Om Sai Ram Store vs Govt Of Nct Of Delhi & Ors
2013 Latest Caselaw 4671 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: 08.10.2013

+      W.P.(C) 6373/2012

       OM SAI RAM STORE                              ..... Petitioner

                         Through: Mr Yogesh Kumar, Adv.

                         versus

       GOVT OF NCT OF DELHI & ORS                        ..... Respondent

                         Through: Ms Purnima Maheshwari, Adv.


CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

The petitioner before this Court applied for running a Fair Price

Shop in Meet Nagar under the name and style of M/s Om Sai Ram

Store. The said application was submitted pursuant to a vacancy notified

by the Department of Food and Supplies in Circle No. 46 (New Circle

No. 16), falling under Meet Nagar Area. An inspection of the business

premises of the petitioner was carried out on 05.01.2008 and the

relevant documents were also collected from him. The Screening

Committee consisting of Zonal Assistant Commissioner, Area Sub-

Divisional Magistrate and the Circle F.S.O. found the petitioner eligible

for allotment of the Fair Price Shop. The license however was not issued

to him.

2. Since the licence was not issued to the petitioner, despite his

being found eligible by the Screening Committee, he filed W.P.(C) No.

808/2009, which came to be disposed of vide order dated 08.04.2010.

In the counter-affidavit filed in the aforesaid writ petition, the

respondents relied upon a circular dated 30.05.2008 deciding to freeze

the number of Fair Price Shops and Kerosene Oil Depots on the ground

that considering the prescribed norms, 561 FPS and 1144 Kerosene Oil

Depots were already in excess. The writ petition was disposed of with a

direction that as and when situation changes and the aforesaid circular is

modified or withdrawn, the case of the petitioner can be considered.

3. The application of the petitioner came to be rejected vide order

dated 05.01.2011. The petitioner preferred an appeal against the said

rejection order dated 05.01.2011. In the appeal, the Special

Commissioner (North East) remanded the matter back to respondent No.

4 Assistant Commissioner (North East). This was followed by interview

letters being issued to three eligible candidates, including the petitioner,

to appear before the Selection Board on 22.02.2012. The Selection

Board recommended allotment of FPS licence to the petitioner.

However, despite that recommendation, the petitioner was informed

vide order dated 17.08.2012 that the Higher Authority had decided to re-

advertise as three out of the two short-listed candidates were found to be

non-existent at the time of the final allotment. Being aggrieved from the

said communication, the petitioner filed this writ petition seeking the

following reliefs:-

"a. quash the impugned communication dated 17.8.2012 with simultaneous direction to the respondents for allotment of license of the FPS under general category against the vacancy of FPS notified on 19.9.2007 in the area of Meet Nagar, Delhi Circle No.46 (now circle number 68) in the light of the decision dated 22.2.2012 of Selection Board in favour of the petitioner;

               b.     restrain the respondents from re-
               notification/ re-advertising the above
               vacancy."

4. In their counter-affidavit, the respondents have stated that the

shop of the petitioner was found partitioned in two parts and therefore,

he does not fulfil the essential requirement of being in possession of the

business premises. It is further stated in the counter-affidavit that the

son of the owner of the said premises had given in writing that he was

not willing to give the premises on rent. According to the respondents,

it was on this ground that they decided to re-advertise the aforesaid

allotment.

It would, therefore, be seen that there were two objections to grant

of FPS licence to the petitioner, the first being that he was not in

possession of business premises, where FPS was sought to be run and

the other that he being the sole candidate, the guidelines framed by the

Department necessitated re- advertisement of FPS licence.

5. A perusal of the order dated 22.06.2011, passed by Special

Commissioner (North East) would show that the respondents had agreed

before the Appellate Authority that business premises in possession of

the petitioner and had not been divided into two portions. It was further

admitted before the Appellate Authority that the son of the land owner

was not in possession of the shop in question. Vide order dated

14.05.2013, this Court, after noticing the submission of the respondents

that the only objection to allotment of FPS to the petitioner was his not

being in possession of the business premises, in respect of which

address was supplied by him, directed the petitioner to file an affidavit

stating therein that the premises in question, i.e., A-86, Meet Nagar,

Delhi was entirely in his possession. The learned counsel for the

petitioner states that he had filed the aforesaid affidavit vide diary No.

84779 on 27.05.2013. However, the said affidavit seems to have

misplaced by the Registry and is not on record. The learned counsel

undertakes to file another affidavit within three days from today. In

order to put this issue beyond any pale of controversy, I direct the

concerned Assistant Commissioner to carry out an inspection of the

aforesaid shop to verify whether the petitioner is in its sole possession or

not. Such inspection shall be carried out within two weeks from today.

6. As regards the contention that the guidelines framed by the

respondents necessitated advertisement of the FPS licence, I find no

merit in the contention. The guidelines, on which reliance is placed by

the respondents, to the extent it is relied upon, reads as under:-

"In cases where no application has been received against the notified vacancy or none of the application is found eligible for allotment and/or the selection board has decided for re-notification of the vacancy, the vacancy will be renotified with the approval of the Area Deputy Commissioner."

It would thus be seen that the aforesaid clause would apply where

no application is received against a notified vacancy or where none of

the applicants is found eligible for allotment. Admittedly, three persons,

including the petitioner had applied for the notified vacancy though two

of them were later found to be non-existent and the petitioner was found

eligible for allotment. Therefore, the aforesaid guideline would not

apply in his case.

7. For the reasons stated hereinabove, the writ petition is disposed of

with a direction to the respondents to grant FPS licence to the petitioner,

subject to his completing the formalities in this regard and further

subject to his being found during inspection by the Assistant

Commissioner to be in sole possession of Shop No A-86, Meet Nagar,

Delhi.

The writ petition stands disposed of. There shall be no order as to

costs.

Dasti under the signature of Court Master.

OCTOBER 08, 2013                                             V.K. JAIN, J.
BG