Hari Chand @ Harischand vs State Of U.P. And 4 Others
2018 Latest Caselaw 854 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 45
 
Case :- WRIT - C No. - 16804 of 2018
 
Petitioner :- Hari Chand @ Harischand
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sandeep Kumar
 
Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava
 

 
Hon'ble Ajay Bhanot,J.

1. A resolution was passed by the village panchayat Paal Khera, District Mathura on 21.9.2016 recommending the name of the petitioner for appointment as a fair price shop dealer of the aforesaid village panchayat. The resolution was not acted upon and the consequent formalities of documentation were not done. The appointment letter was not issued to the petitioner appointing him as fair price shop dealer. By order dated 17.4.2018 passed by the Sub-Divisional Officer Mannt, District Mathura, the resolution dated 21.9.2016 passed by the village panchayat was cancelled.

2. In this writ petition, the petitioner has assailed the order dated 17.04.2018 passed by the respondent no. 3. He seeks further relief to be appointed as fair price shop dealer on the basis of the resolution of the village panchayat dated 21.09.2016.

3. The contention of Sri Sandeep Kumar, learned counsel for the petitioner is that the respondent no. 3 has acted in excess of jurisdiction conferred by law by cancelling the aforesaid resolution dated 21.9.2016 passed by the village panchayat. He relies upon two authorities of this Court. The judgment handed down by the learned Division Bench of this Court in the case of Jag Jiwan Ram Vs. State of U.P. and others reported at 2013 (1)ADJ 62 and also judgment rendered by the learned Single Judge in Gangadhar Dubey Vs. State of U.P. and others reported at 2018 (1) ADJ 644.

4. Learned Standing Counsel, Sri Dalveer Singh submitted that the implementation of the resolutions passed by the village panchayat has to be consistent with the provisions of the Government Orders dated 17.08.2002 and 03.07.1990.

5. Heard learned counsel for the petitioner and learned Standing Counsel for the State respondents.

6. Some facts which are established beyond doubt and beyond the pale of dispute and are relevant for a judgment in this case are discussed hereinafter. A resolution was passed by the village panchayat Paal Khera, District Mathura on 21.9.2016 recommending the name of the petitioner for appointment as fair price shop dealer of the said village panchayat. The Tehsil Level Committee did not take any decision on the validity of the said resolution nor did it make its recommendation on the back of the said resolution. The respondent no. 3 did not take steps to execute the said resolution. The petitioner and the village pradhan made diligent efforts to get the resolution implemented. Their efforts were of no avail. The respondent no. 3 by the order impugned dated 17.4.2018 has cancelled the aforesaid resolution on the ground that the resolution is more than one year old.

7. The limitation on the jurisdiction of respondent no. 3, Sub-Divisional Magistrate, is posed by law. The issue has been settled by this Court. In the case of Jag Jiwan Ram, (supra), this Court, while considering the authority of the Sub-Divisional Officer to cancel the resolution passed by village panchayat, held thus :-

"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 (Panchayat) and also by Naib Tehsildar. The Assistant Development Officer (Panchayat) 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."

8. Similar view was taken by this Court in the case of Ganga Dhar Dubey (supra), wherein this Court has observed as under :-

"The Sub Divisional Officer may be the officer under whose signature the Licence Agreement is issued and he may also be the Disciplinary Authority insofar as the suspension and cancellation in case of misconduct of the fair price shop licensee is concerned, is to be given effect to, but so far as allotment is concerned, since, the Tehsil Level Committee has been provided for by the Government Order dated 17.08.2002, the same has to be constituted and allotment or otherwise has to be decided by it. It was not open for the Sub Divisional Magistrate concerned to have passed the order on his own without reference to the Tehsil Level Committee."

9. The S.D.M. has no authority in law to cancel a resolution passed by the village panchayat. Admittedly, the respondent no. 3 has exceeded its jurisdiction in passing the order dated 17.4.2018 cancelling the resolution passed by the village panchayat.

10. The appointment of a fair price shop dealer on the foot a resolution passed by the village panchayat is governed and regulated by the Government Order dated 3.7.1990. The relevant parts of the Government Order dated 3.7.1990 are extracted below:

"6- xkao lHkk dk izLrko ikfjr gksus ds nks lIrkg ds vUnj ftykf/kdkjh ;g lqfuf'pr djsxsa fd ,l-Mh-,e- leLr fof/kd vkSipkfjdrk;sa iw.kZ dj nqdkunkj dks nqdku pykus dk vuqcU/k dj nsrs gSaA bl gsrq ftykf/kdkjh mRrj izns'k vuqlwfpr oLrq forj.k vkns'k] 1990 dh /kkjk 2¼?k½ ds vUrxZr ,l-Mh-,e- dks izkf/kd`r dj nsaA vuqcU/k dk izk:i layXu gS ¼layXud&2½"

11. The Tehsil Level Committee was constituted by government order dated 17.08.2002 and its powers and functions are laid out therein. The relevant extract of the government order dated 17.8.2002 is reproduced hereinunder :-

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12. The Government orders of 03.07.1990 and 17.08.2002 define and delineate the jurisdiction of the Tehsil Level Committee.

13. The validity of the resolutions passed by the village panchayat is judged by the Tehsil Level Committee.

14. The Tehsil Level Committee verifies whether the resolution was passed by the village panchayat in adherence to provisions of law. The Tehsil Level Committee may disapprove a resolution passed in violation of law.

15. Similarly the decision to approve the appointment of the fair price shop dealer is also taken by the Tehsil Level Committee. The Tehsil Level Committee investigates the eligibility of the candidate whose name is proposed by the resolution of the village panchayat. The Tehsil Level Committee may decline to approve the appointment of a candidate who does not satisfy the minimum eligibility criteria or reject a candidate who has incurred a disqualification.

16. The Tehsil Level Committee cannot displace the choice of the village panchayat by its own preference. The Tehsil Level Committee cannot frustrate will of the village panchayat by indifference or defeat the resolution of the village panchayat by inaction.

17. The process of appointment of the fair price shop dealer as provided in the government order dated 3.7.1990 and the role of the Tehsil Level Committee in the said process, fell for consideration before the learned Division Bench of this Court in Shiv Kumar Vs. U.P. Ziladhikari Chakiya, Chandauli and others reported at 2014 (8) ADJ 693. This Court held thus :-

"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."

18. The appointment of the fair price shop dealer is made on the foot of the resolution of the village panchayat and is reflective of the collective opinion of the members of the village panchayat.

19. The period of two weeks in the Government Order dated 03.07.1990 is not decisive but certainly indicative that the authorities have to proceed with dispatch and promptitude in implementing the resolutions of the village panchayat. The failure of the Tehsil Level Committee and the district authorities cannot become the basis or excuse to refuse implementation of the resolution. Particularly when the village panchayat or the candidate have not contributed to the delay or created any impediment.Any such course of action would dilute the autonomy of the village panchayat and devalue the sanctity of the resolutions passed by the village panchayat. The intent of policy of the government cannot be defeated by inaction of the officials of the government. The authorities have to implement all valid resolutions of the village panchayat with dispatch. Selective implementation or non implementation of such resolutions is not permissible.

20. For unknown reasons, the authorities forestalled the appointment of the petitioner and did not implement the resolution passed by the village panchayat. It is also evident that the Tehsil Level Committee and the respondent district authorities have failed to act upon the resolution.

21. The delay in implementing the village panchayat resolution dated 21.09.2016 was caused by the inaction of the Tehsil Level Committee and the district authorities. The failure of Tehsil Level Committee and the district authorities cannot saddle the petitioner with the penalty of rejection of his claim to appointment. The respondent authorities cannot take advantage of their own default particularly when there are no laches on part of the petitioner.

22. As observed earlier, the petitioner and the village pradhan made diligent efforts to get the resolution implemented.

23. The order dated 17.04.2018 passed by the Sub-Divisional Officer Mannt, District Mathura is illegal and beyond jurisdiction. The order dated 17.04.2018 is quashed.

24. The validity of the resolution passed by the village panchayat on 21.09.2016 was never tested by the competent authority. In the facts of the case, matter is remanded to the Tehsil Level Committee for consideration of the validity of the resolution. In case, the resolution dated 21.09.2016 complies with the requirements of law, the Tehsil Level Committee shall take a final decision and make the appointment on the foot of the said resolution within a period of two months.

25. The writ petition is allowed.

Order Date :- 24.5.2018

Pratima