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2016 DIGILAW 3157 (ALL)

Uma Shankar Singh v. State of U. P.

2016-09-15

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh, J. – Vakalatnama filed by Sri Rajeev Trivedi, on behalf of respondent no.5 today, is taken on record. 2. Heard Sri Rahul Srivastava, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri T.P.Singh, learned senior counsel assisted by Sri Rajiv Trivedi and Sri T.M. Khan, learned counsel for the Gaon Sabha. 3. Through this writ petition, prayer has been made for issuing a writ of certiorari quashing the order dated 16.5.2016 passed by the District Supply Officer, Ballia as well as the order dated 23.6.2015 passed by the Sub Divisional Officer, Bansdeeh, District Ballia. 4. Vide order dated 16.5.2016 the District Supply Officer has decided the representation of the petitioner holding that with respect to the grievance of the petitioner earlier on 23.6.2015 the Sub Divisional Officer has already taken a decision, therefore the proceeding in hand is rejected on the ground of principle of res judicata whereas vide order dated 23.6.2015 the Sub Divisional Officer has decided the representation of the respondent no.5 in view of the order dated 8.11.2007 passed by him wherein the then Sub Divisional Officer has found that there is no illegality or irregularity in continuance of respondent no.5 as fair price shop agent. 5. The facts giving rise to this case are that respondent no.5 was appointed as fair price shop agent of Village Sultanpur, Block Beruarbari, Tehsil Bansdeeh, District Ballia on 17.2.1992. While working as such his mother, Smt. Devanti Devi was elected as Gram Pradhan of the said Gram Panchayat in the year 2006, who later on, after expiry of her term has again been elected as Pradhan of the said Gram Panchayat in the year 2010. Against the respondent no.5 a complaint was filed on 5.2.2015 by one Sri Uma Shankar Singh that since the mother of the respondent no.5 has been elected as Gram Pradhan of the said village, therefore in view of the Government Order dated 3.7.1990 the agreement of the respondent no.5 to run fair price shop deserves to be cancelled. When nothing was done, Sri Uma Shankar Singh has filed Civil Misc. When nothing was done, Sri Uma Shankar Singh has filed Civil Misc. Writ Petition No. 52134 of 2006 which was disposed of by this Court vide order dated 19.9.2006 with the following observations: "Learned counsel for the petitioner is directed to file a fresh and comprehensive representation along with certified copy of this order as well as complete copy of the Writ Petition with all Annexures before concerned competent authority within three weeks from today and on such representation being filed, as stipulated above, the concerned competent authority shall decide the same within twelve weeks of the receipt of the representation as contemplated above, exercising its unfettered discretion on the basis of the record before him in accordance with relevant Rules, Government Orders, Scheme/Policy after hearing the parties concerned without being influenced by any of the observations in this judgment since this Court has not entered into merits of the present case. Writ Petition is finally disposed of subject to the above observations." 6. Pursuant thereto the Sub Divisional Officer vide order dated 8.11.2007 found that since the mother of respondent no.5 was elected as Gram Pradhan in the year 2006 and respondent no.5 was appointed as fair price shop agent in the year 1992, therefore, in view of the Government Order dated 28.2.2007 there would be no illegality in the continuance of the respondent no.5 as fair price shop agent. 7. It appears that another complaint was filed against the respondent no.5 on 5.2.2015 by the present petitioner stating therein that since mother of respondent no.5 is holding post of Gram Pradhan and is continuing as such, therefore, his agreement to run the fair price shop has to be cancelled. Taking note of that, agreement of respondent no.5 was suspended on 4.3.2015. 8. The aforesaid order of suspension was made subject matter of Writ C No. 28727 of 2015 (Arvind Kumar Singh v. State of U.P. and others). This writ petition was disposed of with the direction to the petitioner to file an application for revocation of the suspension order. In case such application is filed that may be considered and decided by passing a reasoned speaking order. 9. It is thereafter the Sub Divisional Officer has again passed the order dated 23.6.2015 reiterating his earlier view taken in the order dated 8.11.2007 and restored the agreement of respondent no.5. In case such application is filed that may be considered and decided by passing a reasoned speaking order. 9. It is thereafter the Sub Divisional Officer has again passed the order dated 23.6.2015 reiterating his earlier view taken in the order dated 8.11.2007 and restored the agreement of respondent no.5. This order was challenged before this Court through Public Interest Litigation (PIL) No. 50809 of 2015 (Uma Shankar Singh vs. State of U.P. and others). This PIL was disposed of vide order dated 9.9.2015 with the following observation: "We see no reason to entertain a public interest litigation on this aspect or on the validity of the order of revocation. If there is a grievance in regard to the functioning of the fair price shop or in regard to the distribution of scheduled commodities, a remedy would lie before the District Supply Officer for remedial action. The petition is, accordingly, disposed of. There shall be no order as to costs." 10. It appears that after the aforesaid order dated 9.9.2015 the petitioner has filed another application before the District Supply Officer, who after considering the case of the petitioner has decided the petitioner's application vide order dated 16.5.2016 relying upon the order dated 8.11.2007 passed by the Sub Divisional Officer. It is the order dated 23.6.2015 passed by the Sub Divisional Officer and the order dated 16.5.2016 passed by the District Supply Officer, which are being questioned through this writ petition. 11. Sri Rahul Srivastava, learned counsel for the petitioner submits that the Government Order dated 28.2.2007 was repealed by the Government Order dated 17.5.2010 and while repealing, it was specifically provided that in case any family member of the fair price shop agent is elected as Pradhan or Up Pradhan then his agreement to run the fair price shop shall be cancelled immediately, therefore, the Sub Divisional Officer as well as the District Supply Officer, both have erred in placing reliance upon the Order dated 8.11.2007 passed by the Sub Divisional Officer as at that time Government Order dated 28.2.2007 was enforced and they have also erred in rejecting the petitioner's case on the ground of principle of res judicata, taking note of the order dated 8.11.2007. In his submission both the authorities ought to have decided the case of the petitioner on the basis of the relevant Government Order dated 17.5.2010. 12. In his submission both the authorities ought to have decided the case of the petitioner on the basis of the relevant Government Order dated 17.5.2010. 12. Refuting the submission of the learned counsel for the petitioner, Sri Singh, learned senior counsel appearing for the respondent no.5 submits that the writ petition is not maintainable at the instance of the petitioner as the petitioner's status is only of a complainant. He also submits that in view of the order dated 9.9.2015 passed in the aforesaid PIL it was not open for the petitioner to open old chapter as suspension order of respondent no.5 was already revoked and that point has been considered by the Court dealing with PIL. His further contention is that although the mother of the respondent no.5 has been elected as Gram Pradhan but the respondent no.5 was living separately, therefore, too the Government Order dated 17.5.2010 would be of no avail. His last contention is that at present the mother of the respondent no.5 is not continuing as Gram Pradhan, therefore, there is no hurdle in the way of respondent no.5 to continue as fair price shop agent. 13. I have heard the learned counsel for the parties and considered their submissions made by them and have perused the record. It is not in dispute that the order dated 8.11.2007 which was passed pursuant to the order of this Court in Writ C No. 52134 of 2006, has not been challenged any where and therefore, the Sub Divisional Officer has held that there is no illegality and irregularity in continuance of the respondent no.5 as fair price shop agent. However, in view of the Government Order dated 17.5.2010 the chapter was reopened by few villagers including the petitioner and agreement of respondent no.5 to run fair price shop was suspended which was again made subject matter of Writ C No. 28727 of 2015 (Arvind Kumar Singh v. State of U.P. and others) which was disposed of with liberty to the respondent no. 5 to file an application for revocation of the suspension order and pursuant thereto, respondent no.5 had filed an application and the said order of suspension was revoked by the Sub Divisional officer on 23.6.2015. The order dated 23.6.2015 was made subject matter of Public Interest Litigation (PIL) No. 50809 of 2015 (Uma Shankar Singh v. State of U.P. and others). The order dated 23.6.2015 was made subject matter of Public Interest Litigation (PIL) No. 50809 of 2015 (Uma Shankar Singh v. State of U.P. and others). This Court vide order dated 9.9.2016 has observed that we see no reason to entertain a public interest litigation on this aspect and on the validity of the order of revocation. Meaning thereby the chapter of revocation of suspension order was closed. However, liberty was given to the petitioner that in case, there is any grievance with regard to the functioning of the fair price shop or with regard to distribution of scheduled commodities, he may approach the Sub Divisional Officer. The petitioner, after the order of this Court dated 9.9.2015 has filed a fresh application for reopening the chapter of order of revocation of suspension order which, in my opinion, has rightly been rejected by the District Supply Officer, vide order dated 16.5.2016, may be on the irrelevant reason as the previous chapter could not be reopened in view of the decision of P.I.L. petition. 14. There may be substance in the submission of the learned counsel for the petitioner that on the relevant date, i.e. 16.5.2016, the Government Order dated 17.5.2010 was in force and the District Supply Officer has erred in relying upon the order dated 7.11.2007 which was not passed on the basis of the Government Order dated 17.5.2010 but looking into the facts and circumstances of the petitioner's case since it was not open for the petitioner to reagitate the matter before the District Supply Officer, therefore, even if the District Supply Officer has not considered that aspect of the matter the order cannot be faulted with as in case the order was passed considering the Government Order dated 17.5.2010 the order would have been without jurisdiction as the chapter with respect to the suspension order was closed by this Court while passing the order dated 9.9.2015 in PIL. 15. Sri Singh, learned senior counsel for the respondent no.5 submitted that the status of the petitioner is of a complainant, therefore, he cannot raise any grievance against the continuance of respondent no.5 when the suspension order has been revoked. 15. Sri Singh, learned senior counsel for the respondent no.5 submitted that the status of the petitioner is of a complainant, therefore, he cannot raise any grievance against the continuance of respondent no.5 when the suspension order has been revoked. I find that the contention of the learned senior counsel is well founded and supported by two Division Bench decisions of this Court in Amin Khan v. State of U.P. and others, 2008 (2) UPLBEC 1256 and Dharam Raj v. State of U.P. and others (AWC 2010(2) 1878). It is also noticeable that at present the mother of respondent no.5 is not holding the post of Gram Pradhan, therefore also, I am not inclined to interfere with the impugned orders dated 16.5.2016 passed by the District Supply Officer, Ballia as well as the order dated 23.6.2015 passed by the Sub Divisional Officer, Bansdeeh, District Ballia, under Article 226 of the Constitution of India. 16. The writ petition is dismissed.