Court No. - 25
Case :- WRIT - C No. - 36494 of 2017 Petitioner :- Sunil Patel Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Suresh Singh Counsel for Respondent :- C.S.C.,Hausihla Prasad Mishra,Tariq Maqbool Khan
Hon'ble Siddhartha Varma,J.
Rejoinder affidavit on behalf of the petitioner filed today. It is taken on record.
Ram Pravesh Singh, who was the erstwhile fair price shop dealer died on 07.07.2017. Thereafter, the respondent No.5, under Clause 10 Jha of the Government Order dated 17.08.2002 was appointed as a fair price shop dealer, as a dependent of the deceased. Aggrieved by the fact that the appointment of the respondent No.5 was done without any open meeting, the petitioner had filed the instant writ petition.
Learned counsel for the petitioner had very vehemently submitted that the reputation of the deceased could have been tested only in an open meeting of the Gaon Sabha. While making his submissions, he relied upon 2016 ADJ 241;2016 0 Supreme (All) 904; Ram Briksh vs. State of U.P. and Others. Since the counsel for the petitioner specifically read out paragraphs 9 and 10. The same are being reproduced here asunder:-
9- Considering the submissions of learned counsel for the parties and having perused the record, this Court does not find force in the submission of Sri Anoop Trivedi learned counsel for the respondent that the petition has become infructuous. The impact of clause 10 (jha) of the Government order dated 17.08.2002 is admitted to the learned counsel for the parties. The relevant clause 10(jha) of the said Government order is as follows.:-
Þ यिद दकानदार अचछी खयाित का हो तो उसकी मतयु के उपरांत दकान का आवंटन उसक आिशत को करने पर िवचार िकया जा सकता है आिशत का तातपयर पतनी] पत अि वािहत पती से हैAß तथा
10- This Government order came up for consideration before a division bench of this Court in Subash Vs. State of U.P. And others, 2015 (1) ADJ 113. It has held therein that the allotment of the fair price shop licence is to be done only after resolution is passed in the open meeting of the Gaon Sabha, and no exception to the said procedure can be carved out. However, a legal heir of the licensee who had earned a good will has a preferential right for consideration for the settlement of the fair price shop on compassionate ground.
In reply, Sri H.P. Mishra, learned counsel for the respondent No.5, however, states that an open meeting was not required to enquire regarding the reputation of the deceased. He submits that there was nothing arbitrary in allotting the shop to the dependent without an open meeting.
Instructions as were placed by the Standing Counsel, made it clear that there was no open meeting before the order dated 03.08.2017 was passed.
Having heard the learned counsel for the parties, I am of the view that as per the law laid down of 2016 ADJ 241;2016 0 Supreme (All) 904; Ram Briksh vs.
State of U.P. and Others, the respondent No. 5 could have been allotted the fair price shop only after an open meeting was conducted regarding to the reputation of the deceased. In the open meeting, if the reputation was found to be good then alone the allotment in favour of the respondent No.5 could have been done.
Under such circumstances, the order dated 29.07.2017 and the consequential order dated 03.08.2017 are quashed. The matter is remanded back to the respondent No. 2, the Sub-Divisional Magistrate, Sadar, District- Deoria, who shall expeditiously convene an open meeting as per the Clause 10Jha of the Government Order dated 17.08.2002 within a period of one month from the presentation of a certified copy of this order. Thereafter the dependent of the deceased could be granted the licence.
Accordingly, the writ petition is allowed.
Order Date :- 25.4.2018 vkj