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2016 DIGILAW 3305 (ALL)

Pushpa Singh v. Kalpana Singh

2016-09-27

A.P.SAHI, VIJAY LAXMI

body2016
JUDGMENT Heard Sri Tripathi learned counsel for the appellant, Sri H.G.S. Parihar learned Senior Counsel for the respondent no. 1 and learned Standing Counsel for the respondents no. 2 to 5. Notices have been exchanged on behalf of respondents no. 2 to 5 by the learned Standing Counsel. 2. This appeal questions the correctness of grant of an interim order by the learned Single Judge in a matter of grant of a fair price shop license to the appellant on compassionate basis. 3. The respondent no. 1 contends that the Gaon Sabha has passed a resolution in her favour and, therefore, the resolution could not have been superseded by the grant of license to the appellant. It is undisputed on record that the respondent no. 1 had earlier filed W.P. No. 13647(M/B) of 2016 that was dismissed as withdrawn on 8.6.2016 after the resolution had been passed in favour of respondent no. 1. A second writ petition being W.P. No. 14947(MB) of 2016 was also filed by the respondent no. 1 that was also dismissed keeping in view the earlier withdrawal vide judgment dated 29.6.2016. 4. The main contention of the respondent no. 1 is that the learned Single Judge was justified in granting interim order keeping in view the judgment of Division Bench in the case of Shiv Kumar vs. Up Ziladhikari Chakia, Distt. Chandauli and 4 others : Writ C No. 40973 of 2014. A copy of the judgment has been brought on record and the same holds that even in a matter of compassionate grant of license the reputation of the erstwhile license holder has to be assessed. The grievance of the respondent, therefore, is that without any such deliberations by the Gaon Sabha a three member committee was formed and the Sub-Divisional Magistrate has proceeded to grant license to the appellant without the aforesaid proceedings having been adopted through the Gaon Sabha. In such a situation the grant of license to the appellant is unjustified. 5. The aforesaid contention raised on behalf of the respondent no. 1 is correct that the assessment has to be made in relation to the reputation of the erstwhile license holder. However, neither the writ petition nor the appeal contains any material that may indicate an adverse reputation of the earlier license holder. 5. The aforesaid contention raised on behalf of the respondent no. 1 is correct that the assessment has to be made in relation to the reputation of the erstwhile license holder. However, neither the writ petition nor the appeal contains any material that may indicate an adverse reputation of the earlier license holder. This ought to have been a pleading which could have formed the basis of a prima facie case for grant of an interim order. In the absence of such an element the learned Single Judge has simply enforced the directions of the Division Bench without examining as to whether there was any such material on record or not. 6. Secondly, what we find is that the Gaon Sabha does not appear to be favourable towards the appellant and it has not taken any decision worth the name in relation to the claim of the appellant. We accordingly direct the Sub-Divisional Magistrate to direct the Gaon Sabha to get the appointment of the appellant ratified by a proper resolution to be passed by the Gaon Sabha in this regard within six weeks from today. Any decision taken by the Gaon Sabha shall be subject to scrutiny by the Sub-Divisional Magistrate or this Court in the writ petition before the learned Single Judge. 7. The interim order dated 26.8.2016 for the reasons aforesaid is set aside. 8. The appeal is accordingly allowed.