Gram Panchayat Mainuddinpur And ... vs State Of U.P. And 3 Others
2023 Latest Caselaw 18442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:145657
 
Court No. - 6
 

 
Case :- WRIT - C No. - 18989 of 2023
 

 
Petitioner :- Gram Panchayat Mainuddinpur And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rameshwar Prasad Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anish Kumar Gupta,J.

1.Heard Shri Rameshwar Prasad Shukla, learned counsel for the petitioners and Shri Shyam Singh Rawat, learned counsel for the State-respondents.

2. The brief facts of the case are that the respondent No.4, Lallan Singh was granted a license of fair price shop in the year 1999. The brother of respondent No.4, Sri Prem Chand Singh became a Gram Pradhan of village Panchayat Mainuddinpur (Barigaon) Block Jahanaganj, Tehsil Sadar, District Azamgarh in the year 2010. One of the resident of same village namely, Gama Ram S/o late Ashok filed a complaint in terms of the Government Order dated 3.07.1990, which provides that no proposal for allotment of fair price shop to the family members/ relatives of Gram Pradhan or Up Pradhan shall be made. The family has also been specified in the Government Order to mean that himself, wife, son, unmarried daughter, mother, father and brother or any other member who reside in the same house and share the same kitchen/mess.

3. In the report dated 16.11.2011, the Revenue Inspector had reported that late Lallan Singh has submitted photostat copy of the Family Register as well as Ration Card of his family members to demonstrate that Lallan Singh and his other family members were residing separately. Further in his report, the Revenue Inspector has stated on the basis of secret enquiry that they used to reside in the same house in the village but they have separated themselves in the family register. The said Lallan Singh has also submitted the family partition deed dated 3.05.2009, which demonstrate that all the three brothers have separated their share. On the basis of the aforesaid deed after recording evidence, the Sub Divisional Magistrate, Sadar, Azamgarh vide its order dated 17.03.2012 cancelled the fair price shop allotted in favour of respondent No.4, Lallan Singh.

4. The said Lallan Singh filed an Appeal No.353/A of 2012 before the Commissioner, Azamgarh Region, Azamgarh, which was dismissed vide order dated 29.03.2012.

5. Aggrieved by the aforesaid two orders, the said Lallan Singh filed A writ C No. 30838 of 2012 (Lallan Singh Vs. State of U.P. and others) before this Court. This Court vide order dated 31.10.2013, allowed the aforesaid writ petition holding that in the instant case, a clear evidence has been filed to the effect that the petitioner is living separately with his brothers in a separate house and has a separate Ration Card. Statements of various witnesses have been given to this effect. Without considering these evidences, the Sub-Divisional Magistrate has cancelled the license only on the ground that the petitioner is the brother of the Pradhan.

6. Against the aforesaid order dated 31.10.2013 passed by this Court in the aforesaid writ petition, the complainant Gama Ram filed Civil Appeal No.1823 of 2015 (arising out of SLP(C) No.3453 of 2014) before the Hon'ble Supreme Court, wherein Leave was granted and the Appeal was disposed of in the following terms;

"Leave granted.

2. Heard learned counsel for the parties in respect of the order dated 31.10.2023 passed by the Allahabad High Court in WP(C) No. 30838/2012 and its earlier order dated 8.4.2013.

3. The grievance of the appellant is that respondent no. 6 was granted & licence to run a Fair Price Shop even though he was living with his brother (a Village Pradhan) and they were sharing the same mess. According to the appellant, the allotment of the Fair Price Shop was contrary to paragraph 4.7 of the Government Order dated 3.7.1990/18.72000 relating to selection of Fair Price Shop in rural areas for public distribution system.

4. It has been pointed out that the State in its affidavit in the High Court had stated that respondent No. 6 was in fact living with his brother and both were sharing the same mess. Unfortunately, the High Court while allowing the writ petition did not take this into consideration.

5. In our opinion this was an important material fact which went to the root of the qestion whether respondent No. 6 was entitled to the Fair Price Shop.

6. In the absence of the High Court having considered the counter affidavit of the State and teh specific averment made therein, we set aside the impugned order and remand the matter back to the High Court for fresh considered on merits."

7. The appeal is disposed of accordingly."

7. On the direction given by the Hon'ble Supreme Court, this Court again disposed of Writ C No.30838 of 2012 vide order dated 22.02.2022 and the matter was remitted back to the Appellate Authority to pass a fresh order after affording due opportunity of hearing to the petitioner. Further direction was issued to conclude the proceedings within a period of three months from the date of order. The Appellate Authority vide judgment and order dated 31.08.2022 allowed the appeal in part and set aside the order of cancellation of fair price shop license dated 17.03.2012 and remanded the matter back to the Sub Divisional Magistrate to pass a fresh order after hearing all the parties concerned.

8. During the pendency of the matter before the Sub Divisional Magistrate, Sadar, Azamgarh, the respondent No.4, Lallan Singh filed another Writ C No.38297 of 2022 (Lallan Singh Vs. State of U.P. and 3 others) for time bound disposal of the case by the concerned authority. The aforesaid writ petition was disposed of by this Court vide order dated 20.01.2023, which reads as under;

"Sri Vinod Mishra, learned counsel for petitioner after arguing for sometime submits that this Court may consider the limited prayer that in pursuance of impugned order, matter is now being sent back to the concerned authority be decided expeditiously in accordance with law in a time bound manner.

Learned Standing Counsel and Sri Kamal Kumar Singh, learned counsel for respondents have no objection against the above submission.

In view of above, this writ petition is disposed of with direction that the concerned authority shall decide the matter in accordance with law in pursuance of the impugned order dated 31.8.2022, expeditiously, preferably within a period of six weeks from today."

9. In view of the aforesaid facts and background of the case, the Sub Divisional Magistrate has passed a conditional order dated 19.05.2023, whereby the Sub Divisional Magistrate has held that the respondent no.4 and his brothers were living separately on the date of election of his brother-Gram Pradhan in the month of October, 2010. The partition deed dated 3.05.2009 has also been duly proved by the witnesses. The witnesses have also submitted affidavits to the effect that Lallan Singh and Premchand Singh have separated themselves before the election of Gram Pradhan.

10. On the basis of the aforesaid findings, the Sub Divisional Magistrate has restored the suspension of fair price shop in favour of respondent no.4.

11. Being aggrieved by the said order, the current Gram Pradhan has filed the instant writ petition challenging the said order dated 19.05.2023 on the ground that though the Gram Pradhan was a party in the appeal filed before Commissioner, Azamgarh Division, Azamgarh, yet the impugned order has been passed without giving any notice or opportunity of hearing to the petitioner Gram Pradhan. However, on query made by this Court as to what prejudice has been caused to the Gram Pradhan by restoration of the suspension of the license of fair price shop of respondent no.4 vide order dated 19.05.2023, whereby the earlier suspension order has been found illegal and arbitrary.

12. Learned counsel for the petitioner has submitted that since the Gram Pradhan is to initiate resolution for allotment of the fair price shop in terms of the Government Order, therefore, he was a necessary party and without hearing the Gram Pradhan the impugned order has been passed, which is in violation of the principle of natural justice.

13. This Court has carefully perused the record of the case and considered the arguments made by the learned counsel for the parties.

14. From the record, it is crystal clear that the Gram Pradhan of the village was not a complainant in the matter and from perusal of the impugned order, it is crystal clear that the complainant was given notice and opportunity of hearing to file pleading and evidence and after considering the entire material, the Sub divisional Magistrate has passed the impugned order.

15. In the instant case, the license of respondent no.4 was suspended and the matter has travelled up to the Hon'ble Supreme Court and was remanded to the Sub Divisional Magistrate to consider afresh and pass the final order.

16. Respondent No.4, Lallan Singh, and the complainant were given full opportunity of hearing, which is evident from record and after due consideration of the evidence, the impugned order has been passed by the Sub Divisional Magistrate. Since learned counsel for the petitioner failed to demonstrate that what apparent prejudice caused to the Gram Pradhan in restoration of license of Fair Price Shop in favour of the respondent No.4.,Therefore, this Court does not find any good ground to interfere in the impugned order.

17. In view thereof, the instant writ petition is dismissed.

Dated: 21.7.2023

SFH