# Jag Jiwan Ram v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-18
- **Case number:** Civil Misc. Writ Petition No. 41737 of 2012
- **Bench:** Amitava Lala, A.C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jag-jiwan-ram-v-state-of-u-p-and-others-42383
- **Pages:** 5

## Headnote

U.P. Panchayat Raj Rules 1947-Rule-47Gram Panchahyat in open meeting in
presence of Tehsil authorities-passed
resolution for allotment of Fair Price
Shop-being failure complainant filedS.D.O.-based upon enquiry report of Naib
Tehsildar-passed impugned cancellation
order-without permission of D.M.-heldnor requisition signed by two third
members-held-action of S.D.O. Wholly
without jurisdiction, illegal.

Held: Para-7

 In such circumstances, if we consider
this factual aspect on the touchstone of
the relevant rules and Government order
as discussed above, we find, as is
apparent from the order impugned, that
neither the matter was brought to the
notice of the concerned Collector, who
could direct for any enquiry in the matter
and also for holding a fresh meeting to
take resolution, as per the Government
order dated 03rd July, 1990 nor as per
the Rule 40 of the Rules any requisition
signed by two-third members of the
Gram Panchayat was given consenting
for
reconsideration
of
the
matter.
Moreover, stopping of execution of the
resolution taken in the open meeting of
the Gram Panchayat is also beyond the
jurisdiction
of
the
Sub
Divisional
Magistrate as per the provisions of
Section 96 of the Act. Thus, according to
us, the impugned order passed by the
respondent no. 2 is wholly illegal and
without jurisdiction and as such, the
same cannot be sustained, particularly
when neither any other provision has
been
shown
by
the
respondents
supporting the order passed by the
respondent no. 2 nor any material fact
has been brought to the notice of the
Court controverting the submissions of
the petitioner.
Case Law discussed:
AIR 1967 SC 1170; AIR 1987 SC 537

## Text

3 All] Jag Jiwan Ram V. State of U.P. and others
1625
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2012

BEFORE
THE HON'BLE AMITAVA LALA, A.C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 41737 of 2012

Jag Jiwan Ram

 ...Petitioner
Versus
State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Aditya.

Counsel for the Respondents:
Mr. Ramanand Pandey (S.C.)
C.S.C.

U.P. Panchayat Raj Rules 1947-Rule-47Gram Panchahyat in open meeting in
presence of Tehsil authorities-passed
resolution for allotment of Fair Price
Shop-being failure complainant filedS.D.O.-based upon enquiry report of Naib
Tehsildar-passed impugned cancellation
order-without permission of D.M.-heldnor requisition signed by two third
members-held-action of S.D.O. Wholly
without jurisdiction, illegal.

Held: Para-7

 In such circumstances, if we consider
this factual aspect on the touchstone of
the relevant rules and Government order
as discussed above, we find, as is
apparent from the order impugned, that
neither the matter was brought to the
notice of the concerned Collector, who
could direct for any enquiry in the matter
and also for holding a fresh meeting to
take resolution, as per the Government
order dated 03rd July, 1990 nor as per
the Rule 40 of the Rules any requisition
signed by two-third members of the
Gram Panchayat was given consenting
for
reconsideration
of
the
matter.
Moreover, stopping of execution of the
resolution taken in the open meeting of
the Gram Panchayat is also beyond the
jurisdiction
of
the
Sub
Divisional
Magistrate as per the provisions of
Section 96 of the Act. Thus, according to
us, the impugned order passed by the
respondent no. 2 is wholly illegal and
without jurisdiction and as such, the
same cannot be sustained, particularly
when neither any other provision has
been
shown
by
the
respondents
supporting the order passed by the
respondent no. 2 nor any material fact
has been brought to the notice of the
Court controverting the submissions of
the petitioner.
Case Law discussed:
AIR 1967 SC 1170; AIR 1987 SC 537

(Delivered by Hon'ble Amitava Lala, A.C.J.)

Amitava Lala, ACJ.-- By means of
this writ petition, the petitioner seeks relief
for quashing of the impugned order dated
14th August, 2012 passed by the Sub
Divisional
Magistrate,
Tehsil
Rampur
Maniharan,
District
Saharanpur,
the
respondent no. 2 herein, whereby the
resolution taken by the concerned Gram
Panchayat on 10th July, 2012 for allotment
of fair price shop in favour of the petitioner
has been rejected and again the meeting has
been directed to be convened on 18th
August, 2012 for taking a fresh resolution.

2. Briefly stated facts, according to the
petitioner, are that in Gram Panchayat
Pahasu,
Block
and
Tehsil
Rampur
Maniharan, District Saharanpur (in short
called "Gram Panchayat"), on account of
death of fair price shop dealer, vacancy
arose for allotment of said shop to the new
dealer. Such vacancy was informed to the
respondent no. 2, who directed to hold
meeting of Gram Panchayat on 09th June,
2012 for taking resolution in connection
thereto. However, on 09th June, 2012 the
1626 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
meeting could not be held for want of
quorum. Subsequent thereto, after following
due process of law and by issuing agenda
and munadi, the date for holding meeting
was fixed for 10th July, 2012. On 10th July,
2012 open meeting of the Gram Panchayat
was held in presence of Inspector of Police,
Secretary of Gram Panchayat and Gram
Panchayat
Sahayak
for
considering
appointment of new fair price shop dealer
and videography of such meeting was also
done. In such meeting, candidature of the
petitioner and one Sri Sanjay Kumar was
considered for the purpose. However, Sri
Sanjay Kumar, looking to the less support
of Members of the Gram Panchayat in his
favour, started creating hindrance in the
meeting, but due to interference of the
police, he could not succeed and had
boycotted the meeting with his supporters.
Ultimately, in the meeting dated 10th July,
2012 all the persons unanimously resolved
for appointment of the petitioner as dealer
of fair price shop and such resolution was
sent to the respondent no. 2 for further
action.
Thereafter,
the
persons,
who
boycotted the meeting in support of Sri
Sanjay Kumar, disputing the correctness of
the meeting made a complaint before the
concerned Block Development Officerrespondent no. 3, who directed the Assistant
Development
Officer
(Panchayat)
to
enquire into the matter. The Assistant
Development Officer (Panchayat), after
enquiry, submitted his report dated 16th
July, 2012 stating that meeting was held in
accordance with law and no dispute or
quarrel
took
place
in
the
meeting.
Thereafter, another complaint was made by
the supporters of Sri Sanjay Kumar before
the respondent no. 2, who directed the Naib
Tehsildar to enquire into the matter. Naib
Tehsildar submitted his report dated 08th
August, 2012 stating therein that during the
course of enquiry, the persons, who were in
favour of the petitioner, told that no dispute
was raised, whereas the persons, who were
supporters of Sri Sanjay Kumar, told that
there was dispute and since there was equal
strength from both the sides, no referendum
could be made. On the basis of such report,
the respondent no. 2 by the impugned order
dated 14th August, 2012 cancelled the
resolution dated 10th July, 2012 and
directed to hold a fresh meeting on 18th
August, 2012.

3. It is against this order dated 14th
August, 2012 that the petitioner has filed the
present writ petition by saying that the
meeting was held by the Gram Panchayat
on 10th July, 2012 in presence of
Supervisor/Sector Prabhari and Secretary of
the Gram Panchayat wholly in accordance
with law and after following due procedure
prescribed under the relevant rules. There
was no illegality in the meeting. No one has
challenged the validity of meeting of the
Gram Panchayat dated 10th July, 2012
since there was no dispute about holding of
meeting. Once the Gram Sabha has passed a
resolution after following the due process of
law for appointment of a person as fair price
shop dealer, the respondent no. 2 has only to
see whether the meeting has been held or
not and if the meeting is held, he is bound to
accept the resolution, but in the present case
the respondent no. 2 by rejecting the
resolution and directing for holding fresh
meeting has given a chance to the
petitioner's rivals to motivate the supporters
of the petitioner. Neither Sub Divisional
Magistrate nor Naib Tehsildar has recorded
any valid material of evidence to show that
meeting was not held in accordance with
law or resolution was not passed in favour
of the petitioner but they proceeded on
assumptions and without application of
mind. The respondent no. 2 has not
independently made any enquiry either
3 All] Jag Jiwan Ram V. State of U.P. and others
1627
under the provisions of the Uttar Pradesh
Panchayat Raj Act, 1947 (hereinafter in
short called as the "Act") or in accordance
with the Government order dated 03rd July,
1990, which prescribes the procedure for
appointment of fair price shop dealer and
does not give any power to the respondent
no. 2 for sub-delegation of his power to any
other authority, but instead of making any
enquiry at his own, the respondent no. 2
delegated his power to the Naib Tehsildar to
hold the enquiry and on his report passed
the impugned order. Moreover, copy of the
alleged enquiry report of Naib Tehsildar
dated 08th August, 2012 has not been
supplied to him.

4. It is further contended on behalf of
the petitioner that the impugned order is
against the provisions of Rule 40 of the U.P.
Panchayat Raj Rules, 1947 (hereinafter in
short called as the "Rules"), which prohibits
the Gram Sabha or the Gram Panchayat to
reconsider the matter once finally disposed
of, within three months next, unless not less
than two-third of the members of Gram
Sabha or Gram Panchayat consent by
signing a requisition to the effect, and in the
present case no such requisition has been
made. Furthermore, power to prohibit/stop
the execution of resolution only lies with
the Zila Panchayat on the conditions
mentioned under Section 96 of the Act,
therefore, the respondent no. 2 has no power
to defer the execution of resolution. Apart
from that, meeting of the Gram Panchayat
can only be held with prior notice of 15
days but in the present case by order dated
14th August, 2012 the meeting has been
directed to be held on 18th August, 2012. It
is submitted on behalf of the petitioner that
it is well settled proposition of law that
where a statute requires that a certain thing
must be done in a certain way, then the
thing must be done in that way or not at all.

5. Against this background, we have
heard the matter on the question of law
whether the resolution once taken by the
Gram Panchayat for appointment of a fair
price shop dealer can be rejected by the Sub
Divisional Magistrate and can he direct for
holding a fresh meeting.

6. In this regard, we find that the
Government order dated 03rd July, 1990,
which has been issued by the State
Government specifically in respect of the
selection of the fair price shop dealers, in its
Paragraph 4.4 provides that the fair price
shop in the village will be opened on the
opinion expressed by the Gram Sabha in the
resolution to be passed in open meeting.
Paragraph 4.12 of such Government order
categorically and emphatically provides that
once the resolution is passed by the Gram
Sabha, generally there will not be necessity
of any other enquiry. But in any special case
if the Collector wants to get any enquiry
conducted, then there will not be any
embargo for that, however, before that, it is
to be ensured that selection of fair price
shop dealer will not be delayed on account
of any such enquiry. Apart from that, Rule40 of the Rules, which deals with
reconsideration of a decision by Gram
Sabha
or
Gram
Panchayat,
clearly
articulates that no subject, once finally
disposed of by a Gram Sabha or a Gram
Panchayat, shall be reconsidered within
three months next after passing of the
resolution concerned unless not less than
two-third of the members of Gram Sabha or
Gram Panchayat, as the case may be,
consent by signing a requisition to the
effect. Furthermore, Section 96 of the Act
deals
with
prohibition
of
certain
proceedings
and
provides
that
the
prescribed authority or any other officer
specially empowered in this behalf by the
State Government on information received
1628 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
or on his own initiative, may, by order in
writing prohibit the execution or further
execution of a resolution or order passed or
made under this or any other enactment by a
Gram Sabha, Gram Panchayat or a Joint
Committee, or any officer or servant thereof
if in his opinion such resolution or order is
of a nature as to cause or likely to cause
obstruction, annoyance or injury to the
public or to any class or body of persons
lawfully employed, or danger to human life,
health or safety, or riot or affray. It may
prohibit the doing or continuance by any
person of any act in pursuance of or under
cover of such resolution or order.

7. In the instant case, factually we find
that as per the direction of the respondent no.
2 open meeting of the Gram Panchayat was
held in presence various officers/official
concerned for considering appointment of
new fair price shop dealer. In such meeting,
name of the petitioner was recommended for
appointment. However, the other candidate,
who did not get sufficient support in his
favour
to
become
successful,
made
complaint and only on his complaint the
matter was got enquired by the Assistant
Development Officer (Panahcyat) and also
by
Naib
Tehsildar.
The
Assistant
Development Officer (Panahcyat) gave his
report that meeting was held in accordance
with law and there was no dispute in the
meeting, whereas in his report the Naib
Tehsildar submitted that some persons told
that there was no dispute when some persons
told that there was dispute. However, relying
upon the report of the Naib Tehsildar, the
Sub Divisional Magistrate has passed the
impugned order cancelling the resolution
taken by the Gram Panchayat in favour of the
petitioner. In such circumstances, if we
consider this factual aspect on the touchstone
of the relevant rules and Government order
as discussed above, we find, as is apparent
from the order impugned, that neither the
matter was brought to the notice of the
concerned Collector, who could direct for
any enquiry in the matter and also for
holding a fresh meeting to take resolution, as
per the Government order dated 03rd July,
1990 nor as per the Rule 40 of the Rules any
requisition signed by two-third members of
the Gram Panchayat was given consenting
for reconsideration of the matter. Moreover,
stopping of execution of the resolution taken
in the open meeting of the Gram Panchayat
is also beyond the jurisdiction of the Sub
Divisional Magistrate as per the provisions
of Section 96 of the Act. Thus, according to
us, the impugned order passed by the
respondent no. 2 is wholly illegal and
without jurisdiction and as such, the same
cannot be sustained, particularly when
neither any other provision has been shown
by the respondents supporting the order
passed by the respondent no. 2 nor any
material fact has been brought to the notice
of the Court controverting the submissions of
the petitioner.

8. From the judgement reported in AIR
1987 SC 537 (The Comptroller and
Auditor General of India, Gian Prakash,
New
Delhi
and
another
Vs.
K.S.
Jagannathan and another), as cited by the
petitioner, we find a three Judges' Bench of
the Supreme Court has held that the High
Courts exercising their jurisdiction under
Article 226 have the power to issue a writ of
mandamus or a writ in the nature of
mandamus or to pass orders and give
necessary directions where the Government
or a public authority has failed to exercise or
has
wrongly
exercised
the
discretion
conferred upon it by a statute or a rule or a
policy decision of the Government or has
exercised such discretion mala fide or on
irrelevant considerations or by ignoring the
relevant considerations and materials or in
3 All] Afsar Khan and another V. Central Bank of India, Kanpur Nagar
1629
such a manner as to frustrate the object of
conferring such discretion or the policy for
implementing which such discretion has
been conferred. Though the Constitution
Bench of the Supreme Court in AIR 1967
SC 1170 (State of Madhya Pradesh and
another Vs. Thakur Bharat Singh) dealt
with the applicability of Article 358 of the
Constitution
of
India
(suspension
of
provisions of Article 19 of the Constitution
during emergencies) but has held that all
executive action which operates to the
prejudice of any person must have the
authority of law to support it, and the terms
of Article 358 do not detract from that rule. It
has further been held held that even the
Article 358 expressly authorises the State to
take legislative or executive action provided
such action was competent for the State to
make or take, but for the provisions
contained in Part III of the Constitution.

9. Thus, in view of the aforesaid factual
aspect and also the law and settled legal
propositions discussed above, we are of the
view that the order impugned passed by the
respondent no. 2 is not sustainable in nature
and the present writ petition deserves to be
allowed. Hence, in totality, the writ petition
succeeds and is allowed. The order
impugned dated 14th August, 2012 passed
by the respondent no. 2 stands quashed,
meaning thereby the resolution as taken by
the Gram Panchayat on 10th July, 2012 in a
democratic manner in recommending the
name of the petitioner stands revived.
Appropriate action will be taken by the
authority concerned on the basis of such
resolution for allotment of fair price shop to
the petitioner.

10. No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 51137 of 2012

Afsar Khan and another
 ...Petitioner
Versus
Central Bank of India, Kanpur Nagar

 ...Respondents

Counsel for the Petitioner:
Sri Piyush Shukla
Sri Pratush Shukla

Counsel for the Respondents:
Sri K.R.S. Jadaun

Secularization
and
Reconstruction
of
financial
Assets
and
Enforcement
of
Security Interest Act, 2002-Section 34-Bar
of Civil Courts Jurisdiction-Section 17 of
Recovery of Debts due to Banks and
Financial Institution Act 1993-authorized
the Tribunal to decide the application of
Bank-but if amount is less than 10 Lakhs
not to be recovered by Tribunal- impugned
notice
at
pre-litigation
stage
for
settlement purpose by exercising power
under Section 22 C of L.S.A. Act 1987-can
not be termed without jurisdiction.

Held: Para-9

Thus, in view of totality of the aforesaid
facts and circumstances, the issuance of
the notice by the Lok Adalat at a prelitigation stage in exercise of powers under
Section 22C of the Legal Services Authority
Act, 1987 is not at all without jurisdiction.
It is only a device to explore the possibility
of any settlement instead of getting the
dispute adjudicated by the court.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. This is a petition for quashing of the
notice annexure-2 to the writ petition issued