Vinod Kumar vs State of U.P.

Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner, and the learned Standing Counsel for the State-respondents, learned counsel for respondent No. 3, Gram Sabha and learned counsel for respondent No. 4.

This case has a chequered history. Briefly stated facts for the case are that the respondent No. 4 was fair price shop agent of Village Panchayat - Dalupur, Tehsil - Ghiror, District - Mainpuri. Her fair price shop agreement was cancelled by the licencesing authority by order dated 1.2.2005. She filed an appeal which was dismissed by order dated 21.6.2011. Against the appellate order she filed writ petition No.72097 of 2011 (Smt. Hardevi v. State of U.P. and others) which was disposed of by order dated 8.4.2015 holding that order of cancellation is not only in breach of principles of natural justice and even allegations against the respondent No. 4 were not specifically mentioned in the order of the licencesing authority and the appellate authority. Both the orders were set aside. However, no relief could be granted to the respondent No. 4 in that writ petition on peculiar facts of the case that the writ petition was initially dismissed for non prosecution and after about three years it was restored and the subsequent allottee was running the shop.

After the aforesaid order dated 8.4.2015 passed in the aforesaid writ C No.72097 of 2011, the petitioner approached the respondent No. 2 bringing to his notice that the subsequent allottee has incurred ineligibility since his wife was elected as Village Pradhan. On these facts the respondent No. 2 cancelled fair price shop agreement of the subsequent allottee by order dated 22.2.2016. It appears that the petitioner moved an application dated 29.4.2016 before the respondent No. 2. Since her application was not disposed of and as such she filed Writ C No.29939 of 2016 which was disposed of by order dated 5.7.2016 with a direction to the respondent No. 2 to pass an appropriate order on the aforesaid application expeditiously in accordance with law, not later then three months from the date of receipt of certified copy of order of this Court. Respondent No. 4 filed a certified copy of the order before respondent No. 2 who passed an order dated 8.8.2016, whereby the application of the respondent No. 4 was disposed of granting her liberty to participate in the open meeting of the village panchayat for selection for proposal of fair price shop agent. However, in the mean time a meeting of the village panchayat was held on 1.8.2016, in which the name of the petitioner was proposed for appointment as fair price shop agent.

Respondent No. 4 again filed a writ C No.48967 of 2016 (Smt. Hardevi v. State of U.P. and three others) which was disposed of by order dated 6.10.2016 giving liberty to her either to move a recall application for recall of the order dated 8.8.2016 passed by the respondent No. 2 or file objection to the resolution passed by the gaon sabha in favour of the petitioner or challenge the order of allotment of the petitioner in appeal. It was further observed that in case the respondent No. 4 approaches in the manner as aforesaid, the same shall be considered and decided in accordance with law expeditiously.

It appears that the respondent No. 4 approached the respondent No. 2 along with a copy of the aforesaid order dated 6.10.2016, passed in Writ C No.48967 of 2016. On the said application the respondent No. 2 required the Khand Vikas Adhikari, Barnahal, to submit a report as to whether the respondent No. 4 has participated in the open meeting of the village panchayat on 1.8.2016 or not? A report was submitted by Khand Vikas Adhikari. Considering the reports and other evidences brought on record, the respondent No. 2 came to the conclusion that the respondent No. 4 could not participate in the open meeting of the village panchayat on 1.8.2016 and accordingly the respondent No. 2 passed the impugned order dated 30.12.2016 directing to hold a fresh meeting of the village panchayat in question for proposing the name of a person for fair price shop agency.

It is stated by learned counsel for the respondent No.4 that in the mean time, another development took place that the respondent No. 4 being dissatisfied with the order dated 6.10.2016 in Writ C No.48967 of 2016, filed a Special Appeal (Defective) No.758 of 2016 before the Division Bench of this Court which is still pending.

Learned counsel for the petitioner submits that the resolution dated 1.8.2016 was passed by the village panchayat in question in accordance with law and, therefore, the respondent No. 2 has no authority to interfere with it. He further submits that the impugned order has been passed without affording any opportunity of hearing to the petitioner.

Learned counsel for the respondent No. 4 submits that the relief intended to be sought in Special Appeal has now been granted by the respondent No. 2 by the impugned order dated 30.12.2016 and in case the impugned order is upheld in this writ petition then the respondent No. 4 shall have no grievance and in that event the aforesaid Special Appeal shall become in-fructuous. On merits he submits that the respondent No. 4 was unfortunate enough that even after succeeding in Writ Petition No. 72097 of 2011 decided on 8.4.2015 she could not practically get any relief whereas the order of cancellation of her fair price shop agreement were set aside. He submits that respondent No. 4 shall be satisfied if an open meeting of the village panchayat is convened after due notice of the meeting to villagers.

Learned standing counsel submits that to convene a fresh open meeting of the village panchayat is the only solution under the complicated facts of the present case.

I have carefully considered the submission of learned counsel for the parties and with their consent this writ petition is being finally heard without calling for counter affidavits.

Facts of the case as briefly noted above clearly indicates that although the respondent No. 4 succeeded in writ petition No.72097 of 2011 but practically she could not get any relief. By order dated 5.7.2016, passed in Writ C No.29939 of 2016 and the consequential order dated 8.8.2016 passed by the respondent No. 2, the respondent No. 4 became entitled to participate in the open meeting of the village panchayat in question for selection of a fair price shop agent. However, it appears that the respondent No. 2 was having no knowledge of the village panchayat meeting allegedly convened on 1.8.2016. A finding of fact has been recorded by the respondent No. 2 that the respondent No. 4 could not participate in the meeting convened on 1.8.2016. Considering the entire facts and circumstances of the case and to end the controversy as well as to meet the end of justice, I find it appropriate to uphold the order dated 30.12.2016, passed by the respondent No. 2.

In view of the aforesaid, the order dated 30.12.2016 is upheld. The writ petition is disposed of with a direction to the respondent No. 2 to ensure that open meeting of the village panchayat in question is convened within six weeks from today, after due notice and publicity for the open meeting of the village Panchayat amongst the villagers of the village panchayat for selection of a fair price shop agent. A specific notice of the aforesaid meeting to be convened shall also be given to the petitioner and the respondent No. 4. After the proposal is made by the village panchayat in the meeting to be convened as aforesaid, the respondent No. 2 shall ensure that fair price shop agent is appointed in the village panchayat in question within a further period of four weeks.