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2016 DIGILAW 1682 (ALL)

SURYABHAN YADAV v. STATE OF U. P.

2016-05-03

KRISHNA MURARI, VINOD KUMAR MISRA

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JUDGMENT By the Court.—Aggrieved by the order dated 15.3.2016 passed by the Sub Divisional Magistrate, Shahganj, Jaunpur rejecting the claim of the petitioner for preferential allotment of fair price shop license in his favour on compassionate ground, petitioner has filed instant writ petition. 2. Facts are that father of the petitioner, who was fair price shop licensee of village Sethuwapara district Jaunpur, died on 14.3.2015. Petitioner made a representation for allotment of fair price shop on compassionate ground in his favour. When no decision was taken, he approached this Court by filing writ petition No. 18183 of 2016 which was disposed of by the Division Bench of this Court vide order dated 18.1.2016 directing the Sub Divisional Magistrate, Shahganj, Jaunpur to decide the application filed by the petitioner in accordance with law after hearing the parties concerned within two months from the date of production of a certified copy of the order. In compliance of the aforesaid order, the respondent No. 2 considered the application and after hearing the petitioner as well as other claimants rejected the application of the petitioner on the ground that general reputation of the deceased licensee was not good and he was a very dreadful (Dabang) person. The aforesaid finding in respect of the reputation of the deceased father of the petitioner as licensee was solely based on an application and affidavit filed by Asharfi Lal son of Kinsraj, who was also claiming allotment on the ground that he was unemployed and thus was entitled for allotment of the shop. Finding that there was no basis for recording the said finding except for an affidavit of another interested person vide order dated 6.4.2016 learned Standing Counsel representing the State was required to obtain instruction and the matter was fixed for 25.4.2016. 3. When the matter was taken up on the date fixed, we found that despite our order dated 6.4.2016 restraining any fresh allotment of the shop in question in favour of any third person, Sub Divisional Magistrate, Shahganj, Jaunpur approved the proposal for allotment in favour of one Badri Narain on 11.4.2016. vide order dated 25.4.2016, we called upon the Sub Divisional Magistrate, Shahganj, Jaunpur to appear in person before this Court on 3.5.2016 to show-cause as to why he should not be punished for wilful disobedience of the order. vide order dated 25.4.2016, we called upon the Sub Divisional Magistrate, Shahganj, Jaunpur to appear in person before this Court on 3.5.2016 to show-cause as to why he should not be punished for wilful disobedience of the order. In compliance of the said order, Sri Rakesh Kumar Gupta, Sub Divisional Magistrate, Shahganj, Jaunpur appeared before us in person and filed an affidavit explaining the circumstances. It has been stated in the affidavit that petitioner did not communicate the order and he had no knowledge about the order of this Court at the time of passing the order dated 11.4.2016 and for the first time, the order came to his knowledge when a letter was received from the office of learned Chief Standing Counsel on 26.4.2016. It is also stated that after attaining the knowledge of the order dated 6.4.2016, earlier order dated 11.4.2016 has been recalled. He has also submitted his unconditional apology. Without entering into the dispute as to whether the copy of the order was served upon him by the petitioner, we accept the explanation submitted by Sri Rakesh Kumar Gupta, Sub Divisional Magistrate, Shahganj, Jaunpur and drop the matter. 4. The order impugned in this petition having been been withdrawn, normally the matter would have come to an end with the writ petition having become infructuous but since the petitioner is claiming preferential allotment in his favour under the dying-in-harness quota, it becomes necessary for us to examine the procedure which is to be adopted for consideration of preferential allotment of fair price shop license on compassionate ground. 5. Learned counsel for the petitioner contends that since the petitioner is entitled for preferential allotment on compassionate ground as provided by Clause 10 (Jha) of the Government Order dated 17.8.2002, the authority granting license has only to consider the general reputation of the erstwhile fair price shop licensee, his father, and in case nothing adverse is found, he is entitled for the grant of fair price shop license. It is further submitted that it is not necessary to call for an open general meeting of the Gaon Sabha to consider the application for grant of license on compassionate basis. 6. We are unable to agree with the contention advanced by the learned counsel for the petitioner. It is further submitted that it is not necessary to call for an open general meeting of the Gaon Sabha to consider the application for grant of license on compassionate basis. 6. We are unable to agree with the contention advanced by the learned counsel for the petitioner. Clause 4.4 of the Government Order dated 3.7.1990 which prescribes the procedure for opening of the fair price shop clearly provides that any fair price shop can be opened only after the resolution is passed in the open general meeting of the Gaon Sabha. Thus, as per procedure prescribed by the said Government Order, it is only on the basis of collective opinion of the members of the Gaon Sabha expressed in an open general meeting, allotment of fair price shop license can be made. After the resolution is passed in the open general meeting, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Sub Divisional Magistrate as Chairman, concerned Block Development Officer and an officer belonging to Scheduled Caste/Scheduled Tribes or other backward class nominated by the District Magistrate and Regional Food and Supply Officer as member as prescribed in clause 5 of the Government Order dated 17.8.2002. The entire exercise by the committee has to be undertaken only after the resolution has been passed in an open meeting as prescribed in clause 7 of the said Government Order. Further, the allotment has to be made as per terms and conditions contained in clause 10 of the said Government Order which also envisages the grant of license on compassionate basis. 7. In our considered opinion, there cannot be any exception to the above mentioned procedure prescribed for consideration of grant of license even on compassionate basis which is founded on the strength of the reputation of the deceased license holder. To our mind, this assessment as to the reputation of the deceased license holder and the goodwill has to be gathered only from a resolution passed in this regard in open general meeting of the Gaon Sabha. It has to be collective opinion of the Gaon Sabha and not of any individual authority or Tehsil Level Committee. The simple reason is that members of the Gaon Sabha have been dealing with the fair price shop licensee and would be in a best position to assess his reputation and goodwill. 8. It has to be collective opinion of the Gaon Sabha and not of any individual authority or Tehsil Level Committee. The simple reason is that members of the Gaon Sabha have been dealing with the fair price shop licensee and would be in a best position to assess his reputation and goodwill. 8. In view of the above facts and circumstances, we are of the 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 Sabha and it is only after the resolution is passed in the said meeting approving of the reputation and goodwill of the deceased license 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 such view of the matter, the writ petition is disposed of finally by directing the Sub Divisional Magistrate to hold an open general meeting of the Gaon Sabha to consider the agenda whether the reputation and goodwill of the erstwhile licensee, father of the petitioner, was good or not. Such meeting may be convened within four weeks from the date of presentation of a certified copy of this order. The Sub Divisional Magistrate is further directed to pass suitable orders on the basis of resolution which may be passed by the Gaon Sabha in its meeting within a further period of two weeks thereon in accordance with law.