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Arun Kumar Pandey v. State Of U.P. And Another - WRIT - C No. 64958 of 2006 [2006] RD-AH 20609 (6 December 2006)


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Court No.10

          Civil Misc. Writ Petition No. 64958 of 2006                              

Arun Kumar Pandey. . . . . . .  . . . . . . .  .. .  . . . . . .   . .  . Petitioner.


State  of U.P. and another . . . .  . . . .  . . .  . .  . . . .   . . . .Respondents.


Hon'ble A.K. Yog,J.

Hon'ble R.K.Rastogi,J

 Heard learned counsel for the petitioner and the learned Standing Counsel  representing the respondents.

The petitioner seeks to challenge  the impugned order dated 15.11.2006 ( Annexure-2 to the writ petition ) passed  the Sub Divisional Magistrate, Bansdih, Ballia ( respondent no. 2 ) cancelling fair price shop licence/agreement  in favour of the petitioner on the ground that the petitioner is not the resident of Gram Sabha  Sarank Block Bansdih district Ballia but he is resident of village Khanpur Dumariya. The argument of the  learned counsel for the petitioner is that requirement for allotment of fair price shop  that  the person should be resident of the concerned village for which licence is being  granted was introduced by means of  government order No. 2714/29.6.2002-162-Sa/2001 dated 17.8.2002 whereas no such requirement  was contemplated  in the relevant government order No. F-3967/XIX-Khadya-6 dated 3.7.1990 on the basis of which  the petitioner was granted  fair price shop licence/agreement on 15.12.1990 and so this condition introduced  by the G.O. of 2002 shall not apply to him and as such the order cancelling his licence on the ground  of non-compliance of the requirement of  being local resident is illegal.

We have carefully examined  the G.Os. dated 3.7.1990 and 17.8.2002 ( copies of which have been placed by the  learned Standing Counsel before us). Para 4.5 of the  G.O. dated 3.7.1990 itself indicates that  emphasis was made on the fact  that  the fair price shop licence/agreement should be granted  to a co-operative society which has  its head office   in that  Gram Sabha or to a shop owner/ kerosene oil distributor belonging to that Gram Sabha. Apart from it the  said  government order also refers to participation of the Gram Sabha in the matter of  allotment  of fair price shop licence. It is needless to mention that in case  there is a stranger or a person living  outside  the Gram Sabha,  it will be difficult for the Gram Sabha to adjudge  about his  credential antecedents. Thus it is clear that it was in the spirit of the above G.O. of 1990 that the person or the licensee  must be  the resident of the Gram Sabha for which fair price shop licence  is issued and the above concept  was  given a practical shape in the subsequent G.O. dated 17.8.2002 containing specific direction  for fair price shop  that the licensee  should be permanent  resident of that Gram Sabha vide its para 7. As such the above condition of being   a local resident  provided in the G.O. of 2002 is not a new condition and it existed in the spirit in the G.O. of 1990 also, and in this view of the matter, the appointment of the petitioner as fair  price shop dealer is illegal from the very inception and so the Sub Divisional Magistrate  committed no illegality by cancelling the licence .

Even if  it be accepted that there was no requirement of local resident  in the G.O. of 1990, the  position  will be that after introduction of the G.O. of 2002 the condition provided in it shall be  applicable to all the licence holders with   prospective effect. In this connection it is to be seen that  if the licensees had been  appointed  for a specific period only,  it could be argued that the condition imposed by the G.O. of 2002 would not apply to those persons who were holding  a valid licence on the date of  enforcement  of the above G.O. of 2002 till continuance  of the  period of their licence and that it  shall apply to them at the time of  consideration of renewal of  their term, but in the present case the position is that the licence for fair price shop is not  granted  for a specified  period, but it is on its grant  valid for the  life time of the licensee, unless and until it is cancelled  on the charges of violation  of its terms and conditions; and there is also a provision for grant of  the licence  to one of the  heirs of the deceased licecsee provided the work and  conduct  of the licensee had been good. Thus if the contention of  the  petitioner that the  condition imposed  vide G.O. of 2002 shall not be applicable to those licensees who were holding licence  on the date of enforcement of the above G.O. is accepted, it will result into failure of the  government policy  of appointment  of local persons as licensees and it will also  create  an  unreasonable distinction between the pre 2002 and post 2002 licensees and would  be  violative  of the fundamental right of equality enshrined in  Articles 14 to 18 of the Constitution. Hence such an interpretation of the G.O. in  violation of the right to equality and defeating the  government policy cannot be accepted.

There is  one more aspect of the case. The allotment order dated 15.12.1990 ( copy of which is Annexure-1 to the writ petition ) shows that the petitioner had indicated himself as resident of village Chhitauni, Patralaya (Post Office ) Chhata, Nyay Panchayat Chhitauni, Block Bansdih, district Ballia. On a complaint  made  against  the petitioner an inquiry was done. The petitioner  was given opportunity to explain and he had filed  his explanation dated 15.9.2006. Copy of the said explanation has not been annexed with this writ petition for our perusal. The concerned Sub Divisional Magistrate noticed that  the petitioner was permanent resident of village Khanpur Dumaria and hence, his licence of fair price shop  was cancelled in view of the existing  policy of the  government  contained in  the  G.O. dated 17.8.2002.The concerned authority cannot be said to be armless  to check that licence has been obtained by playing fraud or mis-representation. The relevant  allotment  order  dated 15.12.1990  in favour of the petitioner  shows that  the petitioner had represented himself to be permanent resident of  Chhitauni Patralaya Chhata Nyay Panchayat Chhitauni, Block Bansdih district Ballia. The petitioner, however, admits that he is permanent resident of Gram Sabha Khanpur Dumariya. This shows that the petitioner  filed the  application giving  incorrect  particulars  and  possibility of the authorities being misled  on their basis in  granting  licence cannot be ruled out.

The learned counsel for the petitioner, however, refers to para 5 of the writ petition, which reads:

" That in fact the petitioner was the permanent resident of Gram Sabha Khanpur Dumariya, however, he also had two plots in Gaon Sabha Sarank in village Chitauni and had constructed Packa house over the said plot and had started living in the said house, since last several years."

We find that the petitioner has very intelligently  avoided to mention the time and date when he allegedly  purchased the plots and constructed  house on those  plots  situate in Gram Sabha Sarank in village Chhitauni. Obviously the petitioner  had not constructed  house  in village Chhitauni and did not shift there when he obtained licence in question in December,1990. Apart from it, the petitioner has not annexed copy of  his explanation dated 15.9.2006 ( referred to in the  impugned order ) to indicate  that explanation ( whatever worth it is ) was offered before the concerned authority. In view of this, the  impugned order cannot be faulted with.

In the last we would like to mention that this Court  does not permit  any one  to invoke its extraordinary  jurisdiction under Article 226 of the Constitution of India in order to protect  an order obtained  by  fraud or mis-representation, and  on this score  also we refuse to permit  the  petitioner to invoke  the extraordinary jurisdiction of this Court. Apart from it there is no manifest error in the impugned order.

The writ petition has no merit and it is accordingly dismissed.

No order as  to costs.

Dated: 6.12.2006



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