MOHD. RAZAQ Vs. STATE OF J. & K.

JUDGEMENT

(1.) The petitioners in these three writ petitions were granted licenses for running fair price shops in different locations to cater to need of lakhs of people. It is claimed that for the last more than thirty years, they were running fair price shops as dealers and getting 5% sales value as commission. On 16-7-2014, the Cabinet of the State of Jammu and Kashmir took a decision to formulate Government Controlled Sales Depot by opening 7967 shops. That decision apparently did not culminate into a final Government order as no order was passed. In the mean while, the National Food Security Act, 2013 came into force and was made applicable in the State of Jammu and Kashmir vide order dated 4-1-2016, so as to enable the State Government to provide ration to twenty lakh beneficiaries and therefore, a policy decision was taken on 4-8-2016 through executive order to open new fair price shops. In the meanwhile, based on the Cabinet decision dated 16-7-2014 the Government wanted to open Government Controlled Sales Depot. It appears that dealers who were running fair price shops were asked to surrender their licenses and many surrendered it. Some of them filed writ petitions and got interim protection.

(2.) The cause of action of the present batch of writ petitions is that the earlier Cabinet decision should prevail and the new decision that is to say dated 4-8-2016 to open fair price shops is bad. The said issue was considered by a Co-ordinate Bench of this Court in OWP No. 730/2016 and connected matters and decided on 8-11-2016 (AIR 2017 J & K 6) and the same was dismissed with the following observations:

(3.) Ms. Seema Shekhar, learned Senior Additional Advocate General appearing for the respondents, states that the issue raised in the present writ petitions is covered by the earlier order. Mr. U. K. Jalali, learned Senior Advocate, however, points out that the earlier Cabinet decision cannot be over-written by an executive order. This aspect has not been considered in the earlier order. The learned single Judge has observed that the implementation of the new policy does not affect the rights of the petitioners as they would continue to run fair price shops on commission basis in paragraph 10 of the decision, which is extracted above. It is also recorded in paragraph 5 of the decision that some petitioners have not surrendered their licenses and it is pointed out by learned Senior Additional Advocate General that by virtue of earlier order their licenses have been kept intact. Therefore, the fundamental right of the writ petitioners to conduct their business has been protected. Petitioners cannot thwart the Government policy to implement the welfare scheme, when their right to run business is not disturbed. Therefore, in view of the earlier decision and the observations made therein the writ petitions does not merit consideration.