The petitioner has approached this Court challenging the order dated 16.12.2017, passed by the opposite party no.3/Sub Divisional Magistrate, Lakhimpur, District-Kheri. The petitioner has further prayed for a direction to the opposite party concerned to take appropriate decision afresh regarding appointment of the petitioner against the vacant Fair Price Shop of village Panchayat Kat-Kusama, Block-Nakaha, Tehsil-Lakhimpur, District-Kheri in pursuance of the proposal dated 30.10.2017.
The brief facts of the case for disposal of the instant writ petition are that the Fair Price Shop of village Panchayat Kat-Kusama, Block-Nakaha, Tehsil-Lakhimpur, District-Kheri had fallen vacant in the year 2016. The Card holders of the village Kat-Kusama were facing problem due to non allotment of Fair Price Shop of the Village Panchayat Kat-Kusama, therefore, they approached to the Sub Divisional Magistrate, Lakhimpur Kheri and other district authorities and submitted applications, but nothing was done. Therefore, one villager, namely, Santosh Kumar Shukla filed a writ petition No.24691 (MS) of 2017 before this Court. The said writ petition was disposed of with direction to the opposite party no.3/Sub Divisional Magistrate, Lakhimpur Kheri to decide the petitioner's representation and communicate the order passed thereon to the petitioner.
Thereafter under the direction of the competent authority an open meeting of the Gaon Sabha was held on 30.10.2017, in which a proposal was passed in favour of the petitioner. The second candidate Smt.Meena Devi wife of Ajay Kumar made a complaint through her associate before the concerned authority on 31.10.2017 alleging therein that at the time of counting one Vineet son of Ramesh after snatching the register from the hand of Panchayat Secretary had run away, due to which her counting could not be completed and the proposal was passed with the collusion of the employees of the Block in favour of the real Bhabhi of the husband of sitting Pradhan.
On the aforesaid complaint a letter was written by the Block Development Officer, Nakaha, Kheri to the Sub Divisional Officer, Sadar, Lakhimpur for taking appropriate decision after making an enquiry. Since no decision was being taken by the licensing authority on the proposal of the Gaon Sabha, the petitioner submitted an application to the opposite party nos.2 and 3 for making allotment of Fair Price Shop in pursuance of the proposal but no action was taken so the petitioner had approached this Court by means of filing writ petition No.28096 (MS) of 2017, in which instructions were called from the learned Standing Counsel on 21.11.2017. In the meantime the opposite party no.3 passed the impugned order dated 16.12.2017 by means of which, on the basis of inquiry report of the Naib Tehsildar and the Assistant Development Officer, the Block Development Officer, Nakaha has been directed to hold a fresh open meeting in his personal supervision for selection of the Fair Price Shop Licensee in village Panchayat Kat-Kusama, Block-Nakaha, Tehsil-Lakhimpur, District-Kheri in accordance with law and provide the proposal.
Heard Shri Mohan Singh, learned counsel for the petitioner, learned Standing Counsel for opposite party nos.1 to 3 and Shri Saurav Yadav, Advocate holding brief of Shri Yogendra Nath Yadav, learned counsel for the opposite party no.4.
Submission of learned counsel for the petitioner is that the meeting of the Gram Panchayat was held on 30.10.2017 in accordance with law, in which the petitioner had got 840 votes and second runner up Smt. Meena Devi had got 240 votes. Therefore, the petitioner was recommended for allotment of the Fair Price Shop. Smt. Meena Devi, who could not succeed, had made a complaint through her associate on 31.10.2017 on misconceived and baseless grounds that one Vineet son of Ramesh after snatching the register from the hand of the Panchayat Secretary has run away so the counting could not be completed and the proposal was passed with collusion of the employees of the Block. It is false because if the Register was snatched away then the proposal could not have been passed, which has been duly signed by the Pradhan, Village Development Officer, Assistant Development Officer and Members of Kshettra Panchayat, which is apparent from the photo copy of the proposal, a copy of which has been annexed as annexure no.3 to the writ petition.
Learned counsel for the petitioner further submitted that the inquiry has been got conducted without affording opportunity to the petitioner by Shri Lal Krishna, Naib Tehsildar and Shri O.P.Verma, Assistant Development Officer, Development Division-Nakaha, Kheri. They have submitted the report in an arbitrary, illegal and biased manner without verifying the facts and merely on the basis of the statement of some villagers. While as per proposal more than 1080 villagers were present. One of the Inquiry Officer Shri O.P.Verma, Assistant Development Officer was also present at the time of the meeting of the Gram Sabha and he has signed the proposal also. Accordingly if the allegation of the complainant is true then Shri O.P.Verma could not have signed the proposal. It has further been submitted that the meeting was held in presence of the police force therefore, the allegation of snatching of the register itself is false because if the police force was present the register could not have been snatched away. It has further been submitted that the statement of Panchayat Secretary, Member of Kshetra Panchayat and others who were present at the time of open meeting and signed the proposal have not been recorded by the inquiry officers and the allegations have also not been verified from the Camera proceedings and videography, which was done at the time of open meeting. It has further been submitted that the Government Officers/officials, present on the spot of open meeting, have not made any complaint and told to the Block Development Officer concerned who send the proposal dated 30.10.2017 to the opposite party no.3 for the needful action, but no such remark has been made by him while signing the proposal.
Learned counsel for the petitioner further submitted that opposite party no.3/Sub Divisional Magistrate has passed the impugned order dated 16.12.2017 without jurisdiction because in view of Section 96 of the U.P.Panchayat Raj Act 1947 and Rule 40 of the U.P. Panchayat Raj Rules, 1947 the Sub Divisional Magistrate has got no power to cancel the resolution taken in the open meeting of the Gram Panchayat. The petitioner has given a representation to the District Magistrate Kheri alongwith notary affidavit of some of the villagers on 21.12.2017 stating therein that no such occurrence has taken place as alleged in the inquiry report, but the same has not been considered by the District Magistrate, who is competent authority in such a situation.
Per contra, learned Standing Counsel has submitted that the open meeting of the Gram Panchayat was held on 30.10.2017 for selection of Licensee for the vacant Fair Price Shop and the proposal was made in favour of the petitioner. Thereafter the Block Development Officer vide its letter dated 31.12.2017 informed to the respondent no.3 that 36 villagers have lodged objection against the proposal and have requested for inquiry with regard to the proposal. In pursuance thereof the respondent no.3 vide his letter dated 17.11.2017 directed the Naib Tehsildar, Tehsil Sadar, Kheri and Assistant Development Officer to conduct an inquiry. Both the officers conducted the inquiry on 12.12.2017 and randomly recorded the statement of 109 villagers out of whom 50 had stated that after counting of votes in favour of the petitioner some one fled away with proposal register due to which controversy arose and counting could not be completed. However 49 persons stated that proposal was passed in favour of the petitioner. The statement of two persons are not clear. On the basis of the inquiry report submitted by the inquiry committee dated 13.12.2017 the order dated 16.12.2017 has been passed by the respondent no.3, whereby rejecting the proposal dated 30.10.2017 and directing for holding a fresh open meeting of the Gram Panchayat for selection of the Licensee of the Fair Price Shop.
Learned Standing Counsel further submitted that under the Government Order dated 17.08.2002 read with Government Order dated 03.07.1990 the Sub Divisional Magistrate enjoys the power to appoint a licensee of the Fair Price Shop, hence the order dated 16.12.2017 has been passed by the Sub Divisional Magistrate in accordance with law and it is within his jurisdiction. The meeting of the Gram Panchayat held under the provisions of U.P.Panchayat Raj Act, 1947 with respect to the discharge of its functions under the Act 1947 cannot be transposed with respect to allotment of Fair Price Shop in accordance with the Government Order dated 17.08.2002 read with Government Order dated 03.07.1990 issued under the Public Distribution System under the realm of Essential Commodities Act 1955 for maintaining the supply of food grains and other essential commodities in equitable manner at Fair Prices.
It has further been submitted that vide Notification dated 10.08.2016, the State Government has framed Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 in supersession of earlier Notification dated 20.12.2004. Thus the order dated 16.12.2017 passed by the Sub Divisional Magistrate is perfectly justified and is in accordance with law.
On the basis of the above learned Standing Counsel submitted that the writ petition has been filed on misconceived grounds which is not tenable in the eyes of law and is liable to be dismissed.
I have considered the submissions of the parties and perused the record.
The meeting of the Gaon Sabha was held on 30.11.2017 for selection of the Licensee of the Fair Price Shop for the village Panchayat Kat-Kusama, Block-Nakaha, Tehsil-Lakhimpur, District-Kheri. In the meeting the petitioner had got 840 votes, therefore, the name of the petitioner was recommended for grant of licence, a copy of the proposal has been annexed as no.3 to the writ petition. Perusal of the proposal shows that it has been signed by the Pradhan, Village Development Officer, Members of Kshetra Panchayats and ADO (Assistant Development Officer). The said proposal was forwarded by the Block Development Officer on 30.10.2017 to the Sub Divisional Magistrate for necessary action. It appears that some villagers raised some objections on the proposal dated 30.10.2017, therefore, the same Block Development Officer wrote a letter dated 31.10.2017 to the Sub Divisional Magistrate for making an inquiry from his level and appropriate decision. In pursuance thereof the Sub Divisional Officer directed to the Naib Tehsildar, Lakhimpur and Shri O.P.Verma, Assistant Development Officer, Development Division, Nakaha, Kheri for holding an inquiry. In pursuance thereof the inquiry was conducted and a report was submitted by them to the effect that on the basis of the statements of some villagers the proposal is suspicious and a recommendation was made that it would not be proper to issue the licence on the said proposal. The report dated 13.12.2017 was submitted to the Sub Divisional Magistrate, on the basis of which the impugned order dated 16.12.2017 has been passed by the Sub Divisional Magistrate. Shri O.P.Verma, Assistant Development Officer, one of the enquiry officer, was also a signatory to the proposal dated 30.10.2017 but while forwarding the proposal, he or any other officer had not reported any such incident as alleged by the complainant. It appears that in the inquiry also the statements of said officers and of the Pradhan and Members of the Kshettra Panchayat were not recorded. Shri O.P.Verma, the inquiry officer who was also the signatory of the proposal had also not reported any such incident.
In the inquiry no opportunity was afforded to the petitioner while the proposal was in favour of the petitioner and there was allegation that some supporters of the petitioner has snatched away the register, therefore, the inquiry has not been conducted in accordance with law. The video recording of the meeting of Gram Sabha was also got done, but the same has not been examined by the inquiry officers.
The decision on the inquiry report has been taken by the Sub Divisional Magistrate, Lakhimpur Kheri and without rejecting or taking any decision on the proposal a direction has been issued by the Sub Divisional Magistrate for holding a fresh open meeting merely on the presumption that the proposal is suspicious. While once the proposal was made after open meeting and forwarded by responsible officers and no complaint was made by them, the order could not have been passed without affording opportunity to the affected party and enquiring from the officers present and signed the proposal, merely on suspicion.
Adverting to the issue raised by learned counsel for the petitioner that since there was a dispute regarding the proposal, the Sub Divisional Magistrate could not have taken any decision and he should have referred the matter to the District Magistrate, who is the competent authority under the Act to take a decision in such a situation, I find that by the 73rd Amendment in the Constitution of India Section 243G regarding powers, authority and responsibilities of Panchayats was inserted in the Constitution. Section 243G is reproduced as under:-
"243G. Powers, authority and responsibilities of Panchayats.-Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to-
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
The Eleventh Schedule was also inserted by way of 73rd Amendment in the Constitution of India, in which the Public Distribution System has been included at Sl.No.28.
In view of the 73rd Amendment in the Constitution, Section 15 regarding functions of Gram Panchayat was substituted by way of amendment of U.P.Act No.9 of 1994 in the U.P. Panchayat Raj Act, 1947 and the Public Distribution System was incorporated as one of the functions of the Gram Panchayat, which includes promotion of public awareness with regard to the distribution of essential commodities and monitoring the public distribution system.
Section 15(xxix) of the Uttar Pradesh Panchayat Raj Act, 1947 is reproduced as under:-
"(xxix) Public distribution system:
(a) Promotion of public awareness with regard to the distribution of essential commodities.
(b) Monitoring the public distribution system."
Section 2 (q) of the Uttar Pradesh Panchayat Raj Act, 1947 provides the meaning of the Prescribed Authority, which is reproduced as under:-
"(q) "Prescribed Authority" means-
(i) for the purposes of the provisions of this Act mentioned in Schedule III of the [Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961], the [ Zila Panchayats] or the [Kshettra Panchayats], as may be specified in column 3 of that Schedule; and
(ii) in respect of any other provisions of this Act, the authority notified as such by the State Government whether generally or for any particular purpose."
The Public Distribution System has been incorporated as one of the functions of Gram Panchayat in the U.P.Panchayat Raj Act, 1947 and the selection of Fair Price Shop is made in the open meeting of Gram Sabha, therefore, the contention of learned Standing Counsel with regard to the meeting of Gram Panchayat held under the provisions of U.P.Panchayat Raj Act, 1947 with respect to allotment of Fair Price Shop is misconceived and not acceptable.
The Government has issued the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016. The said control order provides about the appointment and regulation of the Fair Price Shops. Clause 7(2)(1) of which provides that the Fair Price Shop shall be run by such a person who is determined by the Collector under the direction of the State Government. The Collector has been defined under Section 2(h) of the Control Order, which provides that the Collector includes the District Magistrate and any such officer who has been authorized in writing by him for discharge of all or any of his functions.
The learned Standing Counsel has failed to disclose that the Collector/District Magistrate concerned has authorized the Sub Divisional Magistrate for discharge of his functions. Therefore, the District Magistrate is the competent authority to take a decision in regard to the Licensee of the Fair Price Shop in the present case. The State Government has issued the Government Order dated 17 August 2002 which provides the policy directions for initiation and for allotment of the Fair Price Shops under the Public Distribution System. Clause 7 of the Government Order provides that after determination of the Gram Sabha the allotment of the Fair Price Shop shall be made on the basis of the open meeting of the Gram Sabha. The proposal passed by the Gram Sabha shall be sent to the Committee constituted under the Chairmanship of the Sub Divisional Magistrate for appointment. Clause 11 of the Government Order provides that under the Rules, areas where the Gram Sabha does not pass proposal or where some dispute arose in regard to the proposal, the District Magistrate will be empowered to issue direction for allotment of said Gram Sabha in public interest on the recommendation of the Committee constituted under the Chairmanship of the Sub Divisional Magistrate in accordance with the directions of the Government orders.
In view of above since the dispute was raised by some villagers the Sub Divisional Magistrate, instead of taking decision himself, should have referred the matter to the District Magistrate for decision in the matter.
The Division Bench of this Court while considering a similar controversy regarding allotment of Fair Price Shop in the case of Jag Jiwan Ram Versus State of U.P. and others; Civil Misc. Writ Petition No.41737 of 2012 by means of judgment and order dated 18th of October 2012, has held that 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. The relevant portion of the judgment is extracted as under:-
"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 (Panahcyat) and also by Naib Tehsildar. The Assistant Development Officer (Panahcyat) 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."
In view of above, I am of the considered opinion that the Sub-Divisional Magistrate could not have passed the impugned order dated 16.12.2017. Since there arose a controversy in the proposal, the Sub-Divisional Magistrate should have referred the matter to the District Magistrate to take a decision. Therefore, the order passed by the opposite party no.3/Sub Divisional Magistrate, Lakhimpur, District-Kheri is without jurisdiction and liable to be quashed and the present writ petition deserves to be allowed.
The writ petition is allowed.
The order dated 16.12.2017, passed by the opposite party no.3/Sub Divisional Magistrate, Lakhimpur, District-Kheri is hereby quashed. The Sub Divisional Magistrate, Lakhimpur, District-Kheri is directed to forward the record to the District Magistrate, Kheri, who shall take a decision on the proposal dated 30.10.2017 of the Gram Panchayat, Kat-Kusama, Block-Nakaha, Tehsil-Lakhimpur, District-Kheri in accordance with law within a period of four weeks from the date of production of a certified copy of this order.
No order as to costs.