Dharmveer vs State Of U.P. And 3 Others

Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents.

With the consent of the learned counsel for the parties, this writ petition is being finally heard without calling for counter affidavit.

Submission of the learned counsel for the petitioner that the father of the petitioner was fair price shop agent of Village Kail, Block Gunnor, District Sambhal. After his death, the petitioner applied for allotment of fair price shop on compassionate ground but his application has been rejected on the basis of a report of the Area Rationing Officer dated 02.06.2016 which is wholly illegal inasmuch as the reputation and goodwill of deceased fair price shop agent can be determined only by collecting opinion of Village Panchayat by means of a resolution in terms of Clause 10 (jha) of the Government Order dated 17.08.2002. He also relied upon the judgment of this Court in the case of Lukman Ahmad Vs. State of U.P. and others, 2017 3 ADJ 244 (6).

Learned standing counsel supports the impugned order.

Undisputed facts of the present case are that the father of the petitioner was a fair price shop agent of the Village in question. His fair price shop agreement was suspended on 24.05.2014 on ground of non-deposit of amount for foodgrains/sugar for the month of June, 2014. By order dated 11.06.2014, his fair price shop agreement was cancelled by the respondent no.4 in the absence of any reply. Against the order of cancellation, the father of the petitioner preferred an Appeal No.20141300001075 (Dorilal Vs. State and others) before the Commissioner, Moradabad Division, Moradabad. Subsequently, on 28.11.2014, the aforesaid fair price shop agent died. Consequently, the petitioner being son of the deceased fair price shop agent filed a substitution application before the Appellate Authority but the same was rejected and his appeal was dismissed by the Appellate Authority by order dated 09.01.2015. Against the said appellate order, the petitioner preferred a Writ C No.49396 of 2015 (Dharamvir Vs. State of U.P. and 4 others) which was allowed by this Court by order dated 04.09.2015 and the Appellate Authority was directed to decide the appeal on merit after substituting the petitioner. By order dated 01.04.2016, the appeal of the petitioner was allowed by the Appellate Authority and the order of cancellation dated 06.01.2014 was set aside and it was directed that the case may be decided as afresh on merit. In the mean time, the petitioner also applied for allotment of fair price shop on compassionate ground. One more development has taken place that the State-respondents have allotted the fair price shop on 29.12.2014 in favour of one Sri Nem Singh. In remand proceeding, the respondent no.4 passed an order dated 04.06.2016 holding that as per report of the Area Rationing Officer dated 02.06.2016, the reputation and goodwill of the deceased fair price shop agent was not good and as such in terms of Clause 10 (jha) of the Government Order dated 17.08.2002, fair price shop in question cannot be allotted to the petitioner on compassionate ground. Against this order, the petitioner preferred an Appeal No.C2016130000837 before the Deputy Commissioner (Food), Moradabad Division, Moradabad which has been dismissed by the impugned order dated 22.11.2016. The Appellate Authority affirmed the order of the respondent no.4. The sole ground taken by the Appellate Authority to uphold the findings of the respondent no.4 with respect to the reputation and goodwill of deceased fair price shop agent, was the aforesaid alleged report of the Area Rationing Officer dated 02.06.2016. It is wholly undisputed that reputation of deceased fair price shop agent was not determined by resolution of the Village Panchayat in its open meeting in terms of Clause 10 (jha) of the Government Order dated 17.08.2002.

In the case of Lukman Ahmad (supra), this Court considered Clause 10 (jha) of the Government Order dated 17.08.2002 for determination of goodwill of a deceased fair price shop agent and held as under; "6.Thus the exception as provided in Clause 10(jha) of the Government Order dated 17.08.2002, to the normal procedure for appointment of a fair price shop agent is that a fair price shop agent may be appointed on compassionate ground provided the assessment of the reputation of the deceased fair price shop agent and his goodwill has been made by a resolution of the village Panchayat in its open meeting. The aforesaid assessment must be expressed by collective opinion of the village Panchayat and not by the individual opinion of any authority or the Teshil Level Committee. Thus, it is necessary to hold an open meeting of the village Panchayat for assessment for purposes of Clause 10(jha) and thereafter matter shall be considered by the competent committee and appropriate order shall be passed by the competent authority."

It is wholly undisputed that the reputation and goodwill of the deceased fair price shop agent has to be determined by a resolution of the Village Panchayat in its open meeting for considering application for allotment of fair price shop agency on compassionate ground, which has not been done by the State-respondents and instead the application of the petitioner has been rejected merely on the basis of opinion of the Area Rationing Officer dated 02.06.2016. The procedure adopted by the State-respondents to reject the application of the petitioner for compassionate allotment of the fair price shop in question, is without authority of law and contrary to the procedure provided under the Government Order dated 17.08.2002 and the law laid down by this Court in the case of Shiv Kumar Vs. Up Ziladhikari Chakiya, Chandauli and others, 2014 (8) ADJ 693 (DB), Kamta Prasad Vs. State U.P. and others, 2015 (5) ADJ 81 (DB) and Lukman Ahmad (supra).

Under the the circumstances, the impugned order dated 4/6.6.2016 passed by the respondent no.4 and the impugned order dated 22.11.2016 in Appeal No.2016130000837 cannot be sustained and are hereby quashed. Matter is remitted back to the respondent no.4 to pass an order afresh after following due procedure as provided in Clause 10 (jha) of the Government Order and the law settled by this Court in the case of Lukman Ahmad (supra) as aforequoted. The respondent no.4 shall ensure that an open meeting of the Village Panchayat to determine reputation and goodwill of the deceased fair price shop agent, shall be convened within a period of four weeks and thereafter an appropriate order in accordance with law shall be passed expeditiously on the application of the petitioner for compassionate allotment of the fair price shop in question.

Writ petition is allowed with the directions and to the extent indicated above.