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2018 DIGILAW 8 (ALL)

GANGADHAR DUBEY v. STATE OF U. P.

2018-01-03

SANGEETA CHANDRA

body2018
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—In pursuance of the order passed by this Court on 13.12.2017, learned Standing Counsel informed this Court that the letter was sent and instructions have been received from the Principal Secretary, Food and Civil Supplies, copy of such instructions has been produced before this Court, which shows that the Principal Secretary has sadly not applied her mind to the question posed by this Court. 2. The instructions dated 12.12.2017 say that the Sub Divisional Magistrate, Nichlaul, Maharajganj by his order dated 26.5.2017 has quashed the recommendation of the Gram Sabha for allotment of fair price shop in favour of the petitioner on the ground that the said recommendation/proposal was made on 3.5.2013, and four years had passed and if the proposal of the Gram Sabha is older than six months, it would be appropriate that fresh proposal is called for in a fresh meeting convened for the said purpose. Since, the Licensing Authority, Sub Divisional Magistrate, Nichlaul, Maharajganj has not referred to any Government Order/Control Order in the impugned order dated 26.5.2017, therefore, it cannot be said as to under which order the Sub Divisional Officer has passed the order dated 26.5.2017 and there is no provision in any Government Orders or Control Orders describing the method of consideration of Gram Sabha’s proposal by the Licensing Authority. Even the proposal made by the Gram Sabha on 3.5.2013 does not say under the provisions of which order, it has been passed, and therefore, the Government has taken a decision to ask for explanation from all officials concerned and for the said purpose has directed the District Magistrate, Maharajganj through its order dated 8.12.2017, to determine the responsibility of the officials concerned, and take appropriate action thereafter. 3. It is really unfortunate that the Principal Secretary concerned has not applied her mind at all to the controversy involved in this writ petition as regards which this Court had passed orders on 27.11.2017 and 13.12.2017. The Principal Secretary has only signed the draft submitted by her office in the form of noting on the file. 4. However, since there is no assistance forthcoming from the State Government with regard to the query posed by this Court in its detailed orders dated 27.11.2017 and 13.12.2017, this Court has itself examined the various Government Orders issued from time to time relating to fair price shops. 5. 4. However, since there is no assistance forthcoming from the State Government with regard to the query posed by this Court in its detailed orders dated 27.11.2017 and 13.12.2017, this Court has itself examined the various Government Orders issued from time to time relating to fair price shops. 5. Learned Standing Counsel has been helpful in providing copies of various Government Orders issued from time to time in this regard. 6. The initial order relating to procedure for appointment of fair price shop licensee is dated 3.7.1990, which order provides for proposal to be made by the Gram Sabha concerned and on the said proposal ordinarily no inquiry was to be conducted, yet if the District Magistrate in his discretion found an inquiry to be necessary, then there was no prohibition from getting such inquiry conducted. The proposal of the Gram Sabha was to be forwarded to the Sub Divisional Magistrate and it was the responsibility of the Sub Divisional Magistrate thereafter to get the Contract/Licence Agreement signed in accordance with the provisions of the Scheduled Commodities Distribution Order, 1990. This Government Order does not say that the Sub Divisional Magistrate concerned will decide either to accept or reject the proposal made by the Gram Sabha. It was the duty of the Sub Divisional Magistrate only to get the Licence Agreement signed in his ministerial capacity and not as Determining Authority and ordinarily the proposal of the Gram Sabha was to be accepted. 7. The second Government Order dated 18.5.1999 is in relation to appointment of fair price shop licensee relates to amendment in the earlier Government Order. It provides for appointment of fair price shop licensee to be made by the Gram Sabha concerned, independently of any control of State Government officials. 8. This Government Order dated 18.5.1999 was further amended on 10.8.1999 and the Government Order dated 10.8.1999 states that the said Government Order is being issued for the sake of convenience, consolidating the provisions of earlier Government Orders dated 3.5.1999, 18.5.1999 and 30.7.1999. 9. In paragraph 3 of the Government Order dated 10.8.1999 mention has been made of the fact that the earlier preferential treatment given to some categories was now being done away with. 9. In paragraph 3 of the Government Order dated 10.8.1999 mention has been made of the fact that the earlier preferential treatment given to some categories was now being done away with. The Gram Sabha had to pass a proposal with respect to allotment of fair price shop and the Gram Pradhan and Gram Panchayat Adhikari were to jointly signed the order of the appointment of such fair price shop licensee. 10. This Government Order was later superseded by the Government Order dated 17.8.2002, which provided a detailed proceeding not only for determining vertical and horizontal reservation with respect to vacancy identified in various Gram Sabhas for fair price shop licences and provided that earlier Government Orders would continue to operate, but at the same time, in case of conflict the provisions of the Government Order dated 3.7.1990 and the Government Order dated 17.8.2002, the provision of Government Order dated 17.8.2002 shall prevail. 11. The Government Order dated 17.8.2002 provided for constitution of Tehsil Level Committee with the Sub Divisional Officer/Sub Divisional Magistrate as its Chairman and the concerned Block Development Officer and Area Rationing Officer, and one officer of Reserved Category to be nominated by the District Magistrate to be its members. This Committee was to apply horizontal and vertical reservation in the allocation of shops to various Gram Sabhas and also ensure that each Gram Sabha had atleast one fair price shop in it and in large Gram Sabhas having more than 4000 units, one additional fair price shop may be opened. 12. The minimum eligibility for application to be entertained of a fair price shop licensee was mentioned in the said Government Order and it was also provided that this Committee shall look into the panel of three persons, whose names are to be proposed by the Gram Sabha concerned, and determine the licensee from that panel sent by the Gram Sabha. This Government Order is about the Committee to be set up at the Tehsil level for allotment of fair price shop in rural areas. 13. A similar Government Order was issued of the same date i.e. 17.8.2002 for urban areas also, which is not relevant for the purpose, and therefore, this Court is not considering the same. 14. This Government Order is about the Committee to be set up at the Tehsil level for allotment of fair price shop in rural areas. 13. A similar Government Order was issued of the same date i.e. 17.8.2002 for urban areas also, which is not relevant for the purpose, and therefore, this Court is not considering the same. 14. Another Government Order was issued thereafter on 11.7.2005, relating to paragraph 4(c) of the U.P. Scheduled Commodities Distribution Order, 2004 setting out the format, in which the licence had to be signed with the fair price shop licensee. The signature of the Sub Divisional Officer on behalf of the Government was to be appended to such Licence Agreement, but the said Government Order does not say that the Sub Divisional Officer/Sub Divisional Magistrate shall individually and on his own decide as to who shall be the fair price shop licensee. 15. Several Government Orders have been issued with regard to particular instances being brought to the notice of the Government with regard to eligibility of candidates for fair price shop licence, reservation categories, the preferential categories, etc. and the procedure for cancellation of such fair price shop licence and procedure to be applied in appeal by the Appellate Authority. 16. No other Government Order relating to appointment of fair price shop licensee by the Sub Divisional Officer/Sub Divisional Magistrate ignoring the provision of Tehsil Level Committee as provided in the Government Order dated 17.8.2002 has been brought to the notice of this Court. 17. The most recent of the Government Orders related to fair price shops and distribution of scheduled commodities/essential commodities has been notified in 2016, but the said Government Order relates basically to the regulation of supply, distribution and control of essential commodities and does not relate to the procedure to be adopted with regard to allotment of fair price shops in particular Gram Sabhas. 18. The said order of 2016 in paragraph 20 provides that previous Government Orders issued by the Government would also prevail, if they do not provide anything in contravention to the said Government Order of2016. 19. Since, the Order of 2016 does not provide anything with respect to allotment of fair price shop, it may be said to be operating in a different field altogether, and the procedure for allotment by Tehsil Level Committee as given in the Government Order dated 17.8.2002 would still apply. 19. Since, the Order of 2016 does not provide anything with respect to allotment of fair price shop, it may be said to be operating in a different field altogether, and the procedure for allotment by Tehsil Level Committee as given in the Government Order dated 17.8.2002 would still apply. 20. This Court in its previous order dated 27.11.2017 has already considered Clause 4 of the Government Order dated 17.8.2002, which provided that the Committee comprising of Sub Divisional Officer, the concerned Block Development Officer, the nominated Reserved Category Officer by the District Magistrate, and the Area Rationing Officer shall consider the panel sent by the Gram Sabha and make appointment on the basis of suitability and merit of the candidates constituting the panel. 21. In the case of the petitioner, the Sub Divisional Officer has passed an order dated 26.5.2017 rejecting the proposal of the Gram Sabha dated 3.5.2013 on the ground that the proposal is very old and it would be appropriate that a fresh proposal be called for as new Gram Sabhas have been constituted in pursuance of the Gram Panchayat elections held in 2015-2016. 22. The grounds taken by the Sub Divisional Magistrate in the order impugned dated 26.5.2017 may be valid grounds for calling for fresh proposal from the Gram Sabha concerned, but the fact remains that there is no mention in the impugned order of the decision being taken by the Committee on the proposal of the Gram Sabha as per the Government Order dated 17.8.2002. 23. The Sub Divisional Officer may be the officer under whose signature the Licence Agreement is issued and he may also be the Disciplinary Authority insofar as the suspension and cancellation in case of misconduct of the fair price shop licensee is concerned, is to be given effect to, but so far as allotment is concerned, since, the Tehsil Level Committee has been provided for by the Government Order dated 17.8.2002, the same has to be constituted and allotment or otherwise has to be decided by it. It was not open for the Sub Divisional Magistrate concerned to have passed the order on his own without reference to the Tehsil Level Committee. 24. It was not open for the Sub Divisional Magistrate concerned to have passed the order on his own without reference to the Tehsil Level Committee. 24. The order impugned is set aside on this ground alone and the matter is remanded to the Sub Divisional Magistrate to place the proposal of the Gram Sabha dated 3.5.2013 before the Tehsil Level Committee for its consideration, and for passing of appropriate orders thereafter within a period of four weeks from the date a certified copy of this order is produced before him. 25. The writ petition is partly allowed to this extent.