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2016 DIGILAW 3610 (ALL)

KANTI DEVI v. STATE OF U. P.

2016-11-02

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Shri S.K.Chaubey alongwith Shri K.K.Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 3 and Shri O.N. Rai and Shri D.K. Jaiswsal, learned counsel for the respondent No. 4. 2. Through this writ petition, the petitioner has prayed to issue a writ of certiorari quashing the order dated 5.7.2016 (Annexure 5 to the writ petition) passed by the Sub Divisional Officer, Padrauna, District Kushi Nagar, (the respondent No. 3), by which one Shri Om Prakash Chaudhary, (the respondent No. 4) has been appointed as a fair price shop agent of Village Panchayat Purnaha Mishra. 3. Learned counsel for the petitioner submits that the petitioner was appointed as a fair price shop agent of village Purnaha Mishra and is functioning as such. In his submission without cancelling her agreement to run fair price shop (in short ‘shop’), the allotment of the shop in favour of respondent No. 4 is patently illegal and arbitrary because the petitioner is a resident of village Purnaha Mishra and not of village Kinnnar Patti as have been understood. 4. The facts of this case, in brief, are that the petitioner is running the fair price shop of village Panchayat Purnaha Mishra for the year 2002. Earlier Village Panchayat Purnaha Mishra was consisted of Village Panchayat Purnaha Mishra and village Kinnar Patti but in the election of Pradhan in the year 2015, another Gaon Sabha was created in the name of Kinnar Patti. 5. It appears that under the existing policy of the State Government in each Gaon Sabha, there must be a fair price shop, therefore, in Village Panchayat Purnaha Mishra, the appointment of Shri Om Prakash Chaudhary, respondent No. 4 was made. 6. It is contended by learned counsel for the petitioner that the petitioner is not the resident of Gaon Sabha Kinnar Patti but she is resident of Gaon Sabha Purnaha Mishra. In support of her case, the petitioner has filed domicile certificate, caste certificate and Aadhar Card. 7. It also transpires that with respect to the appointment of fair price shop Agent in village Purnaha Mishra, a resolution was passed by the Gaon Sabha in favour of respondent No. 4, to which one Sri Sunil Kumar Chaudhary has filed an objection before the Sub Divisional Officer stating that no such resolution was passed. 8. 7. It also transpires that with respect to the appointment of fair price shop Agent in village Purnaha Mishra, a resolution was passed by the Gaon Sabha in favour of respondent No. 4, to which one Sri Sunil Kumar Chaudhary has filed an objection before the Sub Divisional Officer stating that no such resolution was passed. 8. Shri Chaudhary has also approached this Court for redressal of his grievance through Writ C No. 27633 of 2016. This writ petition was dismissed on 2.6.2016 by this Court, with liberty to the petitioner to file objection before the Sub Divisional Magistrate, Tehsil Padrauna, District Kushinagar. It was also provided that in case till date no final decision has been taken in the matter, objection of the petitioner shall also be taken into account by the Sub Divisional Magistrate while taking final decision in the matter. 9. Pursuant thereto the impugned order has been passed by the Up Ziladhikari, Padrauna (the respondent No. 3) holding that the petitioner is resident of village Kinnar Patti and not of village Purnaha Mishra. 10. Shri Chaubey contended that while doing so the evidence produced by the petitioner, i.e., Aadhar Card, domicile certificates and ration card have not been taken into consideration, whereas those documents refer that the petitioner is a resident of village Purnaha Mishra and not of Kinnar Patti. 11. Considering the submissions of the learned counsel for the petitioner, this Court on 5.8.2016 has passed the following order; “Heard Sri Surendra Kumar Chaubey alongwith Sri Kamlesh Kumar Tiwari, learned counsel for the petitioner, learned standing counsel for the State Respondents and Sri T.M.Khan, learned counsel for the Gaon Sabha. Learned standing counsel is directed to seek instruction as to whether the fair price shop, which is already running is situated in Village Purnaha Mishra or in Village Kinnar Patti including the boundaries of the shop. Put up as a fresh case on 17th August, 2016. Till then the respondents are restrained not to interfere in the functioning of the petitioner to run fair price shop in Village Purnaha Mishra.” 12. Pursuant thereto the learned Standing Counsel had obtained instructions and vide order dated 30.8.2016, he was directed to file an affidavit swearing the contents of the instructions. Till then the respondents are restrained not to interfere in the functioning of the petitioner to run fair price shop in Village Purnaha Mishra.” 12. Pursuant thereto the learned Standing Counsel had obtained instructions and vide order dated 30.8.2016, he was directed to file an affidavit swearing the contents of the instructions. The order dated 30.8.2016 passed by this Court is reproduced herein under: “Pursuant to the earlier order of this Court dated 5.8.2016, learned Standing Counsel has sought instructions. He is directed to file an affidavit swearing the contents of the instructions. The affidavit has to be sworn by the Sub-Divisional Officer, Padrauna, District Kushinagar. Put up on 8th September, 2016 as fresh. Interim order, granted earlier, shall continue till the next date of listing.” Pursuant thereto a Short Counter-affidavit has been filed by Shri Naresh Chandra, Tehsildar, Tehsil Padrauna, District Kushinagar. In para Nos. 9 and 10 of the Short Counter-affidavit, the following averments have been made, which are reproduced, herein, below; “9. That it is also relevant to mentioned here that petitioner participated in the panchayat election and her name exist in the list of village panchayat Kinner Patti moreover, the khatauni of plot No. 245 where the petitioner reside are also recorded in the village panchayat Kinner Patti. A true copy of the revenue records and voter list of village panchayt Kinner Patti is annexed herewith and marked as ANNEXURE SCA-3 to this affidavit. 10. That it is further submitted that the petitioner is unnecessary disputing the existence of fair price shop whereas she is already running a fair price shop in village Kinner Patti. There is a vacancy in village Purnaha Mishra and accordingly the decision was taken for the appointment of a new fair price shop which is just legal and proper.” 13. The petitioner also filed rejoinder-affidavit in reply to the Short Counter-affidavit, wherein the reply of para No. 9 of the short counter-affidavit has been given in paragraph No. 8 and reply of paragraph No. 10 of the short counter-affidavit has been given in para No. 9 of the rejoinder-affidavit. For appreciation, the contents of paragraph Nos. The petitioner also filed rejoinder-affidavit in reply to the Short Counter-affidavit, wherein the reply of para No. 9 of the short counter-affidavit has been given in paragraph No. 8 and reply of paragraph No. 10 of the short counter-affidavit has been given in para No. 9 of the rejoinder-affidavit. For appreciation, the contents of paragraph Nos. 8 and 9 of the rejoinder-affidavit are re-produced herein below; “8.That the contents of paragraph No. 9 of the counter-affidavit wrongly stated in the manner hence denied and in reply it is stated that Khatauni annexed in paragraph under reply is correct as the petitioner has Bhumidhari land in village Kinnar Patti, however the voter list annexed with Khatauni is being annexed with a view to give colour of his case, however the same has been applied for correction. 9. That the contents of paragraph No. 10 of the counter-affidavit are wholly wrong and denied and in reply it is further made it clear that the petitioner is running fair price shop in village Panchayat Purnaha Mishra which is apparent from the Licence issued by Respondent department and no further licence has issued to the petitioner and since the petitioner has running the shop in village Purnaha Mishra therefore no vacancy at all has neither the shop of petitioner has been shifted in village Kinnar Patti nor his shop existing for village Purnaha Mishra has been suspended or cancelled and without there being existing vacancy for the village Purnaha Mishra shop has been allotted in favour of Respondent No. 4, which is wholly unwarranted in the eyes of law.” 14. From the perusal of para No. 9 of the short counter-affidavit, it transpires that the shop of the petitioner is situated in village Panchayat Kinnar Patti which reveals from the Annexure SCA-3 to the short counter-affidavit. The voter list of village Kinnar Patti has also been brought on record, in which too the name of the petitioner is shown in village Kinnar Patti. 15. From the perusal of the para 8 of the rejoinder-affidavit, it is apparent that the petitioner has not denied the factum of the voter list meaning thereby the petitioner is a resident of village Kinnar Patti. 16. 15. From the perusal of the para 8 of the rejoinder-affidavit, it is apparent that the petitioner has not denied the factum of the voter list meaning thereby the petitioner is a resident of village Kinnar Patti. 16. It also transpires from the perusal of the impugned order that the recommendation has been made on the basis of the report submitted by the Revenue Inspector (Halka Lekhpal), wherein it has been stated that another house of the petitioner is under construction in village Kinnar Patti and petitioner be permitted to run a fair price shop in village Kinnar Patti 17. Learned counsel for the petitioner contends that the petitioner is not resident of village Kinnar Patti and is resident of village Purnaha Mishra but while making such submission the learned counsel for the petitioner could not dispute the voter list of village Kinnar Patti, which is on record as Annexure CA-3 to the counter-affidavit, which contains the name of the petitioner. Meaning thereby, in the new election when the voter list was prepared, the name of petitioner has been mentioned in the voter list of village panchayat Kinnar Patti, therefore, the petitioner’s contention that she is resident of village Purnaha Mishra even after constitution of new gram panchayat Kinnar Patti is misconceived. 18. Learned counsel for the petitioner has also contended that since the petitioner’s agreement has not been cancelled, therefore no allotment could be made in favour of respondent No. 4. 19. There may be substance in the submissions of learned counsel for the petitioner but considering the fact that at present, the petitioner is not the resident of village Purnaha Mishra, therefore I am of the opinion that the appointment of the respondent No. 4 cannot be faulted with for the reason that in view of the Government orders dated 3.7.1990 and 17.8.2002, the fair price shop agent has to be of the same village. 20. Otherwise also, in case, the order impugned is set aside for the reasons that the appointment of respondent No. 4 could not be made without cancelling the agreement executed in favour of the petitioner another illegality would revive as the petitioner cannot continue as fair price shop agent of Purnaha Mishra in view of the constitution of new gram panchayat Kinnar Patti to which the petitioner belongs. 21. 21. It is settled that if by setting aside of an illegal order, another illegal order revives in that eventuality, the matter should not be interfered with under Article 226 of the Constitution of India. Reference may be had to the judgments of the Apex Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828 , Champalal Binani v. CIT, West Bengal, AIR 1970 SC 645 , Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others, AIR 1999 SC 3609 , Mallikarjuna Mudhagal Nagappa and others v. State of Karnataka and others, AIR 2000 SC 2976 , Chandra Singh v. State of Rajasthan, AIR 2003 SC 2889 , S.D.S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and others, 2003 (4) Supreme 44 , State of Uttaranchal and another v. Ajit Singh Bhola and another, (2004) 6 SCC 800 and State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC 436 as well as this Court in Smt. Shanti and another v. Board of Revenue Lko. and 3 others, 2013(8) ADJ 424 as well as Wasim Raza Khan v. Board of Revenue and others, 2014(4) ADJ 148 wherein it has been held that if by quashing of an illegal order, another illegality revives in that eventuality, the Court should not interfere with such orders under the writ jurisdiction. 22. In the aforesaid background and considering the reports of the Revenue Inspector and Lekhpal recommending the petitioner to run the fair price shop of village Kinnar Patti and averments made in paragraph No. 9 of the short counter-affidavit and para 8 of Rejoinder-affidavit, I do not find it to be a fit case to be interfered with in the writ jurisdiction under Article 226 of the Constitution of India. 23. The writ petition is disposed of with a direction to the respondent No. 2 (District Magistrate, Kushi Nagar) to modify the agreement earlier executed in favour of the petitioner for running a fair price shop in village Purnaha Mishra or execute a fresh agreement in favour of the petitioner for village Kinnar Patti. This exercise has to be done within a period of two weeks from the date of receipt of a certified copy of this order. This exercise has to be done within a period of two weeks from the date of receipt of a certified copy of this order. The petitioner is also directed to cooperate with the aforesaid proceedings and she may make herself available before the Sub Divisional Officer whenever she is required for executing the agreement. In the meantime, it is also provided that till the execution of the fresh agreement or modified agreement, no interference will be made in the functioning of the petitioner to run the fair price shop of village Kinnar Patti.