Arjun Prasad vs State Of U.P. And Another
2016 Latest Caselaw 7526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court no.-- 28
 
Case :- WRIT - C no.-- 58370 of 2016
 
Petitioner :- 	Arjun Prasad
 
Respondent :- 	State Of U.P. And Another
 
Counsel for Petitioner :- Bhagwan Dutt Pandey, Brijendra Kumar Srivastava
 
Counsel for Respondent :- C.S.C., Vishnu Swaroop Srivastava
 

 
Hon'ble Pramod Kumar Srivastava, J.

1. Ram Lalit was a fair price shop dealer of Gram Sabha Sirsiya Masarki. His agreement of fair price shop was cancelled several times and was subsequently reinstated. Last time his agreement of dealership was cancelled by order dated 17.10.2013 by the SDM (Respondent no.-2). He preferred appeal against said order, but that appeal was dismissed by judgment dated 29.1.2014 of Commissioner, Gorakhpur Division, Gorakhpur. Thereafter he preferred Writ Petition no.-11173 of 2014. During pendency of said writ petition, proceedings for allotment of fair price shop in question was carried out. In meeting of Gram Sahba in that regard, the petitioner Arjun Prasad and one Shyam Narain Varun participated as candidates, but on the basis of more votes Shyam Narain Varun was recommended by Gram Sahba for allotment. Accordingly dealership of said shop was given to Shyam Narain Varun.

2. During pendency of Writ Petition no.-11173 of 2014, Ram Lalit died on 1.5.2014; then his son Arjun Prasad (present petitioner) was substituted. After hearing the said writ petition no.-11173 of 29014 was allowed by order dated 22.8.2016 of this Court which is as under :

"Petitioner was granted a fair price shop licence in the year 1995. Petitioner continued to run his shop and as he had grown old and his vision was severely impaired, an application was filed by him on 2.8.2013 to grant fair price shop licence in favour of his son. Various medical certificates were annexed and reliance was placed upon a Government Order dated 1.2.2008. This application was considered by the licencing authority and it was observed that the vision of the petitioner was impaired to the extent of 60% only and since his blindness is not 100%, as such, his claim is not covered under the Government Order. The licencing authority, thereafter, proceeded to note that during the last about 20 years, the licence of petitioner was suspended on few occasions and he was issued a warning and also imposed fine.

In view of such facts, having been noticed, a decision has been taken by the licencing authority to cancel the fair price shop licence of the petitioner and to forfeit the security in favour of the State.

This order has been challenged in appeal, which has also been rejected. The appellate authority has concurred with the opinion of the licencing authority that the petitioner's claim was inconsistent inasmuch as one the one hand, he has stated that he is physically incapable of running a shop whereas on the other hand, it has been stated that the fair price shop can be operated by him.

Aggrieved by these two orders, petitioner has filed the present writ petition. A counter affidavit justifying the stand of the respondent has been taken in the order impugned.

Learned counsel for the petitioner submits that the order impugned is wholly perverse inasmuch as proceedings were initiated upon an application filed by the petitioner for transfer of licence in favour of his son and at best in case petitioner's application was not allowed and was dismissed, the petitioner could have been asked to run fair price shop himself or with a helper as was permissible in terms ofthe Government Order but this could not have been a ground for cancelling petitioner?s fair price shop licence. It is also stated that no show cause notice was ever issued in respect of proposed cancellation of fair price shop of the petitioner and the unilateral discussion and finding resulting in order cancelling fair price shop licence of the petitioner is violative of principles of natural justice.

Learned Standing Counsel and Sri H.K. Tripathi, who appears for the subsequent allottee have stated that the petitioner has been afforded an opportunity of hearing and the order of cancellation of fair price shop licence of the petitioner requires no interference.

I have heard learned counsel for the parties and have perused the record.

Admittedly, proceedings herein, were initiated upon an application filed by the petitioner for transfer of fair price shop licence in favour of petitioner's son. Such an application was moved on the strength of Government Order dated 1.2.2008, according to which in case of vision impairment to the extent of 100%, reservation is to be allowed and it is also contemplated that assistance of helper can also be given, if the allottee is not physically well. The authorities, upon such an application could either have granted the relief as prayed by the allottee or could have rejected it. The authority, however, could not make out a new case and without issuing any show cause notice, proceed to cancel petitioner's fair price shop licence itself. On the aspect relating to cancellation of fair price shop admittedly neither petitioner was put to any notice nor he was afforded any opportunity. In such circumstances, orders passed by the authorities cancelling the petitioner's fair price shop licence can not be sustained and is set aside.

From the materials available on record, it further transpires that the original allottee has already died. Under the policy of the State, upon the death of an allottee, the licence can be granted to his heir, in the manner contemplated in the Government Order dated 17.8.2002. In such circumstances, it would be appropriate to dispose of this petition, directing the licencing authority to consider petitioner's case for allotment of fair price shop licence afresh, being the heir of the original allottee. The required exercise shall be undertaken within a period of 2 months from the date of presentation of certified copy of this order. The orders impugned dated 29.1.2014 passed by the Commissioner, Gorakhpur Division, Gorakhpur respondent no.-2 as well as the order dated 19.10.2013 passed by the Sub Divisional Officer, Nautanwa, Maharajganj respondent no.-4 are hereby quashed."

3. By said judgment dated 22.8.2016, the Court had directed the authorities to consider the present writ petitioner's case for allotment of fair price shop. Accordingly he moved application dated 29.9.2016 of allotment of fair price shop on the ground that he is dependent of deceased fair price shop dealer and in compliance of GO dated 17.8.2002, he may be considered for allotment of said fair price shop.

4. After affording opportunity of hearing to the writ petitioner, the respondent no.-2 had passed impugned order dated 27.10.2016 by which application of petitioner was rejected on the ground that in meeting of Gram Sabha, Shyam Narain Varun had obtained more votes, and the shop of Ram Lalit was cancelled and suspended several times; so the petitioner is not eligible for allotment.

5. Counsel for the petitioner contented that impugned order is erroneous because reputation of deceased Ram Lalit was not considered by Gram Sabha and impugned order was passed on the basis of votes obtained by subsequent allottee Shyam Narain Varun.

6. This submissions were refuted by Sri Vishnu Swarup, Advocate appearing on behalf of Shyam Narain Varun who is not a party to this writ petition, but has been appearing in this matter. He submitted that dealership of the fair price shop of Ram Lalit, was cancelled seven times. Although those orders were set aside and dealership was reinstated but three times penalty was imposed on him at the time of reinstatement and those orders of penalty had become final, which is proof of fact this his conduct was not good and his reputation was bad.

7. Learned standing counsel had assisted the Court on legal position in this regard.

8. In Writ C no.-15385 of 2016, Surya Bhan Yadav Vs. State of UP and Other, the division bench of this Court, inter alia held that:

"In view of above facts and circumstances,we are of considered opinion that even in the matter of grant of license on compassionate basis in case of individual under Clause 10 (Jha) of the Government Order dated 17.8.2002, it is necessary to hold an open general meeting of the Gaon Sahba and it is only after the resolution is passed in the said meeting approving of the reputation and goodwill of the deceased licence holder, the case of the dependent claiming appointment on compassionate ground can be considered by the Tehsil level Committee and accordingly the decision is to be taken".

9. In the matter of Subash Vs. State of UP and others reported in 2015 (1) ADJ 113 (DB), the division bench of this court had, inter alia, held as under:

"Therefore, we are of the view that in an open meeting of Gram Sahba, 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 villagers should be taken."

10. In view of the aforesaid legal position as held by Division Benchs of this Court, it is found that for determining the reputation etc. of deceased fair price shop dealer or for determining the eligibility under G.O. Dated 17.8.2009, the matter of compassionate appointment should be considered in open general meeting of Gaon Sabha; and only after such resolution of such Gaon Sabha meeting the matter may be considered by tehsil level committee and also by the authorities. Admittedly in present matter such Gaon Sabha meeting was not held for considering the alleged eligibility of writ petitioner for taking decision on his eligibility appointment on the basis of compassionate ground after death of his father. Therefore, the impugned order dated 27.10.2016 passed by respondent no.-2 is found erroneous.

11. It hereby clarified that this order is not being passed on the merits of eligibility of the petitioner, but on the ground of procedural irregularity committed by respondent no.-2.

12. On the basis of above discussion this writ petition is allowed. The impugned order dated 27.10.2016 passed by respondent no.-2 is set aside. The respondents are directed to consider the writ petitioners case in light of judgment dated 22.8.2014 of this Court passed in Writ Petition no.-11173 of 2014 after following proper procedure and in accordance with law.

Order Date :- 13.12.2016

SKS