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2020 DIGILAW 1530 (ALL)

Manish Kumar Maurya v. State Of U. P.

2020-12-18

MAHESH CHANDRA TRIPATHI

body2020
JUDGMENT : 1. Heard Shri Pravesh Kumar, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondents. 2. The petitioner is before this Court assailing the validity of the order impugned dated 01.9.2020 passed by the second respondent, Sub Divisional Magistrate, Tehsil Sadar, District Bhadohi, whereby he has proceeded to cancel the proposal of the Gram Sabha Pipari, Tehsil Sadar, District Bhadohi and directed to fresh meeting of the Gaon Sabha on 07.9.2020 for selection of a new fair price shop dealer. 3. It appears from the record that in Gram Sabha Pipari, Tehsil Sadar, District Bhadohi, a vacancy arose for allotment of fair price shop in question to the new dealer. Such vacancy was informed to the District Supply Officer, who directed to hold a meeting of Gaon Sabha on 08.7.2020 for passing a resolution for allotment of the fair price shop in question. The meeting was convened in the campus of Primary School Pipari but the same was postponed for 10.7.2020. The open meeting of the Gaon Sabha was held on 10.7.2020 in presence of police force under supervision of Village Development Officer and the Village Development Officer for considering the appointment of new fair price shop dealer. In said meeting, candidature of the petitioner and one Anil Kumar singh was considered for the said purpose, wherein the petitioner secured 654 votes, whereas Anil Kumar Singh got 125 votes and as such, the resolution has been passed in favour of the petitioner and his name was recommended for allotment of the fair price shop. The said resolution was sent to the second respondent for further action. By the impugned order dated 01.9.2020 the second respondent has cancelled the resolution of the Gaon Sabha and directed to hold fresh open meeting of the Gao Sabha for appointment of new fair price shop dealer. 4. In this backdrop, learned counsel for the petitioner submits that the meeting was held after issuance of agenda and making Munadi. The second respondent has passed the impugned order in most arbitrary manner. 4. In this backdrop, learned counsel for the petitioner submits that the meeting was held after issuance of agenda and making Munadi. The second respondent has passed the impugned order in most arbitrary manner. Neither any enquiry with regard to contents of the complaint had been made by the Sub-Divisional Magistrate or by any other competent officer nor the petitioner was given any opportunity of hearing prior to the decision having been taken by the Committee and as such, the impugned order is not sustainable in the eye of law. In support of his submission, he has placed reliance on the judgment of this Court passed in Civil Misc. Writ Petition No.41737 of 2012 (Jag Jiwan Ram vs. State of UP and others) decided on 18.12.2012 as well as the order dated 31.12.2020 passed in Writ C No.56016 of 2012 (Smt. Gainda Devi vs. State of UP and others) decided on 31.12.2012. 5. On the other hand, Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel has vehemently opposed the writ petition and submits that the proceeding has been finalized and in case the same is ex-parte, he can very well press the relief before the Appellate Authority. Once efficacious alternative remedy is available to the petitioner then this Court should not intervene in the present matter. 6. In Jag Jiwan Ram's case (supra) the Division Bench held that all executive action, which operates to the prejudice of any person, must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. It has further been held that even the Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Relevant part of the judgment is reproduced herein below:- "From the judgment reported in AIR 1987 SC 537 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. Relevant part of the judgment is reproduced herein below:- "From the judgment reported in AIR 1987 SC 537 (The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another), as cited by the petitioner, we find a three Judges' Bench of the Supreme Court has held that the High Courts exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. Though the Constitution Bench of the Supreme Court in AIR 1967 SC 1170 (State of Madhya Pradesh and another Vs. Thakur Bharat Singh) dealt with the applicability of Article 358 of the Constitution of India (suspension of provisions of Article 19 of the Constitution during emergencies) but has held that all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. It has further been held that even the Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Thus, in view of the aforesaid factual aspect and also the law and settled legal propositions discussed above, we are of the view that the order impugned passed by the respondent no. 2 is not sustainable in nature and the present writ petition deserves to be allowed. Hence, in totality, the writ petition succeeds and is allowed. The order impugned dated 14th August, 2012 passed by the respondent no. 2 stands quashed, meaning thereby the resolution as taken by the Gram Panchayat on 10th July, 2012 in a democratic manner in recommending the name of the petitioner stands revived. Hence, in totality, the writ petition succeeds and is allowed. The order impugned dated 14th August, 2012 passed by the respondent no. 2 stands quashed, meaning thereby the resolution as taken by the Gram Panchayat on 10th July, 2012 in a democratic manner in recommending the name of the petitioner stands revived. Appropriate action will be taken by the authority concerned on the basis of such resolution for allotment of fair price shop to the petitioner." 7. In Smt. Gaina Devi (supra) it was held that the Committee had the authority to entertain the complaint and take cognizance, but the same would not mean that the Committee can proceed to act solely on the basis of the complaint without testing its veracity. The committee cannot be permitted to proceed in such arbitrary manner and if the same is permitted, in every case at the last moment complaint can be filed and treating the same as correct without enquiring into the complaint and without giving the affected party any opportunity of hearing, each and every resolution of the Gram Sabha can be set aside. 8. Hon'ble the Supreme Court in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority (2011) 2 SCC 258 held about the natural justice in following terms: "It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application." 9. In such view of the matter, this Court is of the considered opinion that the impugned order deserves to be quashed. 10. Consequently, following the judgments of this Court in Jag Jiwan Ram's case (supra) and Smt. Gainda Devi' case (supra), the writ petition is allowed and the impugned order dated 01.9.2020 is quashed. In such view of the matter, this Court is of the considered opinion that the impugned order deserves to be quashed. 10. Consequently, following the judgments of this Court in Jag Jiwan Ram's case (supra) and Smt. Gainda Devi' case (supra), the writ petition is allowed and the impugned order dated 01.9.2020 is quashed. The Tehsil Level Committee shall have to take a fresh decision in accordance with law, after giving opportunity of hearing to the petitioner. Such decision would be taken as expeditiously as possible, preferably within six weeks from the date of filing of a copy of this order before the second respondent. 11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. 12. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.