1. The petitioner has assailed the order dated 14.8.2018 passed by the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar, cancelling the proposal made by the Village Panchayat, Chithera recommending the petitioner for appointment as fair price shop dealer of Village Panchayat Chithera, District Gautam Budh Nagar.
2. A vacancy of a fair price shop dealer arose in Village Panchayat Chithera, District Gautam Budh Nagar. The process for appointment of a fair price shop dealer was initiated in line with the procedure prescribed in the Government Order dated 3.7.1990. An open meeting of the village panchayat was called to resolve on the issue of appointment of the fair price shop dealer. The meeting was widely publicized to ensure the attendance of the members of the village panchayat in the meeting. The meeting was held on 1.8.2008.
3. The members of the village panchayat came out and cast their vote. Two officials of the State Government namely the A.D.O., Panchayat as well as Panchayat Secretary were present in the aforesaid meeting. The A.D.O., Panchayat, presided over the aforesaid meeting while the Panchayat Secretary was present as observer. The proposal for appointment of a fair price shop dealer was put to vote. A total of 608 votes were cast. The results of the voting disclosed that 308 votes were cast in favour of petitioner and 300 votes were cast in favour of respondent no.6. The petitioner having secured the maximum votes became eligible for appointment as the fair price shop dealer. His name was accordingly recommended by the village panchayat for appointment as fair price shop dealer. The recommendation of the village panchayat and other documents in relation thereto were forwarded for completion of formalities which precede the appointment of a fair price shop dealer. The reports of the Panchayat Secretary as well as A.D.O., Panchayat, confirmed the lawful conduct of the aforesaid meeting and also affirm the result of the voting in favour of the petitioner. The reports of the Panchayat Secretary dated 6.8.2018 and the A.D.O., Panchayat dated 07.08.2018 were forwarded to the Block Development Officer on 7.8.2018. The Block Development Officer approved the proceeding and recommended further action as per law. The report of the Block Development Officer dated 7.8.2018 records that the Gram Pradhan of the village panchayat had refused to sign on the proceedings of the aforesaid meeting. The minutes of the meeting record the presence of the Gram Pradhan in the aforesaid meeting.
4. A complaint was made alleging certain irregularities in the conduct of the aforesaid meeting. The respondent no.3 caused an enquiry to be conducted in the matter, on receipt of the said complaint. The enquiry was got conducted by the Area Rationing Officer. The aforesaid enquiry apparently found certain irregularities in the meeting of the village panchayat. On the foot of the report submitted by the Area Rationing Officer, the S.D.M., Dadri by order dated 14.8.2018 invalidated the meeting of the village panchayat and the recommendation for appointment of the petitioner made in pursuance thereof.
5. Sri R. C. Singh, learned counsel, assisted by Sri Rahul Kumar Singh, learned counsel for the petitioner submits that the order dated 14.8.2018 passed by the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar is exparte to the petitioner. The material facts and reports which were in the record were not considered by the S.D.M. while passing the impugned order. The impugned order is beyond jurisdiction as the S.D.M. does not have authority in law to cancel a resolution passed by the village panchayat. Such authority rests elsewhere. He relies of the judgment of this court rendered in the case of Jag Jiwan Ram Vs. State of U.P. and others reported at 2013 (1)ADJ 62 and also on judgments entered in Gangadhar Dubey Vs. State of U.P. and others reported at 2018 (1) ADJ 644 and in Hari Chand @ Harischand Vs. State of U.P. and others reported at 2018 (8) ADJ 302.
6. Sri Devesh Vikram, learned Standing Counsel in his usual fairness submitted that he cannot point out the consideration of the minutes of the meeting of the village panchayat and reports submitted by the Panchayat Secretary and the A.D.O. dated 6.8.2018 by the S.D.M., Dadri from the impugned order.
7. Heard learned counsel for the parties.
8. No useful purpose would be served by keeping the writ petition pending in this court. With the consent of learned counsel for the parties the matter is being disposed of finally at the admission stage.
9. In view of the submissions certain facts are established beyond dispute for the purpose of judgement in this case. A perusal of the impugned order it shows that the minutes of the open meeting of the village panchayat and also the report of the Panchayat Secretary and the A.D.O. dated 16.8.2018 were not considered by the S.D.M., Dadri, Gautam Buddha Nagar while passing the impugned order. These reports and documents are material to a decision on the validity of the meeting. The officials A.D.O. and Panchayat Secretary attended the meeting in their official capacity and submitted their reports in the like capacity. The reports invite a presumption of the correctness in their favour, having been made in discharge of their official duties. Till such presumption is rebutted by the credible material, the validity of the reports and the village panchayat meeting cannot be questioned. A perusal of the impugned order on the contrary compels a conclusion that the reports were never challenged and the presumption in their favour was never rebutted. These reports were completely excluded from consideration by the S.D.M. in the order dated 14.8.2008. The report of the Area Rationing Officer is the sole basis on which the order impugned is founded. In view of the aforesaid discussion, the order dated 14.8.2018 passed by the S.D.M., Dadri, is based on irrelevant material and excluded consideration of most relevant and material facts and evidences in the record.
10. There is another and a more critical aspect which will now be adverted to. It has to be examined whether the S.D.M., Dadri, Gautam Budh Nagar while passing the order has exceeded his jurisdiction by passing the order dated 14.8.2018. The order dated 14.8.2018 invalidates the recommendation made by the village panchayat for appointment of the petitioner as the fair price shop dealer of the said village panchayat. The recommendation of the village panchayat was made on the foot of an open meeting of the village panchayat which resolved by majority to appoint the petitioner as fair price shop dealer of the said village panchayat.
11. The scheme of the Government Orders dated 3.7.1990 and 17.8.2000 govern and regulate the appointment of fair price shop dealer. The said Government Orders also define and limit the jurisdiction of the S.D.M. in such matters. The limitation on the jurisdiction of the S.D.M. is created by law. The relevant parts of the Government Order dated 3.7.1990 are extracted below:
"6- xkao lHkk dk izLrko ikfjr gksus ds nks lIrkg ds vUnj ftykf/kdkjh ;g lqfuf'pr djsxsa fd ,l-Mh-,e- leLr fof/kd vkSipkfjdrk;sa iw.kZ dj nqdkunkj dks nqdku pykus dk vuqcU/k dj nsrs gSaA bl gsrq ftykf/kdkjh mRrj izns'k vuqlwfpr oLrq forj.k vkns'k] 1990 dh /kkjk 2¼?k½ ds vUrxZr ,l-Mh-,e- dks izkf/kd`r dj nsaA vuqcU/k dk izk:i layXu gS ¼layXud&2½"
12. The Tehsil Level Committee was constituted by government order dated 17.08.2002 and its powers and functions are laid out therein. The relevant extract of the government order dated 17.8.2002 is reproduced hereinunder :-
"5- xzkeh.k {ks= esa jk'ku dh nqdkuksa ds vkoaVu gsrq fuEukuqlkj xfBr rglhy Lrjh; lfefr }kjk fd;k tk;sxk & 1- mi ftykf/kdkjh & v/;{k 2- lEcfU/kr [k.M fodkl vf/kdkjh & lnL;
3-vuqlwfpr [email protected] ,oa fiNM+h & lnL; tkfr dk ,d&,d vf/kdkjh tks ftykf/kdkjh }kjk ukfer fd;k tk;s ¼;fn mi;qZDr vf/kdkfj;ksa esa ls dksbZ bl oxZ dk gks rks vyx ls ukekadu djus dh vko';drk ugh gksxh½ 4-{ks=h; [kk| vf/kdkjh & lnL;@la;kstd"
13. The scope and extent of the jurisdiction of the S.D.M. in matters relating to the appointment of a fair price shop dealer fell for consideration before this court in number of cases.
14. The authority of the S.D.M. in such matters came up squarely for consideration before this court in the case of Jag Jiwan Ram (supra). This court in Jag Jiwan Ram (supra) considered the validity of an order passed by the S.D.M. stopping the execution of the resolution of a village panchayat to appoint a fair price shop dealer. This court in Jag Jiwan Ram (supra) clearly drew the red lines confining the jurisdiction of the S.D.M. This court laid down the law in the following terms :-
"In the instant case, factually we find that as per the direction of the respondent no. 2 open meeting of the Gram Panchayat was held in presence various officers/official concerned for considering appointment of new fair price shop dealer. In such meeting, name of the petitioner was recommended for appointment. However, the other candidate, who did not get sufficient support in his favour to become successful, made complaint and only on his complaint the matter was got enquired by the Assistant Development Officer (Panchayat) and also by Naib Tehsildar. The Assistant Development Officer (Panchayat) gave his report that meeting was held in accordance with law and there was no dispute in the meeting, whereas in his report the Naib Tehsildar submitted that some persons told that there was no dispute when some persons told that there was dispute. However, relying upon the report of the Naib Tehsildar, the Sub Divisional Magistrate has passed the impugned order cancelling the resolution taken by the Gram Panchayat in favour of the petitioner. In such circumstances, if we consider this factual aspect on the touchstone of the relevant rules and Government order as discussed above, we find, as is apparent from the order impugned, that neither the matter was brought to the notice of the concerned Collector, who could direct for any enquiry in the matter and also for holding a fresh meeting to take resolution, as per the Government order dated 03rd July, 1990 nor as per the Rule 40 of the Rules any requisition signed by two-third members of the Gram Panchayat was given consenting for reconsideration of the matter. Moreover, stopping of execution of the resolution taken in the open meeting of the Gram Panchayat is also beyond the jurisdiction of the Sub Divisional Magistrate as per the provisions of Section 96 of the Act. Thus, according to us, the impugned order passed by the respondent no. 2 is wholly illegal and without jurisdiction and as such, the same cannot be sustained, particularly when neither any other provision has been shown by the respondents supporting the order passed by the respondent no. 2 nor any material fact has been brought to the notice of the Court controverting the submissions of the petitioner."
15. Similar view was taken by this Court in the case of Ganga Dhar Dubey (supra), wherein this Court has observed as under :-
"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 17.08.2002, 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."
16. The judicial authority seems to be consistent on the point. This court in Hari Chand @ Harischand (supra) while considering the jurisdiction of the S.D.M. to invalidate a resolution passed by a village panchayat recommending a candidate for appointment as fair price shop dealer reiterated of what by now seems to be the settled position of law:-
"9. The S.D.M. has no authority in law to cancel a resolution passed by the village panchayat. Admittedly, the respondent no. 3 has exceeded its jurisdiction in passing the order dated 17.4.2018 cancelling the resolution passed by the village panchayat."
17. The S.D.M. does not have lawful authority to cancel a resolution passed by the village panchayat to appoint a fair price shop dealer. Further the S.D.M. is not vested with the jurisdiction to reject the recommendation made in pursuance of such resolution for appointing a candidate as the fair price shop dealer of such village panchayat.
18. The Government orders of 03.07.1990 and 17.08.2002 also define and delineate the jurisdiction of the Tehsil Level Committee.
19. The authority to judge the validity of the resolutions passed by the village panchayat and the recommendations made in pursuance thereof lies with the Tehsil Level Committee.
20. The Tehsil Level Committee verifies whether the resolution was passed by the village panchayat in adherence to provisions of law. The Tehsil Level Committee may disapprove a resolution passed in violation of law.
21. Similarly the decision to approve the appointment of the fair price shop dealer is also taken by the Tehsil Level Committee. The Tehsil Level Committee investigates the eligibility of the candidate whose name is proposed by the resolution of the village panchayat. The Tehsil Level Committee may decline to approve the appointment of a candidate who does not satisfy the minimum eligibility criteria or reject a candidate who has incurred a disqualification.
22. The Tehsil Level Committee cannot displace the choice of the village panchayat by its own preference. The Tehsil Level Committee cannot frustrate will of the village panchayat by indifference or defeat the resolution of the village panchayat by inaction.
23. The process of appointment of the fair price shop dealer as provided in the government order dated 3.7.1990 and the role of the Tehsil Level Committee in the said process, fell for consideration before the learned Division Bench of this Court in Shiv Kumar Vs. U.P. Ziladhikari Chakiya, Chandauli and others reported at 2014 (8) ADJ 693. This Court held thus :-
"So far as the second issue of taking a decision in the open meeting of the Gaon Sabha is concerned, we are unable to agree with the proposition of the learned Standing Counsel and the counsel for the contesting respondent that no such meeting is necessary. The reason is that from a bare perusal of Clause 4.4 of the Government Order dated 3rd July, 1990, it is evident that any fair price shop licence would be opened only after a resolution is passed in the open meeting of the Gaon Sabha. It is only on the collective opinion of such a meeting that such allotment can be made. After such a resolution is passed, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Deputy District Magistrate as its Chairman as defined in Clause 5 of the Government Order dated 17.8.2002. Such an exercise has to be undertaken only when a resolution is passed in the open meeting as indicated in Clause 7. The allotment has to be made as per the terms and conditions contained in Clause 10 of the said government order which also envisages the grant of licence on compassionate basis."
24. The appointment of the fair price shop dealer is made on the foot of the resolution of the village panchayat and is reflective of the collective opinion of the members of the village panchayat.
25. The order dated 14.8.2018 passed by the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar is arbitrary and illegal.
26. In view of the facts found in the preceding paragraphs and the legal narrative in the earlier part of the judgement, the S.D.M., Dadri, District Gautam Budh Nagar, had no authority in law to cancel a resolution passed by the village panchayat on 01.08.2018 and invalidate the recommendation made by the village panchayat to appoint the petitioner as a fair price shop dealer in pursuance thereof.
The respondent no. 3, S.D.M., Dadri, Gautam Budh Nagar, has exceeded its jurisdiction in passing the order dated 14.4.2018 cancelling the resolution passed by the village panchayat and the recommendation made in favour of the petitioner in pursuance thereof.
The order dated 14.8.2018 passed by the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar cannot stand.
27. The order dated 14.8.2018 passed by the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar, is quashed and any consequential action taken in pursuance there of is also quashed.
28. The matter is remanded back to the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar.
29. A mandamus is issued to the respondents authorities commanding them to execute the following directions:-
(i) The respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar, shall forthwith transmit the resolution of the village panchayat as well as the recommendation in favour of the petitioner made by the village panchayat along-with all other records and documents to the Tehsil Level Committee for proceeding in accordance with law.
(ii) The Tehsil Level Committee shall make its recommendation and pass appropriate orders in the matter in accordance with law and consistent with the observations made in this order within a period of one month from the date of receipt of the documents and the records from the respondent no.3, S.D.M., Dadri, Gautam Buddha Nagar.
30. The writ petition is allowed.
Date :- 24.8.2018 Pramod