Court No. - 10
Case :- WRIT - C No. - 5494 of 2018 Petitioner :- Jugesh Sharma Respondent :- State Of U.P.
Counsel for Petitioner :- Suresh Chandra Pandey,Suresh Chandra Mishra Counsel for Respondent :- C.S.C.,Santosh Kumar Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri S.C. Pandey, learned counsel for the petitioner; Shri Siddhrtha Singh, learned Additional Chief Standing Counsel for the State respondents; Shri Arun Kumar Srivastava, learned counsel for fourth respondent and Shri Pawan Kumar, Advocate holding brief of Shri Santosh Kumar Singh, learned counsel for fifth respondent.
By means of present writ petition, the petitioner has challenged the order dated 29.01.2018 passed by Sub Divisional Magistrate, Tehsil Chandausi, District Sambhal, which has referred to an order dated 25.1.2018 allotting the fair price shop of village Ghasipur, Block Bahjoi, Tehsil Chandausi, District Sambhal in favour of Shyam Sundar Sharma, respondent No. 5 and the permission was also accorded to lift the allotted food grains for the fair price shop in question from the wholesale go- down.
The present matter was taken before this Court on 12.02.2018 and this Court has proceeded to pass interim order with following effect:-
"This writ petition has been filed by the petitioner challenging the order dated 29.01.2018 passed by the Sub Divisional Magistrate, Chandausi which has referred to an order dated 25.1.2018 alloting the fair price shop of village Ghasipur, Block Bahjoi, Tehsil Chandausi, District Sambhal in favour of Shyam Sundar Sharma, respondent No. 5, herein and has given respondent No. 5 the permission to lift the allotted food grains for the fair price shop in question from the wholesale godown.
Learned counsel for the petitioner has pointed out that allotment of Shyam Sundar Sharma has been made on the basis of irregular resolution passed by the Gram Sabha in question. On complaints being made by the villagers, the Block Development Officer had constituted a team of officers i.e. Junior Engineer of Rural Engineering Department and the A.D.O. Panchayat on 17.01.2018 and had directed them to conduct on the spot inspection of the village concerned to find out the truth regarding the alleged meeting of Gram Sabha held on 12.01.2018. The inquiry report was submitted on 25.01.2018 by the said officer saying that there were 916 eligible voters in the village concerned and 1/5th of the said number of voters i.e. 183 should have been in the quoram for a valid meeting of the Gram Sabha, but from a perusal of the Proceeding Register, it is evident that there were only 105 signatures/thumb impressions made endorsing such Resolution. There was apparent irregularity. A recommendation was therefore made by the Joint Committee to the Block Development Officer to get fresh meeting conducted. On the basis of such Recommendation dated 25.01.2018, the Block Development Officer sumitted a report on 27.01.2018 that a fresh meeting be held of the Gram Sabha concerned for recommending the name of a candidate for grant of fair price shop licence. Even before such report could be made and a Recommendation made thereafter by the Block Development Officer, the Tehsil Level Selection Committee seems to have allotted the fair price shop in question to Shyam Sundar Sharma, respondent No. 5. An inquiry that was held therefore, was rendered nugatory. Sub Divisional Magistrate ought to have waited for the inquiry to be conducted on the basis of complaints, and thereafter, placed the matter before the Tehsil Level Selection Committee.
The matter requires consideration.
Issue notice to respondent No. 5, returnable at an early date. The petitioner shall take steps within a week.
The office while issuing notice indicate a date 27.03.2018 for putting in appearance through counsel and filing counter affidavit.
Learned Standing Counsel shall also ensure filing of counter affidavit within six weeks on behalf of State-respondents.Till 27.03.2018, the impugned order shall remain stayed."
In the present matter, the detailed counter affidavit has been filed by the State respondent, wherein, objection has been taken by the State respondents in paragraph 4 of the Counter Affidavit that an open general meeting of Gram Sabha was held on 12.01.2018 under the Chairmanship of Gram Pradhan-Shri Hari Om and in presence of Sachiv, Gram Panchayat Partapur, Assistant Development Officer (ISB), Block Behjoi (as observer) alongwith local police force, two persons namely Sri Shyam Sunder Sharma (fifth respondent) and Shri Jugesh Sharma (petitioner) presented their candidature. Both the candidates were asked to arrange supporters/voters into two separate queues and upon counting fifth respondent have obtained 184 votes, whereas, the petitioner has got 182 votes. In such a situation, the fifth respondent was declared as winning candidate by two votes. It has also been claimed that said resolution was duly signed and sealed by Gram Pradhan, Sachiv, Observer- Assistant Development Officer including both the candidates and as such, it is also being objected that it is absolutely incorrect to say that the said meeting was held without completing requisite formalities.
In support of his submission, Shri Siddhartha Singh, learned Additional Chief Standing Counsel has placed reliance on the provisions contained in Section 35 of the U.P. Panchayat Raj Act 1947, which provides quorum and procedure at the meeting of the Gram Panchayat and as such it is claimed that in the Rules 1947 nowhere it is subscribed for endorsement or thumb impression of the members of the quorum in the register and he also submits that in the present matter, there are total 916 voters, out of which 366 persons were present and participated in the said meeting and in such circumstances, the quorum of the meeting cannot be treated as incomplete, whereas, the said resolution has been duly endorsed not only by the petitioner as well as the contesting respondent also. In support of his submission, he has placed reliance on the objection so filed by the petitioner, which is annexed as annexure 3 to the writ petition. He has also informed to the Court that the inquiry report was forwarded by the Block Development Officer to the licensing authority i.e. second respondent vide letter no.1962 dated 27.01.2018, wherein, the Tehsil Level Selection Committee was formed on 25.01.2018 for taking decision upon Gram Sabha resolution dated 12.01.2018.
On the other hand, Shri Pandey, learned counsel for the petitioner submits that admittedly in the present matter so far as the procedure is concerned, the same has been given a go-bye and at no point of time any Authority has adhered the process in the matter and so far as this procedural infirmities are concerned, the same are also writ apparent from the report submitted by the Khand Vikas Adhikari in his report dated 27.1.2018, which clearly proceeds to mention regarding infirmities in the procedure and as such, he submits that the fresh process may be taken so that substantial justice may be done in the matter.
Heard rival submission and perused the record.
So far as objection so taken by the petitioner regarding maintaining the register is concerned, record in question reflects that only 105 signatures/thumb impressions were made while endorsing the resolution and as such, while entertaining the writ petition on 12.02.2018, the Court has proceeded to pass interim order relying on this factual aspect. This is also an admitted situation that on the basis of said interim order, the situation is still on hold and in this backdrop, the Court is of the considered opinion that as far as the illegality and infirmity in the resolution is concerned, the same can very well be examined by the Authorities as per the Reference dated 25.01.2018, wherein, for settling Fair Price Shop, the Tehsil Level Committee headed by Sub Divisional Magistrate concerned has been formed.
In view of the above, the Court is of the of the considered opinion that let the matter be relegated to the Tehsil Level Selection Committee to look into the grievance of the petitioner and decide the same after taking into consideration the factual and legal aspect of the matter within a period of three weeks from the date of production of certified copy of this order but certainly after providing ample opportunity of hearing to all the stake holders in the matter. It is made clear that in case it is found that the said resolution was not in accordance with law, the fresh proceeding may be drawn so that the settlement of Fair Price Shop may be ensured in the matter. The said exercise is to be done in further two months' period.
With these observations, the writ petition is
disposed of.
Order Date :- 29.11.2018 A. Pandey