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