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2017 DIGILAW 276 (ALL)

Suresh Pratap Singh v. State of U. P

2017-01-19

RITU RAJ AWASTHI

body2017
JUDGMENT Ritu Raj Awasthi, J. Supplementary affidavit on behalf petitioner filed today in Court in Writ Petition No. 30735 (MS) of 2016 is taken on record. Impleadment Application on behalf of Bindu Devi filed by Mr. Kuldeep Singh, Advocate in Writ Petition No. 29941 (MS) of 2016 is also taken on record. 2. These are two writ petitions, Writ Petition No. 30735 (MS) of 2016 has been filed by Suresh Pratap Singh challenging the orders dated 20.06.2014 and 14.08.2014 whereby the claim of petitioner for allotment of fair price shop on compassionate grounds in place of deceased licensee, namely, Chandrabhan Singh, has been rejected whereas Writ Petition No. 29941 (MS) of 2016 has been filed by Smt. Kanti Singh challenging the order dated 03.12.2016 whereby in compliance of orders dated 31.5.2016, 27.6.2016 and 15.7.2016 passed in Writ Petition No. 12818 (MB) of 2016 (Rajesh Kumar Vs. State of U.P. and others), Writ Petition No. 14747 (MB) of 2016 (Malik Ram & Others Vs. The State of U.P. and others) and Writ Petition No. 15364 (MS) of 2016 (Kanti Singh Vs. State of U.P. and others), respectively, the competent authority has proceeded to decide the representations preferred by the petitioners of those writ petitions and has come to conclusion that in the grant of license for the fair price shop in question, the benefit of reservation policy is required to be given and the said fair price shop is to be alloted from the persons belong to Scheduled Caste category. 3. Since both these writ petitions relate to same fair price shop i.e., fair price shop for Village Panchayat Kaimi, Vikas Khand and Tehsil Mankapur, District Gonda and involve only legal question, as such, they have been clubbed together and are being heard and decided by a common order at the admission stage without calling for counter affidavit. 4. Heard learned counsel for the parties. 5. As per given facts, the fair price shop license was granted in favour of one Chandrabhan son of Mahadeo. After Chandrabhan died on 07.09.2013, vacancy had occurred in the said shop. Mr. Suresh Pratap Singh being son of late Chandrabhan has claimed the grant of fair price shop license in his favour on compassionate grounds. In this regard, he had made an application to the competent authority i.e., Sub Divisional Magistrate, Mankapur, Gonda which was rejected by him vide order dated 20.06.2014. Mr. Suresh Pratap Singh being son of late Chandrabhan has claimed the grant of fair price shop license in his favour on compassionate grounds. In this regard, he had made an application to the competent authority i.e., Sub Divisional Magistrate, Mankapur, Gonda which was rejected by him vide order dated 20.06.2014. In the order dated 20.06.2014, it was mentioned that the reputation of the deceased licensee, Chandrabhan was not good, as such, the fair price shop license cannot be granted in favour of Suresh Pratap Singh. The petitioner, Suresh Pratap Singh, thereafter preferred a representation before the appellate authority i.e., Commissioner, Devi Patan Mandal, Gonda, who had directed the competent authority to reconsider the matter and pass appropriate orders. It was thereafter that the opposite party no. 4, Sub Divisional Magistrate, Mankapur, Gonda had got some enquiry conducted by the Supply Inspector, Mankapur and on that basis passed the impugned order dated 14.08.2014 holding that as per statement of card holders and Pradhan, Kaimi, the deceased licensee, Chandrabhan was not performing the work of distribution of essential commodities satisfactorily and his reputation was not good, as such, there is no ground for indulgence, the representation of the petitioner, Suresh Pratap Singh, is rejected. 6. It is submitted that with respect to fair price shop in question one Rajesh Kumar had filed Writ Petition No. 12818 (MB) of 2016 which was disposed of vide order dated 31.05.2016. The Court had opined that it is for the District Magistrate to see as to which fair price shop would come under the reserved category and unreserved category, the petitioner is at liberty to approach the appropriate authority in accordance with law. Writ Petition No. 14747 (MB) of 2016 in the nature of Public Interest Litigation was filed by Malik Ram and others wherein the Division Bench vide order dated 27.6.2016 has disposed of the writ petition with observation that it would be open to the Sub Divisional Magistrate concerned to proceed to consider the grant of fair price shop license, expeditiously, as early as possible keeping in view the interest of the villagers provided it has not already been granted to any one or there is no other legal impediment. Writ Petition No. 15364 (MS) of 2016 was filed by Kanti Singh which was disposed of vide order dated 15.07.2016 with observation that in case no final decision has been taken, the concerning competent authority i.e., Sub Divisional Magistrate, Mankapur, District Gonda shall pass appropriate orders for allotment of fair price shop of Village Panchayat Kaimi, Block and Tehsil Mankapur, District Gonda in accordance with law, expeditiously, say within a period of four weeks from the date a certified copy of order is produced before him. 7. It appears that in compliance of the aforesaid orders the competent authority has proceeded to pass the order dated 03.12.2016, which is impugned in Writ Petition No. 29941 (MS) of 2016, whereby he has come to conclusion that the fair price shop in question is required to be reserved for Scheduled Caste category as the policy of reservation is to be applied and the fair price shop license shall be granted to a person belonging to Scheduled Caste category. It further appears that subsequently the proposal dated 03.01.2017 has been passed in favour of the applicant, Bindu Devi, who has moved the application for impleadment, and has been sent to the competent authority where it is still pending an no final decision has been taken. 8. Mr. D.R. Mishra, learned counsel for petitioner appearing in the matter of Suresh Pratap Singh, submits that this Court in the case of Shiv Kumar Vs. Up Ziladhikari, Chakiya, District Chandauli and others; [ 2014 (124) RD 782 ] has held that the procedure prescribed for allotment of fair price shop license, particularly with respect to selection at the gram panchayat level, is required to be followed even in case where the benefit of being a dependent of deceased licensee is to be extended. 9. Submission is that in case of grant of fair price shop license on compassionate grounds, the open meeting of Gaon Sabha is required to be held and in the said meeting the reputation of a deceased licensee is to be assessed and on the basis of the decision of the open meeting, the competent authority shall proceed to take a decision with respect to grant of fair price shop license on compassionate grounds. 10. It is further submitted that this Court in the case of Ramendra Kumar Vs. 10. It is further submitted that this Court in the case of Ramendra Kumar Vs. State of U.P. and others [Writ Petition No. 22222 (MS) of 2016] vide judgment and order dated 02.01.2017 has specifically held that for the grant of fair price shop license on compassionate basis, reputation of deceased licensee is required to be considered in the open meeting and not otherwise. 11. It is contended that the impugned orders have been passed by the competent authority without holding any open meeting of the Gaon Sabha, as such, they are not sustainable in the eyes of law. 12. Learned standing counsel does not dispute the aforesaid legal position, however, he submits that the prime consideration for grant of fair price shop license on compassionate grounds is that the deceased licensee must be carrying a good reputation and in case he was not having the good reputation, the license cannot be granted to his dependents. 13. In Writ Petition No. 29941 (MS) of 2016, the order impugned dated 03.12.2016 has been challenged on the ground that the same has been passed in contravention of Government Order dated 17.8.2002 which provides that the benefit of horizontal reservation will only be extended to the persons belong to any category mentioned in para-2 of the Government Order, but without considering the same the Sub Divisional Magistrate, Mankapur, Gonda has come to conclusion that the fair price shop license is to be granted to a person belonging to Scheduled Caste category. The impugned order has also been challenged on the ground that the Sub Divisional Magistrate has no power to quash the resolution of Gaon Sabha and in this regard petitioner relies on the Division Bench judgment of this Court dated 18.10.2012 passed in Civil Misc. Writ Petition No. 41737 of 2012; Jag Jiwan Ram Vs. State of U.P. and others. 14. Mr. Kuldeep Singh, learned counsel appearing for the applicant Bindu Devi, submits that subsequent to the decision dated 03.12.2016 of Sub Divisional Magistrate, an open meeting of Gaon Sabha has been held and a proposal dated 03.01.2017 has been passed in which the name of applicant has been recommended for grant of fair price shop license. It is submitted that the applicant belongs to Scheduled Caste category and is entitle to get the benefit of reservation policy in grant of fair price shop license in question. 15. It is submitted that the applicant belongs to Scheduled Caste category and is entitle to get the benefit of reservation policy in grant of fair price shop license in question. 15. I have considered the submissions made by the parties' counsel and gone through the records. 16. The first question for consideration before this court is as to whether the decision taken by the competent authority refusing to grant fair price shop license on compassionate grounds in favour of Suresh Pratap Singh was just and proper or not. 17. It is to be noted that it is well settled in law that in case of grant of fair price shop license on compassionate grounds the competent authority is required to follow the same procedure which is required to be followed in the grant of fair price shop license in normal circumstances, i.e., an open meeting of Gaon Sabha is required to be held in which the Gaon Sabha is required to pass a resolution thereby sending the proposal recommending the name of a candidate for allotment of fair price shop license. In case of grant of fair price shop license on compassionate grounds, in the said open meeting the Gaon Sabha is required to consider the reputation of the deceased licensee and on that basis the claim of a dependent of the said deceased licensee shall be considered. 18. In the case of Shiv Kumar (supra), the Division Bench of this Court has held as follows: "So far as the second issue of taking a decision in the open meeting of the Gaon Sabha is concerned, we are unable to agree with the proposition of the learned Standing Counsel and the counsel for the contesting respondent that no such meeting is necessary. The reason is that from a bare perusal of Clause 4.4 of the Government Order dated 3rd July, 1990, it is evident that any fair price shop licence would be opened only after a resolution is passed in the open meeting of the Gaon Sabha. It is only on the collective opinion of such a meeting that such allotment can be made. After such a resolution is passed, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Deputy District Magistrate as its Chairman as defined in Clause 5 of the Government Order dated 17.8.2002. It is only on the collective opinion of such a meeting that such allotment can be made. After such a resolution is passed, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Deputy District Magistrate as its Chairman as defined in Clause 5 of the Government Order dated 17.8.2002. Such an exercise has to be undertaken only when a resolution is passed in the open meeting as indicated in Clause 7. The allotment has to be made as per the terms and conditions contained in Clause 10 of the said government order which also envisages the grant of licence on compassionate basis." 19. Considering the aforesaid judgment, this Court in the case of Ramendra Kumar (supra) has observed that in case of grant of fair price shop license on compassionate basis the reputation of deceased licensee is required to be considered in the open meeting of Gaon Sabha. Relevant paragraphs of the judgment in the case of Ramendra Kumar (supra) on reproduction read as under: "It is to be observed that in the case of grant of licence on compassionate basis the reputation of deceased licencee is whether he was carrying a good reputation or not is a prime condition for consideration of allotment of fair price shop licence for his/her dependents. It is required to be considered in the open meeting of gram panchayat and considering this aspect the gram panchayat shall make a proposal and thereafter the competent authority shall pass appropriate orders for grant of fair price shop licence. In the present case, it appears that no proposal/recommendation was made by the gram panchayat concerned and the concerning competent authority on his own has passed the impugned order taking into consideration that the deceased licencee was having a good reputation. I am of the considered view that the procedure prescribed for allotment of fair price shop licence has not been followed and, as such, the order impugned is not sustainable in the eyes of law. The writ petition, as such, is allowed. The impugned order dated 13.7.2016, passed by opposite party no.3, as contained in Annexure-1 to the writ petition is hereby quashed with direction to opposite party no.3/Sub Divisional Magistrate, Tehsil Sandila, District Hardoi to take a fresh decision in accordance with law. The writ petition, as such, is allowed. The impugned order dated 13.7.2016, passed by opposite party no.3, as contained in Annexure-1 to the writ petition is hereby quashed with direction to opposite party no.3/Sub Divisional Magistrate, Tehsil Sandila, District Hardoi to take a fresh decision in accordance with law. He may consider the grant of fair price shop licence in favour of opposite party no.5 giving her benefit of being widow and dependent of deceased licencee Rajendra Singh, however, it shall be done following due procedure. The opposite party no.3 shall pass appropriate orders expeditiously, say, within a period of one month from the date a certified copy of this order is produced before him." 20. In the present case, the orders impugned dated 20.06.2014 as well as 14.08.2014 have been passed without calling for an open meeting of Gaon Sabha. It appears that the competent authority initially considering the request of petitioner, Suresh Pratap Singh, had passed the order dated 20.06.2014 holding that the deceased licensee, Chandrabhan, was not having a good reputation. Thereafter, on the representation made by the petitioner, Suresh Pratap Singh, the appellate authority had directed the competent authority to reconsider the matter and decide the representation of petitioner. The competent authority as such has got an enquiry conducted by the Supply Inspector and on the basis of the enquiry report has passed the order dated 14.08.2014 holding that the fair price shop license cannot be granted to petitioner, Suresh Pratap Singh, on compassionate grounds as his father late Chandrabhan was not having good reputation. 21. In view of the law laid down by this Court as has been observed above, I am of the considered view that the orders impugned dated 20.06.2014 and 14.08.2014, are not sustainable in the eyes of law. They are hereby quashed. The competent authority shall proceed to pass appropriate orders in accordance with law taking into consideration the observations made above, expeditiously, without any further delay. 22. They are hereby quashed. The competent authority shall proceed to pass appropriate orders in accordance with law taking into consideration the observations made above, expeditiously, without any further delay. 22. So far as the validity of impugned order dated 03.12.2016, which is under challenge in Writ Petition No. 29941 (MS) of 2016, is concerned, this Court is of the view that the competent authority is to first consider the grant of fair price shop license on compassionate basis in accordance with law and in case he comes to conclusion that the fair price shop license cannot be granted to Suresh Pratap Singh, only thereafter the question of application of reservation in the grant of fair price shop license in question would arise. As such, at this stage, I do not find it necessary to delve upon the question as to whether the competent authority was right in holding that the fair price shop license shall be granted to a person belong to Scheduled Caste category after applying the reservation policy. The said question is left open. 23. Writ Petition No. 30735 (MS) of 2016 is hereby allowed and Writ Petition No. 29941 (MS) of 2016 is disposed of with observation aforesaid.