SATISH BIRHA vs STATE OF CHHATTISGARH

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CGHC010106282023 2026:CGHC:45511
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 1594 of 2023
1 - Satish Birha S/o Shri Heera Lal Birha Aged About 42 Years R/o Ward
No. 5, Indira Nagar, Karbala Chowk, Dongargarh, District Rajnandgaon
(Chhattisgarh)
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Accommodation
Environment And Urban Development Department, Mantralaya,
Mahanadi Bhawan Naya Raipur, Atal Nagar, P.O. And P.S. Naya Raipur,
District Raipur (Chhattisgarh)
2 - The Collector Rajnandgaon (Chhattisgarh)
3 - The Sub Divisional Officer Revenue, Dongargarh, District
Rajnandagaon (Chhattisarh)
4 - The Chief Municipal Officer Municipal Council, Dongargarh, District -
Rajnandgaon (Chhattisgarh)
... Respondents
(Cause-title taken from the Case Information System)
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For Petitioner :- Mr. V.K. Pandey, Advocate
For State :- Mr. Abhyuday Tripathi, P.L.

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For Respondent No. 4 :- Mr. Shikhar Shukla, Advocate
-----------------------------------------------------------------------------------------------
SB- Hon'ble Shri Justice Amitendra Kishore Prasad
Order On Board
28.10.2026
1. By way of the present writ petition, the petitioner has prayed for a
direction to the respondent authorities to consider his case for
allotment of a shop constructed under the Mukhya Mantri
Swalamban Yojna, in accordance with the eligibility criteria and
the prescribed procedure, and further to restrain the respondents
from allotting the said shop to any other person without following
due process of law.
2. Facts of the case are that the petitioner has filed the present writ
petition alleging that the respondent authorities have failed to
consider his claim for allotment of a shop constructed under the
Mukhya Mantri Swalamban Yojna. It is submitted that the
petitioner belongs to the Scheduled Caste category and is an
unemployed and economically weaker person, who has been
running a cycle repairing business since 2012–13 from a
permanent thela (handcart). The petitioner claims that he is
eligible for allotment of a small shop constructed by respondent
No.4 under the aforesaid scheme. It is further submitted that the
respondent authorities have constructed certain small shops
behind the place where the petitioner has been carrying on his
business. However, instead of inviting applications through a

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public advertisement and following a transparent procedure for
allotment, the authorities have allegedly initiated the process of
allotting the shops to other persons, who, according to the
petitioner, are not eligible under the scheme. It is further
contended that despite repeated representations and requests
made by the petitioner, his claim for allotment of a shop has not
been considered by the respondent authorities. The petitioner
submits that he is ready and willing to fulfil all the terms and
conditions prescribed for allotment under the scheme. However,
the authorities are proceeding to allot the shops to other persons
without considering his legitimate claim.
3. Following reliefs have been prayed in this petition:-
“10.1 issue notices to the respondents, returnable
within early date of hearing.
10.2 to direction the respondents No.2 to 4 to consider
the request made by the petitioner for allotment of the
shop constructed under Mukhya Mantri Swalamban
Yojna at Ward No.5, Dongargarh, Distirct Rajnandgaon
(C.G.).
10.3 issue any other relief(s)/ order(s)/ direction(s) in
favour of petitioners, which deemed fit & proper in the
facts & circumstances of the case, in the interest of
justice.
10.4 Cost of the petition.”

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4. Learned counsel for the petitioner submits that the petitioner is a
poor person who earns his livelihood by running a small bicycle
repair shop, which has been removed by respondent No. 4. It is
further submitted that respondent No. 4 has constructed certain
small shops under the Mukhyamantri Swavalamban Yojana, some
of which are lying vacant. Learned counsel, therefore, prays that
the petitioner may be considered for allotment of one of the vacant
shops, provided the same has not already been allotted to any
other person, so that he may earn his livelihood. Learned counsel
for the petitioner further submits that the petitioner is ready and
willing to abide by all the terms and conditions prescribed by the
respondent authorities for allotment of the shop.
5. Learned counsel appearing for respondent No. 4 submits that the
petitioner is above 40 years of age and, therefore, is not eligible
for allotment of a shop under the Mukhyamantri Swavalamban
Yojana, in view of the age criteria prescribed under the scheme.
6. Learned State counsel submits that the petitioner’s claim for
allotment of a shop under the Mukhyamantri Swavalamban Yojana
is required to be considered in accordance with the eligibility
criteria and other terms and conditions prescribed under the
scheme.
7. Having regard to the facts and circumstances of the case, this
Court is of the considered view that the petitioner, who earns his
livelihood by running a small bicycle repair shop, deserves

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consideration for allotment of a shop under the Mukhyamantri
Swavalamban Yojana. Article 19(1)(g) of the Constitution of India
guarantees to every citizen the right to practise any profession or
to carry on any occupation, trade or business, subject to
reasonable restrictions as contemplated under Article 19(6) of the
Constitution of India. The right to carry on an occupation is an
important facet of the petitioner's constitutional freedom to earn
his livelihood. Therefore, the object of the scheme ought to be
interpreted in a manner that facilitates the petitioner in earning his
livelihood, rather than defeating the very purpose for which such a
scheme has been introduced.
8. Recently, the Hon’ble Supreme Court in the matter of Kulsum
Nisha v. State of U.P. and Others 2026 SCC OnLine SC 1059
has held as under:-
“14. Article 14 of the Constitution of India,
guarantees equality before the law and equal
protection of the laws. Article 15(1) prohibits
discrimination on the grounds of religion, race,
caste, sex or place of birth. Article 21 protects the
right to live with dignity. These guarantees must
be interpreted in light of the constitutional
commitment to secure social and economic
justice embodied in the Directive Principles of
State Policy. Article 39(a), in particular, mandates
that the State direct its policy towards securing
that men and women equally have the right to an
adequate means of livelihood. Article 39(c)

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provides that the State shall direct its policy to
ensure that operation of economic system does
not result in the concentration of wealth and
means of production to the common detriment.
17. A Constitution Bench of this Court Shri Ram
Krishna Dalmia v. Shri Justice S.R. Tendolkar
1958 SCC OnLine SC 6 after taking note of a
decision rendered by seven Judge Bench of this
Court Budhan Choudhry v. Staeof Bihar (1954) 2
SCC 791 has held that Article 14 of the
Constitution forbids class legislation, but permits
reasonable classification for the purposes of
legislation. A classification, however, must satisfy
two conditions, firstly, it must be founded upon an
intelligible differentia which distinguishes persons
or things that are grouped together from others
left out of the group, and secondly the differentia
must have a rational relation to the object sought
to be achieved by the statute in question. The
doctrine of equality has, over time, evolved
beyond a narrow classification test. State action,
which is arbitrary, irrational, capricious, or
founded on impermissible stereotypes is equally
vulnerable to challenge under Article 14.”
9. Also, the High Court of Calcutta in Sudip Sakar v. State of West
Bengal and Ors. WPA 6533/2025 has held as under:-
“45. A policy that is capricious or lacks rational
justification is liable to be struck down. The state
practice of allowing older individuals to obtain
licences through compassionate appointment
while debarring them from general vacancies
weakens the rationale of physical fitness or

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technical proficiency. Imposing an upper age limit
of 45 years under Clause 11(v) of the 2024 order,
without a similar limit in other allotment
categories, creates an uneven 'playing field'. The
State's authority to regulate a trade under Article
19(6) has crossed into "Manifest Arbitrariness"
which is a ground for invalidating subordinate
legislation under Article 14.
46. The primary principle, as per the Supreme
Court's interpretation of Article 14, is that a law is
manifestly arbitrary if it is unfair, unreasonable or
imposed without adequate guiding principles.
The State has failed to furnish empirical data
showing that a person aged 46 to 60 years are
significantly less efficient in operating a retail
shop. In absence of a rational basis, the age limit
of 45 years is deemed to be an impermissible
whim under the Constitution.
50. Digital literacy is a skill and not a biological
trait type to age. A 50 year old may be more tech
savvy than a 25 year old. If the State wants tech
savvy dealers, it should mandate the computer
proficiency certificate as an eligible criteria rather
than banning an entire age group. The longevity
of service is a weak state interest compared with
the citizen's right to compete for a licence. Even
if a dealer starts at 46 he can serve for 14 years
before reaching the typical retirement age of 60
which is sufficient longevity. The Act does not
grant the State the power to impose moral or
arbitrary personal qualification that are unrelated
to the actual distribution of food grains.
51. By imposing an age gap that restricts the
pool of eligible distributors without a functional
reason, the state has exceeded the rule making
power granted to it by the Parliament. Clause
11(v) violates the basic structure of Article 14 and
compels the state to accept applications from all
eligible individuals, irrespective of the 45 year
age ceiling.

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59. The contention of the State that subordinate
legislation can be challenged only on limited
grounds such as violation of fundamental rights
is erroneous and contrary to settled law. Policy
decision is generally within the domain of the
executive, they are subject to judicial review if
they offend the basis requirements of Article 14
of the Constitution of India. The Hon'ble Supreme
Court in Indian Express Newspapers vs Union of
India reported in MANU/SC/0406/1984 :
1984:INSC:231 : (1985)1 SCC 641 has held that
subordinate legislation is subject to judicial
review not only on the ground of violation of
fundamental rights but also on the grounds of
unreasonableness, arbitrariness, and if it ultra
vires the parent act. Further, in State of Tamil
Nadu vs P Krishnamurthy, reported
MANU/SC/1581/2006 : 2006:INSC:177 : (2006) 4
SCC 517 the Court laid down that subordinate
legislation can be struck down if it is manifestly
arbitrary, violative of constitutional provisions, or
beyond the scope of delegated authority. Thus,
the scope of challenge is wide and not restricted
as contended by the respondents. In the present
case, the impugned clause is manifestly arbitrary
and lacks rational nexus with the object sought to
be achieved, thereby violating Article 14 of the
Constitution of India. The doctrine of
Arbitrariness, makes it clear that any provision
which is capricious or irrational is liable to be
struck down. Moreover, the impugned restriction
unreasonably curtails the petitioner's right to
practice a profession guaranteed under Article
19(1)(g) of the Constitution of India and is not
saved by the test of reasonableness under Article
19(6). The arbitrary exclusion also adversely
affects the petitioner's right to livelihood, which
forms an integral part of Article 21 of the
Constitution of India. Therefore, the impugned
subordinate legislation, being arbitrary,
unreasonable, and violative of fundamental
rights, is ultra vires the Constitution and is liable
to be struck down.

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60. Although the classification based on age
constitutes an intelligible differentia, the
impugned age limit of 45 years lacks rational
nexus with the object sought to be achieved. In
absence of any reasonable justification, the
classification becomes arbitrary and violative of
Article 14, thereby rendering the impugned
provision ultra vires. The impugned classification
must satisfy the twin test laid down in State of
West Bengal vs Anwar Ali Sarkar reported in
MANU/SC/0033/1952 : 1952:INSC:1 : AIR 1952
SC 75 and elaborated in Ram Krishna Dalmia vs
Justice Tendolkar reported in
MANU/SC/0024/1958 : 1958:INSC:29 : AIR 1958
SC 538, namely intelligible differentia and
rational nexus. While the age-based
classification may satisfy the former, it fails the
latter as no reasonable nexus with the object
sought to be achieved is demonstrated. Further,
as held in E.P. Royappa and Ramana Dayaram
Shetty reported in MANU/SC/0380/1973 :
1973:INSC:213 : (1974) 4 SCC 3, arbitrariness is
antithetical to equality. The impugned rule, being
capricious and without determining the principle,
falls foul of the doctrine of 'Manifest Arbitrariness'
as affirmed in Shayara Bano vs Union of India
reported in MANU/SC/1031/2017 :
2017:INSC:785 : (2017) 9 SCC 1. Accordingly
the provision is ultra vires and violates Article 14
of the Constitution of India.”
10. In the facts and circumstances of the present case, this
Court is of the considered view that the prescription of an age
limit, insofar as it operates to disentitle the petitioner from
consideration for allotment of a vacant shop despite his
willingness to comply with all other prescribed conditions,
warrants reconsideration in the light of the constitutional protection
under Article 19(1)(g) of the Constitution of India. Accordingly, the

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respondent authorities are directed to provide and allot a shop to
the petitioner under the Mukhyamantri Swavalamban Yojana,
subject to fulfilment of all other prescribed terms and conditions of
the scheme, except the condition relating to the age of the
petitioner, so that he may earn his livelihood. The petitioner shall
abide by the terms and conditions applicable to the allotment of
the shop.
11. This Court is further of the view that the petitioner's claim
ought not to be rejected solely on the ground that he has crossed
the prescribed age limit, particularly when the allotment sought is
intended to enable him to carry on his small occupation and earn
his livelihood. The respondent authorities are, therefore, directed
to complete the process of providing and allotting a suitable
vacant shop to the petitioner within a period of 45 days from the
date of receipt of a copy of this order, subject to compliance with
the aforesaid conditions.
12. In view of the aforesaid observations and directions, the writ
petition is allowed .
sd/-
(Amitendra Kishore Prasad)
Judge
Vishakha

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HEAD-NOTE
“Age-based restriction for allotment of a shop must
have a rational nexus with the object of the scheme. An
otherwise eligible person cannot be denied an
opportunity to earn livelihood on the basis of an
arbitrary age criterion.”