Shiv Prasad vs State of U.P. and Others

Ashok Bhushan, J.—Heard Sri A. Chaturvedi, learned counsel for the petitioner, learned Standing Counsel and Sri Anuj Kumar appearing for respondent No. 5. By this writ petition, the petitioner has prayed for a writ of mandamus (sic) respondent Nos. 2 and 3 to allot the shop in question in favour of the petitioner in pursuance of the proposal of Gaon Sabha dated 14th February, 2011 and further to pass appropriate order on the applications dated 25th February, 2011 and 28th March, 2011.

Brief facts of the case as emerge from the pleadings of the parties, are; the petitioner is a permanent resident of village Manoharganj. A letter dated 5th February, 2011 was issued by the Block Development Officer, Chitrakoot Dham, Karvi informing the Pradhan of several villages including respondent No. 5 that fair price shop in the village is vacant on which selection is to be made. Petitioner''s case is that an open meeting was held on 14th February, 2011 in which lottery system was adopted for selection of the fair price shop dealer and out of various chits which were collected in the box, chit of the petitioner''s name was taken out, hence the Pradhan recommended the petitioner''s name for allotment of fair price shop. Petitioner''s case further is that petitioner made an application on 25th February, 2011 to the Sub-Divisional Officer praying that in pursuance of the resolution dated 14th February, 2011 he be allotted the fair price shop. A reminder has been submitted by the petitioner in this regard on 28th March, 2011 and thereafter this writ petition has been filed.

Learned counsel for the petitioner contends that the resolution having been passed in the open meeting of the Gaon Sabha in which majority decided to adopt lottery system for selection of fair price shop dealer and petitioner''s name having been selected by lottery system, he is entitled for allotment of fair price shop.

Learned Standing Counsel appearing for the respondents, refuting the submission of counsel for the petitioner, contends that there being no resolution in favour of the petitioner in the open meeting, the petitioner is not entitled for allotment of the shop. It is submitted that the Government orders regulating the allotment of fair price shop do not contemplate selection of fair price shop dealer by lottery system. Learned Standing Counsel has relied on the Government order dated 3rd July, 1990 as well as Government order 17th August, 2002 copies of which Government orders have been placed before us for perusal.

We have considered the submissions of learned counsel for the parties and perused the record.

One of the questions for consideration in this writ petition is as to whether the resolution which is alleged to have been passed in favour of the petitioner approving his name by lottery system is a valid resolution for selection of petitioner as fair price shop dealer. It is relevant to have a look over the scheme which is delineated by various Government orders regulating the procedure for allotment of fair price shop. The Government order dated 3rd July, 1990 was issued on the subject of selection of fair price shop dealer for running the shop in the rural area. It is relevant to note Clauses 2, 4.4 and 4.10 of the said Government order, which areas under:

The abovementioned provisions of the Government order dated 3rd July, 1990 clearly indicates that for selecting the fair price shop dealer the views of residents have been given paramount importance. The selection is to take place in the open meeting of the Gaon Sabha. Clause 4.4 of the said Government order contemplates that view of the Gaon Sabha has to be ascertained by resolution in the open meeting. The Government order dated 3rd July, 1990 do not contemplate selection of the fair price shop dealer by lottery system.

The subsequent Government order 17th August, 2002 was issued on the subject. It is relevant to note that on the same day i.e. 17th August, 2002 two Government orders were issued. The first Government order being Government order No. 2714/29-6-2002-162 Sa./2001, dated 17th August, 2002 is with regard to implementation of reservation in allotment of fair price shop under public distribution system in urban area whereas on the same day another Government order being No. 2715/29-6-2002-162 Sa./2001 was issued on the subject for rural area. It is useful to have a look over the aforesaid Government orders. The Paragraphs 5 and 7 of the Government order No. 2714/29-6-2002-162 Sa./2001 which was issued for urban area are relevant, which are quoted below:

For identification of the shop in implementing the reservation lottery system has been introduced in paragraph 5 of the said Government order and further after identification the allotment of the shop has been contemplated by lottery system by the selection committee. In the urban area, thus, it is not contemplated that selection is to be made in open meeting on the basis of views of the body of persons residing in the urban area, rather the selection committee is to select the fair price shop dealer by lottery system.

In contrast to the aforesaid Government order, the Government order No. 2715/29-6-2002-162 Sa./2001 issued for allotment of the shop in the rural area provides for completely different scheme. According to paragraph 7 of the said Government order, selection of the fair price shop dealer is to be made in the open meeting of the Gaon Sabha by passing a resolution and thereafter the resolution is to be forwarded to the Committee headed by Sub-Divisional Officer. It is, however, relevant to note that in the Government order No. 2715/29-6-2002-162 Sa./2001 while identifying the various shops for implementing horizontal reservation lottery system is contemplated. Following clauses of the Government order No. 2715/29-6-2002-162 Sa./2001 are relevant, which are quoted below:

The aforesaid clauses of the Government order clearly indicates the procedure to be adopted for selection of the fair price shop dealer. Although lottery system has been adopted for identification of fair price shop for implementing reservation but in the very next clause it has been provided that selection of fair price shop dealer has to be made in the open meeting of the Gaon Sabha by passing a resolution. Thus the above Government order dated 27th August, 2002 does not contemplate selection of fair price shop dealer by adopting any lottery system. The Government order No. 2715/29-6-2002-162 Sa./2001 also makes it clear in paragraph 4(4) that the conditions of the Government order dated 3rd July, 1990 which are not in consistent to this Government order shall continue to apply. As noticed above, the Government order dated 3rd July, 1990 clearly contemplates obtaining of the majority views of Gaon Sabha for selection of the fair price shop dealer. In adopting the lottery system for selection of fair price shop dealer the views of the resident of the Gaon Sabha has no role to play and in view of the clear indication in the Government order No. 2715/29-6-2002-162 Sa./2001 for rural area selection has to be made in the open meeting of the Gaon Sabha by passing resolution and in the selection adopting of the lottery system is clearly ruled out. As noticed above, the Government order No. 2714/29-6-2002-162 Sa./2001 providing of selection of fair price shop dealer in the urban area clearly contemplates selection of fair price shop dealer by adopting lottery system by the selection committee whereas the said procedure has not been made applicable for selection of the fair price shop dealer in the rural area, rather different procedure has been contemplated for selection.

Learned counsel for the petitioner has contended that in fact the decision to adopt the lottery system was taken by majority in the meeting dated 14th February, 2011, hence no exception can be taken to the procedure adopted. The submission cannot be accepted. The Government order No. 2715/29-6-2002-162 Sa./2001 has to be given effect to in a manner so that object and purpose of the Government order is fulfilled. Permitting adoption of lottery system in the rural area shall be against the object and purpose of the Government order No. 2715/29-6-2002-162 Sa./2001. Thus we are of the opinion that the resolution which has been claimed by the petitioner selecting him as fair price shop dealer by lottery system is not in accordance with the Government order No. 2715/29-6-2002-162 Sa./2001, dated 17th August, 2002 and the said resolution does not give any right to the petitioner to claim allotment of the fair price shop.

In view of the foregoing discussions, the petitioner is not entitled for any relief. The writ petition is dismissed.