Article 226 Petition Can Be Moved Even When Fundamental Right Is Threatened, Provided Apprehension Is Well Founded: JKL High Court

The Jammu and Kashmir and Ladakh High Court on Tuesday reiterated that a petition under Article 226 can be entertained even when the fundamental right of a citizen is threatened and one need not await the actual prejudice or adverse effects for filing the same, provided his apprehension is well founded.The observations were made by Justice Rajesh Sekhri while hearing a plea in terms of which the petitioners had invoked the writ jurisdiction 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.In the instant case the petitioners were granted licence for opening Fair Price Shops under targeted Public Distribution (Control) Order, 2015. The petitioners feared that since the Government of J&K has come up with a new policy vide Government order dated 12.03.2018 their current position may be disturbed without following the due procedure. It was as a result of the said apprehension that the petitioners were seeking a writ ofMandamus 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.Countervailing the stand taken by the petitioners, the respondents countered by submitting that the present petition is solely based on assumptions and presumptions is hence not maintainable.Adjudicating upon the matter Justice Sekhri observed that a petition can be entertained even 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, the bench underscored. However after perusing the Govt Order the court deduced that as per the said Government Order 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. 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, the court pointed. The bench further observed that it is manifest from the Govt Order that the petitioners have filed the present petition on the basis of mere apprehensions, which is unfounded and cannot be sustained. It thus found the petition premature and dismissed it. Case Title: Farooq Ahmad Bhat Vs UT of J&K Citation: 2023 LiveLaw (JKL) 16Coram: Justice Rajesh Sekhri Counsel For Petitioner: Mr Gulzar Ahmad Bhat Counsel For Respondent: Mr Sheikh Feroz DyAG Click Here To Read Order

Article 226 Petition Can Be Moved Even When Fundamental Right Is Threatened, Provided Apprehension Is Well Founded: JKL High Court

Basit Amin Makhdoomi

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Article 226 Petition Can Be Moved Even When Fundamental Right Is Threatened, Provided Apprehension Is Well Founded: JKL High Court

Basit Amin Makhdoomi

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