Court No. - 10 Case :- WRIT - C No. - 41883 of 2018 Petitioner :- Beche Singh Respondent :- State Of U P And 7 Others Counsel for Petitioner :- Pradeep Saxena,Radhey Shyam Yadav Counsel for Respondent :- C.S.C.,Brij Kumar Yadav,Chandra Prakash Pandey Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Pradeep Saxena, learned counsel for the petitioner; Shri Siddharth Singh, learned Additional Chief Standing Counsel for the State respondents; Shri B.K. Yadav, learned counsel for the Gaon Sabha and Shri Chandra Prakash Pandey, learned counsel for the contesting respondent no.7.
2. Bache Singh, fair price shop dealer is before this Court assailing the validity of the impugned order dated 7.6.2018 passed by the third respondent, Commissioner, Kanpur Division, Kanpur as well as the order dated 1.11.2018 passed by the fourth respondent, Sub Divisional Magistrate, Tehsil Sadar, District Farrukhabad. The request has also been made for issuing direction to the respondents to permit the petitioner to run the fair price shop of Gaon Sabha Nagariya Devdharapur and supply the essential commodities regularly for distribution to the card holders of the aforesaid Gaon Sabha.
3. The petitioner claims to be permanent resident of village Nagariya Devdharapur, Block Kamalganj, Tehsil Sadar, District Farrukhabad. The fair price shop licence of village Nagariya Devdharapur was allotted to the petitioner by the Gaon Sabha vide its resolution dated 21.9.1990. It is relevant to mention here that at the time of allotment, there were two Gaon Sabhas namely Nagariya Devdharapur and Kareemganj. So far as the fair price shop licence of Village Kareemganj is concerned, the same was allotted to Mohd. Iliyas, son of Mohd. Yar. The fair price shop licence of Gaon Sabha Kareemganj was suspended and the card holders of the aforesaid shop were attached with the shop of the petitioner.
4. It is alleged that the Pradhan of Gaon Sabha Nagariya Devdharapur and seventh respondent namely Smt. Nema Devi in collusion with the Block level authorities got the fair price shop of village Nagariya Devdharapur vacant. Thereafter, the Gaon Sabha passed a resolution on 10.11.2016 in favour of the seventh respondent qua the fair price shop of Gaon Sabha Nagariya Devdharapur. The Block Development Officer sent a communication to the Sub Divisional Magistrate on 16.12.2016 for allotment of the fair price shop in question. After scrutinizing the matter the Sub Divisional Magistrate, Sadar, District Farrukhabad vide his communication dated 16.12.2016 found that the fair price shop of the said village is not vacant. In fact, the fair price shop of Gaon Sabha Kareemganj was vacant on account of creation of new Gaon Sabha and the Block Development Officer, Kamalganj was directed to get the resolution passed for fair price shop of Gaon Sabha Kareemganj. The aforesaid communication was subjected to challenge by the seventh respondent namely Smt. Nema Devi by preferring Writ C No.44722 of 2017 (Smt. Nema Devi vs. State of UP and 3 others). In the aforesaid writ petition the Gram Pradhan namely Lakhmi Chand was pairokar and he signed the writ petition as pairokar. Relevant affidavit has been brought on record as Annexure No.7 to the writ petition. Finally, the said writ petition was disposed of by this Court on 22.11.2017 on the ground of alternative remedy. The seventh respondent filed an appeal before the Commissioner, Kanpur Division, Kanpur assailing the validity of the order dated 24.6.2017 passed by the Sub Divisional Officer, Sadar, District Farrukhabad. The same was allowed by the Additional Commissioner (Judicial), Kanpur Division, Kanpur on 7.6.2018 and after setting aside the order of the Sub Divisional Officer dated 24.3.2017, the matter was remanded back to the Sub Divisional Magistrate to decide it afresh on the merits of the case. By the order impugned dated 1.11.2018 the fourth respondent without any notice or information to the petitioner appointed the petitioner as agent of fair price shop of Gaon Sabha Kareemganj and the seventh respondent was appointed as fair price shop dealer of Gaon Sabha Nagariya Devdharapur and the same was approved by the Commissioner of the Division on 7.6.2018.
5. In this backdrop, learned counsel for the petitioner has vehemently contended that the petitioner was running the fair price shop since the year 1990 and admittedly, he is resident of Village Nagariya Devdharapur. Once two Gram Sabhas namely Gaon Sabha Nagariya Devdharapur and Gaon Sabha Kareemganj were subsequently created then in such situation only the vacancy had to be considered at Gaon Sabha Kareemganj and by no stretch of imagination the petitioner can be shifted to Gaon Sabha Kareemganj without affording any opportunity of hearing. Both the orders are hit by principles of natural justice and the same are liable to be set aside.
6. On the other hand, learned Additional Chief Standing Counsel has placed reliance on the Government order No.8/2017/889/29-6-2017-20Writ/17 dated 17.5.2017, which talks about the establishment of fair price shop on the basis of new delimitation of the rural areas. He submits that the entire exercise is to be ensured in accordance with the aforesaid Government order dated 17.5.2017. There is no infirmity or illegality in the impugned orders and the writ petition is liable to be dismissed.
7. Learned counsel appearing for the contesting respondent has also vehemently opposed the writ petition and submits that the writ petition is liable to be dismissed.
8. The Court has proceeded to examine the record of the writ petition and finds that the fair price shop of Gaon Sabha Nagariya Devdharapur was allotted in favour of the petitioner on 21.9.1990 and since then he is running the fair price shop in question. The Gaon Sabha Kareemganj was bifurcated subsequently from Gaon Sabha Nagariya Devdharapur. Once the petitioner was functioning as fair price shop dealer of Gaon Sabha Nagariya Devdharapur since 21.9.1990 then in such situation the normal inference can be drawn that the vacancy can only be accorded at Gaon Sabha Kareemganj. It is also averred that the fair price shop of Gaon Sabha Kareemganj was lying vacant and the same was attached with the fair price shop of petitioner. When the Gaon Sabha Kareemganj was bifurcated from Gaon Sabha Nagariya Devdharapur in the year 2015 then in such situation the vacancy can be treated to be only qua the Gaon Sabha Kareemganj. Such situation can also be examined in the light of the Government order dated 11.5.2017. For ready reference the same is also reproduced herein below:-
la[;k % 8@2017@889@29&6&2017&20fjV@17 iz s" kd] dqekj vjfoUn flag nso] vij eq[; lfpo] mRrj izns'k 'kkluA l sok e sa] ¼1½ leLr ftykf/kdkjh] mRrj izns'kA ¼2½ lrLr ftyk iwfrZ vf/kdkjh] mRrj izns'kA [kk| ,oa jln vuqHkkx&6 y[kuÅ% fnukad 11 ebZ]2017 fo"k;% lkoZtfud forj.k iz.kkyh ds vUrxZr xzkeh.k {ks=ksa esa u;s ifjlheu ds i'pkr vfLrRo esa vk;h ubZ xzke iapk;rksa esa mfpr nj fodszrk fu;qDr fd;s tkus ds lEcU/k esaA egksn;] mi;qZDr fo"k;d 'kklukns'k l[a ;k&4@2017@641@29&6&2002] fnukad 21-4-
2017 lifBr 'kqf)i= la[;k 6@2017@689@29&6&2002] fnukad 25-04-2017 ds }kjk lkoZtfud forj.k iz.kkyh ds vUrxZr xzkeh.k {ks=ksa esa u;s ifjlheu ds i'pkr vfLrRo esa vk;h ubZ xzke iapk;rksa esa mfpr nj fodszrk fu;qDr fd;s tkus ds lEcaU/k esa izfdz;k dk fu/kkZj.k fd;k x;k FkkA fofHkUu lzksrksa ls 'kklu ds laKku esa ;g rF; yk;s tk jgs gaS fd uohu ifjlheu ds mijkUr pkSgn~nh ds vk/kkj ij fdlh ,d xzke iapk;r dk fuoklh fdlh nwljh xzke iapk;r dk mfpr nj fodszrk gks tk;sxk] ftlls 'kklkukns'k la[;k 2715@29&6&2002&162 lk@ 2001] fnukad 17-8-2002 esa mfpr nj fodszrk dh fu;qfDr ds lEca/k esa nqdkunkj ds LFkk;h fuoklh gksus dh 'krZ dk mYya?ku gksxkA 2& bl lEcaU/k esa e>s ;g dgus dk funsZ'k gqvk gS fd izdj.k ij 'kklu Lrj ij iqu% fopkj fd;k x;k vkSj ;g fu.kZ; fy;k x;k gS fd ifjlheu ds QyLo:i iqjkuh xzke iapk;r ls VwVdj ubZ xzke iapk;r xfBr gksus ij mfpr nj fodszrk dk fuokl ,oa nqdku dh pkSgn~nh ,d gh xzke iapk;r esa vofLFkr gksus ij mDr lUnfHkZr 'kklukns'k fnukad 21- 04-2017 ,oa 'kqf)i= fnukad 25-04-2017 ds vuqlkj dk;Zokgh dh tk;sxh] fdUrq iqjkuh xzke iapk;r ls VwVdj uohu xzke iapk;r xfBr gksus ds QyLo:i mfpr nj fodszrk dk fuokl ftl xzke lHkk esa vofLFkr gksxk] mls mlh xzke lHkk dk mfpr nj fodszrk ekurs gq,s rnuqlkj nqdku ds pkSgnnh ifjorZr dh dk;Zokgh fu;ekuqlkj dh tk;sxhA bl lhek rd iwoZ esa fuxZr lHkh 'kklukns'k la'kksf/kr le>s tk;saxsA Hkonh;] dqekj vjfoUn flag nso] vij eq[; lfpoA
9. In the aforesaid circumstances, prima facie the Court is of the opinion that there is no vacancy in Gaon Sabha Nagariya Devdharapur, and the petitioner could not be shifted to Gaon Sabha Kareemganj as he is resident of Gaon Sabha Nagariya Devdharapur and is running the fair price shop since the year 1990.
10. Consequently, the writ petition is allowed and the impugned orders are set aside. The matter is remanded back to the Sub Divisional Officer, Tehsil Sadar, District Farukhabad to decide the claim set up by the petitioner in the light of aforementioned facts and circumstances but certainly after affording opportunity of hearing to the private respondent no.7, expeditiously and preferably within a period of six weeks from the date of production of certified copy of this order.
Order Date :- 18.12.2018 SP/RKP