Court No. - 10 Case :- WRIT - C No. - 20963 of 2018 Petitioner :- Smt. Rakhi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shiv Raj Singh Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava,Rajesh Kumar Roy Sharma Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Shiv Raj Singh, learned counsel for the petitioner; Shri Siddharth Singh, learned Additional Chief Standing Counsel for the State respondents and Shri R.K.R. Sharma, learned counsel appearing for the private respondent no.5.
By means of present writ petition, the petitioner is assailing the validity of the order impugned dated 26.4.2018 passed by the third respondent, Tehsil Level Committee head by Sub Divisional Magistrate, Tehsil Fatehabad, District Agra, whereby the settlement of fair price shop of Village Nibohra, Block Fatehabad, District Agra has been finalized in favour Smt. Hira Devi wife of Naresh arrayed as respondent no.5.
Learned counsel for the petitioner submits that initially, a resolution was passed by the Village Panchayat Nibohra, District Agra recommending the appointment of the petitioner as a fair price shop dealer. In the aforesaid meeting while considering for settlement of fair price shop dealer of the village in question, there were only two candidates namely the petitioner and one Hira Devi and total 303 votes were casted in favour of the petitioner, where as 144 votes were casted in favour of Hira Devi. Finally, the said resolution was not approved by the Competent Authority. Aggrieved with the aforesaid in action, the petitioner had approached this Court by preferring Writ C No.12285 of 2018 (Smt. Rakhi vs. State of UP and 3 others) and the same was disposed of by this Court on 17.4.2018, asking the Tehsil Level Committee to take a final decision in the matter after considering all the facts and evidences on the record within one month from the date of receipt of certified copy of the order. Meanwhile, it was made open to the State authorities to ensure distribution of essential commodities by any other alternative means till the appointment of the regular fair price shop dealer. While disposing of the aforesaid writ petition on 17.4.2018 at no point of time any liberty was accorded to the authority concerned for initiating fresh proceeding in the matter. Even in the subsequent proceeding on the safer side the petitioner had also participated and this much is admitted situation that in response of the fresh advertisement, only four persons including the petitioner and respondent no.5 applied and the candidatures of remaining two candidates were rejected. The claim was only between the petitioner as well as the respondent no.5 and without taking into account the facts and evidences available on record and as per mandate of this Court dated 17.4.2018, in most cursory manner and on whimsical ground, the settlement has been made in favour of respondent no.5. The order impugned on the face of record is unsustainable and the same is liable to be set aside by this Court.
Confronted with this situation, Shri Siddharth Singh, learned Additional Chief Standing Counsel very fairly states that no doubt, at no point of time any leave was accorded by this Court to the respondents for settling the fair price shop on the basis of fresh advertisement. Once the petitioner had also participated in the subsequent proceeding then this plea cannot be taken at this stage. However, he cannot dispute the fact that the order itself is speculative in nature and he cannot justify the order impugned where by settlement has been made in favour of respondent no.5.
Shri R.K.R. Sharma, learned counsel appearing for the private respondent no.5 states that in the resolution in question it has already been resolved that the fair price shop is to be settled in favour of respondent no.5 and at this stage, the wisdom of the Committee cannot be questioned. Such technical objection is unfounded and the same is liable to be rejected by this Court.
Heard rival submission and perused the record.
The facts, which have been emerged from the record, are not disputed by the parties. As has been indicated above, the Court had proceeded to dispose of the aforesaid Writ C No.12285 of 2018 with following observation:-
"In view of the aforesaid submissions at the Bar, the Sub Divisional Magistrate, Fatehabad, District Agra is directed to take steps and ensure that the Tehsil Level Committee takes a final decision in the matter after considering all the facts and evidences in the record within a period of one month from the date of receipt of certified copy of this order.
However, it shall be open to the State Authorities to ensure distribution of essential commodities by any other alternative means till the appointment of the regular fair price shop dealer."
A bare perusal of the aforesaid order, this much is clearly reflected to this court that at no point of time any liberty was accorded to the respondent authorities to take contrary view. Most surprising aspect of the matter is that inspite of complying of the aforesaid order, the respondent authorities on the spot had proceeded to take their own decision for settling the fair price shop again on the basis of fresh advertisement and in response of the fresh advertisement, admittedly four persons including the petitioner as well as Hira Devi had applied. In the meeting of the Gaon Sabha the candidatures of two candidates were rejected. Finally the Tehsil Level Committee found that candidatures of the petitioner as well as respondent no.5 were worth considering and the claim of the petitioner was rejected merely on the ground that there was a dispute with Hira Devi and in case the settlement is made in favour of the petitioner, the dispute will again arise. In this backdrop, the settlement of the fair price shop in question was finalized in favour of Smt. Hira Devi. While passing the present resolution at no point of time the order dated 17.4.2018 has ever been considered by the authority concerned. The order impugned is also vague, contrary to the record and speculative in nature and the same is unsustainable.
In the aforesaid facts and circumstances, the impugned order cannot sustain and the same is accordingly set aside.
Consequently, the writ petition is allowed and the matter is remanded back to the Sub Divisional Magistrate, Tehsil Fatehabad, District Agra to direct the Tehsil Level Committee to proceed strictly in accordance with law and the fresh resolution may be passed well within four corners of law within a period of two months from the receipt of certified copy of the order.
Order Date :- 30.11.2018 RKP