Court No. - 10
Case :- WRIT - C No. - 38025 of 2019 Petitioner :- Vijay Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Jai Singh Yadav Counsel for Respondent :- C.S.C.,Arun Kumar Srivastava,Faizul Hasan,Mahboob Ahmad Siddiqui
Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard Sri Jay Singh Yadav, learned counsel for the petitioner, Sri Faizul Hasan, learned counsel appearing for the respondent no.4 and Sri Mahboob Ahmad Siddiqui, learned counsel for the respondent, Sri Arun Kumar Srivastava, appearing for the Gaon Sabha and learned Standing Counsel.
2. In terms of the order passed by this Court on 05.12.2019, the learned Standing Counsel has received instructions from the office of the Sub-Divisional Magistrate, Sambhal dated 16.12.2019. A copy of the said instructions have been produced before this Court and are kept on record.
3. It has been submitted on the basis of the said instructions that initially on the vacancy having arisen with regard to the Fair Price Shop, Village Badaun Darwaja, Block Sambhal, Tehsil and District Sambhal, the Gram Sabha meeting was held on 25.06.2018, wherein a recommendation was made in favour of Arshad Ali. Certain complaints were received from the villagers on 16.11.2019 that the Gram Sabha meeting held on 25.06.2019 was without public information being circulated. The enquiry was initiated by the Sub-Divisional Magistrate on 16.07.2018 and the Block Development Officer was asked to submit his report. The Block Development Officer submitted his report on 27.08.2018 that he was present during the open general meeting of Gram Sabha concerned and the enquiry be handed over to some other person for impartiality. Another enquiry was directed to be considered by the Area Rationing Officer Sambhal, who submitted his report on 01.10.2018. In the said report, it was mentioned that the open general meeting held on 25.06.2018 was vitiated and disputed by several villagers and that the matter be placed before the Tehsil Level Selection Committee for its decision.
The Tehsil Level Selection Committee, thereafter, considered the proposal of the Gaon Sabha dated 25.06.2018 along with the reports submitted by the Block Development Officer and the Area Rationing Officer, Sambhal and took a decision to cancel the proposal by its order dated 01.11.2018. A fresh proposal was asked for. The fresh proposal was passed by the Gram Sabha in an open general meeting on 05.03.2019 in favour of the petitioner Vijay Kumar s/o Ganga Ram. Accordingly, the Tehsil Level Selection Committee appointed petitioner Vijay Kumar as Fair Price Shop dealer for the Gram Sabha concerned.
4. Sri Arshad Ali, being aggrieved by the order passed by the Tehsil Level Selection Committee, filed a writ petition, namely, Writ C No.5637 of 2019. This Court disposed of the said petition on 18.02.2019 directing Sri Arshal Ali to file an Appeal against the allotment, if he was so aggrieved. Arshad Ali thereafter filed an Appeal before the Divisional Commissioner, which was registered as Appeal No.201913000000315. The Divisional Commissioner on 02.09.2018 admitted the appeal and cancelled the office order dated 01.11.2018 by which the Gram Sabha proposal in favour of the petitioner had been called for and directed that earlier Gaon Sabha proposal dated 25.06.2018 be considered as valid and the Tehsil Level Selection Committee may pass suitable orders thereon. The Tehsil Level Selection Committee thereafter considered the Gaon Sabha's proposal dated 25.06.2018 in terms of Government order dated 05.08.2019 in its meeting held on 27.09.2019 and accepted the proposal of the Gaon Sabha dated 25.06.2018 and appointed Arshad Ali s/o Ashfaq Ali as Fair Price Shop licensee of the Village concerned on 28.09.2019 and cancelled the Fair Price Shop license of the petitioner issued earlier.
5. On the basis of said instructions, learned Standing Counsel has submitted that against the cancellation of Fair Price Shop license, the petitioner has a remedy of approaching the Divisional Commissioner.
6. Learned counsel for the petitioner has submitted on the basis of the judgment rendered by Division Bench of this Court against rejection of proposal of allotment of Fair Price Shop in Writ C No.60123 of 2011: Poornmasi Vs. State of U.P. and others, decided on 20.10.2011; that the allottee should have been given notices of any proceedings initiated behind his back.
7. This Court has perused the judgment. It relates to the allottee of the Fair Price Shop against whom the complaints were received and enquiry was made by the Block Development Officer and on the report of the Block Development Officer, the Sub-Divisonal Officer cancelled the allotment made in favour of the petitioner. This Court had set aside the said order on the ground that no opportunity or notices had been given to the petitioner to submit his reply against the action proposed regarding cancellation of the allotment. This Court had intervened in the matter and stayed the operation of the order of the Sub-Divisional Officer till the next date of listing leaving it open for the respondent to give appropriate opportunity to the petitioner and thereafter take appropriate action in the matter.
8. The aforesaid order is only an interim order passed by this Court.
9. Learned Counsel for the petitioner has placed reliance upon the judgement rendered by the Co-ordinate Bench of this Court in Writ C No.41689 of 2018: Smt. Bhuri Vs. State of U.P. and two others, wherein the petitioner was recommended for an allotment of Fair Price Shop in an open general meeting of Gram Sabha. Thereafter, the complaint was made regarding malpractices in the said selection process. The report was submitted on the basis of which the Sub-Divsional Magistrate came to the conclusion that the resolution of the Gaon Sabha did not suffer from any malpractice but the petitioner was not alloted the Fair Price Shop. The petitioner thereafter made a complaint under IGRS to the Chief Minister. The authorities got annoyed and passed an order rejecting the proposal of Gaon Sabha.
10. This Court observed that if the petitioner alleges that no opportunity was given to the petitioner before the cancelling the allotment, the petitioner may be given a copy of the report and be heard and a fresh order be passed thereafter. Till final decision was to be taken by the District Magistrate on the basis of the enquiry officer's report, the order impugned in the writ petition was kept in abeyance.
11. From a perusal of the instructions submitted before this Court by the learned Standing Counsel, it is apparent that the petitioner was alloted the Fair Price Shop earlier, after conducting due enquiry. The aggrieved person Arshad Ali, in whose favour the earlier proposal of Gaon Sabha had been made but was cancelled later on, filed an appeal and the Appeal has been entertained. It has been submitted that in the Appeal filed by the Arshad Ali, the petitioner being the sitting licensee having been allotted Fair Price Shop was neither impleaded nor heard, therefore, the order passed by the Divisional Commissioner dated 02.09.2019 is vitiated in law.
12. This Court has perused the order dated 02.09.2019 and finds that record relating to the allotment was summoned from the office of the Sub-Divisional Magistrate and after the perusal of the same, orders have been passed giving opportunity of hearing only to Arshad Ali and the DGC. It found the later enquiry conducted by the Area Rationing Officer to be vitiated and the earlier enquiry report of the Naib Tehsildar/ Block Development Officer to be in accordance with law. The earlier proposal of the Gaon Sabha had been recorded in the C.D., which C.D. was also produced and taken into account. Ultimately, the order dated 01.11.2018 passed by the Sub- Divisional Magistrate, Sambhal, directing that the fresh proposal be made by the Gaon Sabha concerned was found to be vitiated and set aside. It automatically revived the proposal of the Gaon Sabha dated 25.06.2018 passed in favour of Arshad Ali.
13. It is apparent from a perusal of the order passed by the Divisional Commissioner that the petitioner was not heard and the order was passed behind his back. The order dated 02.09.2019 although has not been challenged in this writ petition and only the consequential order dated 28.09.2019 passed by the Sub-Divisional Magistrate has been challenged. This Court finds that the order dated 02.09.2019 has been passed without giving hearing to the petitioner. It is vitiated.
14. The petitioner has made averments with regard to the order dated 02.09.2019 being vitiated in the body of the writ petition in paragraph-10 and 11, therefore, he prays for and is granted leave during the course of the day to make necessary amendment in the relief clause challenging the order dated 02.09.2019.
15. Learned Standing Counsel at this juncture has pointed out that the petitioner can only be considered as subsequent allottee and he had no right to be heard as the erstwhile allottee had been directed by this Court to approach the Divisional Commissioner and the Divisional Commissioner has passed appropriate order looking into the fact that the Gram Sabha proposed in his favour is not vitiated in law.
16. This Court has considered the submissions made by learned Standing Counsel. The proposal dated 25.06.2018 in the open general meeting in favour of Arshad Ali was not acted upon. No orders were passed making any allotment to Arshad Ali, the proposal was rejected at the Tehsil Level Selection Committee and the Sub-Divisional Magistrate had passed the order thereafter on 01.11.2018 cancelling the proposal and additionally in the endorsement to the Block Development Officer, directing a fresh open general meeting to be held by the Gaon Sabha concerned. The fresh open general meeting of the Gaon Sabha was held on 05.03.2019. The proposal dated 05.03.2019, after due enquiry, was considered by the Tehsil Level Selection Committee and the allotment was made in favour of the petitioner. He was the first allottee of the Fair Price Shop of the Gram Sabha concerned. He cannot be said to be the subsequent allottee. The proposal of the Gaon Sabha dated 25.06.2018 had not been acted upon. Unless the proposal of the Gram Sabha is acted upon and matures into the allotment order being passed, it could not be said to be allotment in favour of Arshad Ali. The petitioner was entitled to be heard as he was the sitting licensee and he was not heard.
17. Learned counsel appearing on behalf of respondent no.4, has pointed out that the order dated 09.03.2019 was a conditional order making allotment in favour of the petitioner and saying that in case in future if any order is received from the competent court against this allotment order, it shall be binding on the allotment order.
18. It has been further submitted by learned counsel for the respondent no.4 that the order dated 01.11.2018 issued by the Sub-Divisional Officer Sambhal did two things simultaneously. It rejected the proposal of Gaon Sabha dated 25.06.2018 and directed that a fresh proposal be made by the Gaon Sabha in new general meeting.
19. This Court has carefully perused the order dated 01.11.2018. It clearly says in the body of the order that since the proposal of the Gaon Sabha was not passed by the majority and was also not signed by the Gram Pradhan concerned, it was not in accordance with rules and therefore, it has been rejected by the Tehsil Level Selection Commitee constituted under Government Order dated 17.08.2002. In the endorsement made below the said order to the Block Development Officer, there is a direction issued that the fresh open general meeting of the Gaon Sabha concerned be called which would be duly videographed and recorded in the C.D. and be sent with photographs etc. for considering the said fresh proposal.
20. The endorsement made in the order dated 01.11.2018 to the Block Development Officer Sambhal cannot said to be an endorsement which can be read into the order dated 01.11.2018. The order dated 01.11.2018 stops with the signatures of Sri Dipendra Yadav, S.D.M. appended after the last line mentioned in the second paragraph.
21. The arguments raised by learned counsel for the respondent no.4 therefore does not seem to be appropriate. The order dated 02.09.2019 as well as consequential order dated 28.09.2019 having been set aside, the Appeal is remanded to the Appellate Court i.e. the Court of Divisional Commissioner to be considered afresh. The respondent no.4 is directed to implead the petitioner as a party to the Appeal filed against the cancellation of Gaon Sabha proposal dated 25.06.2018 and the allotment order of the petitioner dated 09.03.2019 and he shall be given opportunity to be heard by the Appellate Authority before any order is passed against him.
22. Let the appeal be decided within two months from the date a certified copy of this order is produced before the court concerned.
23. The writ petition is allowed accordingly.
Order Date :- 19.12.2019 Rahul