Shiv Prasad vs State Of U.P. Thru The Secy. And ...
2011 Latest Caselaw 1591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 

 
Case :- WRIT - C No. - 21207 of 2011
 

 
Petitioner :- Shiv Prasad
 
Respondent :- State Of U.P. Thru The Secy. And Others
 
Petitioner Counsel :- A. Chaturvedi
 
Respondent Counsel :- C.S.C.,Anuj Kumar
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Ran Vijai Singh,J.

(Per Hon'ble Ashok Bhushan, J.)

Heard Sri A. Chaturvedi, learned counsel for the petitioner, learned Standing Counsel and Sri Anuj Kumar appearing for respondent No.5.

By this writ petition, the petitioner has prayed for a writ of mandamus directing respondents No.2 and 3 to allot the shop in question in favour of the petitioner in pursuance of the proposal of Gaon Sabha dated 14th February, 2011 and further to pass appropriate order on the applications dated 25th February, 2011 and 28th March, 2011.

Brief facts of the case as emerge from the pleadings of the parties, are; the petitioner is a permanent resident of village Manoharganj. A letter dated 5th February, 2011 was issued by the Block Development Officer, Chitrakoot Dham, Karvi informing the Pradhan of several villages including respondent No.5 that fair price shop in the village is vacant on which selection is to be made. Petitioner's case is that an open meeting was held on 14th February, 2011 in which lottery system was adopted for selection of the fair price shop dealer and out of various chits, which were collected in the box, chit of the petitioner's name was taken out, hence the Pradhan recommended the petitioner's name for allotment of fair price shop. Petitioner's case further is that petitioner made an application on 25th February, 2011 to the Sub Divisional Officer praying that in pursuance of the resolution dated 14th February, 2011 he be allotted the fair price shop. A reminder has been submitted by the petitioner in this regard on 28th March, 2011 and thereafter this writ petition has been filed.

Learned counsel for the petitioner contends that the resolution having been passed in the open meeting of the Gaon Sabha in which majority decided to adopt lottery system for selection of fair price shop dealer and petitioner's name having been selected by lottery system, he is entitled for allotment of fair price shop.

Learned Standing Counsel appearing for the respondents, refuting the submission of counsel for the petitioner, contends that there being no resolution in favour of the petitioner in the open meeting, the petitioner is not entitled for allotment of the shop. It is submitted that the Government orders regulating the allotment of fair price shop do not contemplate selection of fair price shop dealer by lottery system. Learned Standing Counsel has relied on the Government order dated 3rd July, 1990 as well as Government order 17th August, 2002 copies of which Government orders have been placed before us for perusal.

We have considered the submissions of learned counsel for the parties and perused the record.

One of the questions for consideration in this writ petition is as to whether the resolution which is alleged to have been passed in favour of the petitioner approving his name by lottery system is a valid resolution for selection of petitioner as fair price shop dealer. It is relevant to have a look over the scheme which is delineated by various Government orders regulating the procedure for allotment of fair price shop. The Government order dated 3rd July, 1990 was issued on the subject of selection of fair price shop dealer for running the shop in the rural area. It is relevant to note Clauses 2, 4.4 and 4.10 of the said Government order, which are as under:-

"2. iqu%] vko';d oLrq,a izkIr djus ds fy, yksxksa dks T;knk nwj u tkuk iM+s] blfy, ;g mfpr izrhr gksrk gS fd izR;sd xkao lHkk esa de ls de ,d mfpr nj dh nqdku t:j gksA ;g Li"V gS fd ;fn nqdkus o nqdkunkj turk dh lqfo/kk dks /;ku esa j[kdj dke djsa] rks lkoZtfud forj.k iz.kkyh csgrj pysxhA nqdkunkjksa dk p;u djus esa ;fn xzkeokfl;ksa dh vke jk; dks egRo fn;k tk; rks lgh nqdkunkj dk p;u gks ldsxk] vkSj nqdkunkj LFkkuh; turk ds er dks Hkh egRo nsxkA

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4. mijksDr i`"BHkwfe esa xzkeh.k {ks=ksa esa lkoZtfud forj.k iz.kkyh dks tuksUeq[k cukus ds fy, 'kklu }kjk fuEufyf[kr fu.kZ; fy;s x;s gSa&&

4.1 :::::::::::

4.4 xkao lHkk dh jk; ls ;g mfpr nj dh nqdkus [kksyh tk;saxhA xkWao lHkk dh jk; mudh [kqyh cSBd esa ikfjr izLrko ds ek/;e ls izkIr dh tk;sA

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4.10 mfpr nj dh nqdku dh fu;qfDr esa miHkksDrkvksa ds er dks egRo nsus ds fy, ;g izfdz;k fu/kkZfjr dh xbZ gSA vr% ;fn xkao lHkk pkgs rks iwoZ esa nqdku pykus okys O;fDr ds i{k esa izLrko dj ldrh gS] c'krsZ os ojh;rk esa vkrs gksaA"

The abovementioned provisions of the Government order dated 3rd July, 1990 clearly indicates that for selecting the fair price shop dealer the views of residents have been given paramount importance. The selection is to take place in the open meeting of the Gaon Sabha. Clause 4.4 of the said Government order contemplates that view of the Gaon Sabha has to be ascertained by resolution in the open meeting. The Government order dated 3rd July, 1990 do not contemplate selection of the fair price shop dealer by lottery system.

The subsequent Government order 17th August, 2002 was issued on the subject. It is relevant to note that on the same day i.e. 17th August, 2002 two Government orders were issued. The first Government order being Government order No.2714/29-6-2002-162 Sa./2001, dated 17th August, 2002 is with regard to implementation of reservation in allotment of fair price shop under public distribution system in urban area whereas on the same day another Government order being No.2715/29-6-2002-162 Sa./2001 was issued on the subject for rural area. It is useful to have a look over the aforesaid Government orders. The Paragraphs 5 and 7 of the Government order No.2714/29-6-2002-162 Sa./2001 which was issued for urban area are relevant, which are quoted below:-

"5. gkfjtsUVy vkj{k.k lqfuf'pr djus gsrq efgyk] yM+kbZ esa ekjs x;s lSfud ifjokj ds lnL;@?kk;y lSfud vFkok muds ifjokj ds lnL; HkwriwoZ lSfud] Lora=rk laxzke lsukuh mudh iRuh rFkk fodykax O;fDr;ksa ds fy, vkj{k.k lqfuf'pr djus gsrq nqdkuksa dk fpUgkWadu fu/kZkfjr izfr'kr rd ykVjh i+)fr ls fd;k tk;sxkA izLrj&3 ds *d*] *[k*] *x*] *?k* gsrq izR;sd ds fy, dzeokj ,d ,d iphZ rc rd fudkyh tk;sxh trial Court rd fu/kkZfjr vkj{k.k dk fpUgkWadu iw.kZ ugha gks tkrk gSA ''

7. jk'ku dh nqdkuksa dk p;u mi;qZDrkuqlkj xfBr p;u lfefr }kjk fu/kkZfjr fuEufyf[kr vfuok;Z vgZrkvksa ,oa 'krksZa dks nqf"Vxr j[krs gq, fd;k tk;sxk%&

¼d½ vH;fFkZ;ksa ds [kkrs esa de ls de 40 gtkj :i;s miyC/k gksa rkfd og viuh nqdku dks vkoafVr ,d ekg dh lkexzh dk ,d ckj esa gh mBku djus ds fy, vkfFkZd :i ls l{ke gksaA

¼[k½ lkekU; [;krh vPNh gkssA

¼x½ f'kf{kr gks rkfd og nqdku dk fglkc&fdrkc lgh :i ls j[k ldsA

¼?k½ vH;FkhZ dks fdlh jktif=r vf/kdkjh dk pfj= izek.k i= vkosnu i= ds lkFk layXu djuk gksxkA

¼M+½ vH;FkhZ ds fo:) dksbZ Hkh vijkf/kd ekeys iathd`r u gks vkSj u gh og fdlh vijkf/kd ekeys esa nf.Mr fd;k x;k gksA

¼p½ vH;FkhZ dh vk;q 21 o"kZ ls vf/kd gks vkSj ifjokj esa fdlh vU; lnL; ds uke dksbZ nqdku vkoafVr u gksA

¼N½ nqdkunkj LFkkuh; fuoklh gksA

fpUgkWadu ds i'pkr nqdkunkjksa dk p;u ykVjh i)fr ls p;u lfefr }kjk fd;k tk;sxkA gksfjtsUVy vkj{k.k ds vUrxZr ;fn fdlh Lfkku ij mi;qDr Js.kh dk vH;FkhZ miyC/k ugha gksrk gS rc ftykf/kdkjh dks NwV gksxh fd og gksfjtsUVy Js.kh ds vUrxZr ml LFkku dks fdlh vU; Js.kh ds fy, fpUgkWafdr dj nsa ,oa ftl Js.kh dk vH;FkhZ miyC/k ugha Fkk ml Js.kh ds fy, fdlh vU; LFkku dks vkoafVr dj nsa ftlls gksfjtsUVy vkj{k.k iw.kZ gks ldsA ;fn nqdkunkj vPNh [;kfr dk gks] rc mldh e`R;q ds mijkUr nqdku dk vkoaVu mlds vkfJr dks djus ij Hkh fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSA ;g mYys[kuh; gS fd vukjf{kr fjfDr;ksa ds lkis{k fdlh Hkh oxZ dk vH;FkhZ vkosnu dj ldrk gS ijUrq vkjf{kr oxZ dh fjfDr;kWa mlh oxZ ls Hkjh tk;sxhA"

For identification of the shop in implementing the reservation lottery system has been introduced in paragraph 5 of the said Government order and further after identification the allotment of the shop has been contemplated by lottery system by the selection committee. In the urban area, thus, it is not contemplated that selection is to be made in open meeting on the basis of views of the body of persons residing in the urban area, rather the selection committee is to select the fair price shop dealer by lottery system.

In contrast to the aforesaid Government order, the Government order No. 2715/29-6-2002-162 Sa./2001 issued for allotment of the shop in the rural area provides for completely different scheme. According to paragraph 7 of the said Government order, selection of the fair price shop dealer is to be made in the open meeting of the Gaon Sabha by passing a resolution and thereafter the resolution is to be forwarded to the Committee headed by Sub Divisional Officer. It is, however, relevant to note that in the Government order No. 2715/29-6-2002-162 Sa./2001 while identifying the various shops for implementing horizontal reservation lottery system is contemplated. Following clauses of the Government order No. 2715/29-6-2002-162 Sa./2001 are relevant, which are quoted below:-

"bl 'kklukns'k ds ifjizs{; esa mi;qZDrkuqlkj fodkl [k.M dh oxZokj dqy fjDr nqdkuksa dh la[;k fu/kkZfjr rFkk fpUgkWadu dh tk;sxh rFkk gksfjtsUVy vkj{k.k ds vUrxZr efgyk] yM+kbZ esa ekjs x;s lSfud ifjokj ds lnL;@?kk;y lSfud vFkok muds ifjokj ds lnL;] HkwriwoZ lSfud] Lora=rk lsukuh mudh iRuh rFkk fodykax O;fDr;ksa ds fy, vkj{k.k lqfuf'pr djus gsrq xzke lHkkvksa dk fpUgkadu fu/kZkfjr izfr'kr rd ykVjh i)fr ds vk/kkj ij gh fd;k tk;sxkA izLrj&3 ds *d*] *[k*] *x*] *?k* gsrq izR;sd ds fy, dzeokj ,d ,d iphZ rc rd fudkyh tk;sxh tc rd fu/kkZfjr vkj{k.k dk fpUgkWadu iw.kZ ugha gks tkrk gSA

xzke lHkkvksa ds mi;qZDrkuqlkj fpUgkadu ds i'pkr xzkeh.k {ks= esa jk'ku dh nqdkuksa dk p;u xzke lHkk dh [kqyh cSBd esa izLrko ikl djds fd;k tk;sxk rFkk rhu ukeksa dk iSuy miftykf/kdkjh dh v/;{krk esa xfBr lfefr dks fu;qfDr gsrq izsf"kr fd;k tk;sxkA ;fn vH;fFkZ;ksa dh la[;k rhu ls de gS rks iSuy esa nks vFkok ,d dk uke Hkh Hkstk tk ldrk gSA xzkeh.k {ks=ksa esa ;FkklEHko izR;sd xzke lHkk esa ,d jk'ku dh nqdku gksxh vkSj ;fn xzke lHkk esa pkj gtkj ;wfuV ls vf/kd gks rks ,d ls vf/kd nqdku fu;qDr fd;s tkus ij fopkj fd;k tk ldrk gSA"

The aforesaid clauses of the Government order clearly indicates the procedure to be adopted for selection of the fair price shop dealer. Although lottery system has been adopted for identification of fair price shop for implementing reservation but in the very next clause it has been provided that selection of fair price shop dealer has to be made in the open meeting of the Gaon Sabha by passing a resolution. Thus the above Government order dated 27th August, 2002 does not contemplate selection of fair price shop dealer by adopting any lottery system. The Government order No. 2715/29-6-2002-162 Sa./2001 also makes it clear in paragraph 4(4) that the conditions of the Government order dated 3rd July, 1990 which are not in consistent to this Government order shall continue to apply. As noticed above, the Government order dated 3rd July, 1990 clearly contemplates obtaining of the majority views of Gaon Sabha for selection of the fair price shop dealer. In adopting the lottery system for selection of fair price shop dealer the views of the resident of the Gaon Sabha has no role to play and in view of the clear indication in the Government order No. 2715/29-6-2002-162 Sa./2001 for rural area selection has to be made in the open meeting of the Gaon Sabha by passing resolution and in the selection adopting of the lottery system is clearly ruled out. As noticed above, the Government order No. 2714/29-6-2002-162 Sa./2001 providing of selection of fair price shop dealer in the urban area clearly contemplates selection of fair price shop dealer by adopting lottery system by the selection committee whereas the said procedure has not been made applicable for selection of the fair price shop dealer in the rural area, rather different procedure has been contemplated for selection.

Learned counsel for the petitioner has contended that in fact the decision to adopt the lottery system was taken by majority in the meeting dated 14th February, 2011, hence no exception can be taken to the procedure adopted. The submission cannot be accepted. The Government order No. 2715/29-6-2002-162 Sa./2001 has to be given effect to in a manner so that object and purpose of the Government order is fulfilled. Permitting adoption of lottery system in the rural area shall be against the object and purpose of the Government order No. 2715/29-6-2002-162 Sa./2001. Thus we are of the opinion that the resolution which has been claimed by the petitioner selecting him as fair price shop dealer by lottery system is not in accordance with the Government order No. 2715/29-6-2002-162 Sa./2001, dated 17th August, 2002 and the said resolution does not give any right to the petitioner to claim allotment of the fair price shop.

In view of the foregoing discussions, the petitioner is not entitled for any relief.

The writ petition is dismissed.

Dated: May 10, 2011.

Rakesh