SRIKRISHAN GUPTA Vs. GOVT OF NCT OF DELHI

JUDGEMENT

(1.) This writ petition relates to the grant of a licence of a Kerosene Oil Depot (KOD) in the year 1994 for which the Petitioner as well as Respondent No.2 were applicants and aspirants. The Petitioner was not successful and the KOD was granted to Respondent No.2. This decision has been assailed on the ground that Respondent No.2 was illegally treated as a physically disabled person despite the fact that the medical certification on which he had relied specifically stated that his disability was less than 40%. Secondly, it has been contended that the decision which had to be taken by the Assistant Commissioner was in fact taken by the Minister/MLA and, therefore, there has been a dereliction of the statutory duty in the Office of the Commissioner.

(2.) Learned counsel for the Respondent No.2 has raised a preliminary objection to the effect that the Petitioner has not availed of the remedy of filing an Appeal against the Order rejecting his application for grant of a licence. In this context reliance has been placed by learned counsel for Respondent No.2 on Rule 8 of the Delhi Kerosene (Export and Price Control) Order, 1982 brought into effect in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955. This provision stipulates that any person aggrieved by an Order of an officer below the rank of Commissioner (Food & Supply), Delhi refusing to grant or renew a licence, or suspending or cancelling the licence, or forfeiting the security deposited by him, may prefer an Appeal before the Commissioner (Food & Supply) within a period of thirty days of receipt of such an order. In my view this provision does not apply to the facts of the present case. A writ petition may contain a prayer for the grant of a licence; additionally it may contain a prayer seeking cancellation of the grant of a licence to a third party, for the reason that that decision was illegal. The second prayer would not come within the ambit of Rule 8 of the Delhi Kerosene (Export and Price Control) Order, 1982. In an enquiry covering the second event, if the Respondents can show that there is no infraction of the law in the grant of licence to the concerned party, the enquiry under Article 226 ought not to go any further. An Order granting the licence to Respondent No.2 can be assailed in a writ filed by a totally disinterested person on the grounds that it is mala fide or otherwise illegal. A writ petition filed by a person who was a candidate would also be maintainable. Furthermore, the impugned decision appears to have been taken by the District Commissioner who is not below the rank of Commissioner (Food and Supplies).

(3.) So far as the disability is concerned, it has not been controverted that Respondent No.2 has a disability which is less than 40%. The Persons with Disabilities (Equal Opportunities, Protection of Rights and full participation) Act, 1995 (hereinafter referred to as `the Disability Act') came into force only on 7.2.1996 and, therefore, would not directly have a bearing on the controversy in question. However, it is noteworthy that Section 2(t) of the Disability Act defines person with disability to mean a person suffering from not less than 40% of any disability as certified by a Medical Authority. It is, however, evident that this was the prevailing thinking so far as relevant criteria is concerned even at the time when the licence was granted. The Uniform Definition of Physically Handicapped, promulgated by the Government of India, Ministry of Welfare, Shastri Bhawan, New Delhi, dated 6.8.1986, bears evidence of this fact. The relevant portion reads as follows:- ¢ ¢â ¬ …â Subject: Uniform Definitions of the Physically Handicapped. At present, different definitions for various categories of handicapped are adopted in various schemes/programmes of the Central and State Governments. In order to have a standard set of definitions, authorised certification authorities and standard tests for purpose of objective certification. Government of India in Ministry of Welfare set up three committees under the Chairmanship of Director General of Health Services ¢ ¢â ¬ ¢â ¬ one each in the area of visual handicaps, speech and hearing disorders and locomotor disabilities and a separate Committee for mental handicaps.