Bhupesh Kumar Gupta vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 13 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner has filed this writ petition, aggrieved by the order dated 6th May, 1999, passed by the Commissioner, Food & Supplies, by which the allotment of KOD Depot at Tughlakabad Railway colony, has been made in favor of respondent No. 4. Petitioner had been allotted the said KOD vide order dated 21st January, 1998. Petitioner by the writ petition also seeks restoration of the said license, as was granted vide order dated 21st January, 1998.

2. The facts giving rise to the present writ petition may be briefly noted:-

3. The Commissioner, Food & Supplies, vide vacancy notice dated 3rd January, 1997 had, inter alia, invited applications to run the kerosene oil depot in five areas, specified in the said notice. At S.No.1 was Tughlakabad Railway Colony and Pul Prhaladpur. This was unreserved vacancy. After consideration of these applications, Commissioner, Food & Supplies vide his order dated 21st January, 1998, found the petitioner as the eligible and most suitable candidate and allotted the license to him. Two persons, namely, (i) Ms. Pratima Yadav and (ii) Anand Kumar, respondent No. 4 herein, being aggrieved by the said order availed of their legal remedies. Respondent No. 4 preferred a review petition on 19th February, 1999, while Ms. Pratima Yadav filed an appeal before the Financial Commissioner. In the said appeal, petitioner, being the successful allottee, had also been imp leaded as a party. The appeal filed by Ms. Pratima Yadav was allowed vide order dated 28th January, 1998. For facility of reference, the operative portion of the order in appeal may be reproduced:-

"Hence, without touching the merits of this particular case at all and in view of these alleged major deficiencies as pointed out by the appellant's counsel here, this particular case deserves being remanded for reconsideration by the Commissioner, Food & Supplies on facts/merits and under the law after noticing/hearing all concerned.

Remanded accordingly. Order announced."

4. The order of remand recapitulates in sub paras (a) to (g) the deficiencies found in the case of the petitioner. Pursuant to the aforesaid order of remand, the Commissioner, Food & Supplies decided the matter vide his comprehensive order dated 6th May, 1999, setting aside the order dated 21st January, 1998 and directing the allotment in favor of respondent No. 4.

5. Mr. K.C. Mittal, learned counsel for the petitioner, has urged that petitioner has been unfairly treated by consideration of belated review application made nearly after one year by respondent No. 4. This, to my mind, in the present case, would not be of any consequence, in view of the fact that in the appeal preferred by Ms. Pratima Yadav against the allotment in favor of the petitioner, the order of remand directed consideration of the matter on merits by noticing/hearing all concerned. As such the issue of allotment to the petitioner was not a closed chapter and was open for reconsideration in the remanded proceedings itself.

6. Learned counsel next contended that the Commissioner Food & Supplies has grievously erred in treating the present vacancy as a reserved vacancy and giving benefit to respondent No. 4 on the basis of a claim of being physically handicapped. He submits that respondent No. 4 in fact did not even participate or lead evidence before the Screening committee and the claim on the basis of physically handicapped was not agitated then. This argument proceeds on a misconception. The vacancy, no doubt, is a "general unreserved one." Respondent No. 4 has not sought allotment on the basis of being a reserved candidate, rather he has applied as a general candidate. It is the Commissioner Food & Supplies, who has taken note of the Medical Certificate of disability, issued by the Superintendent, Safdarjung Hospital, which is of 1989 and is on record. He considered the same as a factor in favor of respondent No. 4, in terms of the policy. For facility of reference, the conditions of eligibility for allotment of PDS outlet (para No. 2 (a) may be reproduced:-

"It is also notified for the information that other things being equal, preference will be given to the applicants belonging to Physically Handicapped not totally incapable in running the PDS outlets."

7. Accordingly, the impugned order cannot be faulted with for having taken notice of one of the conditions of eligibility and the preference provided therein. Learned counsel next contended that the impugned order has failed to notice that respondent No. 4 did not have a clear title to the property and that it was a wakf property, where respondent No. 4, was having his establishment. The impugned order has comprehensively dealt with this issue. The Commissioner reached the conclusion that there was no alienation of the wakf property and possession has been passed by means of instruments executed by Abdul and Hamid Saheb/Abdul Mazid Sahed through Charanajeet Singh to respondent No. 4. In other words, it reached the conclusion that possession of respondent No. 4 was not an unlawful possession. He had valid possession of the premises. It may be noticed that it is not anybody's case that respondent No. 4 is not in authorised possession of the premises in question. Not having title or ownership is not a disqualification.

In view of the foregoing discussion, I do not find any ground made out for interference in the exercise of writ jurisdiction. The writ petition has no merit and is dismissed.