Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 299 (ALL)

Ram Bahadur v. State of U. P.

2017-01-20

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Surya Prakash Kesarwani, J. Heard Sri Ashok Kumar Singh, learned counsel for the petitioner, Sri Subhash Chandra Yadav, learned standing counsel for respondent Nos.1 to 4 and Sri Jai Shankar Singh, learned counsel for the newly impleaded respondent No.6 in Writ-C No.412 of 2017. 2. The aforesaid Sri Sinjay Singh has also been heard as counsel for the petitioner in Writ-C No.8166 of 2016. 3. Learned counsel for the petitioner in Writ-C No.412 of 2017, submits that a direction may be issued for appointing a fair price shop agent in village Panchayat Nandgaon. 4. Learned standing counsel submits that the authorities are making every effort to appoint a fair price shop agent in village Panchayat Nandgaon but the same is being obstructed by Village Pradhan. 5. Sri Sanjay Singh, learned counsel for Sri Tahir Ali, the petitioner in Writ-C No.8166 of 2016, who also represents the same petitioner impleaded as respondent No.6 in Writ-C No.412 of 2017, states that Sri Tahir Ali was fair price agent of undivided village Panchayat Sheesham Kheda which consisted of two revenue villages namely "Sheesham Kheda" and "Nandgaon". He further submits that now Sri Tahir Ali is satisfied with his continuation as a fair price shop agent of village Sheesham Kheda where he resides and is running his fair price shop. 6. On 18.01.2017, Writ-C No.412 of 2017 was heard at length and the following order was passed: "Heard learned counsel for the parties. Learned standing counsel states on the basis of instructions that earlier there was a Village Panchayat "Nand Gaon" which included two revenue villages namely, "Nand Gaon" and "Sheesham Kheda". By notification no.4/294/2014-4/97 (Bareilly)/2014 dated 04.02.2015 published in the U.P. Gazette on 04.02.2015, two village panchayats namely, Village Panchayat "Nand Gaon" and Village Panchayat "Sheesham Kheda" were created. Thus, a new Village Panchayat Sheesham Kheda has been created and notified. It appears that there was a fair price shop in the old Village Panchayat Nand Gaon which consisted two new villages Nand Gaon and Sheesham Kheda. On creation of the new Village Panchayat Sheesham Kheda, the fair price shop agency settled much before the aforesaid division, was continued by the old fair price shop agent in Village Panchayat "Sheesham Kheda" inasmuch as his shop was situated within the territorial limits of Village Panchayat "Sheesham Kheda". Consequently, a direction was issued for opening of a fair price shop in Village "Nand Gaon". Consequently, a direction was issued for opening of a fair price shop in Village "Nand Gaon". It appears that the Village Pradhan of Village "Nand Gaon" obstructed the opening of the fair price shop. Consequently, even a notice dated 18.07.2016 was issued by the District Magistrate, Bareilly to the Village Pradhan requiring him to show cause as to why action under Section 95(1)(g) of the U.P. Panchayat Raj Act may not be taken against him for not allowing to convene the open meeting of the Village Panchayat for the aforesaid purpose. Since the fair price shop could not be opened so far in the Village Nand Gaon and as such the petitioner has filed the present writ petition praying for a writ, order or direction in the nature of mandamus commanding the respondent authorities to ensure to convene open meeting of Gaon Sabha Nand Gaon, Meerganj, District Bareilly for allotment of fair price shop in the village and make allotment to an eligible person. Learned standing counsel states on the basis of instructions received that the earlier fair price shop agent of undivided village panchayat is still running his fair price shop, which fell within territorial limits of Village Panchayat Sheesham Kheda, where he resides. The fair price shop of Village Nand Gaon is lying vacant, which could not be opened due to opposition being continuously made by the aforesaid fair price shop agent, Sri Tahir Ali. He states that the aforesaid Sri Tahir Ali has filed two writ petitions namely, Civil Misc. Writ Petition No.46988 of 2016 (Tahir Ali Vs. State of U.P. and others), which was disposed of on 28.09.2016 and another Writ Petition No.8166 of 2016 (Tahir Ali Vs. State of U.P. and others) is still pending. When a letter no.422 dated 16.11.2016 was issued by the Sub Divisional Officer, Meerganj to the Block Development Officer, directing him to get a fresh resolution passed for appointment of a fair price shop agent in the newly created Gram Panchayat Nand Gaon, the aforesaid Sri Tahir Ali filed a Civil Misc. Writ Petition No.55883 of 2016 praying to quash aforesaid letter dated 16.11.2016. This writ petition is also pending. In view of the aforesaid, put up on 19.01.2017 along with the records of Civil Misc. Writ Petition No.46988 of 2016 (Tahir Ali Vs. State of U.P. and others), Writ Petition No.8166 of 2016 (Tahir Ali Vs. Writ Petition No.55883 of 2016 praying to quash aforesaid letter dated 16.11.2016. This writ petition is also pending. In view of the aforesaid, put up on 19.01.2017 along with the records of Civil Misc. Writ Petition No.46988 of 2016 (Tahir Ali Vs. State of U.P. and others), Writ Petition No.8166 of 2016 (Tahir Ali Vs. State of U.P. and others) and Writ Petition No.55883 of 2016 (Tahir Ali Vs. State of U.P. and others). An impleadment application has been filed today by the aforesaid Tahir Ali, which is allowed. The applicant is allowed to be impleaded as respondent no.6. Necessary correction may be carried during the course of the day. The name of learned counsel for the newly impeaded respondent no.6 shall also be shown in the cause list, who is present in this Court today." 7. It is relevant to note that by order dated 16.11.2016, the S.D.M. concerned has directed the Block Development Officer concerned to initiate steps for appointment of a new fair price shop agent of vacant shop in village Panchayat Nandgaon. Against this order, a Writ-C No.55883 of 2016 (Tahir Ali Vs. State of U.P. and four others) was filed by the aforesaid fair price shop agent of village Sheesham Kheda namely the respondent No.6 in Writ-C No.412 of 2017 and the petitioner in Writ-C No.8166 of 2016. The aforesaid Writ-C No.55883 of 2016 was dismissed by this court by order dated 13.12.2016 observing as under: "6. Impugned order dated 16.11.2016 is apparently not erroneous. The decision on point of opening of new fair price shop is discretionary for respondents, and such discretion should be exercised in accordance with concerned Government Order. Exercise of reasoned discretion is evident in impugned order which is apparently not infirm or erroneous when arrangement is made for public convenience. Therefore this order needs no interference in exercise of extraordinary writ jurisdiction. 7. Apart from it, as discussed above, the petitioner has no statutory or constitutional right to be appointed as fair price shop dealer at any particular place or continue as dealer for two gam sabha, which is the main underlying relief sought through this writ petition. Even if he suffers loss of profit due to opening of another fair price shop, it is a case of damnum sine injuria. Even if he suffers loss of profit due to opening of another fair price shop, it is a case of damnum sine injuria. None of his legal or constitutional right will be infringed when additional fair price shop is opened or he will not be appointed as fair price shop dealer of any particular place. There is no fundamental right in anyone to be appointed as agent of a fair price shop of a particular place under a Government scheme. Therefore no legal injury is going to be caused to him by impugned order. Therefore the writ petitioner is not entitled for any relief." 8. Another Writ-C No.46988 of 2016 was also filed by the aforesaid Sri Tahir Ali challenging an order dated 03.09.2016 by which the Sub Divisional Officer required a fresh resolution to be passed by the Gaon Sabha Nandgaon for appointment of a fair price shop agent. The said writ petition was disposed of by order dated 28.09.2016 observing that the court was not inclined to interfere with that order at that stage and liberty was granted to move an application for recall of the order dated 03.09.2016. 9. The Writ-C No.8166 of 2016 has been filed by the aforesaid Sri Tahir Ali challenging the order dated 12.02.2016 passed by the Block Development Officer concerned for convening an open meeting of village Panchayat Sheesham Kheda. 10. Perusal of the records of the afore-noted writ petitions and the two decided writ petitions, shows that there was a village Panchayat Nandgaon which consisted of two revenue villages i.e. "Nandgaon" and "Sheesham Kheda". By notification dated 04.02.2015 published in the U.P. Gazettee, a new village Panchayat "Sheesham Kheda" was created. Thus, two village Panchayats namely village Nandgaon and village Sheesham Kheda came into existence. Since the respondent No.6 of Writ-C No.412 of 2017, namely Sri Tahir Ali was fair price shop agent of village Panchayat Nandgaon before delimitation and his residence and shop, both fell within the territorial limit of the newly created village Panchayat Sheesham Kheda, as such his fair price shop was allowed to continue in village Panchayat Sheesham Kheda. Now there was no fair price shop in village Panchayat Nandgaon. Consequently, the authorities have taken steps for appointment of a fair price shop agent in village Panchayat Nandgaon. Such an action of the authorities is wholly justified. 11. Now there was no fair price shop in village Panchayat Nandgaon. Consequently, the authorities have taken steps for appointment of a fair price shop agent in village Panchayat Nandgaon. Such an action of the authorities is wholly justified. 11. Learned counsel for the respondent No.6 of Writ-C No.412 of 2017 has stated as afore-noted; that the respondent No.6 wants to continue only with his fair price shop in village Panchayat Sheesham Kheda and has no claim over the fair price shop of Village Panchayat Nandgaon. Learned counsel for the petitioner of Writ-C No.412 of 2017, also states that he is interested only to the extent that the fair price shop agent in village Panchayat Nandgaon may be appointed in accordance with law as soon as possible. Learned standing counsel also supports the aforesaid position as stated by learned counsel for the petitioner and the learned counsel for the respondent No.6 of Writ-C No.412 of 2017. 12. In view of the aforesaid, both the writ petitions are disposed of. 13. It is directed to the authorities concerned to take necessary steps in accordance with law immediately to appoint fair price shop agent in village Panchayat Nandgaon.