JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Satyawan Shahi, learned counsel for the petitioner and Sri Anoop Trivedi, learned counsel for the respondent No. 6 2. The relevant facts of the case are that : The present petition has been allowed by this Court vide judgement and order dated 16.2.2012 whereby the orders passed by the licensing authority and the appellate authority in cancelling the fair price shop licence of the petitioner have been quashed. It appears that an impleadment application was filed by Smt. Sumitra Devi with the assertion that the shop in question was allotted in her favour after cancellation of the licence of the petitioner. She was, therefore, necessary party in the writ petition. It appears that no order could be passed on the impleadment application and it remained pending. The applicant Smt. Sumitra Devi therefore, filed a review application alongwith the delay condonation application which was rejected by this Court vide order dated 6.9.2012. 3. Aggrieved Smt. Sumitra Devi, approached the Apex Court in Civil appeal Nos. 9363-9364 of 2014, against the order dated 16.2.2012 passed in writ petition and the order dated 6.9.2012 passed on the review application. 4. The Apex Court has set aside both the orders on 8.10.2014 on the ground that the High Court should have given opportunity to the appellant Smt. Sumitra Devi before restoring the licence of the petitioner (respondent No. 6 before the Apex Court). However, it was directed by the Apex Court that till a final order is passed by this Court the licence of respondent No. 6 namely the petitioner herein shall continue and he can operate the fair price shop. 5. It appears that during pendency of the present writ petition the petitioner died on 2.4.2015 and a substitution application, therefore, has been filed by his son namely Ram Pravesh on the ground that the authorities had illegally passed the cancellation orders and he being the legal heir of the deceased (licence holder) has a right to be heard. 6. On 25.4.2016 when the matter was heard, the impleadment application filed by Smt. Sumitra Devi was allowed and she was directed to be impleaded as respondent No. 6 in the array of party. Sri Anoop Trivedi, learned counsel appearing for Smt. Sumitra Devi (respondent No. 06 herein) has been heard at length. 7. 6. On 25.4.2016 when the matter was heard, the impleadment application filed by Smt. Sumitra Devi was allowed and she was directed to be impleaded as respondent No. 6 in the array of party. Sri Anoop Trivedi, learned counsel appearing for Smt. Sumitra Devi (respondent No. 06 herein) has been heard at length. 7. Learned counsel for the respondent at the very outset submits that the writ petition has become infructuous on account of the death of the licence holder. The applicant in the substitution application namely Ram Pravesh allegedly son of the licence holder has no right to be substituted in his place as he cannot defend the action or inaction of his father. The shop has become vacant on account of the death of the licence holder and has to be allotted in an open meeting of the Gram Panchayat. This Court is not required to look into the correctness of the cancellation orders passed by the licensing authority as also the appellate authority at the instance of the applicant in the substitution application. 8. In the rejoinder, learned counsel for the applicant, however, submits that he has a preferential right to be considered for allotment of the fair price shop being the legal heir of the licence holder. Reliance is placed upon Clause 10(jha) of the Government Order dated 17.8.2002 to submit that in case, he succeeded in proving that his father was innocent and was carrying a good will and the cancellation orders are bad, the authorities cannot refuse to consider his application, if any, for allotment of the fair price shop on preferential basis. 9. Considering the submissions of learned counsel for the parties and having perused the record, this Court does not find force in the submission of Sri Anoop Trivedi learned counsel for the respondent that the petition has become infructuous. The impact of clause 10 (jha) of the Government order dated 17.8.2002 is admitted to the learned counsel for the parties. The relevant clause 10(jha) of the said Government order is as follows. :. Þ;fn nqdkunkj vPNh [;kfr dk gks rks mldh e`R;q ds mijkar nqdku dk vkcaVu mlds vkfJr dks djus ij fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSAÞ 10. The relevant clause 10(jha) of the said Government order is as follows. :. Þ;fn nqdkunkj vPNh [;kfr dk gks rks mldh e`R;q ds mijkar nqdku dk vkcaVu mlds vkfJr dks djus ij fopkj fd;k tk ldrk gSA vkfJr dk rkRi;Z iRuh] iq= rFkk vfookfgr iq=h ls gSAÞ 10. This Government order came up for consideration before a division bench of this Court in Subash v. State of U.P. and others, 2015(1) ADJ 113 . It has held therein that the allotment of the fair price shop licence is to be done only after resolution is passed in the open meeting of the Gaon Sabha, and no exception to the said procedure can be carved out. However, a legal heir of the licensee who had earned a good will has a preferential right for consideration for the settlement of the fair price shop on compassionate ground. 11. In the said case, the agenda for settlement of the fair price shop placed in the meeting of Gram Panchayat did not suggest as to whether the reputation of the petitioner therein was good or not and the opinion of villagers was not taken on the said issue in the open meeting of the Gaon Sabha and, therefore, the resolution was held to be not in consonance with clause 10(jha) of the Government order dated 17.8.2002 and was therefore, set aside. 12. Considering the relevant clause 10(jha) of the Government order dated 17.8.2002 and the observations of the Division Bench of this Court in the above noted case, this Court is of the opinion that the son of the licence holder who has filed the substitution application has a right for consideration for allotment of the fair price shop in case, it is found that his father was carrying good reputation in the matter of distribution of essential commodities in the village. However, in case, the cancellation order are allowed to remain as such without consideration on merits, they will come in the way of consideration of the right of the son of the licence holder who can be non-suited on this ground alone. For this reason, the writ petition cannot be rendered infructuous and it is held that the applicant in the substitution application has a right to confront the orders passed by the licensing authorities in canceling the fair price shop licence of his father. 13. The substitution application is, therefore, allowed. For this reason, the writ petition cannot be rendered infructuous and it is held that the applicant in the substitution application has a right to confront the orders passed by the licensing authorities in canceling the fair price shop licence of his father. 13. The substitution application is, therefore, allowed. Sri Ram Pravesh is substituted in place of the petitioner in the present petition. 14. Coming on the merits of the orders of cancellation, it is found from the record that a suspension order dated 30.10.2007 was passed suspending the fair price shop licence of the petitioner’s father Ram Briksh (licence holder) on the ground that he did not distribute the essential commodities to the villagers on 11.10.2007 and Gram Pradhan had filed a complaint in that regard vide letter dated 16.10.2007. Another charge against the licence holder was that he did not tender money for lifting the food grains and sugar for distribution for the month of November, 2007. 15. The petitioner gave a reply on 1.12.2007 with the relevant documents to the effect that the distribution on 11.10.2007 was to be done in the presence of the concerned officer/observer who did not turn up. Information in this regard was given to the District Supply Officer who in-turn fixed 18.10.2007 for distribution of essential commodities. The licence holder distributed the essential commodities on the said date. He also pleaded that the Gram Pradhan was carrying grudges against him and had filed the complaint in a mala fide manner. 16. The cancellation order dated 18.1.2008 was passed by the licensing authority rejecting the explanation of the licence holder recording a finding that he intentionally did not distribute the essential commodities and had thus violated the rights of the villagers to get ration at the subsidied rates. The appeal was also rejected on the same ground as has been taken by the licensing authority. No independent reasoning has been given by the Appellate Authority to reject the appeal. 17. It is further found that a letter dated 15.10.2007 written by the District Supply Officer, Gorakhpur to Bal Vikas Pariyojna Adhikari, Pipraich, Gorakhpur has been brought on record as Annexure 1 to the writ petition. A perusal of the said letter indicates that 18.10.2007 was fixed for distribution of the essential commodities and one Virendra Yadav, Gram Vikas Adhikari was nominated to remain present to ensure fair distribution. A perusal of the said letter indicates that 18.10.2007 was fixed for distribution of the essential commodities and one Virendra Yadav, Gram Vikas Adhikari was nominated to remain present to ensure fair distribution. It was also directed that a report be submitted regarding absence of Lekhpal on 11.10.2007 in the village to ensure distribution. This letter was written on the information given by the petitioner to the District Supply Officer, Gorakhpur regarding non-distribution of essential commodities on 11.10.2007. 18. It is evident from the record that both the Licensing Authority and the Appellate Authority did not consider that the distribution was not withheld by the licence holder rather it was postponed on account of absence of the concerned officer in whose presence the distribution was required to be done. Further the licence holder was prompt in giving information to the District Supply Officer who while acting upon his report had fixed another date and deputed another officer to supervise the distribution. 19. The essential commodities were distributed on 18.10.2007 i.e. on the date fixed by the District Supply Officer. The suspension order itself was passed on 30.10.2007 i.e. after 12 days of the distribution acting on an earlier complaint of the Gram Pradhan. Therefore, the first charge against the licence holder mentioned in the suspension order is not proved. 20. So far as the second charge namely non deposit of the requisite money for the month of November, 2007 is concerned, the licence holder has submitted in his explanation that the money could not be deposited because of the inaction of the Gram Pradhan. It is specific case of the licence holder that the money for November, 2007 could not be deposited by him for the reason that the certificate of distribution for the month of October, 2007 was not given by the Gram Pradhan. In absence of the said certificate, it was not possible for him to deposit the money. Moreover, the shop was suspended on 30.10.2007 on account of mala fide act of the Gram Pradhan and the licensing authority so he could not get the chance to make the deposits. 21. In the cancellation order, both the licensing as well as Appellate authority did not consider this aspect of the matter. Moreover, the shop was suspended on 30.10.2007 on account of mala fide act of the Gram Pradhan and the licensing authority so he could not get the chance to make the deposits. 21. In the cancellation order, both the licensing as well as Appellate authority did not consider this aspect of the matter. There is no finding that certificate of distribution for the month of October was given to the licence holder but he did not deposit the money for November month. Even otherwise, the licence was suspended only on 30.10.2007 and, therefore, there was no occasion before the licensee holder to persuade the authorities to provide him distribution certificate so as to deposit the money for the month of November 2007. 22. In view of the above, on both the counts, the cancellation order passed by the Licensing Authority as also the Appellate Authority cannot be sustained. Both the above noted orders are hereby set aside. 23. It is, however, left open for the petitioner Ram Pravesh to apply for allotment of fair price shop which became vacant on account of the death of his father on compassionate ground. In case, such an application is moved, an open meeting of the Gram Panchayat be held for considering the agenda to allot the fair price shop on compassionate ground after taking opinion of the villagers on the issue as to whether the reputation of the erstwhile licensee namely (Ram Briksh) the father of the petitioner herein was good or not. Such meeting shall be called by the Sub-Divisional Officer within a period of six weeks from the date of presentation of the application by Ram Pravesh alongwith the certified copy of this order and a decision be taken regarding allotment of the fair price shop on the basis of resolution of the Gram Panchayat. The respondent No. 6 Smt. Sumitra, if moves an application for allotment of the fair price shop, her candidature shall also be considered in the aforesaid meeting of the Gaon Sabha to ensure the fair distribution of the essential commodities to the villagers. An early decision be taken by the Sub Divisional Officer preferably within a period of four weeks after holding the meeting of the Gram Panchayat for allotment of the fair price shop in accordance with law. 24. With the above observations and directions, the writ petition is allowed. ——————