Court No. - 28
Case :- WRIT - C No. - 15990 of 2017 Petitioner :- Manoj Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Surendra Pal Singh Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav,V.K. Baranwal
Hon'ble Mrs. Sunita Agarwal,J.
The petitioner claims to be a subsequent allottee of the fair price shop which was originally allotted to respondent No.5 after cancellation of licence of respondent No.5. Pursuant to a resolution passed in an open meeting of the Gram Sabha held on 3.1.2017, the vacant fair price shop was allotted to the petitioner vide order dated 17.3.2017 passed by the Sub Divisional Officer. The petitioner submits that the allotment order has not been given effect to in view of an order dated 6.1.2017 passed by the Deputy Commissioner (Food) Varanasi Division Varanasi whereby while entertaining the appeal filed by the petitioner and rejecting his stay application for staying the effect and operation of the cancellation order, a direction has been issued not to grant fresh licence for the shop in question.
The allotment made to the petitioner was cancelled vide order dated 25.3.2017 taking account of the interim order dated 6.1.2017 passed by the Deputy Commissioner.
Submission is that the resolution dated 3.1.2017 has been passed in favour of the petitioner in an open meeting of the Gram Sabha. The approval order dated 17.3.2017 was passed as the fact of passing of the interim order by the Commissioner was not in the knowledge of the Authority.
Disputing the said submission, it is contended by the learned counsel for the respondent No.5 that no meeting of Gram Sabha was held on 3.1.2017 as alleged by the petitioner. The decision to allot the fair price shop licence in the name of the petitioner has been taken in a closed door meeting. There was no agenda or munadi for the purpose in the Gram Sabha. Moreover, in view of the interim order dated 6.1.2017 passed by the Deputy Commissioner staying the fresh allotment of the fair price shop, it was not open for the licensing authority to approve the resolution.
Having heard learned counsel for the parties and perused the record, this Court finds that the fair price shop licence of respondent No.5 had been cancelled after making due enquiry into the matter. The cancellation order dated 5.12.2016 has been challenged in appeal. While admitting the said appeal, it was opined by the Commissioner that there was no justification to grant any interim order for staying the effect and operation of the cancellation order. The stay application filed by the petitioner in appeal has been rejected vide order dated 6.1.2017. However, despite rejection of the stay application, the direction has been given not to allot the fair price shop afresh till the disposal of the appeal or further orders passed in appeal. This direction could not have been passed by the Commissioner moreso in view of the Full Bench decision of this Court wherein it has been held that there cannot be any deemed stay of the fresh allotment of fair price shop during the period of suspension or after cancellation, during the pendency of appeal. The State authorities are under obligation to ensure that proper distribution of essential commodities are to be done in the village and, in case, it is required, fresh allotment would be made by way of interim arrangement.
From the order of Commissioner dated 6.1.2017, it is clear that he did not find any justification to stay the operation of the cancellation order in view of the allegations levelled against respondent No.5. Moreover, the cancellation order was passed after making due enquiry and giving due opportunity of hearing to the respondent No.5. It was, therefore, not open for the Commissioner to direct not to make fresh allotment during the pendency of the appeal.
It was, therefore, not open for the Deputy Commissioner (Food), Varanasi Division Varanasi to stay fresh allotment of the fair price shop at the instance of the appellant whose licence had been cancelled on the allegations of irregularities committed by him.
In view of the above, this Court is of the view that the order dated 6.1.2017 passed by the Commissioner to the extent that no fresh allotment shall be made is illegal and, therefore, requires to be modified with the directions that the authorities are under obligation to grant fresh licence by way of an interim arrangement.
Now the question would be as to the legality of the allotment made to the petitioner who claims that the resolution dated 3.1.2017 has been passed in an open meeting of the Gram Sabha. This issue requires examination by the Competent Authority. It is, therefore, kept open for the authorities to find out as to whether proper agenda was circulated and mundai was done before holding of the meeting of Gram Sabha on 3.1.2017. After verification of the records, the satisfaction is required to be recorded by licensing authority namely the Sub Divisional Officer, Shahganj, District Jaunpur in this regard. The approval of the allotment in the name of the petitioner can only be done after verification and due findings recorded in the meeting of the Gram Sabha. It is open for the respondent No.5 to file his objection before the Sub Divisional Officer, Shahganj, District Jaunpur only regarding the validity of the meeting of Gram Sabha held on 3.1.2017. A reasoned and speaking order in accordance with law shall be passed by the Sub Divisional Officer, Shahganj, District Jaunpur within a period of three weeks from the date of submission of certified copy of this order.
It is, however, made clear that in the allotment order, it should be clarified by the Competent Authority that the allotment made in the name of the petitioner shall be subject to the final decision in the pending appeal filed by fair price shop dealer.
So far as the appeal filed by fair price shop dealer is concerned, the Deputy Commissioner (Food) Varanasi, Division Varanasi is directed to decide the appeal expeditiously preferably within a period of two months from the date of submission of certified copy of this order.
With the above observations and directions, the writ petition is disposed of.
Order Date :- 18.4.2017 Jyotsana