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2017 DIGILAW 346 (ALL)

LUKMAN AHMAD v. STATE OF U. P.

2017-01-25

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner, the learned standing counsel for respondents and the learned counsel for the respondent No. 5-Gaon Sabha. 2. Learned counsel for the petitioner submits that the impugned order dated 6.10.2016 has been passed appointing the respondent No. 6 as fair price shop agent on compassionate ground under Clause 10-jha of the Government Order dated 17.8.2002 whereas the position legally settled by this Court is that a fair price shop cannot be allotted to any person except by a collective opinion of the Gram Sabha which may be expressed only by a resolution to be adopted in an open meeting of the Gram Sahba. 3. Learned standing counsel supports the impugned order. 4. I find force in the submission of learned counsel for the petitioner. Undisputedly, the respondent No. 3 has appointed the respondent No. 6 as fair price shop agent by the impugned order dated 6.10.2016 merely on the ground that he being a dependent upon the deceased fair price shop agent, is entitled for allotment of the fair price shop on compassionate ground. No resolution of the gram Sabha was passed in favour of the respondent No. 6 expressing opinion in terms of Clause 10-jha of the Government Order dated 17.8.2002. In the case of Shiv Kumar v. Up Ziladhikari Chakiya, Chandauli and others, 2014(8) ADJ 693 (DB) (Paras 22 and 23), a Division Bench of this Court considered similar controversy and held as under: “To our mind there is no exception of the abovementioned procedure carved out for consideration of grant of licence on compassionate basis founded on the strength of the reputation of the deceased licence holder. This assessment as to the reputation of the deceased licence holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha. It has to be the collective opinion of the Gaon Sabha, and not the individual opinion of any authority or the Tehsil Level Committee. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. It is only after such a resolution is passed that the same has to be considered by the Tehsil Level Committee and then a decision to be taken by the Deputy District Magistrate. In the instant case, the meeting had been convened on 14th July, 2014 by the letter dated 23rd June, 2014 which was erroneously cancelled by the subsequent order dated 9.8.2014. The Deputy District Magistrate ought to have allowed the open meeting to be held on 14th July, 2014 for such consideration and should not have hastily granted the fair price shop licence to the respondent No. 5." (Emphasis supplied by me) 5. Another Division Bench in the case of Kamta Prasad v. State of U.P. and others, 2015(5) ADJ 81 (DB) (paras-13 and 16) held as under: “13. To our mind there is no exception of the procedure carved out for consideration of grant of licence on compassionate basis founded on the strength of the reputation of the deceased licence holder. This assessment as to the reputation of the deceased licence holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha. It has to be the collective opinion of the Gaon Sabha, and not the individual opinion of any authority or the Tehsil Level Committee. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. It is only after such a resolution is passed that the same has to be considered by the Tehsil Level Committee and then a decision to be taken by the Deputy District Magistrate. 16. Hence, the order of the SDM dated 17.7.2014 is quashed. The writ petition succeeds and is allowed. It is directed that an open meeting of the Gram Sabha be convened and the proposal given by the Gram Sabha be considered by the Tehsil Level Committee whereafter the S.D.M. shall proceed to get the matter processed in accordance with the law. Hence, the order of the SDM dated 17.7.2014 is quashed. The writ petition succeeds and is allowed. It is directed that an open meeting of the Gram Sabha be convened and the proposal given by the Gram Sabha be considered by the Tehsil Level Committee whereafter the S.D.M. shall proceed to get the matter processed in accordance with the law. It is directed that the aforesaid exercise be completed expeditiously, preferably within a period of six weeks from the date of presentation of a certified copy of the order so that the the villagers may not be put to any inconvenience for distribution of fair price essential commodities.” (Emphasis supplied by me) 6. Thus the exception as provided in Clause 10(jha) of the Government Order dated 17.8.2002, to the normal procedure for appointment of a fair price shop agent is that a fair price shop agent may be appointed on compassionate ground provided the assessment of the reputation of the deceased fair price shop agent and his goodwill has been made by a resolution of the village Panchayat in its open meeting. The aforesaid assessment must be expressed by collective opinion of the village Panchayat and not by the individual opinion of any authority or the Teshil Level Committee. Thus, it is necessary to hold an open meeting of the village Panchayat for assessment for purposes of Clause 10(jha) and thereafter matter shall be considered by the competent committee and appropriate order shall be passed by the competent authority. 7. In view of the aforesaid, the impugned order dated 6.10.2016 is quashed. The respondent No. 3 is directed to take steps for convening an open meeting of the Village Panchayat in question for assessment under Clause 10(jha) of the Government Order dated 17.8.2002. Thereafter, the resolution of the village Panchayat shall be considered by the Tehsil Level Committee for approval and thereafter, respondent No. 3 shall proceed to pass appropriate order in accordance with law regarding appointment of fair price shop agent. 8. The writ petition succeeds and is hereby allowed with the direction aforementioned.