Rameshwar vs State Of U.P.Thru.Secy.Food & ...
2021 Latest Caselaw 7353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 
Case :- MISC. SINGLE No. - 33252 of 2018
 
Petitioner :- Rameshwar
 
Respondent :- State Of U.P.Thru.Secy.Food & Civil Supply Civil Sectt.&Ors.
 
Counsel for Petitioner :- Ashish Kumar Pathak
 
Counsel for Respondent :- C.S.C.,Ajay Sharma,Azad Khan,Mohan Singh,Sheo Prakash Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner and learned counsel for the respondent, through virtual mode.

2. The petitioner has challenged the order dated 29.10.2018 passed by respondent no.3- the Sub Divisional Magistrate, Haidergarh, District Barabanki by which in exercise of Clause 10 (Jha) of Government Order dated 17.08.2002, the fair price shop of Village Panchayat District Barabanki has been allotted to the dependents of the deceased fair price shop licensee.

3. It has been submitted by the learned counsel for the petitioner that the order impugned has been passed in ignorance of the law settled by this court in its judgment and order dated 26.10.2018 in Writ-C No.16948 of 2018. This Court in the judgment dated 26.10.2018 had made the following observations in paragraph 139 onwards:

"139. The provision of 10 (झ) of the Government Order dated 17.08.2002 cannot stand and is quashed.

140. The matter is remitted back to the the Government/Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow for fresh consideration. The State Government has vast latitude in framing policy decisions. The criteria for appointment of a fair price shop dealer on compassionate grounds falls within the realm of policy. It is for the State Government to determine the criteria and the process for appointment of fair price shop dealers on compassionate grounds.

141. A writ of mandamus is issued commanding the State Government/Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow, to execute the following directions:

I. The State Government/Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow shall frame fresh criteria for appointment of kin of a deceased fair shop dealer as fair price shop dealer on compassionate grounds, consistent with the observations made in the judgement.

II. The State Government/Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow shall ensure that no regular appointment of fair price shop dealers shall be made in village panchayats where the applications for appointment as fair price dealer on compassionate grounds of the kin of a deceased fair price shop dealer are pending or where such kin are entitled for such dealership on compassionate grounds. The regular appointments of fair price shop dealer in such cases shall be held in abeyance, till the criteria for appointment of fair price shop dealers on compassionate grounds is finalized.

III. The State Government/Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow shall ensure that the rights of the petitioners for appointment as fair price dealers on compassionate grounds are not prejudiced in any manner, till the criteria for appointment of fair price shop dealers on compassionate grounds is finalized.

IV. After the finalization of the criteria for appointment of the kin of a deceased dealer as fair price shop dealer on compassionate grounds, the appointments of the eligible kin of a deceased-dealer shall be made.

V. The case of the petitioners for appointment as fair price shop dealers on compassionate grounds shall be considered afresh after the finalization of the said criteria for appointment of fair price shop dealers on compassionate grounds.

VI. The entire exercise mentioned in the preceding directions shall be completed within four months.

VII. The Chief Standing Counsel shall communicate a copy of this order to the Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow for compliance.

VIII. In case, the Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow is not the competent authority to execute the above said directions, the Principal Secretary (Food and Civil Supplies), Government of Uttar Pradesh, Lucknow shall forthwith transmit this order to the competent authority in the State Government to execute the said directions.

142. The writ petitions are allowed."

4. Learned counsel for the contesting respondent no.8-the dependent of the deceased employee, has argued that the writ petition is not maintainable as Statutory Remedy of filing an Appeal against the order of allotment is available to the petitioner under paragraph 13 of the Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016.

5. Learned counsel for the petitioner has argued in rejoinder that this Court has held in several cases that alternative remedy will not be a bar where the order is completely without jurisdiction and without any legal foundation. He has referred to the judgment rendered by this court in Jagdambika Prasad Pandey Vs. State of U.P. and others; 2019 37 LCD 2574, to buttress his argument.

6. The judgment cited by Learned counsel for the petitioner relates to alternative remedy and not statutory remedy. The other judgement cited by the learned counsel in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1, also relate to alternative remedy and not to statutory remedy. In the case of statutory remedy, this Court has already held that the judgement of the Constitution Bench in the case of N.P. Ponnuswami vs. Returning Officer, AIR 1952 SC 64, would apply wherein the Constitution Bench has observed that where the rights and liabilities are created under the particular Statute and remedy is given under that Statute Writ Petitions would not lie and the litigant should be relegated to the statutory remedy available under the Statute. In this case the order impugned has been passed relying upon a Government Order dated 17.08.2002 Clause 10 (Jha) containing the provision for appointment of the dependent of the deceased licensee on compassionate ground considering the reputation of the deceased licensee to be discussed by all in the Open General Meeting of the Gaon Sabha concerned.

7. It appears from the perusal of the orders impugned that in pursuance of earlier order dated 13.7.2018 passed in writ petition no. 13263 (M/S) of 2018, the Sub Divisional Magistrate directed the Block Development Officer to get an Open General Meeting of the Gram Sabha concerned held with the single point Agenda of the reputation of the erstwhile deceased licensee. The Agenda was circulated in terms of Rule 32 of the U.P. Panchayat Raj Act. The Open General Meeting was thereafter held in terms of Rule 37 of the 1947 Rules. The proposal of the Gaon Sabha was considered thereafter by the Licensing Authority along with the comments submitted by the Block Development Officer. It was certified by the Block Development Officer that the Open General Meeting was held under the supervision of Nayab Tehsildar Haidergarh, the A.D.O Panchayat, A.D.O. Cooperative and the A.D.O. (ISB) along with the Secretary of the Gram Panchayat concerned. There were 320 votes in favour of the respondent no.8 whereas there were 317 votes opposing him. The Block Development Officer has also reported that after the meeting was held and resolution passed in favour of the respondent no. 8, the sitting Gram Pradhan had refused to countersign the proceedings. The Sub-Divisional Magistrate Haidergarh Barabanki relied upon the record of the Block Development Officer and also Clause 10 (Jha) of the Government Order dated 17.08.2002 and passed an order for allotment of fair price shop in favour of respondent no.8.

8. Learned counsel for the petitioner has placed reliance upon the judgement and order of this court passed in the case of Sampurnanand Vs. State of U.P., only on 26.10.2018, whereas the order impugned has been issued three days later i.e. on 29.10.2018. Perhaps the order passed by this Court in Sampurnanand Vs. State of U.P. on 26.10.2018 was not in the knowledge of the Sub Divisional Magistrate Haidergarh who issued the order dated 29.08.2018.

9. This Court is sitting in writ jurisdiction which is a jurisdiction based on equity as also on law. No doubt Clause 10 (Jha) of the Government Order dated 17.08.2002 was set aside by this Court in the case of Sampurnanand Vs. State of U.P., but on reading the entire judgment in the said case, this Court finds that it was rendered in the particular context where the writ petitioners before the Court had come because of adverse circumstances created due to refusal of the respective Gram Sabhas concerned to pass an appropriate Resolution certifying the reputation of the respective deceased fair price shop licensee. In the case of the petitioner, the reputation of his predecessor-in-interest, the deceased fair price shop licensee, has been certified to be good by the Gram Sabha concerned in an Open General Meeting which was held under the supervision of several Government Officers.

10. The order dated 29.10.2018 is set aside with a direction to the Sub Divisional magistrate Haidergarh Barabanki to pass appropriate orders in favour of the respondent no.8 on the basis of latest Government Order issued on 15.02.2019 and 05.08.2019 as expeditiously as possible, say within a period of four weeks from the date a copy of this order is produced by the respondent no.8 before him along with representation.

11. Writ petition is partly allowed.

Order Date :- 9.7.2021

Rahul