Subash vs State Of U.P. Thru' Secry. And 5 ...
2014 Latest Caselaw 9729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Court No. - 32
 

 
Case :- WRIT - C No. - 63947 of 2014
 

 
Petitioner :- Subash
 
Respondent :- State Of U.P. Thru' Secry. And 5 Others
 
Counsel for Petitioner :- Nisheeth Yadav
 
Counsel for Respondent :- C.S.C.,Tariq Maqbool
 

 
Hon'ble Rajes Kumar,J.

Hon'ble Vivek Kumar Birla,J.

Heard Sri Nisheeth Yadav, learned counsel for the petitioner, learned Standing Counsel appears on behalf of respondent nos. 1 to 4 and Sri Tariq Maqbool, learned counsel appearing on behalf of respondent no. 5.

With the consent of learned counsel for both the parties, the present writ petition is being disposed of at this stage.

Brief facts of the case are that the petitioner's father Late Ramgavin was the licencee of a fair price shop of village Dheso, Tehsil Nichlaul, District Maharajganj since 1995. He died on 29.6.2014. After the death of his father, the petitioner applied for the settlement of the shop on 2.7.2014 on compassionate ground under Clause 10 (Jha) of the Government Order dated 17.8.2002. When the application has not been considered within a reasonable period, he filed Writ Petition No. 47279 of 2014, which has been disposed of vide order dated 4.9.2014 with the following direction :

"Without going into the merits of the case, we hereby direct that the concerned Officer may decide the said issue in view of the judgment passed by us in the case of Shiv Kumar Vs. Up Ziladhikari Chakiya, District Chandauli and others, Writ Petition No. 40973 of 2014, decided on 20.8.2014 preferably within three months from the date of production of a certified copy of this order before him provided it has not already been allotted to anyone and there is no legal impediment."

In Writ Petition No. 40973 of 2014, Shiv Kumar Vs. Up Ziladhikari Chakiya, District Chandauli and others, the Division Bench of this Court has observed as follows:

"So far as the second issue of taking a decision in the open meeting of the Gaon Sabha is concerned, we are unable to agree with the proposition of the learned Standing Counsel and the counsel for the contesting respondent that no such meeting is necessary. The reason is that from a bare perusal of Clause 4.4 of the Government Order dated 3rd July, 1990, it is evident that any fair price shop licence would be opened only after a resolution is passed in the open meeting of the Gaon Sabha. It is only on the collective opinion of such a meeting that such allotment can be made. After such a resolution is passed, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Deputy District Magistrate as its Chairman as defined in Clause 5 of the Government Order dated 17.8.2002. Such an exercise has to be undertaken only when a resolution is passed in the open meeting as indicated in Clause 7. The allotment has to be made as per the terms and conditions contained in Clause 10 of the said government order which also envisages the grant of licence on compassionate basis.

To our mind there is no exception of the abovementioned procedure carved out for consideration of grant of licence on compassionate basis founded on the strength of the reputation of the deceased licence holder. This assessment as to the reputation of the deceased licence holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha. It has to be the collective opinion of the Gaon Sabha, and not the individual opinion of any authority or the Tehsil Level Committee. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. It is only after such a resolution is passed that the same has to be considered by the Tehsil Level Committee and then a decision to be taken by the Deputy District Magistrate."

In view of the above, an open meeting of the Gram Panchayat was to be held in accordance to law laid down by the Division Bench in the case of Shiv Kumar Vs. Up Ziladhikari Chakiya, District Chandauli and others and the direction given in the order dated 4.9.2014 in the writ petition, filed by the petitioner.

Learned Standing Counsel has produced the copy of the minutes of the meeting held on 13.10.2014 and the resolution passed therein, which reads as follows

^^ vkt fnukWd 13&!0&2014 dks mi&ftykf/kdkjh egksn; fupykSy ds i= la[;k [email protected] ft0 [email protected] fnukWd 29&9&2014 ds dze esa rFkk ekuuh; mPp U;k;y; esa ;ksftr fjV ;kfpdk la[;k [email protected] lqHkk"k cuke LVsV vkQ ;w0ih0 esa ikfjr o vU; esa ikfjr vkns'k fnukWd 4&9&14 ds vuqikyu esa e`rd vkfJr dks dksVs dh nqdku ds lEcU/k esa vfHker izkIr djus gsrq fnu esa 12-00 cts izk0 fo|ky; ifjlj esa xzke iz/kku Jh Q[k:n~nhu vyh dh mifLFkfr esa cSBd vkgqr dh x;hA cSBd esa ukfer vf/kdkjh uk;c [email protected]@l0 fu0 v0iz0 Hkh mifLFkr jgsA cSBd dk dksje iw.kZ jgkA

vr% cSBd esa xzke okfl;ksa ds vfHker dze'k% e`rd vkfJr ds i{k esa rFkk foi{k esa gLrk{kj fu'kku vaxwBk izkir dj fy;k tk;A e`rd vkfJr ds i{k esa dqy 355 [email protected] us gLrk{kj fu'kku yxk;k o foi{k esa dqy 393 [email protected] us gLrk{kj fu'kku yxk;kA izkIr vfHker dh izfr tkWp vk[;k ds lkFk izs"k.k gsrq vxszrj izsf"kr gSA^^

On the basis of the resolution dated 13.10.2014, the Sub Divisional Magistrate, Nichlaul by its order dated 20.10.2014 has rejected the claim of the petitioner.

Learned counsel for the petitioner submitted that the resolution has not been passed in consonance with the requirement of Clause 10 (Jha) of the Government Order dated 17.8.2002 and the law laid down by the Division Bench of this Court in the case of Shiv Kumar Vs. Up Ziladhikari Chakiya, District Chandauli and others (supra). Under Clause 10 (Jha), the agenda of the meeting should be for the consideration of the reputation/goodwill of the father of the petitioner. While from the perusal of the minutes of the meeting there was no such agenda and it appears that the case of the petitioner has been considered with reference to the merit of the petitioner. He further submitted that since 1995 the licence of his father has never been cancelled and there is no adverse material on record against him. In this regard, report has also been given by the Supply Inspector dated 9.7.2014 to the Sub Divisional Magistrate, Nichlaul, which is Annexure-12 to the writ petition.

Learned Standing Counsel submitted that in a meeting the claim of the petitioner for the settlement of the fair price shop on compassionate ground was the agenda and with reference to that, opinion of the villagers have been taken. The petitioner got only 355 votes in his favour while 393 villagers expressed their opinion against the petitioner and, therefore, the claim of the petitioner has been rejected.

We have considered rival submissions and perused the record.

Clause 10 (Jha) of the Government Order dated 17.8.2002 reads as follows:

^^¼>½ ;fn nqdkunkj vPNh [;kfr dk gks rks mldh e`R;q ds mijkUr nqdku dk vkoaVu mlds vkfJr dks djus ij fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSA^^

The compassionate allotment of the fair price shop under Clause 10 (Jha) is a preferential allotment. Under the said Clause it is to be examined whether the reputation of the erstwhile licencee was good or not. In case, on the basis of material available on record and the resolution passed by the Gram Sabha it is found that reputation of the erstwhile licencee was good, the dependent would be entitled for compassionate allotment of the shop on a preferential basis. Therefore, we are of the view that in an open meeting of the Gram Sabha, which is one of the requirements under the Government Order for the settlement of the shop, the agenda for consideration should be that whether the reputation of the father of the petitioner was good or not and on such agenda, the opinion of the villagers should be taken. There was no such agenda in the open meeting of the Gram Panchayat. Therefore, we are of the view that the meeting dated 13.10.2014 and the resolution passed therein is not in consonance with Clause 10 (Jha) of the Government Order dated 17.8.2002 and the impugned order dated 20.10.2014 based on the resolution dated 13.10.2014 is also not legally sustainable.

In view of the above, the writ petition is allowed. The order dated 20.10.2014 passed by the Sub Divisional Magistrate, Nichlaul is set aside with the direction to the Sub Divisional Magistrate, Nichlaul to hold an open meeting of Gram Panchayat on an agenda that whether the reputation of the erstwhile licencee, namely, Late Ramgavin, the father of the petitioner, was good or not. Such meeting may be convened within three weeks from the date of presentation of certified copy of this order and the Sub Divisional Magistrate shall pass order on the basis of such resolution within another period of two weeks in accordance to law.

The allotment of the fair price shop in favour of respondent no. 6 shall be subject to the fresh order which will be passed by the Sub Divisional Magistrate, Nichlaul.

9.12.2014

OP