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2016 DIGILAW 3352 (ALL)

RAJENDRA PAL v. STATE OF U. P.

2016-09-30

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Syed Wajid Ali alongwith Sri Santosh Kumar Singh, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri Amresh Singh, learned counsel for the gaon sabha. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 3.9.2016 passed by the Sub-Divisional Officer, Baheri, District Bareilly by which the Sub-Divisional has cancelled the earlier resolution of the gaon sabha dated 13.5.2016 and directed the Block Development Officer to get a fresh resolution passed in the open meeting for appointment of fair price shop agent. 3. While assailing the impugned order, learned counsel for the petitioner submits that the impugned order is patently illegal and without application of mind. In the submissions of learned counsel for the petitioner, earlier resolution dated 13.5.2016 was passed in favour of the petitioner in the open meeting of the gaon sabha in presence of the supervisor appointed by the Block Development Officer pursuant to the order of the Sub-Divisional Officer and it is in his presence, the open meeting of the gaon sabha was held and a C.D. was prepared. Thereafter the Block Development Officer has forwarded the paper for appropriate order before the Sub-Divisional Officer/Committee headed by him, therefore there was no occasion to re-inquire the matter on the basis of the frivolous complaint of a third person without having version of the Block Development Officer who has forwarded the resolution, the village pradhan, and the supervisor appointed by the Block Development Officer in whose presence resolution was passed and C.D. was prepared, 4. Sri Amresh Singh, who appears for the gaon sabha, has also submitted that once the resolution was passed in the open meeting of the gaon sabha, there was no occasion for holding an inquiry in view of para 4.12 of the Government Order dated 3.7.1990 without application of mind as to whether there was any substance in the complaint made by the respondent No. 5. More so, when the resolution was passed in the presence of the supervisor who happens to be the Government servant and thereafter concurrence of the Block Development Officer about the aforesaid resolution by forwarding the same to the Sub-divisional Officer without there being any adverse comment. 5. Learned Standing Counsel appearing for the State respondents contended that there is no illegality in the impugned order. 5. Learned Standing Counsel appearing for the State respondents contended that there is no illegality in the impugned order. In his submissions, after receipt of the complaint, inquiry was conducted by the Naib Tehsildar Baheri, who has submitted his report on 15.7.2016 and considering the report, the Sub-Divisional Officer came to the conclusion that C.D. was not prepared in accordance with law. 6. I have heard learned counsel for the parties and perused the impugned order. For deciding the controversy involved in this case, some conditions provided in the Government Order dated 3.7.1990, are required to be looked into, governing the field of passing of resolution by the gaon sabha for appointment of fair price shop agent and its approval, which are reproduced herein under: 4-4 xkWo lHkk dh jk; ls og mfpr nj dh nqdkusa [kksyh tk;sxhA xkWo lHkk dh jk; mudh [kqyh cSBd esa ikfjr izLrko ds ek/;e ls izkIr dh tk;saA 4-12 xkWo lHkk dk izLrko izkIr gksus ij lkekU;r;k fdlh vU; tkWp dh vko';drk ugha gksxhA ijUrq ;fn fdlh fof'k"V ekeys esa ftykf/kdkjh dksbZ TkkWp djokuk pkgs rks bl ij dksbZ jksd ugh gS ysfdu ;g lqfuf'pr dj fy;k tk, fd tkWp ds dkj.k fu;qfDr esa fcyEc u gksA 5- xkao lHkkvksa esa mfpr nj dh nqdkuksa ds p;u dk dk;Z fu/kkZfjr le; ds vanj iwjk gks tk;s o xkao lHkk dh [kqyh cSBdsa okLro esa gks tk;s] bldks lqfuf'pr djus ds fy, ;g lq>ko gS fd ftykf/kdkjh O;ogkfjd jksLVj cuk ysa ftlesa xzke iapk;r vf/kdkjh ds lkFk ,d mlls mPp Lrj dk i;Zos{kd vf/kdkjh t:j mifLFkr jgsaA From the perusal of Para 4.4. of the Government order dated 3.7.1990, it transpires that the fair price shop has to be opened after getting the opinion of the members of the village in its open meeting. From the perusal of the Para No. 4.12. it transpires that normally after receipt of the proposal of the goan sabha there will be no need for any inquiry but in the special case, if the District Magistrate desires the inquiry, there is no prohibition but before doing so, it must be ensured that on account of inquiry, there should not be any delay in the appointment of the fair price shop agent. If both the paras 4.4. If both the paras 4.4. and 4.12 are read together then it will mean that decision for appointment of fair price shop agent has to be taken in the open meeting of the gaon sabha and once the decision/proposal of the gaon sabha is sent before the Sub-Divisional Officer, normally there would be no requirement to hold an inquiry but in the special case, inquiry is permissible that too on the instance of the District Magistrate. 7. The use of word ‘vishisth mamle’, ‘special case’ has some weight,meaning thereby in normal case, inquiry is not required but if the District Magistrate requires an inquiry then mind has to be applied by the District Magistrate that it is a special case where prima facie it appears that irregularity has been committed in the process of the passing of the resolution. Looking into the language used in Para 4.12, mentioned herein above, in my opinion without recording any reason for holding the inquiry in routine manner no order for inquiry can be passed after resolution of the gaon sabha is passed and forwarded/recommended by the Block Development Officer for issuing the appointment letter and execution of the agreement. 8. On being confronted as to whether at present too, it is the District Magistrate who is the only officer who can pass the order for holding the inquiry in the event of complaint received by him with respect to any resolution passed, learned Standing Counsel, taking shelter of para 5 of the Government Order dated 17.8.2002, submits that now all these powers have been conferred upon the Committee constituted under para 5 of the aforesaid Government Order, in the chairmanship of the Sub-Divisional Officer. For convenience, para 5 of the Government Order dated 17.8.2002 is quoted herein under: 5- xzkeh.k {ks= esa jk'ku dh nqdkuksa ds vkoaVu gsrq fuEukuqlkj xfBr rglhy Lrjh; lfefr }kjk fd;k tk;sxk & 1- mi ftykf/kdkjh & v/;{k 2- lEcfU/kr [k.M fodkl vf/kdkjh & lnL; 3- vuqlwfpr tkfr@tutkfr ,oa fiNM+h & lnL; tkfr dk ,d&,d vf/kdkjh tks ftykf/kdkjh }kjk ukfer fd;k tk;s ¼;fn mi;qZDr vf/kdkfj;ksa esa ls dksbZ bl oxZ dk gks rks vyx ls ukekadu djus dh vko';drk ugha gksxh½ 4- {ks=h; [kk| vf/kdkjh & lnL;@la;kstd 9. I have gone through the impugned order. I have gone through the impugned order. I do not find that after receipt of the complaint of the respondent No. 5, the Sub-Divisional Officer/Committee headed by him has applied its mind with regard to genuineness of the complaint and after testing the merit of the complaint has directed for holding the inquiry. 10. For the sake of arguments even if it is assumed that this was done as the case is being decided in absence of the counter-affidavit in that case too, once the Block Development officer has been entrusted by the Sub-Divisional Officer to get a resolution passed and the Block Development Officer has appointed a supervisor for getting the resolution passed and the resolution was passed in the presence of supervisor as well as of the Pradhan of the concerned village and the same has been forwarded/recommended by the Block Development Officer for approval, meaning thereby, the Block Development Officer too has applied his mind and tested the genuineness of the resolution as the Block Development Officer is not meant to act like a post office and transmit the resolution whichever is sent by the Gaon Sabha for appointment of fair price shop agent and once the Block Development Officer has also applied his mind and sent the proposal for approval, in that eventuality, the Sub-Divisional Officer/the Committee headed by him if decided to hold an inquiry then the version of the Village Pradhan, Supervisor and the Block Development Officer ought to have been called for and considered by the authority concerned before cancelling the resolution. 11. Here in this case, from the perusal of the impugned order, it transpires that nothing has been done and only ex parte inquiry was conducted by the Naib Tehsildar on which basis the impugned order has been passed. This Court, dealing with such matter in Virendra v. State of U.P. and others, 2013(7) ADJ 262 , has held that if after receipt of the resolution, the Sub-Divisional Officer decided to disapprove the resolution, in that eventuality, opportunity has to be offered to the person in whose favour resolution has been passed and the village pradhan too. The view taken by me find support from the Division Bench judgement of this Court in the case of Gainda Devi v. State of U.P. and others, 2012(11) ADJ 717 . The view taken by me find support from the Division Bench judgement of this Court in the case of Gainda Devi v. State of U.P. and others, 2012(11) ADJ 717 . This is the specific case of the petitioner where the petitioner was never associated either in the course of the inquiry by the Naib Tehsildar or before passing the impugned order, therefore the order impugned is vitiated and in my considered opinion it cannot be sustained in the eyes of law. 12. In the result, the writ petition succeeds and is allowed. The impugned order dated 3.9.2016 passed by the Sub-Divisional Officer, Baheri, District Bareilly is hereby quashed. The Sub-Divisional officer/Committee constituted under Para 5 of the Government order dated 17.8.2002 is directed to pass a fresh order, considering the complaint of the respondent No. 5 and keeping in mind the observation made by this Court, herein, above, expeditiously but not later than six weeks from the date of receipt of certified copy of the order of this Court.