaon. Therefore the respondent no.-2/SDM had passed impugned order dated 16.11.2016 directing respondent no.-3/ Block Development Officer, Mirganj to ensure that proceeding should be initiated for appointment of new fair price ship dealer of vacant shop of Gaon Sabha Nandgaon. This impugned order has been challenge through present writ petition.
2. Learned counsel for the petitioner submitted that although Gaon Sabha Sheesham Kheda has been carved out from Gaon Sabha Nandgaon, but no delimitation was made for this new village Sheesham Kheda or Nandgaon. Therefore, impugned order, in which new delimitation of Nandgaon was mentioned is erroneous and this order should be quashed.
3. These submissions were refuted by learned Standing Counsel on the basis of instructions received and filed before this Court. He submitted that after carving out of village Sheesham Kheda, it is found that petitioner is resident of village Sheesham Kheda and his existing fair price shop is situated within village Sheesham Kheda; Therefore, it was directed that petitioner be permitted to continue as fair price shop dealer of this village Sheesham Kheda, and for Gram Sabha Nandgaon a new fair price shop should be opened. He further submitted that petitioner has no legal right to challenge opening of new fair price shop. He further submitted that by specific order dated 24.11.2016, respondent no.-3/SDM had specified these facts that there would be different fair price shops for different Gram Panchayats of Sheesham Kheda and Nandgaon, because Government Order dated 18.05.1999 directs that in every Gram Panchayat separate fair price shops should be opened so that essential commodities may be distributed conveniently to card-holders. So for the card-holders of village Nandgaon separate shop should be opened.
4. No order of cancellation of agreement of fair price shop relating to petitioner has been passed so far. In policy laid down in Government Order, for convenience of public in general, separate fair price shops should be established in every Gram Panchayat; and accordingly the steps are being taken and orders are being passed, including impugned order, by respondents to establish at least one fair price shop in each village. Since it has been found that existing fair price shop relating to Nandgaon is situated in newly carved out village of Sheesham Kheda, therefore his agreement as fair price shop dealer of Sheesham Kheda was recognized and impugned order was passed. There appears no illegality or impropriety in proceedings carried out by respondents in this regard and in impugned order passed by respondent no.-2 that may attract the exercise of writ jurisdiction of this Court for interference.
5. Apart from it, as pointed out by learned Standing Counsel, Division Bench of this Court in Special Appeal no.516 of 2016 (Suman Yadav Vs. State of U.P. And others) had held as under:
"The issue primarily which therefore, arises for consideration is whether an existing licensee has a legal right to object to the establishment of an additional fair price shop.
The answer to this question in our view, has to be in the negative based on the age old principle of damnum sine injuria."
"Additionally, we find upon a plain reading of the clause on which much reliance was placed, is really not a prohibition for the establishment of an additional fair price shop. As is evident from the plain terms of the said clause all that it makes provision for is to the effect that in those Gram Sabhas where units be more than 4000, in such cases and upon the Gram Sabha being of the opinion that the opening of an additional shop would be necessitated for the convenience of the villagers, a proposal may be processed for the establishment of an additional fair price shop. On a plain reading of the said provision, we are of the view that the same is merely an enabling provision and is not liable to be viewed as a prohibition against the establishment of an additional fair price shop where public interest so mandates. For all the aforesaid reasons, we are unable to sustain the judgment of the learned Single Judge."
6. Impugned order dated 16.11.2016 is apparently not erroneous. The decision on point of opening of new fair price shop is discretionary for respondents, and such discretion should be exercised in accordance with concerned Government Order. Exercise of reasoned discretion is evident in impugned order which is apparently not infirm or erroneous when arrangement is made for public convenience. Therefore this order needs no interference in exercise of extraordinary writ jurisdiction.
7. Apart from it, as discussed above, the petitioner has no statutory or constitutional right to be appointed as fair price shop dealer at any particular place or continue as dealer for two gam sabha, which is the main underlying relief sought through this writ petition. Even if he suffers loss of profit due to opening of another fair price shop, it is a case of damnum sine injuria. None of his legal or constitutional right will be infringed when additional fair price shop is opened or he will not be appointed as fair price shop dealer of any particular place. There is no fundamental right in anyone to be appointed as agent of a fair price shop of a particular place under a Government scheme. Therefore no legal injury is going to be caused to him by impugned order. Therefore the writ petitioner is not entitled for any relief.
8. In view of above, this writ petition is dismissed.
Order Date :- 13.12.2016
Sanjeev
