Fair Price Dealers Association vs State Of Jharkhand And Ors

This writ petition is under Article 226 of the Constitution of India, whereby and whereunder petitioner has prayed for quashing of the order dated 04.01.2019 issued by the District Supply Officer, Sahibganj and also for cancellation of new licences of the Public Distribution System pursuant to the aforesaid order.

It is the case of the petitioner that the State of Jharkhand has come out with a notification notified on 07.03.2019 by the Food, Public Distribution & Consumer Affairs Department which contains a provision of minimum educational qualification to be considered at the time allotment of licence in favour of one or the other successful licencee but contrary to the said notification, the respondent authorities has come out with a public notice issued through Collectorate, Sahibganj through District Supply Officer dated 04.01.2019 by which the application for allotment of shop under Public Distribution System has been invited but very surprisingly there is no reference of any minimum educational qualification.

Not only that on the basis of public notice the licences have been issued in favour of one or other, therefore, the very mandate as has been issued by the State of Jharkhand vide notification dated 07.03.2019 has been flouted, therefore, this writ petition.

Learned A.C to S.C-VII has submitted that the writ petition is for seeking a relief to quash Annexure-2 dated 04.01.2019 since the mandatory requirement of having educational eligibility condition has not been stipulated therein and since the licences have been issued in terms of the Annexure-2 dated 04.01.2019, therefore all the licences be held to be contrary to the notification dated 07.03.2019 but the notification which has been said to have a condition of minimum 10th class pass certificate making a pre-condition for allotment of shop under the Public Distribution System although notification has been issued vide dated 07.03.2019 but prior to the said notification the District Supply Officer, Sahibganj has come out with a public notice on 04.01.2019 and if any licence has been issued in terms of the public notice dated 04.01.2019 the same cannot have adversely affected by the notification dated 07.03.2019 on the basis of position of law that any notification cannot be implemented with retrospective effect.

His further submission is that the petitioner has not pleaded anywhere in the writ petition that by making reference of date of licence after notification dated 07.03.2019 having been given effect to any licence has been issued and in absence thereof no direction can be passed questioning the licence issued in favour of successful candidates.

Upon this, learned counsel for the petitioner has submitted that he has made an application by approaching to the Public Information Officer under Section 5 under the Right to Information Act, 2005 but no information has been received, therefore, this writ petition.

Having heard leaner counsel for the parties and on appreciating the rival submission, this Court deem it fit and proper to deal with the scope of Article 226 of the Constitution of India in a matter of issuance of writ of command or the writ of certiorari.

It is not in dispute that the writ of command can be issued by issuing writ of mandamus, if there is inaction on the part of the authority who has failed to do statutory duty or if he has exceeded his jurisdiction as conferred under the statute.

A writ of certiorari can be issued by the High Court under the provision of Article 226 of the Constitution of India, if any order passed by the authority found to be contrary to law or in infringement of fundamental right or passed contrary to statutory provision or if passed without providing opportunity of hearing, the order can be passed by issuing the writ of certiorari but before doing that it is incumbent upon the litigant to come forward before the Court of having writ jurisdiction by making out a specific case.

A writ cannot be issued merely on presumption or assumption, since it is a summary proceeding based on the document and material available on record and that is the reason it is different to that of suit which is to be adjudicated by the competent court of civil jurisdiction, wherein the requirement is initially to file a plaint and in subsequent stage the document is to be filed for proving it and questioning by the respective parties but in a writ proceeding being a summary proceeding, the writ Court is supposed to look into the case from the pleading based upon supported by the document.

In the case in hand, the petitioner's specific case is that Annexure-2 is not sustainable being issued in contrary to Annexure-6 which is a notification issued on 07.03.2019.

The ground has been taken that the Annexure-2 does not contain statutory condition stipulated under the notification dated 07.03.2019 which contains a condition for being eligible to get the licence under the Public Distribution system of having passed 10th class examination, as would appear from Condition No.9 (vii).

While Anexure-2 has been issued by the District Supply Officer, Sahibganj on 04.01.2019 admittedly prior to issuance of notification dated 07.03.2019.

The petitioner has made second prayer in the writ petition to quash the licence issued in favour of the person concerned but without impleading the licencee as party and without bringing any licence on record as to whether licence has been issued after notification dated 07.03.2019 or prior to it.

If the licnense has been issued prior to 07.03.2019 and after 04.01.2019 the plea which has been taken that the passing of 10th class pass is mandatory will not be taken into consideration since the notification containing the specific eligibility condition will not have retrospective effect.

It is settled position of law that the effect of a statute to be implemented with retrospective effect lies upon legislature/parliament.

It is evident from the notification dated 07.03.2019 that if it is by way of subordinate legislation in the name of His Excellency the Governor, meaning thereby the force is of subordinate legislation and as such the subordinate legislation is not applicable with retrospective effect.

This Court after going across the material available on record and on the basis of detailed discussion made hereinabove is of the view that the petitioner has approached this Court without annexing relevant documents, the licences are being sought to be quashed without impleading the licencees as party to the proceeding, therefore, this Court constrained to hold that the writ petition is misconceived.

Therefore, this Court is not inclined to interfere with the order impugned.

In view thereof, the writ petition fails and is dismissed.