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Allahabad High Court · body

2017 DIGILAW 722 (ALL)

JANKI v. STATE OF U. P.

2017-03-08

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner and the learned standing counsel for the State respondents. 2. Learned standing counsel states that he has received instructions from the State respondents. He submits on the basis of instructions that notice for meeting of the village Panchayat for 2.9.2016 was given on 23.8.2016. In the aforesaid meeting more than 1300 residents of the village participated out of total population of about 1800. Videography and photograph were also done. Three persons namely Sri Janki Prasad son of Ram Lal, Sri Hori Lal and the petitioner contested for selection of fair price shop agent. Sri Janki Prasad son of Ram Lal secured 478 votes, Sri Hori Lal secured 837 votes and the petitioner secured merely 7 votes. Proposal was passed by the village panchayat in favour of Sri Hori Lal who secured highest votes, i.e. 837 votes. Consequently, the said proposal was forwarded to the Tehsil level committee following due procedure which was approved and thereafter the fair price shop in question was allotted to the aforesaid Sri Hori Lal (respondent No. 5). Learned standing counsel has also produced several photographs of the meeting convened on 2.9.2016 which clearly shows that it was attended by large number of villagers. The photographs have also been shown to the learned counsel for the petitioner. The petitioner has participated in the meeting without any objection but after being unsuccessful he is objecting to the meeting to be invalid. 3. Learned counsel for the petitioner submits that Rule 32 of the U.P. Panchayat Rules provides for 15 days notice for convening a meeting of the village panchayat. Since according to own showing of the State respondents, the notice of meeting was given on 23.8.2016 for meeting to be convened for 2.9.2016 and therefore the notice is short of the prescribed number of days for the meeting. Consequently, the meeting convened cannot be said to be a valid meeting. 4. I have carefully considered the submissions of learned counsel for the parties. 5. It is undisputed that a notice on 23.8.2016 for convening the meeting for 2.9.2016 was given. The meeting was convened on 2.9.2016. It is stated in para-13 of the writ petition that there are 1800 members in the village panchayat in question for which the quorum would be of 360 members. 5. It is undisputed that a notice on 23.8.2016 for convening the meeting for 2.9.2016 was given. The meeting was convened on 2.9.2016. It is stated in para-13 of the writ petition that there are 1800 members in the village panchayat in question for which the quorum would be of 360 members. As per resolution of the village panchayat, the contestants namely Janki Prasad son of Ram Lal, Hori Lal (respondent No. 5) and the petitioner secured 478 votes, 837 votes and 7 votes respectively. Thus, the total votes casted in the meeting, were 1322. Thus, quorum was complete. The number of votes casted in the meeting clearly shows that the meeting was attended by large number of villagers. Even if it is assumed that merely those who casted the votes, were present in the meeting still the total number of members of the village panchayat not present in the meeting, would come to about 478. The petitioner secured merely 7 votes. Under the circumstances, even if the number of absentees are added to the number of votes secured by the petitioner, it would come to 485 which shall still be much short of the total number of votes secured by the respondent No. 5 who secured 837 votes. Thus, there was a clear majority opinion of the village panchayat in the meeting convened on 2.9.2016 for selecting the respondent No. 5 as fair price shop agent. The majority opinion expressed in favour of respondent No. 5 in the form of proposal of the village panchayat has been lawfully approved by the Tehsial Level Committee and allotment of the fair price shop in question has been made in his favour by the competent authority. Thus, I do not find any illegality in the appointment of the respondent No. 5 as fair price agent of the village Panchayat in question. 6. So far as the submission of the learned counsel for the petitioner with respect of period of notice in convening the meeting of the village panchayat is concerned, I do not propose to enter into controversy in view of clear majority opinion expressed by the members of the village panchayat in favour of the respondent No. 5 as mentioned above. 7. That apart, the petitioner voluntarily and with full knowledge about the meeting, participated in the meeting and contested for selection for fair price shop agency but he was unsuccessful. 7. That apart, the petitioner voluntarily and with full knowledge about the meeting, participated in the meeting and contested for selection for fair price shop agency but he was unsuccessful. After being unsuccessful, he cannot be allowed to turn round and to raise objection that the notice was not given for sufficient number of days. The submission of learned counsel for the petitioner on this point is also hit by principles of approbate and reprobate. 8. The law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn around and say that it is void for the purpose of securing some other advantage. 9. In the case of Zila Dastavej Lekhak Association, Banda and another v. State of U.P. and others, (1996) 8 SCC 441 , while considering the challenge to the validity of Rule 6(2) of the U.P. Document Writers License Rules 1977 by the licensees, Hon’ble Supreme Court held as under : “The members of the petitioner-Association, having become the licensees under the Rules, are bound thereby. Firstly, the petitioner-Association being consisting of the members who obtained licence under the Rules, cannot challenge the Rules under which they came to operate. The very source under which they came to operate either survives or perishes under the Rules. They cannot challenge that part of the Rules which is unfavorable to them while at the same time, respecting the favorable part thereof since they have no independent right de hors the Rules. They cannot challenge the power of the Inspector General of Registration in making the rules regulating conditions of the document writers and the conditions under which they become eligible to be document writers.” (Emphasis supplied by me) 10. They cannot challenge the power of the Inspector General of Registration in making the rules regulating conditions of the document writers and the conditions under which they become eligible to be document writers.” (Emphasis supplied by me) 10. In the cases of National Council of Educational Research and Training v. Shyam Babu Maheshwari and others, (2011) 6 SCC 412 (paragraphs 12 and 14), Krishna Kumar v. Union of India, (1990)4 SCC 207 and Union of India v. Kailas, (1998) 9 SCC 721 , Hon’ble Supreme Court held that once an employee has opted for the contributory Provident Fund Scheme, his exercise of option was final and he is not entitled to change over to the pension scheme because the two schemes are entirely different. 11. In view of the above discussion, I do not find any merit in this writ petition. Consequently, writ petition is dismissed.