# Karnataka v. Sangappa Dyavappa Biradar and Others reported in 2005 (4) SCC, 264

- **Citation:** (2015) 2 ILRA 874
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-13
- **Case number:** C.M.W.P. No. 57528 of 2013
- **Bench:** Tarun Agarwala, Amar Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/karnataka-v-sangappa-dyavappa-biradar-and-others-reported-in-2005-4-scc-264-43218
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Allotment of
fair price shop-clause 10 of G.O. 31.10.2002allotment
in
favor
of
respondent-4challenged-she being illiterate and without
proposal of open meeting of Gram Sabha-
2 All] Balveer Singh Vs. State of U.P. & Ors.
875
ignoring compassionate ground-held-even on
individual
consideration-without
open
meeting allotment not sustainable-necessary
direction issued.
Held: Para-13 & 14

## Text

874
 INDIAN LAW REPORTS ALLAHABAD SERIES
Karnataka
vs.
Sangappa
Dyavappa
Biradar and Others reported in 2005 (4)
SCC, 264.
8. Having heard learned counsel for
the parties and having gone through the
records of the present writ petition, we are
of the considered opinion that the legal
position with regards to the person
accepting compensation in terms of the
Agreement under Rules, 1997 having no
right to maintain a reference application
under Section 18 of the Act, 1894 is well
settled from the judgment relied upon by
the counsel for the respondent. But at the
same time if there are allegation of fraud,
what is the remedy available to the tenure
holders?
9. We are of the considered opinion
that
in
cases
where
execution
of
agreement under the Rules, 1997 is
questioned on allegations of fraud, the
application
for
reference
need
be
entertained and referred to the Court
concerned for examined at the first
instance as to whether the agreement is
vitiated by fraud or not. It is only when
the first issue is answered in affirmative
that the other questions namely adequacy
of compensation to the petitioners can be
gone into. If the first issue is answered in
negative, the amount of compensation
paid in terms of the agreement would be
final and binding between the parties.
10. For the reasons recorded above,
the order passed by the authority dated
23.06.2008 (Annexure-4 to the petition)
cannot be legally sustained and is hereby
quashed. Let the petitioners make a
reference application under Section 18 of
the Act, 1894 within one month from
today along with a certified copy of this
order. The authority competent to hear the
reference shall first adjudicate the issue as
to whether the alleged agreement entered
into between the parties under the Rules,
1997 is vitiated because of fraud or not. In
case the answer to the said issue is in
affirmative then the authority concern
would proceed to hear the reference on
merits. If the answer is in negative the
chapter
shall
stand
close
and
the
application under Section 18 of the Act,
1894 shall stand rejected accordingly.
11. So far as the number of plots is
concerned, we are not expressing any
opinion. The parties are at liberty to
agitate
their claim in the reference
application.
12. Writ petition is allowed subject
to the observations/direction made herein
above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
C.M.W.P. No. 57528 of 2013
Balveer Singh
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Upendra Upadhyay
Counsel for the Respondents:
C.S.C., Sri Brij Kumar Yadav, Sri Munna
Babu, Sri Ram Murat Singh
Constitution of India, Art.-226-Allotment of
fair price shop-clause 10 of G.O. 31.10.2002allotment
in
favor
of
respondent-4challenged-she being illiterate and without
proposal of open meeting of Gram Sabha-
2 All] Balveer Singh Vs. State of U.P. & Ors.
875
ignoring compassionate ground-held-even on
individual
consideration-without
open
meeting allotment not sustainable-necessary
direction issued.
Held: Para-13 & 14
13.
Therefore, even in the matter of an
individual consideration of compassionate
grant of license under clause 10 of G.O. Of
2002, it is necessary to hold an open
meeting of the Gaon Sabha. It is only after
such a resolution is passed that the same
has to be considered by the Tehsil Level
Committee and then a decision to be taken
by the Sub Divisional Magistrate.
14. Thus, in view of the aforesaid factual
aspects and also the law and settled
legal propositions discussed above, we
are of the view that the order impugned
dated 31.8.2013 passed by the Sub
Divisional
Magistrate,
Kayamganj,
District Farrukhabad, respondent no. 4 is
not sustainable in nature and the present
writ petition deserves to be allowed.
Case Law discussed:
[2014 (8) ADJ 593 (DB) 693].
(Delivered by Hon'ble Amar Singh Chauhan, J.)
1. This writ petition has been filed
for the quashing of the order dated
31.8.2013 passed by the Sub Divisional
Magistrate,
Kayamganj,
District
Farrukhabad, whereby respondent no. 4,
Smt. Ramwati widow of late Saudan
Singh, resident of village Kadiuli, Block
Nawabganj, District Farrukhabad was
selected as New Fair Price Shop dealer of
Gram Sabha Kadiuli, Block Nawabganju,
District Farrukhabad.
2. Shorn of details, the facts of the
matter are that vacancy of fair price shop
dealer
in
village
Kadiuli,
Block
Nawabganj, District Farrukhabad arose
after the death of fair price shop dealer Sri
Saudan
Singh
on
17.8.2013.
The
petitioner alongwith some other resident
of the village were interested in getting
the license of fair price shop and they
approached the Gram Sabha for sending a
proposal for allotment of a fresh dealer.
The Gaon Sabha sent a fresh proposal to
U.P. Zila Adhikari seeking permission for
appointing a new fair price dealer on
23.8.2013,
duly
forwarded
by
the
concerned B.D.O. On the same date.
3. The S.D.M./U.P. Zila Adhikari,
Kayamganj, District Farrukhabad, vide
order dated 31.8.2013 selected respondent
No. 4, Smt. Ramwati widow of late
Saudan Singh, a new fair price shop
dealer
of
Gram
Sabha
Kadiuli,
Nawabganj, Farrukhabad.
4. By means of this writ petition the
impugned order has been challenged on
two grounds, firstly because respondent
no. 4 is an illiterate lady and has got no
required
educational
qualification,
provided by the Government order dated
31.10.2002. Secondly, the Gram Sabha
has not passed any resolution in favour of
the respondent no. 4, Smt. Ramwati
widow of Saudan Singh who died on
17.8.2013. Under the Government order
dated 31.10.2002, there is provision for
allotting the fair price shop to the heir of
the deceased licensed dealer provided his
reputation was otherwise not suspect.-
5. It is argued by the learned counsel
for the petitioner that the reputation of
deceased dealer is disputed as is clear
from the proposal proceedings of Gram
Sabha which is marked as Annexure-1. In
this respect, we do not agree with the
proposal
as
it
mentions
only
the
reputation of the family members of fair
price shop dealer whereas reputation of
dealer is to be taken into account as per
876
 INDIAN LAW REPORTS ALLAHABAD SERIES
Government order dated 17.8.2002 which
has not been done.
6. Sri Upendra Upadhyaya, learned
counsel for the petitioner contended that
the impugned order is unjust, illegal,
improper and against the provisions of
Government order, because respondent
No. 4, Smt. Ramwati is an illiterate lady
and is not eligible in any manner for
getting the fair price shop license. In
support of his argument, he has placed
reliance on the certified copy of Pariwar
register, as well as certificate of Gram
Pradhan and certificate of education
department, in which Smt. Ram Wati has
been shown as illiterate.
7. Sri Ram Murat Singh, the learned
counsel appearing for respondent no. 3
and
the
learned
Standing
counsel,
submitted that as per provisions of
Government order of 2002:
"GRAMEEN
KSHETRON
MAI
RATION KI DUKANO KA CHAYAN
NIMMANLIKHIT
ARHATAYA
EVAM
SHARTON KO DRASHTIGAT RAKHTE
HUYE KIYA JAYEGA:
(Ka)...........
(Kha).................
(Ga) SHIKSHIT HO TAAKI who
DUKAN KA HISAB KITAB SAHI ROOP
SE RAKH SAKE."
8. On the basis of the above
provision, it has been argued on behalf of
respondent no. 3 that Smt. Ramwati is a
literate lady as she has made her
signatures on the papers and affidavit
submitted by her before the S.D.M.
Thereafter the then U.P. Zila Adhikari
considering the fact that she is a literate
lady, appointed Smt. Ramwati as fair
price shop dealer on 31.8.2013. In our
opinion word 'SHIKSHIT' has been used
in the provision with a view that the
person concern so appointed as dealer can
maintain the accounts properly.
9. Secondly, the learned counsel for
the petitioner has laid much emphasis on
the point that the Gram Sabha has not
passed any resolution in favour of the
respondent no. 4, Smt. Ramwati till date
and the respondent no. 3 has suo moto
appointed the respondent no. 4 as fair
price shop dealer of the Gram Sabha.
Therefore, there is violation of provision
of meeting of Gram Sabha. He has
therefore, argued that the respondent no. 2
is not justified in bypassing the Gram
Sabha
and
directly
appointing
the
respondent no. 4 as new fair price shop
dealer of Gram Sabha.
10. As per record the Gaon Sabha
sent a proposal to U.P. Zila Adhikari
seeking permission for appointing a new
fair price shop dealer on 23.8.2013, but on
record there does not appear to be any
open meeting of the Gaon Sabha having
been held. The learned counsel for the
respondent no. 3 has submitted that the
inquiry has been conducted on the
complaint of the Gaon Sabha and it was
found that the conduct of the dealer was
otherwise not suspect. Therefore, after
completing the formalities by Smt.
Ramawati, heir/widow of dealer Saudan
Singh, she was appointed as new fair
price shop dealer. He further submits that
there is no requirement of any open
meeting of the Gaon Sabha for the said
purpose as the respondent no. 4 falls
within
a
different
category
of
compassionate claim, hence there is no
requirement of the formalities of the
meeting of the Gaon Sabha. In this
connection case law of Shiv Kumar Vs.
2 All] Harendra Singh Vs. State of U.P. & Ors.
877
U.P. Zila Adhikari Chakiya [2014 (8)
ADJ 593 (DB) 693] has been cited.
11. So far as the second issue of
taking a decision in the open meeting of
the Gaon Sabha is concerned, we are
unable to agree with the proposition of the
learned Standing counsel and the counsel
for the contesting respondent that no such
meeting is necessary.
12. It has been observed by the
Division Bench of this Court in the case
of Shiv Kumar VS. U.P. Zila Adhikari
Chandauli that;
"A bare perusal of Clause 4.4. of the
Govt. order dated 3.7.1990, it is evident
that any fair price shop license would be
opened only after a resolution is passed in
the open meeting of the Gaon Sabha. It is
only on the collective opinion of such a
meeting that such allotment can be made.
After such a resolution is passed, the
same has to be processed through the
Tehsil Level Committee for rural area
........ as defined in Clause 5 of the G.O.
Dated 17.8.2002.... The allotment has to
be made as per the terms and conditions
contained in Clause 10 of the said G.O.
which also envisages the grant of license
on compassionate basis."
13. Therefore, even in the matter of an
individual consideration of compassionate
grant of license under clause 10 of G.O. Of
2002, it is necessary to hold an open meeting
of the Gaon Sabha. It is only after such a
resolution is passed that the same has to be
considered by the Tehsil Level Committee
and then a decision to be taken by the Sub
Divisional Magistrate.
14. Thus, in view of the aforesaid
factual aspects and also the law and
settled legal propositions discussed above,
we are of the view that the order
impugned dated 31.8.2013 passed by the
Sub Divisional Magistrate, Kayamganj,
District Farrukhabad, respondent no. 4 is
not sustainable in nature and the present
writ petition deserves to be allowed.
15. Hence, the writ petition succeeds
and is allowed and the order dated
31.8.2013 is hereby quashed. It is directed
that an open meeting of the Gram Sabha
be convened and the proposal given by
the Gram Sabha be considered by the
Tehsil
Level
Committee
whereafter
considering the reputation of the deceased
license holder as desirable and also the
disqualification, the S.D.M. shall proceed
to get the matter processed in accordance
with the law. It is also directed that the
aforesaid
exercise
be
completed
expeditiously, preferably within a period
of one month from today so that the
villagers
may not be put to any
inconvenience for distribution of fair
price ration.
16. No order is passed as to cost.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Writ-A No. 58341 of 2010
Harendra Singh
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Bhola Nath Yadav, Sri Raj Kumar
Yadav, Sri Santosh Yadav, Sri Tarun
Agarwal, Sri Vinod Kumar Yadav.