Jag Jivan Ram vs State Of U.P. And Others
2012 Latest Caselaw 5247 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										    AFR
 
										Reserved
 
	Civil Misc. Writ Petition No. 41737 of 2012.
 
Jag Jiwan Ram.						 ........      Petitioner.
 
					Versus
 
State of U.P. and others.			       ........      Respondents.
 
					----------

Present:

Hon. Mr. Justice Amitava Lala, Acting Chief Justice, &

Hon. Mr. Justice Pradeep Kumar Singh Baghel.

Appearance:

For the Petitioner : Mr. Anil Kumar Aditya.

For the Respondents : Mr. Ramanand Pandey,

Standing Counsel.

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Amitava Lala, ACJ.-- By means of this writ petition, the petitioner seeks relief for quashing of the impugned order dated 14th August, 2012 passed by the Sub Divisional Magistrate, Tehsil Rampur Maniharan, District Saharanpur, the respondent no. 2 herein, whereby the resolution taken by the concerned Gram Panchayat on 10th July, 2012 for allotment of fair price shop in favour of the petitioner has been rejected and again the meeting has been directed to be convened on 18th August, 2012 for taking a fresh resolution.

Briefly stated facts, according to the petitioner, are that in Gram Panchayat Pahasu, Block and Tehsil Rampur Maniharan, District Saharanpur (in short called "Gram Panchayat"), on account of death of fair price shop dealer, vacancy arose for allotment of said shop to the new dealer. Such vacancy was informed to the respondent no. 2, who directed to hold meeting of Gram Panchayat on 09th June, 2012 for taking resolution in connection thereto. However, on 09th June, 2012 the meeting could not be held for want of quorum. Subsequent thereto, after following due process of law and by issuing agenda and munadi, the date for holding meeting was fixed for 10th July, 2012. On 10th July, 2012 open meeting of the Gram Panchayat was held in presence of Inspector of Police, Secretary of Gram Panchayat and Gram Panchayat Sahayak for considering appointment of new fair price shop dealer and videography of such meeting was also done. In such meeting, candidature of the petitioner and one Sri Sanjay Kumar was considered for the purpose. However, Sri Sanjay Kumar, looking to the less support of Members of the Gram Panchayat in his favour, started creating hindrance in the meeting, but due to interference of the police, he could not succeed and had boycotted the meeting with his supporters. Ultimately, in the meeting dated 10th July, 2012 all the persons unanimously resolved for appointment of the petitioner as dealer of fair price shop and such resolution was sent to the respondent no. 2 for further action. Thereafter, the persons, who boycotted the meeting in support of Sri Sanjay Kumar, disputing the correctness of the meeting made a complaint before the concerned Block Development Officer-respondent no. 3, who directed the Assistant Development Officer (Panchayat) to enquire into the matter. The Assistant Development Officer (Panchayat), after enquiry, submitted his report dated 16th July, 2012 stating that meeting was held in accordance with law and no dispute or quarrel took place in the meeting. Thereafter, another complaint was made by the supporters of Sri Sanjay Kumar before the respondent no. 2, who directed the Naib Tehsildar to enquire into the matter. Naib Tehsildar submitted his report dated 08th August, 2012 stating therein that during the course of enquiry, the persons, who were in favour of the petitioner, told that no dispute was raised, whereas the persons, who were supporters of Sri Sanjay Kumar, told that there was dispute and since there was equal strength from both the sides, no referendum could be made. On the basis of such report, the respondent no. 2 by the impugned order dated 14th August, 2012 cancelled the resolution dated 10th July, 2012 and directed to hold a fresh meeting on 18th August, 2012.

It is against this order dated 14th August, 2012 that the petitioner has filed the present writ petition by saying that the meeting was held by the Gram Panchayat on 10th July, 2012 in presence of Supervisor/Sector Prabhari and Secretary of the Gram Panchayat wholly in accordance with law and after following due procedure prescribed under the relevant rules. There was no illegality in the meeting. No one has challenged the validity of meeting of the Gram Panchayat dated 10th July, 2012 since there was no dispute about holding of meeting. Once the Gram Sabha has passed a resolution after following the due process of law for appointment of a person as fair price shop dealer, the respondent no. 2 has only to see whether the meeting has been held or not and if the meeting is held, he is bound to accept the resolution, but in the present case the respondent no. 2 by rejecting the resolution and directing for holding fresh meeting has given a chance to the petitioner's rivals to motivate the supporters of the petitioner. Neither Sub Divisional Magistrate nor Naib Tehsildar has recorded any valid material of evidence to show that meeting was not held in accordance with law or resolution was not passed in favour of the petitioner but they proceeded on assumptions and without application of mind. The respondent no. 2 has not independently made any enquiry either under the provisions of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter in short called as the "Act") or in accordance with the Government order dated 03rd July, 1990, which prescribes the procedure for appointment of fair price shop dealer and does not give any power to the respondent no. 2 for sub-delegation of his power to any other authority, but instead of making any enquiry at his own, the respondent no. 2 delegated his power to the Naib Tehsildar to hold the enquiry and on his report passed the impugned order. Moreover, copy of the alleged enquiry report of Naib Tehsildar dated 08th August, 2012 has not been supplied to him.

It is further contended on behalf of the petitioner that the impugned order is against the provisions of Rule 40 of the U.P. Panchayat Raj Rules, 1947 (hereinafter in short called as the "Rules"), which prohibits the Gram Sabha or the Gram Panchayat to reconsider the matter once finally disposed of, within three months next, unless not less than two-third of the members of Gram Sabha or Gram Panchayat consent by signing a requisition to the effect, and in the present case no such requisition has been made. Furthermore, power to prohibit/stop the execution of resolution only lies with the Zila Panchayat on the conditions mentioned under Section 96 of the Act, therefore, the respondent no. 2 has no power to defer the execution of resolution. Apart from that, meeting of the Gram Panchayat can only be held with prior notice of 15 days but in the present case by order dated 14th August, 2012 the meeting has been directed to be held on 18th August, 2012. It is submitted on behalf of the petitioner that it is well settled proposition of law that where a statute requires that a certain thing must be done in a certain way, then the thing must be done in that way or not at all.

Against this background, we have heard the matter on the question of law whether the resolution once taken by the Gram Panchayat for appointment of a fair price shop dealer can be rejected by the Sub Divisional Magistrate and can he direct for holding a fresh meeting.

In this regard, we find that the Government order dated 03rd July, 1990, which has been issued by the State Government specifically in respect of the selection of the fair price shop dealers, in its Paragraph 4.4 provides that the fair price shop in the village will be opened on the opinion expressed by the Gram Sabha in the resolution to be passed in open meeting. Paragraph 4.12 of such Government order categorically and emphatically provides that once the resolution is passed by the Gram Sabha, generally there will not be necessity of any other enquiry. But in any special case if the Collector wants to get any enquiry conducted, then there will not be any embargo for that, however, before that, it is to be ensured that selection of fair price shop dealer will not be delayed on account of any such enquiry. Apart from that, Rule-40 of the Rules, which deals with reconsideration of a decision by Gram Sabha or Gram Panchayat, clearly articulates that no subject, once finally disposed of by a Gram Sabha or a Gram Panchayat, shall be reconsidered within three months next after passing of the resolution concerned unless not less than two-third of the members of Gram Sabha or Gram Panchayat, as the case may be, consent by signing a requisition to the effect. Furthermore, Section 96 of the Act deals with prohibition of certain proceedings and provides that the prescribed authority or any other officer specially empowered in this behalf by the State Government on information received or on his own initiative, may, by order in writing prohibit the execution or further execution of a resolution or order passed or made under this or any other enactment by a Gram Sabha, Gram Panchayat or a Joint Committee, or any officer or servant thereof if in his opinion such resolution or order is of a nature as to cause or likely to cause obstruction, annoyance or injury to the public or to any class or body of persons lawfully employed, or danger to human life, health or safety, or riot or affray. It may prohibit the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order.

In the instant case, factually we find that as per the direction of the respondent no. 2 open meeting of the Gram Panchayat was held in presence various officers/official concerned for considering appointment of new fair price shop dealer. In such meeting, name of the petitioner was recommended for appointment. However, the other candidate, who did not get sufficient support in his favour to become successful, made complaint and only on his complaint the matter was got enquired by the Assistant Development Officer (Panahcyat) and also by Naib Tehsildar. The Assistant Development Officer (Panahcyat) gave his report that meeting was held in accordance with law and there was no dispute in the meeting, whereas in his report the Naib Tehsildar submitted that some persons told that there was no dispute when some persons told that there was dispute. However, relying upon the report of the Naib Tehsildar, the Sub Divisional Magistrate has passed the impugned order cancelling the resolution taken by the Gram Panchayat in favour of the petitioner. In such circumstances, if we consider this factual aspect on the touchstone of the relevant rules and Government order as discussed above, we find, as is apparent from the order impugned, that neither the matter was brought to the notice of the concerned Collector, who could direct for any enquiry in the matter and also for holding a fresh meeting to take resolution, as per the Government order dated 03rd July, 1990 nor as per the Rule 40 of the Rules any requisition signed by two-third members of the Gram Panchayat was given consenting for reconsideration of the matter. Moreover, stopping of execution of the resolution taken in the open meeting of the Gram Panchayat is also beyond the jurisdiction of the Sub Divisional Magistrate as per the provisions of Section 96 of the Act. Thus, according to us, the impugned order passed by the respondent no. 2 is wholly illegal and without jurisdiction and as such, the same cannot be sustained, particularly when neither any other provision has been shown by the respondents supporting the order passed by the respondent no. 2 nor any material fact has been brought to the notice of the Court controverting the submissions of the petitioner.

From the judgement reported in AIR 1987 SC 537 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another), as cited by the petitioner, we find a three Judges' Bench of the Supreme Court has held that the High Courts exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. Though the Constitution Bench of the Supreme Court in AIR 1967 SC 1170 (State of Madhya Pradesh and another Vs. Thakur Bharat Singh) dealt with the applicability of Article 358 of the Constitution of India (suspension of provisions of Article 19 of the Constitution during emergencies) but has held that all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. It has further been held held that even the Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution.

Thus, in view of the aforesaid factual aspect and also the law and settled legal propositions discussed above, we are of the view that the order impugned passed by the respondent no. 2 is not sustainable in nature and the present writ petition deserves to be allowed. Hence, in totality, the writ petition succeeds and is allowed. The order impugned dated 14th August, 2012 passed by the respondent no. 2 stands quashed, meaning thereby the resolution as taken by the Gram Panchayat on 10th July, 2012 in a democratic manner in recommending the name of the petitioner stands revived. Appropriate action will be taken by the authority concerned on the basis of such resolution for allotment of fair price shop to the petitioner.

No order is passed as to costs.

(Justice Amitava Lala, ACJ)

I agree.

(Justice Pradeep Kumar Singh Baghel)

Dated: 18th October, 2012.

SKT/-

Hon'ble Amitava Lala, Acting Chief Justice.

Hon'ble Pradeep Kumar Singh Baghel, J.

Under the authority of the Hon'ble Acting Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.

The writ petition is allowed, however, without imposing any cost.

Dt./- 18.10.2012.

SKT/-

For judgement and order, see order of the date passed on the separate sheets (eight pages).

Dt./- 18.10.2012.

SKT/-