Court No. - 39
Case :- WRIT - C No. - 64421 of 2009 Petitioner :- Diwan Singh Respondent :- State Of U.P. & Others Counsel for Petitioner :- Shiv Krishna Bahadur Counsel for Respondent :- C.S.C.,Anurag Shukla,D.D. Chauhan
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Shiv Krishna Bahadur, learned counsel for the petitioner, Sri Mata Prasad, learned Standing Counsel for the respondents no. 1 to 3 and Sri Anurag Shukla, learned counsel appearing for the respondent no.5.
The petitioner in the writ petition is seeking quashing of the order dated 18.11.2009 whereby in an open resolution passed by the Gaon Sabha, Gram Panchayat-Rajpura, Post Gati, Block Badhpura, Tehsil and District Etawah, the Respondent no.5-Shri Shiv Singh has been elected for appointment as fair price shop dealer.
The case of the petitioner is that his father was running a fair price shop and he died on 27.12.2008. The petitioner submitted an application before the Sub Divisional Magistrate on 14.01.2009 and again on 13.9.2009, Annexure-2 and 3 to the writ petition respectively, for his own appointment as fair price shop dealer on compassionate ground under the compassionate quota. When no order was passed thereon, the petitioner moved another application on 29.10.2009, Annexure-4 to the writ petition, before the Commissioner (Food), Kanpur Division, Kanpur on which an enquiry was ordered by the Commissioner on 30.10.2009 directing the Sub Divisional Magistrate, Etawah to submit a report. It is stated that no report was submitted but on 18.11.2009, the impugned resolution was passed and the Respondent no.5 was elected for appointment as fair price dealer and accordingly, an appointment order was issued in his favour.
At the time of admission, this Court by its order dated 27.11.2009 had directed that the appointment of Respondent no.5 as fair price licensee in the vacancy caused by the death of late Lal Singh (petitioner's father) shall be subject to the result of the writ petition. In the counter affidavit filed by the respondent no.3, the stand taken is that the allotment was made in favour of the Respondent no.5 through an open resolution of the Gaon Sabha held on 18.11.2009. The learned Standing Counsel further submits that allotment of shop in the name of son or heir of a fair price shop dealer is not mandatory under the compassionate quota but it is subject to the previous fair price shop dealer having a good reputation (father or other relative of the petitioner having a good reputation). He submits that because the petitioner's name has not been recommended it must be assumed that the reputation of the petitioner's father was not good.
We cannot accept this submission because from the record, we find that on the petitioner's application dated 29.10.2009, the Commissioner (Food), Kanpur Division, Kanpur had by his order dated 30.10.2009 directed the Sub Divisional Magistrate to hold the enquiry and submit the report. There is no report on record and nothing has been filed along with counter affidavit also. No order has been passed by the Sub Divisional Magistrate on the petitioner's application dated 14.01.2009 and another dated 13.9.2009. In the circumstances, no presumption can be drawn by this Court that reputation of the petitioner's father was bad dis-entitling the petitioner for appointment as fair price shop dealer under the compassionate quota.
For reasons aforesaid, we dispose of this writ petition with a direction to the Respondent no.3-Sub Divisional Magistrate, Tehsil Etawah, District Etawah to examine the matter and pass appropriate orders in accordance with law bearing in mind the observations made above within a period of two months from the date of receipt of a certified copy of this order in his office.
The Resolution dated 18.11.2009 as well as the appointment of Respondent no.5 shall be subject to any final order which may be passed by the Respondent no.3.
Order Date :- 29.11.2018 Kirti