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Allahabad High Court · body

2017 DIGILAW 923 (ALL)

RAJU v. STATE OF U. P.

2017-04-04

A.P.SAHI, SANJAY HARKAULI

body2017
JUDGMENT By the Court.—This appeal arises out of the judgment dated 2.1.2017 and the rejection of the review application therein on 3.3.2017 relating to a dispute of grant of license and allotment of a Fair Price Shop Dealership in favour of the respondent No. 6 for which the appellant was also claiming his rights as an applicant. 2. It appears that the allotment of the Fair Price Shop had been occasioned on account of the cancellation of the earlier license which according to the appellant, was in favour of the grandmother-in-law of the respondent No. 6. Her license had been cancelled on account of the irregularities having been committed by her. 3. The appellant alleges that the grant of license in favour of the respondent No. 6 was, therefore, a manipulated exercise that was conducted under the Chairmanship of the A.D.O. (Panchayat) in a meeting which has been ultimately found to be in order by the Sub-Divisional Magistrate and which has been upheld by the learned Single Judge while rejecting the review application on 3.3.2017. He submits that the learned Single Judge has not appreciated the aforesaid background of the status of the meeting in which the selection of the respondent No. 6 was made that was not attended by any of the elected members of the Gaon Sabha, nor was there any wide publicity or advertisement so as to ensure the attendance of the villagers out of whom 1800 are registered voters. The meeting was conducted with approximately 210 villagers out of whom 198 are alleged to have voted in favour of the respondent No. 6, in a meeting chaired by the A.D.O. (Panchayat) who did not have any authority to preside over the meeting keeping in view the law laid down by the same learned Single Judge in the case of Neelam Yadav and another v. State of U.P. and others - 1293 (M/S) of 2017 decided on 21.2.2017. 4. Learned counsel for respondent No. 6 and the learned Standing Counsel for the State urged that the learned Single Judge has arrived at the correct conclusion, inasmuch as, the resolution was validly passed and the proceedings were approved and ultimately on an inquiry after inspection, the Sub-Divisional Magistrate has also confirmed the holding of a valid meeting. 4. Learned counsel for respondent No. 6 and the learned Standing Counsel for the State urged that the learned Single Judge has arrived at the correct conclusion, inasmuch as, the resolution was validly passed and the proceedings were approved and ultimately on an inquiry after inspection, the Sub-Divisional Magistrate has also confirmed the holding of a valid meeting. In the aforesaid background, there is no occasion for this Court to interfere at the instance of the appellant who is an unsuccessful applicant. 5. Having considered the aforesaid submissions raised, the first legal issue that needs to be addressed to is the manner in which the open meeting of the Gaon Sabha is to be held for the purpose of selecting a licensee to run a Fair Price Shop in a village. Learned Standing Counsel is correct in his submissions that as per the Clause - 11 of the Government Order dated 17th August, 2002, if the selection has to be made, it should be made through an open meeting of the Gaon Sabha but in the event the open meeting is not held or the meeting is disputed, then in that event under the directions of the District Magistrate, the Committee headed by the Sub-Divisional Magistrate is authorised to nominate and allot a Fair Price Shop to a person who may be eligible otherwise under the relevant Government Order. He submits that compulsory holding of a meeting, therefore, in such a contingency may not be a requirement for the purpose of holding an open meeting of the Gaon Sabha. 6. We have considered the submissions raised and we find that for the limited purpose of allotment of a Fair Price Shop through a resolution by the Gaon Sabha, the meeting has to be convened in terms of the said Government Order. It is only on the failure of the Gaon Sabha to take a decision or to hold a meeting that the Clause - 11 has to be invoked by virtue whereof, the Committee headed by the Sub-Divisional Magistrate is empowered to make allotments. It is only on the failure of the Gaon Sabha to take a decision or to hold a meeting that the Clause - 11 has to be invoked by virtue whereof, the Committee headed by the Sub-Divisional Magistrate is empowered to make allotments. The legal issue, therefore, as determined in the case of Neelam Yadav (Supra) may, therefore, not require a re-consideration even if we do not approve of the reasoning given therein as in the present case, in the background that the meeting dated 26.5.2016 that was conducted and which has been found to be valid is a resolution which on inspection by the Sub-Divisional Magistrate on 16.9.2016 has been found to be valid as per the order dated 18.9.2016. The said order dated 18.9.2016 even though was brought to the notice of the appellant as urged, during the pendency of the review petition, was not challenged. In the absence of any challenge having been raised to the order dated 18th September, 2016 it will not be possible for this Court to grant any relief to the appellant. 7. At the same time, we may observe that the observations made while rejecting the review application cannot be an impediment, in the event the appellant chooses to challenge the order dated 18th September, 2016, the merit whereof has to be independently looked into keeping in view the law as applicable in terms of the Government Order dated 17.8.2002. The reason why we say so is that the appellant had raised a clear contention of non-participation of the elected members and also of no wide publicity having been made in this regard. This may be an issue to question the correctness of the order dated 18.9.2016 and therefore, we leave it open to the appellant to avail any appropriate remedy subject to the observations made hereinabove. 8. Disposed off with the said observations.