# Rajesh Kumar v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 344
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** WRIT - C No. 2993 of 2020
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-state-of-u-p-ors-45405
- **Pages:** 3

## Headnote

A. Civil law - U.P. Essential Commodities
(Regulation
of
Sale
and
Distribution
Control) Order, 2016 - Para 8(9) - Fair
Price
Shop
-
Allotment
on
the
Compassionate ground - Time Limit to file
application - Government Order dated
15.2.2019 and 05.08.2019 - Object of
framing scheme for allotting dealership to
the dependent of a deceased dealer is to
tide over the financial difficulty which
befall upon the family on account of death
of the bread earner - Held, time limit is
directory in nature and in appropriate
cases, it can be relaxed - Since no fresh
dealership has been finalized till date, a
lenient view should be taken. (Para 6)
Petition allowed (E-1)

## Text

344 INDIAN LAW REPORTS ALLAHABAD SERIES
in section 405 IPC, are found. Since it is
alleged in the impugned FIR that the
petitioner as a Secretary of the society had
defalcated the fertiliser stock, prima facie,
cognizable offence of criminal breach of
trust is made out and therefore the
impugned FIR cannot be quashed.

22. As to whether the petitioner is
liable to be charged for an offence
punishable under section 406 or section
408 or section 409 IPC would have to be
determined on the strength of the material
collected during the course of investigation
and, therefore, the charge can be altered
even by the investigating agency, if
required. The court dealing with the bail
prayer of the petitioner, for the purposes of
examining whether a case for grant of bail
is
made
out,
can
also
take
into
consideration as to, prima facie, what
offence is made out from the facts of the
case regardless of the charging section put
by the investigating agency. Further, if,
after submission of the police report, the
petitioner is aggrieved by the charging
section imposed, he can always raise his
grievance before the appropriate court at
the stage of framing charge.

23. In view of the foregoing
discussion, subject to above, the petition is
dismissed without prejudice to the right of
the petitioner to apply for bail, if so
advised.
----------

(2020)11ILR A344
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

WRIT - C No. 2993 of 2020
Rajesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Sharma

Counsel for the Respondents:
C.S.C., Sri Krishna Kant Singh

A. Civil law - U.P. Essential Commodities
(Regulation
of
Sale
and
Distribution
Control) Order, 2016 - Para 8(9) - Fair
Price
Shop
-
Allotment
on
the
Compassionate ground - Time Limit to file
application - Government Order dated
15.2.2019 and 05.08.2019 - Object of
framing scheme for allotting dealership to
the dependent of a deceased dealer is to
tide over the financial difficulty which
befall upon the family on account of death
of the bread earner - Held, time limit is
directory in nature and in appropriate
cases, it can be relaxed - Since no fresh
dealership has been finalized till date, a
lenient view should be taken. (Para 6)
Petition allowed (E-1)

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The instant petition has been filed
praying for quashing of the order dated
3.12.2019 passed
by
Sub
Divisional
Officer, Chhibramau, Kannauj (respondent
nos. 4 herein) whereby the representation
of the petitioner seeking appointment as
fair price shop dealer, being dependent of
the deceased dealer Bhaiya Lal, has been
rejected solely on the ground that the
application was filed beyond the prescribed
period of 45 days.

2. The facts in brief are that the father
of the petitioner, namely Bhaiya Lal was
fair price shop dealer of the village. He
died on 31.1.2019. According to the
petitioner, he filed an application in the
11 All. Rajesh Kumar Vs. State of U.P. & Ors.
345
office of respondent no. 4 for allotment of
the dealership in his name in terms of
Government
Order
dated
15.2.2019.
However, when no heed was paid to his
request, he filed Writ - C No. 36491 of
2019 before this Court. It was disposed of
by order dated 6.11.2019 with a direction to
respondent
no.
4
to
decide
his
representation within two weeks. In terms
thereof, the instant decision has been taken.
One of the findings returned in the
impugned
order
is
that
the
alleged
representation of the petitioner dated
9.3.2019 is not on record, but only a
representation dated 1.8.2019 received by
registered post is available. It has also been
held that the said representation dated
1.8.2019 having been received beyond 45
days from the date of death of the father of
the petitioner, is beyond the time limit
prescribed in Government Order dated
15.2.2019, consequently, the shop cannot
be allotted to the petitioner.

3. Learned counsel for the petitioner
submitted that it is usual practice in the
office of
respondent no. 4 not to
acknowledge
receipt
of
representations/applications. It is submitted
that the representation was duly handed
over to the concerned clerk in the office of
respondent no. 4 on 9.3.2019, but when no
action was taken on the same, another
representation was sent by registered post
on 3.9.2019. These facts were also clearly
stated by the petitioner in his reminder
dated 21.11.2019. It is also urged that till
date, the dealership has not been allotted to
any one and therefore, there is no
impediment in considering the petitioner's
application for grant of dealership to him.
He also urged that as per finding recorded
in the impugned order, there was a ban
imposed by the State Government itself at
the time of death of his father for allotting
dealership on compassionate grounds to the
dependent
of
a
deceased
dealer.
Consequently,
even
otherwise,
the
application was not entertainable at that
point of time.

4.

Learned
Standing
Counsel
submitted that in the impugned order, a
specific finding has been recorded that no
application
dated
9.3.2019
was
ever
received in the office of respondent no. 4.
He further submitted that since the
representation dated 1.8.2019 was filed
beyond the prescribed period of 45 days,
therefore there is no illegality in the
impugned order.

5. I have considered the submissions
of learned counsel for the parties and
perused the material on record.

6. Government Order dated 15.2.2019
stipulates that dependent of a deceased
dealer should file application within 30
days from the date of death for allotment of
dealership in his name. The said time limit
is extendable by 15 days. The object of
prescribing the time limit is to ensure that
there is no unnecessary delay in making
arrangement for distribution of scheduled
commodities to the cardholders. It is for the
same reason that under Government Order
dated 5.8.2019, the entire proceeding
relating to disposal of application for
allotment of dealership on compassionate
basis is required to be completed within
two months. Under paragraph 8(9) of the
U.P. Essential Commodities (Regulation of
Sale and Distribution Control) Order, 2016,
in case of cancellation of the agreement of
fair price shop, new dealership agreement
is required to be issued within a month of
cancellation. Here also the object of
prescribing a time limit, is to obviate
unnecessary delay. The object of framing
346 INDIAN LAW REPORTS ALLAHABAD SERIES
scheme for allotting dealership to the
dependent of a deceased dealer is to tide over
the financial difficulty which befall upon the
family on account of death of the bread
earner. I am of the opinion that the said time
limit is therefore directory in nature and in
appropriate cases, it can be relaxed. Since in
the instant case no fresh dealership has been
finalized till date and on the other hand, the
case of the petitioner is that he had duly filed
application for allotment of dealership in his
name well within the prescribed time limit,
but its acknowledgement was not issued by
the office of respondent no. 4, therefore I am
of considered opinion that a lenient view
should be taken. In case the application of the
petitioner is directed to be considered on
merits, no prejudice is going to be caused to
any one, as no new dealer has been appointed
till date.

7. Accordingly, the impugned order
dated 3.12.2019 is quashed. Respondent no. 4
is directed to consider the application of the
petitioner for allotment of dealership in his
name in place of his deceased father on
merits, within a period of six weeks from the
date of production of a true attested copy of
the instant order.

8. The petition stands allowed to the
extent indicated above.
----------
(2020)11ILR A346
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT - C No. 8526 of 2018

Godawari ...Petitioner
Versus
Zubaida & Ors. ...Respondents

Counsel for the Petitioner:
Sri Deepak Kumar Jaiswal, Sri Omkar Nath
Rai

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Ojha, Sri Satish
Chandra Mishra, Sri Sudhir Tiwari

A. Civil Law - U.P. Panchayat Raj Act, 1947 -
Section 12-C - Election of Pradhan -
Recounting of votes - It is settled that order
for recount of votes should not be passed as
a matter of course unless there exists
clinching evidence on record to support the
election petition - Allegations to doubt
correctness
of
votes
cast
have
been
specifically made which is duly supported by
the evidence led by the election petitioner -
Small margin of victory and large number of
votes having been declared invalid is also a
circumstance which cannot be brushed aside
lightly in view of attending facts - Held,
Sanctity of the election process requires a
further scrutiny, which is possible only if a
recount is ordered. (Para 6 and 14)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Ram Adhar Singh Vs D.J., Ghazipur, 1995
All CJ 196
2. Pratap Singh Vs St. of U.P. & ors., 2008 (3)
AWC 2974
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Upon an application filed by
respondent no.1 under Section 12-C of the
U.P. Panchayat Raj Act, 1947, the
prescribed authority has directed for
recount of votes on 9.3.2018 vide order
impugned dated 28.2.2018. Aggrieved by
this order the the petitioner, who is elected
Pradhan, has filed the present petition.

2. Elections were notified for the
office
of
Pradhan
of
Gram
Sabha
Sarisawan,
Nyay
pachayat
Koriyan