# Ram Briksh v. State Of U.P. & Ors - **Citation:** (2016) 8 ILRA 960 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-10 - **Bench:** Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-briksh-v-state-of-u-p-ors-44290 - **Pages:** 7 ## Text 960 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 960 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.08.2016 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. Writ C No.- 40249 Of 2008 Ram Briksh ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Gyanendra Kumar Singh, S.P. Pandey, S. Shahi, Satyawan Shahi Counsel for Respondents: C.S.C., Anoop Trivedi, O.P. Shukla, P.N. Tripathi, V.K. Singh Fair Price Shop Licence -- Cancellation -- Substitution of Legal Heir -- Locus Standi -- Petitioner, licence holder, died during pendency of writ petition -- Substitution application filed by his son on ground that cancellation orders were illegal and he, being legal heir, has right to be heard -- Respondent objected that petition became infructuous on death of licence holder and son has no right to defend father's action or inaction -- Son of deceased licence holder has a right for consideration for allotment of fair price shop if father was carrying good reputation in distribution of essential commodities -- If cancellation orders are allowed to stand unconsidered on merits, they would come in the way of son's preferential right -- Writ petition cannot be rendered infructuous -- Substitution application allowed. (Para 1) Government Order dated 17.08.2002 -- Clause 10(jha) -- Preferential Right of Legal Heir -- Clause 10(jha) provides that on death of a shopkeeper of good reputation, the shop may be allotted to his dependent, meaning wife, son, or unmarried daughter -- Reliance placed on Subash Vs. State of U.P., 2015 (1) ADJ 113 -- Division Bench therein held that allotment is to be made only after resolution in open meeting of Gaon Sabha, and legal heir of a licensee who earned goodwill has a preferential right for consideration on compassionate ground -- Son of licence holder has preferential right for consideration, subject to villagers' opinion on father's reputation being obtained in open Gram Sabha meeting. (Para 2) Cancellation of Licence -- Non-Distribution of Essential Commodities -- Absence of Concerned Officer -- Distribution scheduled for 11.10.2007 could not take place as the concerned officer/observer did not turn up -- Licence holder promptly informed District Supply Officer, who fixed 18.10.2007 for distribution and nominated another officer to supervise -- Distribution duly carried out on 18.10.2007 -- Suspension order passed on 30.10.2007, i.e., twelve days after distribution, acting on an earlier complaint . Distribution was not withheld but only postponed for reasons beyond licence holder's control -- First charge in suspension order not proved -- Licensing and Appellate Authorities failed to consider that distribution had in fact taken place on rescheduled date. (Para 3) 8 All. Ram Briksh Vs State Of U.P. & Ors. 961 Cancellation of Licence -- Non-Deposit of Money for November 2007 -- Gram Pradhan's Inaction -- Licence holder pleaded that money for November 2007 could not be deposited as the distribution certificate for October 2007 was not issued by Gram Pradhan, and further that shop stood suspended from 30.10.2007 itself, leaving no occasion to deposit money for the subsequent month -- Neither Licensing Authority nor Appellate Authority examined this aspect or recorded any finding that the certificate had in fact been furnished -- Second charge also not established -- Cancellation on this count equally unsustainable. (Para 4) Appellate Order -- Non-Application of Independent Mind -- Appellate Authority rejected appeal on the very same grounds as the Licensing Authority without independent reasoning -- Such mechanical affirmance vitiates the appellate order. (Para 5) Relief -- Cancellation Orders Set Aside -- Compassionate Allotment -- Cancellation orders passed by Licensing Authority and Appellate Authority set aside on both counts -- Son of deceased licence holder permitted to apply for allotment of the fair price shop, which fell vacant on his father's death, on compassionate ground -- Sub-Divisional Officer directed to convene open Gram Panchayat meeting within six weeks of presentation of application, taking villagers' opinion on reputation of deceased licence holder -- Candidature of impleaded respondent (subsequent allottee) also to be considered in the same meeting -- Decision to be taken preferably within four weeks of the meeting -- Writ petition allowed with directions. (Para 6) Case Law Discussed 1. Subash Vs. State of U.P. and others, 2015 (1) ADJ 113 (Delivered by Hon'ble Mrs. Sunita Agarwal, J.) 1. Heard Sri Satyawan Shahi, learned counsel for the petitioner and Sri Anoop Trivedi, learned counsel for the respondent no.6 2. The relevant facts of the case are that:- 3. The present petition has been allowed by this Court vide judgement and order dated 16.02.2012 whereby the orders passed by the licensing authority and the appellate authority in cancelling the fair price shop licence of the petitioner have been quashed. It appears that an impleadment application was filed by Smt. Sumitra Devi with the assertion that the shop in question was allotted in her favour after cancellation of the licence of the petitioner. She was, therefore, necessary party in the writ petition. It appears that no order could be passed on the impleadment application and it remained pending. The applicant Smt. Sumitra Devi therefore, filed a review application alongwith the delay condonation application which was rejected by this Court vide order dated 06.09.2012. 4. Aggrieved Smt. Sumitra Devi, approached the Apex Court in Civil appeal nos.9363-9364 of 2014, against the order dated 16.02.2012 passed in writ petition and the order dated 06.09.2012 passed on the review application. 962 INDIAN LAW REPORTS ALLAHABAD SERIES 5. The Apex Court has set aside both the orders on 08.10.2014 on the ground that the High Court should have given opportunity to the appellant Smt. Sumitra Devi before restoring the licence of the petitioner (respondent no.6 before the Apex Court). However, it was directed by the Apex Court that till a final order is passed by this Court the licence of respondent no.6 namely the petitioner herein shall continue and he can operate the fair price shop. 6. It appears that during pendency of the present writ petition the petitioner died on 02.04.2015 and a substitution application, therefore, has been filed by his son namely Ram Pravesh on the ground that the authorities had illegally passed the cancellation orders and he being the legal heir of the deceased (licence holder) has a right to be heard. 7. On 25.04.2016 when the matter was heard, the impleadment application filed by Smt. Sumitra Devi was allowed and she was directed to be impleaded as respondent no.6 in the array of party. Sri Anoop Trivedi, learned counsel appearing for Smt. Sumitra Devi (respondent No.06 herein) has been heard at length. 8. Learned counsel for the respondent at the very outset submits that the writ petition has become infructuous on account of the death of the licence holder. The applicant in the substitution application namely Ram Pravesh allegedly son of the licence holder has no right to be substituted in his place as he cannot defend the action or inaction of his father. The shop has become vacant on account of the death of the licence holder and has to be allotted in an open meeting of the Gram Panchayat. This Court is not required to look into the correctness of the cancellation orders passed by the licensing authority as also the appellate authority at the instance of the applicant in the substitution application. 9. In the rejoinder, learned counsel for the applicant, however, submits that he has a preferential right to be considered for allotment of the fair price shop being the legal heir of the licence holder. Reliance is placed upon Clause 10(jha) of the Government Order dated 17.08.2002 to submit that in case, he succeeded in proving that his father was innocent and was carrying a good will and the cancellation orders are bad, the authorities cannot refuse to consider his application, if any, for allotment of the fair price shop on preferential basis. 10. Considering the submissions of learned counsel for the parties and having perused the record, this Court does not find force in the submission of Sri Anoop Trivedi learned counsel for the respondent that the petition has become infructuous. The impact of clause 10 (jha) of the Government order dated 17.08.2002 is admitted to the learned counsel for the parties. The relevant clause 10(jha) of the said Government order is as follows.:-. "यतद दुकानदार अच्छी ख्यातत का हो तो उसकी मृत्यु के उपरांत दुकान का आवंटन उसके आतश्रत को करने पर तवचार तकया जा सकता है. आतश्रत का तात्पयष पत्नी, पुत्र तथा अतववातहत पुत्री से है." 8 All. Ram Briksh Vs State Of U.P. & Ors. 963 11. This Government order came up for consideration before a division bench of this Court in Subash Vs. State of U.P. And others, 2015 (1) ADJ 113. It has held therein that the allotment of the fair price shop licence is to be done only after resolution is passed in the open meeting of the Gaon Sabha, and no exception to the said procedure can be carved out. However, a legal heir of the licensee who had earned a good will has a preferential right for consideration for the settlement of the fair price shop on compassionate ground. 12. In the said case, the agenda for settlement of the fair price shop placed in the meeting of Gram Panchayat did not suggest as to whether the reputation of the petitioner therein was good or not and the opinion of villagers was not taken on the said issue in the open meeting of the Gaon Sabha and, therefore, the resolution was held to be not in consonance with clause 10(jha) of the Government order dated 17.08.2002 and was therefore, set aside. 13. Considering the relevant clause 10(jha) of the Government order dated 17.08.2002 and the observations of the Division Bench of this Court in the above noted case, this Court is of the opinion that the son of the licence holder who has filed the substitution application has a right for consideration for allotment of the fair price shop in case, it is found that his father was carrying good reputation in the matter of distribution of essential commodities in the village. However, in case, the cancellation order are allowed to remain as such without consideration on merits, they will come in the way of consideration of the right of the son of the licence holder who can be non-suited on this ground alone. For this reason, the writ petition cannot be rendered infructuous and it is held that the applicant in the substitution application has a right to confront the orders passed by the licensing authorities in canceling the fair price shop licence of his father. 14. The substitution application is, therefore, allowed. Sri Ram Pravesh is substituted in place of the petitioner in the present petition. 15. Coming on the merits of the orders of cancellation, it is found from the record that a suspension order dated 30.10.2007 was passed suspending the fair price shop licence of the petitioner's father Ram Briksh (licence holder) on the ground that he did not distribute the essential commodities to the villagers on 11.10.2007 and Gram Pradhan had filed a complaint in that regard vide letter dated 16.10.2007. Another charge against the licence holder was that he did not tender money for lifting the food grains and sugar for distribution for the month of November, 2007. 16. The petitioner gave a reply on 01.12.2007 with the relevant documents to the effect that the distribution on 11.10.2007 was to be done in the presence of the concerned officer/observer who did not turn up. Information in this regard was given to the District Supply Officer who in-turn fixed 18.10.2007 for distribution of essential commodities. The licence holder distributed the essential commodities on the said date. He also pleaded that the 964 INDIAN LAW REPORTS ALLAHABAD SERIES Gram Pradhan was carrying grudges against him and had filed the complaint in a malafide manner. 17. The cancellation order dated 18.01.2008 was passed by the licensing authority rejecting the explanation of the licence holder recording a finding that he intentionally did not distribute the essential commodities and had thus violated the rights of the villagers to get ration at the subsidied rates. The appeal was also rejected on the same ground as has been taken by the licensing authority. No independent reasoning has been given by the Appellate Authority to reject the appeal. 18. It is further found that a letter dated 15.10.2007 written by the District Supply Officer, Gorakhpur to Bal Vikas Pariyojna Adhikari, Pipraich, Gorakhpur has been brought on record as Annexure no.1 to the writ petition. A perusal of the said letter indicates that 18.10.2007 was fixed for distribution of the essential commodities and one Virendra Yadav, Gram Vikas Adhikari was nominated to remain present to ensure fair distribution. It was also directed that a report be submitted regarding absence of Lekhpal on 11.10.2007 in the village to ensure distribution. This letter was written on the information given by the petitioner to the District Supply Officer, Gorakhpur regarding non-distribution of essential commodities on 11.10.2007. 19. It is evident from the record that both the Licensing Authority and the Appellate Authority did not consider that the distribution was not withheld by the licence holder rather it was postponed on account of absence of the concerned officer in whose presence the distribution was required to be done. Further the licence holder was prompt in giving information to the District Supply Officer who while acting upon his report had fixed another date and deputed another officer to supervise the distribution. 20. The essential commodities were distributed on 18.10.2007 i.e. on the date fixed by the District Supply Officer. The suspension order itself was passed on 30.10.2007 i.e. after 12 days of the distribution acting on an earlier complaint of the Gram Pradhan. Therefore, the first charge against the licence holder mentioned in the suspension order is not proved. 21. So far as the second charge namely non deposit of the requisite money for the month of November, 2007 is concerned, the licence holder has submitted in his explanation that the money could not be deposited because of the inaction of the Gram Pradhan. It is specific case of the licence holder that the money for November, 2007 could not be deposited by him for the reason that the certificate of distribution for the month of October, 2007 was not given by the Gram Pradhan. In absence of the said certificate, it was not possible for him to deposit the money. Moreover, the shop was suspended on 30.10.2007 on account of malafide act of the Gram Pradhan and the licensing authority so he could not get the chance to make the deposits. 8 All. Ram Briksh Vs State Of U.P. & Ors. 965 22. In the cancellation order, both the licensing as well as Appellate authority did not consider this aspect of the matter. There is no finding that certificate of distribution for the month of October was given to the licence holder but he did not deposit the money for November month. Even otherwise, the licence was suspended only on 30.10.2007 and, therefore, there was no occasion before the licensee holder to persuade the authorities to provide him distribution certificate so as to deposit the money for the month of November 2007. 23. In view of the above, on both the counts, the cancellation order passed by the Licensing Authority as also the Appellate Authority cannot be sustained. Both the above noted orders are hereby set aside. 24. It is, however, left open for the petitioner Ram Pravesh to apply for allotment of fair price shop which became vacant on account of the death of his father on compassionate ground. In case, such an application is moved, an open meeting of the Gram Panchayat be held for considering the agenda to allot the fair price shop on compassionate ground after taking opinion of the villagers on the issue as to whether the reputation of the erstwhile licensee namely (Ram Briksh) the father of the petitioner herein was good or not. Such meeting shall be called by the Sub-Divisional Officer within a period of six weeks from the date of presentation of the application by Ram Pravesh alongwith the certified copy of this order and a decision be taken regarding allotment of the fair price shop on the basis of resolution of the Gram Panchayat. The respondent no.6 Smt. Sumitra, if moves an application for allotment of the fair price shop, her candidature shall also be considered in the aforesaid meeting of the Gaon Sabha to ensure the fair distribution of the essential commodities to the villagers. An early decision be taken by the Sub Divisional Officer preferably within a period of four weeks after holding the meeting of the Gram Panchayat for allotment of the fair price shop in accordance with law. 25. With the above observations and directions, the writ petition is allowed. ----------- 966 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 966 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 09.08.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. Writ Tax No.- 1238 Of 2010 & Connected With Other Cases Bulbul Banerjee ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Govind Krishna, Ashok Kumar Pandey, Purusottam Upadhyay, Vipin Kumar, T.S. Dabas, N.S. Chahar, Durga Prasad Singh, Rajendra Tiwari, Sanjay Singh Sengar, Haridwar Singh (for respective petitioners) Counsel for Respondents: C.S.C. U.P. Entertainment and Betting Tax Act, 1979 -- Section 3 -- Entertainment Tax (Amendment) Act, 2009 -- Explanation (2) -- Scope of Challenge -- Though validity of Section 3 as amended was challenged in the writ petitions, dispute during argument was found confined to Explanation (2) inserted at the end of Section 3 -- Question was whether Explanation (2) contemplates computation of entertainment tax on the amount of entertainment tax already computed under Section 3(1), or is merely clarificatory -- Explanation (2) defines 'aggregate payment' to include entertainment tax and other amounts payable under the Act, but this definition operates only for the purpose of levying tax on 'aggregate payment required for admission' under Section 3(1) -- It cannot be read to permit double computation, i.e., tax upon tax already computed. (Para 1) Explanation to Statute -- Nature and Limits -- An explanation to a statutory provision is ordinarily clarificatory in nature, meant to remove ambiguity -- What is not contemplated by the principal charging section cannot be supplied or expanded through an explanation -- Entertainment tax once computed under Section 3(1) does not attract further entertainment tax on the tax so computed. (Para 2) Section 3-A -- Extra Charges for Maintenance and Air-Conditioning -- Effect of Amendment Act, 2009 -- Prior to amendment, extra charges collected for maintenance of cinema premises and for aircooling/air-conditioning facilities stood excluded from being treated as payment for admission and were thus not exigible to entertainment tax -- Post-amendment, Section 3-A(1) requires the proprietor to utilise a notified portion of the ticket value itself for such maintenance and facilities, without a separate exclusion -- The earlier exemption stands validly withdrawn by the new provision -- A principal legislative enactment altering an earlier benefit cannot be struck down merely because it takes away what an earlier provision conferred, absent violation of constitutional provision or legislative competence. (Para 3)