JUDGMENT Hon’ble Ritu Raj Awasthi, J.—Mr. Pradeep Kumar Pandey, learned counsel has put in appearance on behalf of opposite party No. 5 and files vakalatnama, the same is taken on record. 2. Short counter-affidavit filed on behalf of opposite parties No. 1 to 4 by the learned Additional Chief Standing Counsel today in Court is also taken on record. 3. Learned counsel for petitioners submits that he does not want to file rejoinder-affidavit. 4. Heard Mr. Vinod Kumar Singh, learned counsel for petitioners as well as Mr. Shatrughan Chaudhary, learned Additional Chief Standing Counsel and Mr. Pradeep Kumar Pandey, learned counsel for opposite party No. 5. 5. The Writ petition has been filed challenging the order dated 29.12.2016 whereby the fair price shop for village Ghazipur, Block Babhanjot, Tehsil Mankapur, District Gonda has been allotted in favour of opposite party No. 5. 6. The short question involved in the writ petition is as to what procedure is required to be followed in case the allotment of fair price shop license is to be made invoking clause 11 of the Government Order dated 17.8.2002 wherein it is provided that in rural areas in case Gaon Sabha does not pass any proposal or dispute arises in the open meeting of Gaon Sabha, in public interest, the District Magistrate shall be authorized to direct for grant of fair price shop license, in accordance with the Government Orders, on the recommendation of the Committee headed by the Sub Divisional Magistrate. 7. As per the facts of the case, in brevity, the vacancy of fair price shop was accrued in Village Ghazipur, Block Babhanjot, Tehsil Mankapur, District Gonda in the year 2016. The opposite party No. 3, Sub Divisional Magistrate, Mankapur, District Gonda had issued directions vide letter dated 23.1.2016 to the Block Development Officer Babhanjot for allotment of fair price shop license. The opposite party No. 3 vide letter dated 29.2.2016 had determined the application of reservation in the existing vacancies and had declared Gaon Sabha Ghazipur as unreserved. He had directed Block Development Officer, Bhabhanjot to take appropriate steps for getting a proposal from Gram Panchayats in his area for grant of fair price shop license. The vacancy of fair price shop license for village Ghazipur was advertised on 3.12.2016, however, in the said advertisement Gaon Sabha Ghazipur was shown as reserved for ‘’OBC’ category. He had directed Block Development Officer, Bhabhanjot to take appropriate steps for getting a proposal from Gram Panchayats in his area for grant of fair price shop license. The vacancy of fair price shop license for village Ghazipur was advertised on 3.12.2016, however, in the said advertisement Gaon Sabha Ghazipur was shown as reserved for ‘’OBC’ category. In pursuance of the said advertisement, the petitioners and other eligible persons had applied for grant of fair price shop license. 8. It is contended by learned counsel for petitioners that without any information and without fixing a date, time and place the opposite party No. 3 has allegedly drawn lottery to select the fair price shop licensee and in most arbitrary and illegal manner has passed the impugned order allotting the fair price shop license in favour of opposite party No. 5. 9. It is submitted that as per procedure prescribed for allotment of fair price shop license, holding of open meeting of Gaon Sabha is must and without there being any proposal passed by the Gaon Sabha the allotment of fair price shop license cannot be done. 10. It is also contended that the fair shop license by way of lottery is not permissible. In support of his submissions, learned counsel for petitioners has relied on the judgment of this Court in the case of Shiv Prasad v. State of U.P. and others, 2011(5) ADJ 524 (DB), wherein it has been held that the procedure prescribed does not contemplate selection of fair price shop dealer by any lottery system. 11. Mr. Shatrughan Chaudhary, learned Additional Chief Standing Counsel, on the other hand, has tried to defend the impugned order by submitting that the order impugned has been passed by invoking clause 11 of the Government Order dated 17.8.2002 which clearly stipulates a situation where no proposal has been passed by the Gaon Sabha and where a dispute has arisen in the open meeting of Gaon Sabha, in such a situation the District Magistrate has been empowered, in public interest, to issue direction for allotment of fair price shop license on the recommendation of the Committee headed by Sub Divisional Magistrate. It is submitted that in the present case in spite of several directions issued by the opposite party No. 3 the Gaon Sabha had failed to hold any open meeting and sent proposal, recommending any name for grant of fair price shop licensee and, as such, it was necessary, in public interest, to grant fair price shop license on the recommendation of the Committee headed by the opposite party No. 3. 12. The learned Additional Chief Standing Counsel contends that the Government Order dated 17.8.2002 indicates that the procedure of lottery is not new in the matters of allotment of fair price shop license as in clause 6 of the Government Order dated 17.8.2002 it has been provided that for the purpose of granting benefit of reservation to the persons belonging to category of women, member of the family of armed forces who is killed in war/injured, ex-servicemen, freedom fighter or his wife and handicapped persons, the selection for grant of license by way of lottery shall be done. 13. It is also submitted that in the Government Order dated 9.10.2001, which relates to the grant of fair price shop license in the urban area, the system of lottery has been envisaged. 14. It is submitted that in case a Gaon Sabha has failed to pass any resolution and where a dispute has arisen in the open meeting of Gaon Sabha, there is no other method but to adopt the system of lottery to select the person for grant of fair price shop license on the recommendation of the Committee headed by Sub Divisional Magistrate. 15. The learned Additional Chief Standing Counsel also submits that in the present case the perusal of the order impugned indicates that the petitioners as well as other candidates who had applied for grant of fair price shop license were present at the time of lottery and in their presence the name of opposite party No. 5 was selected for the grant of fair price shop license by way of lottery. The petitioners have approached the Court after having failed to get the fair price shop license, as such, cannot be permitted to challenge the impugned order. 16. The learned counsel for opposite party No. 5 adopts the arguments of learned Additional Chief Standing Counsel. 17. I have considered the submissions made by learned counsel for the parties and gone through the record. 18. 16. The learned counsel for opposite party No. 5 adopts the arguments of learned Additional Chief Standing Counsel. 17. I have considered the submissions made by learned counsel for the parties and gone through the record. 18. The Government Order dated 17.8.2002 provides in detail the procedure required to be followed in the case of allotment of fair price shop license in the rural areas. In clause 7 of the Government Order dated 17.8.2002, it is provided that after determination of the Gaon Sabha under various categories the allotment of fair price shop license shall be done on the proposal sent by the Gaon Sabha in the open meeting. The proposal shall mention three names, however, the same can also be sent by mentioning two or one name. The proposal shall be sent to the Committee headed by Sub Divisional Magistrate and on the recommendation of the said Committee the allotment of fair price shop license shall be made. 19. Clause 11 of the Government Order dated 17.8.2002 provides that in case where the Gaon Sabha has failed to pass any proposal or where during the open meeting of a Gaon Sabha a dispute has arisen and no proposal could be sent, in public interest, the District Magistrate shall be empowered to direct for allotment of fair price shop license in accordance with the Government Orders, on the recommendation of the Committee headed by the Sub Divisional Magistrate. In fact, clause 11 of the Government Order dated 17.8.2002 stipulates such situations where the Gaon Sabha in spite of direction issued by the competent authority i.e., Sub Divisional Magistrate has failed to pass any proposal, deliberately or intentionally, or where such a situation has arisen that the Gaon Sabha has not passed the proposal recommending any name for grant of fair price shop license. It also stipulates a situation where in the open meeting of a Gaon Sabha due to rival claims the dispute has arisen and no proposal could be sent or passed by the Gaon Sabha. In such situations, the District Magistrate has been empowered to direct for grant of fair price shop license on the recommendation of the Committee headed by the concerning Sub Divisional Magistrate. 20. In such situations, the District Magistrate has been empowered to direct for grant of fair price shop license on the recommendation of the Committee headed by the concerning Sub Divisional Magistrate. 20. In the present case, it appears that in spite of directions issued by the concerning competent authority the Gaon Sabha had failed to pass any resolution or proposal and, as such, in the public interest, the authorities concerned had proceeded to invoke clause 11 of the Government Order dated 11.8.2002 to allot the fair price shop license in favour of opposite party No. 5. 21. The question involved in the writ petition is as to what procedure shall be followed by the concerning authorities while invoking clause 11 of the Government Order dated 17.8.2002 for grant of fair price shop license. 22. It is to be noted that the Government Order dated 17.8.2002 itself clearly provides that the fair price shop license is to be granted on the proposal of the Gaon Sabha in the open meeting and the requirement of the proposal sent by the Gaon Sabha as such is a condition precedent to grant fair price shop license. In case the allotment of fair price shop license has been done without getting a proposal of the Gaon Sabha; then, it cannot be said to be as per the procedure prescribed. 23. Rule 46 of the Rules (U.P. Panchayat Raj Rules, 1947) provides that meeting of Gaon Sabha shall be chaired by the Pradhan and in his absence by the Up-Pradhan and in case of absence of both from any such meeting, the person nominated under Rule 46-A of the Rules shall preside at the meeting or in case the Pradhan has not made a nomination, the Prescribed Authority may nominate any member. Rule 46, 46-A and 46-B of the Rules, for convenience, are reproduced below: “46. Temporary President of a meeting.—The Pradhan, and in his absence the Up-Pradhan, shall preside at the meetings of the Gaon Sabha and Gaon Panchayat and in case of the absence of both from any such meeting, the members nominated under Rule 46-A shall preside at the meeting or in case the Pradhan has not made such a nomination, the Prescribed Authority may nominate any member. If both the Pradhan and the Prescribed Authority fail to nominate any such member, the members of the Gaon Sabha and Gaon Panchayat present at the meeting may elect any member of the Gaon Panchayat to preside at the meeting. 46-A. Nomination of temporary Pradhan.—For the purpose of discharging the functions of a Pradhan in the absence of both the Pradhan and Up-Pradhan of a Gaon Sabha and the Pradhan may nominate in writing a member of the Gaon Panchayat and the member, so nominated, shall during such absence exercise all the powers and perform all duties of the Pradhan conferred or assigned by or under the Act. 46-B. Where both the Pradhan and the Up-Pradhan of a Gaon Sabha are suspended, Prescribed Authority may nominate in writing a suitable member of the Gaon Panchayat as temporary Pradhan of the Gaon Sabha to exercise all the powers and perform all the duties of the Pradhan and until such date as either of them is reinstated, or if both of them are removed from office, until such date as a new Pradhan or Up-Pradhan is elected." 24. The U.P. Panchayat Raj Rules as such stipulates the situation where the meeting of Gaon Sabha is to be held in absence of Pradhan or Up-Pradhan for the discharge of functions of Gaon Sabha and the prescribed authority has been given power of nomination. As such, it is very much clear that in such situations where the Pradhan fails to hold open meeting of the Gaon Sabha to consider the allotment of fair price shop license or where due to certain reasons an open meeting of Gaon Sabha under the Chairmanship of the elected Pradhan could not be held or where a dispute has arisen in the open meeting regarding the selection of fair price shop licensee and proposal could not be passed, the Prescribed Authority i.e., the competent authority can interfere and get an open meeting held by adopting the procedure as prescribed under Rule 46 of the Rules. He may get an open meeting of Gaon Sabha held by nominating himself or any other Officer subordinate to him to chair the said meeting. 25. He may get an open meeting of Gaon Sabha held by nominating himself or any other Officer subordinate to him to chair the said meeting. 25. Therefore, in a given situation where the Gaon Sabha has failed to pass any proposal or where a dispute has arisen in an open meeting and no proposal could be passed, the procedure required to be followed is that the competent authority shall get an open meeting of the Gaon Sabha held as per Rule 46 of the Rules or shall get an open meeting of the Gaon Sabha held in his own presence or in the presence of an Officer nominated by him by making a nomination in this regard and shall get a proposal passed by the Gaon Sabha recommending the name/names of person for the grant of fair price shop license. The competent authority may deploy required police force to maintain the law and order for the purpose of holding the open meeting of Gaon Sabha in a proper manner. The said proposal shall be sent to the Committee headed by the Sub Divisional Magistrate and on the recommendation of the said Committee the allotment of fair price shop license shall be made. 26. So far as the contention of learned Additional Chief Standing Counsel that the system of lottery is not new to the matter of allotment of fair price shop license is concerned, it is to be noted that in the case of allotment of fair price shop license in the rural area the lottery system has been permitted only for very limited purpose i.e., under clause 6 of the Government Order dated 17.8.2002, where horizontal reservation is to be applied for the category of women, members of family of service persons killed in war/injured, ex-servicemen, freedom fighter or his wife, handicapped persons, etc. It has not been permitted for any other category, not even where the reservation has been applied for Scheduled Castes, Schedules Tribes or Other Backward Class category. 27. The learned Additional Chief Standing Counsel has pointed out that there is another Government Order dated 17.8.2002 with respect to urban area which permits lottery system. 28. It has not been permitted for any other category, not even where the reservation has been applied for Scheduled Castes, Schedules Tribes or Other Backward Class category. 27. The learned Additional Chief Standing Counsel has pointed out that there is another Government Order dated 17.8.2002 with respect to urban area which permits lottery system. 28. It is also to be noted that the Government Order dated 9.10.2001 and 17.8.2002 relate only to the allotment of fair price shop license in urban areas only and it cannot be applied for allotment of fair price shop in rural areas. 29. As such, I am of the considered view that in the allotment of fair price shop license in the rural area, the lottery system is permitted only while applying the horizontal reservation for certain categories of persons as mentioned in clause 6 of the Government Order dated 17.8.2002 and for no other purpose. 30. In the case of Shiv Prasad (supra), the Division Bench has considered the Government Order dated 17.8.2002 and has come to conclusion that it does not contemplate selection of fair price shop license dealer by adopting any lottery system. Relevant paragraphs of the judgment on reproduction read as under: “The aforesaid clauses of the Government order clearly indicates the procedure to be adopted for selection of the fair price shop dealer. Although lottery system has been adopted for identification of fair price shop for implementing reservation but in the very next clause it has been provided that selection of fair price shop dealer has to be made in the open meeting of the Gaon Sabha by passing a resolution. Thus the above Government order dated 27th August, 2002 does not contemplate selection of fair price shop dealer by adopting any lottery system. The Government order No. 2715/29-6-2002-162 Sa./2001 also makes it clear in paragraph 4(4) that the conditions of the Government order dated 3rd July, 1990 which are not in consistent to this Government order shall continue to apply. As noticed above, the Government order dated 3rd July, 1990 clearly contemplates obtaining of the majority views of Gaon Sabha for selection of the fair price shop dealer. As noticed above, the Government order dated 3rd July, 1990 clearly contemplates obtaining of the majority views of Gaon Sabha for selection of the fair price shop dealer. In adopting the lottery system for selection of fair price shop dealer the views of the resident of the Gaon Sabha has no role to play and in view of the clear indication in the Government order No. 2715/29-6-2002-162 Sa./2001 for rural area selection has to be made in the open meeting of the Gaon Sabha by passing resolution and in the selection adopting of the lottery system is clearly ruled out. As noticed above, the Government order No. 2714/29-6-2002-162 Sa./2001 providing of selection of fair price shop dealer in the urban area clearly contemplates selection of fair price shop dealer by adopting lottery system by the selection committee whereas the said procedure has not been made applicable for selection of the fair price shop dealer in the rural area, rather different procedure has been contemplated for selection. Learned counsel for the petitioner has contended that in fact the decision to adopt the lottery system was taken by majority in the meeting dated 14th February, 2011, hence no exception can be taken to the procedure adopted. The submission cannot be accepted. The Government order No. 2715/29-6-2002-162 Sa./2001 has to be given effect to in a manner so that object and purpose of the Government order is fulfilled. Permitting adoption of lottery system in the rural area shall be against the object and purpose of the Government order No. 2715/29-6-2002-162 Sa./2001. Thus we are of the opinion that the resolution which has been claimed by the petitioner selecting him as fair price shop dealer by lottery system is not in accordance with the Government order No. 2715/29-6-2002-162 Sa./2001, dated 17th August, 2002 and the said resolution does not give any right to the petitioner to claim allotment of the fair price shop.” 31. In view of above, the writ petition is allowed. The order impugned dated 29.12.2016 is set aside with direction to opposite party No. 3, Sub Divisional Magistrate, Mankapur, District Gonda to pass a fresh order in accordance with law keeping in mind the observations made above. In view of above, the writ petition is allowed. The order impugned dated 29.12.2016 is set aside with direction to opposite party No. 3, Sub Divisional Magistrate, Mankapur, District Gonda to pass a fresh order in accordance with law keeping in mind the observations made above. The said exercise shall be done in a time bound manner, expeditiously, without any undue delay and final order shall be passed within a period of six weeks from the date of receipt of certified copy of this order. 32. Till the fresh order is passed, the opposite party No. 3 may pass appropriate orders making alternative arrangement for the distribution of essential commodities to the card holders so that they may not put to any difficulty. 33. The Senior Registrar of this Court is directed to forward a copy of this judgment to the Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow and Commissioner, Food and Civil Supplies, Government of U.P., Lucknow so that necessary orders may be issued regarding compliance.