Farooq Ahmad Bhat & Ors vs Ut Of J&K& Others
2023 Latest Caselaw 58 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR

                                        Reserved on:         02.02.2023
                                        Pronounced on:       07.02.2023


                          WP(C) No.1934/2020
                           CM No.934/2020


FAROOQ AHMAD BHAT & ORS.                      ... PETITIONER(S)
                   Through: -    Mr. Gulzar Ahmad Bhat, Advocate.

Vs.

UT OF J&K& OTHERS                             ...RESPONDENT(S)
                   Through: -    Mr. Sheikh Feroz, Dy. AG.

CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                             JUDGMENT

1) The petitioners have invoked the writ jurisdiction of

this Court under Article 226 of the Constitution of India

for issuance of a Writ of Mandamus commanding upon

the respondents not to disengage them with respect to

operation of Food Fair Price Shops allotted to them under

valid and proper licences.

2) Before a closer look at the grounds urged in the

memo of petition, it shall be apt to have an overview of the

background facts giving rise to the present petition.

3) Case set up by the petitioners is that the

Government of J&K issued a policy for opening Fair Price Page |2

Shops under targeted Public Distribution (Control) Order,

2015 and a scheme thereunder was issued by the

Government vide Order No.127-FCS&CA of 2016 dated

04.08.2016. The object of the scheme with respect to

opening of Food Fair Price Shops at other

villages/locations was to provide easy access/availability

of food to every household at the nearest possible location

and to provide livelihood to the unemployed youth on

commission basis. According to the petitioners, they are

operating and running the Food Fair Price Shops at

different villages/locations allotted to them by the

concerned competent authority after completing the legal

formalities and requirements.

4) It is further case of the petitioners that petitioner

No.1 was granted licence in reference to approval issued

by the Administrative Department on 06.02.2003 and

sanction was accorded to him for grant of dealership on

commission basis for the location Khoshipora for 243

rationees. Petitioner No.2 was granted licence on

20.08.2014 and the sanction for dealership was accorded

to him for the location K-Check Wagund covering three

villages for 489 rationees. Petitioner No.3 was granted

licence on 23.02.2006 and dealership sanction was

accorded in his favour for the area, namely, Dalwatch for Page |3

557 rationees. Petitioner No.4 was granted licence on

20.082014 for Lower Munda location for 235 rationees.

Petitioner No.5 was granted licence on 20.12.2011 and

was accorded dealership sanction for Check Budwani and

he was supplying ration to 285 rationees. Petitioner No.6

was given licence on 20.10.2003 and was accorded

sanction for grant of dealership for the area known as

Drienen and he was supplying ration among 376

rationees. Petitioner No.7 was granted licence on

11.04.2004 for the area, namely, Drienen Wanpora and he

was supplying ration to 755 rationees. Similarly, petitioner

No.8 has been given licence on 13.10.2003 for the

location, namely, Kurigam, for 304 rationees and

petitioner No.9 was granted license on 10.06.208 and he

was supplying ration to 213 rationees. All the petitioners

have been granted dealership on commission basis to deal

with the transaction regarding sale and storage of food

grains and sugar under public distribution system to the

consumers of their concerned areas.

5) The grievance of the petitioners is that the

Government of J&K has come up with a new policy vide

Government Order No.70-FCS&CA of 2018 dated

12.03.2018 and they apprehend that their position may

be disturbed without following the due procedure Page |4

established by law. Consequently, petitioners seek a

Mandamus commanding upon the respondents not to

disengage them and disturb their existing position with

respect to the operation of Food Fair Price Shops allotted

to them under valid licenses.

6) Countervailing the stand taken by the petitioners,

the respondents are affront on the predominant premise

that the present petition being based on assumptions and

presumptions is not maintainable. According to the

respondents, none of the Constitutional, Statutory or

fundamental rights of the petitioners have been violated

and since no order has been passed and no action has

been taken by the respondents, therefore, the present

petition, being misdirected and misconceived, is liable to

be dismissed. The respondents have taken a specific stand

that whenever any order will be issued, it will be based on

and strictly in accordance with rules and guidelines

issued on the subject.

7) Having heard rival contentions of the learned

counsels and having appreciated the law governing the

field, I am of the considered opinion that it no longer

remains res integra that a writ petition on mere Page |5

apprehension or assumptions and presumptions is not

maintainable.

8) While reiterating the grounds urged in the memo of

petition, Mr. Gulzar Ahmad Bhat, learned advocate

appearing for the petitioners has relied upon judgments of

the Hon'ble Supreme Court in the cases of D. A. V.

College, Bathinda etc. vs. The State of Punjab and

others (AIR 1971 SC 1731) and Adi Saiva

Sivachariyargal Nala Sangam vs. The Government of

Tamil Nadu reported in (2016) 2 SCC 725, to submit

that a writ petition under Article 226 can be maintained

even on the basis of apprehensions when fundamental

rights of the citizens are threatened.

9) I have carefully gone through the case law cited at

bar by learned counsel for the petitioners and on perusal

of both the citations, it is clear that both the cases are

clearly distinguishable on facts and circumstances

attending the present case.

10) In D. A. V. College, Bathinda (supra), Hon'ble

Supreme Court has held that a petition under Article 32 of

Constitution is maintainable if fundamental rights of the

petitioner are either threatened or violated and it is not

necessary for any person, who considers himself to be Page |6

aggrieved, to wait till the actual threat has taken place.

However, Hon'ble Supreme Court made this observation in

the background that the Government of Punjab had

issued various circulars in the light of Sections 4(2) and 5

of the Punjab University Act 35 of 1961. It is pertinent to

mention that Hon'ble Supreme Court quashed the said

circulars being ultra vires of the powers vested in the

University.

11) Similarly, the Apex Court in Adi Saiva

Sivachariyargal Nala Sangam (supra), has observed that

institution of writ proceedings need not await actual

prejudice and adverse effect and consequences. In the said

case, the writ petitioners had assailed certain orders and

ordinances issued by the Government of State of Tamil

Nadu. Relevant extract of the judgment, for the facility of

reference, is reproduced below:

"It is difficult for us to accept the contentions advanced on behalf of the respondents with regard to the maintainability of writ petitions on two counts. Firstly, it is difficult to appreciate as to why the petitioners should be non-suited at the threshold merely because the G.O. dated 23.05.2006 has not been given effect to by actual orders of the State Government. The institution of a writ proceeding need not await actual prejudice and adverse effect and consequence. An apprehension of such harm, if the same is well founded, can furnish a cause of action for moving the Court. The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be Page |7

too simplistic a solution to adopt to answer the issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof."

(underlined for emphasis)

12) It is evident from the afore-quoted case law that a

petition can be entertained if fundamental right of a

citizen is threatened and the petitioner need not await the

actual prejudice or adverse effects and consequences,

provided his apprehension is well founded. In other words,

the petitioner is obliged to give reasons for his

apprehension and writ petition cannot be maintained on

mere assumptions and without any basis.

13) Adverting to the present case, the only apprehension

of the petitioners is that since the Government of J&K has

introduced a new scheme dated 12th March, 2018, their

position may be disturbed. The relevant extract of the said

Government Order, reproduced in the writ petition, is as

below:

"The licenses obtained under any of the previous relevant order in force on the date of coming into force of this order, shall be deemed valid, subject to the condition that the same is certified by the concerned Director, FCS&CA, that the licence holder is fulfilling all the codal formalities enumerated under law/rules/orders/guidelines in vogue meant for the public distribution system so far as it pertains to the Page |8

issuance of licence for Fair Price Shop dealership, and accordingly a certificate to this effect be submitted to the Administrative department within 15 days from issuance of this order."

14) It is evident from the afore-quoted Government Order

that the licences obtained under the previous orders are

deemed valid subject, however, to the condition that the

same is certified by the concerned Director, FCS&CA, to

ensure that the licence holder fulfills all the codal

formalities under relevant law/rules/orders/ guidelines in

vogue meant for the public distribution system. As a

matter of fact the existing position of the licence holders

under the previous order has been taken care of under the

new order dated 12.03.2018 and there is nothing on the

record to suggest that respondents have any intention to

initiate any action, much less to pass any order, affecting

the rights of the petitioners. It is manifest as such that

petitioners have filed the present petition on the basis of

mere apprehensions, which is unfounded and cannot be

sustained.

15) I am fortified in my opinion by an order dated

03.05.2019 passed by this Court in the case of Nazir

Ahmad vs. State and others [WP(C) No.1601/2019]. The

relevant extract of the order is reproduced below:

"4. The present petition challenges the action which the petitioner apprehends may be taken on the basis Page |9

of aforesaid complaint. I am of the opinion that mere filing of a complaint again the petitioner does give him any cause of action to approach this Court. I find the present writ petition is premature at this stage as no formal action adversely affecting the rights of the petitioner is either initiated or taken. The writ, on mere apprehension, is not maintainable, unless there is material on record to indicate that the adverse action is imminent or there is real threat of invasion of rights of the petitioner. In the instant case, nothing of this sort has been placed on record."

16) In a similar fact situation, this Court in Charanjit

Singh Kala and others vs. Union of India and others

[WP(C) No.2318/2022 dated 03.11.2022] has made the

following observations:

"7.It is settled proposition of law that no writ petition can be filed on mere apprehension or without any cause of action which admittedly has not been accrued in the present case and thus the present petition, in light of the aforesaid facts and circumstances is not maintainable and is liable to be dismissed."

17) Similarly, High Court of Kerala in Hamjad Ali vs.

Union of India and others [WP(C) No.27165 of 2020

dated on 08.12.2020] observed as below:

"To answer the said question, it is only apposite to refer to a decision of the Hon'ble Apex Court in Manish S. Pardasani v. Inspector State Excise, reported in [2019(2) SCC 660]. In the said decision, the Apex Court while deprecating the judgment carrying certain directions issued in a writ petition filed apprehending issuance of an adverse order by an appellate authority held that the High Court should not have pre-empted the passing of any adverse order by an authority and further held that the settled position is that a court could stay or quash only those orders, which are impugned in the lis before it and in other words, only if an order is actually passed, that will be available for challenge and a writ petition P a g e | 10

founded only on an apprehension shall not be maintained under Article 226 of the Constitution of India. Certainly, this Court will not be justified in passing an order not to execute a detention order when the petitioner himself is not certain whether such an order has been passed against him.

In the said circumstances, we are of the view that this writ petition is premature. The petitioner could not have approached this Court merely based on an apprehension. The writ petition is, therefore, liable to fail and accordingly it is dismissed."

18) High Court of Kerala in Parent Teachers'

Association and another vs. State of Kerala and others

[WP(C) No.8695 of 2006 decided on 08.11.2010] has also

ruled as below:

"In the facts and circumstances of the case, I do not think that the petitioners have any subsisting grievance which can be entertained in a petition under Article 226 of the Constitution of India. As rightly submitted by the learned counsel for the respondents, the apprehension of the petitioners voiced in the Writ Petition shows that the Writ Petition is premature. No rights of the petitioners are affected as of now. If any Notification is issued proposing the upgradation of any school, the parties concerned would get an opportunity to raise their objections. I do not think that the petitioners have made out sufficient grounds for granting any relief to them at this stage."

19) In identical circumstances, High Court of Orissa at

Cuttack in M/S East End Technologies Private Limited

vs. Union of India and others (WP(C) No.22223 of 2022)

held as follows:

"Having heard learned Sr. counsel appearing for the petitioner and after going through the records, it appears that the petitioner has approached this Court by filing this writ petition in apprehension. Therefore, the writ petition is premature one. However, in the P a g e | 11

event any adverse order is passed by the authority, it is open to the petitioner to pursue its remedy before the appropriate forum in accordance with law."

20) Having regard to what has been observed and

discussed above, the present petition having been filed on

unfounded apprehensions and being premature is

dismissed with connected CM(s). Interim direction, if any,

shall stand vacated.

(RAJESH SEKHRI) JUDGE Srinagar, 07.02.2023 "Bhat Altaf, PS"

Whether the order is speaking: Yes/No Whether the order is reportable:Yes/No