# Samar Bahadur Yadav v. State Of U.P. & Ors - **Citation:** (2016) 8 ILRA 646 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-26 - **Bench:** Ran Vijai Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/samar-bahadur-yadav-v-state-of-u-p-ors-44368 - **Pages:** 7 ## Text 646 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 646 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 26.08.2016 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Writ C No.- 36872 Of 2012 Samar Bahadur Yadav ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner: Sheo Ram Singh, Ajeet Singh, Raj Kumar Yadav Counsel for Respondents: C.S.C., Mahesh Narain Singh, Vikash Chandra Tiwari Facts The petitioner was appointed fair price shop agent of Village Deva Patti in 1993 and had been continuously operating the shop since then. In 2010, his wife was elected as Pradhan of Village Panchayat Machligaon - a different Gram Panchayat from the one in which the petitioner held the fair price shop licence. On a complaint made on Tehsil Divas, the Supply Inspector submitted a report taking shelter of Government Order dated 17.5.2010, and the Sub-Divisional Officer, Tehsil Badlapur, District Jaunpur, by order dated 24.8.2011, cancelled the petitioner's agreement to run the fair price shop without affording any opportunity of hearing to the petitioner. Appeal No. 123 of 2011 filed by the petitioner before the Additional Commissioner (Food and Civil Supplies), Varanasi Region, was dismissed vide order dated 31.3.2012. Both orders were challenged in the present writ petition. Questions of Law Whether the prohibition contained in the Government Orders dated 3.7.1990 and 18.7.2002, as revived by Government Order dated 17.5.2010, applies where the family member of the fair price shop agent is elected as Pradhan of a different Gram Panchayat/village - not the village where the fair price shop is situated? Whether the cancellation of the petitioner's agreement, without affording an opportunity of hearing, was sustainable? Held (i) Territorial scope of the prohibition: The Government Orders prohibiting appointment/continuation of family members of a Pradhan or Up-Pradhan as fair price shop agents are purposive in nature. Their object is to prevent favouritism, nepotism, and to ensure transparency in the selection process and in the distribution of essential commodities within that very Gaon Sabha. The expression "open meeting of the Gaon Sabha" in Government Order dated 3.7.1990 refers to the Gaon Sabha where the fair price shop is proposed to be situated. The prohibition is territorially limited to the Gaon Sabha concerned and does not extend beyond its territorial limits. 8 All. Samar Bahadur Yadav Vs State Of U.P. & Ors. 647 (ii) Applicability on facts: Since the petitioner was running the fair price shop of Village Deva Patti and his wife was elected as Pradhan of Village Panchayat Machligaon - a different village - the apprehension of nepotism or favouritism does not arise. The Government Orders cannot be stretched to cover a situation where the family member of the fair price shop agent is elected as Pradhan of an altogether different Gram Panchayat having no territorial nexus with the fair price shop. The authorities erred in cancelling the petitioner's agreement and in dismissing the appeal. (iii) Relied upon: Samiullah v. State of U.P. and Others, 2011 (6) ADJ 68 (Division Bench), wherein it was observed that the prohibition is intended to ensure no favouritism or nepotism in distribution of essential commodities and to maintain the faith of villagers of that very Gram Panchayat. Result: Writ petition allowed. Orders dated 24.8.2011 (Sub-Divisional Officer, Tehsil Badlapur, District Jaunpur) and 31.3.2012 (Additional Commissioner, Food and Civil Supplies, Varanasi) quashed. Cases Referred: 1. Samiullah v. State of U.P. and Others, 2011 (6) ADJ 68 (Division Bench). (Delivered by Hon'ble Ran Vijai Singh, J.) 1. Heard Sri Sheo Ram Singh, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri V.C.Tiwari, learned counsel appearing for the caveator and Sri M.K.Yadav, learned counsel for the Gaon Sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 24.8.2011 passed by the Sub Divisional Officer, Tehsil Badlapur District Jaunpur as well as the order dated 31.3.2012 passed by the Additional Commissioner (Food and Civil Supplies) Varanasi Region, Varanasi. 3. Vide order dated 24.8.2011 the agreement of the petitioner to run the fair price shop of Village Deva Patti has been cancelled by the Sub Divisional Officer whereby the subsequent order dated 31.3.2012 the Additional Commissioner, (Food and Civil Supplies) has dismissed the Appeal No. 123 of 2011 (Samar Bahadur vs. State) filed by the petitioner against the order dated 24.8.2011. 4. The facts of the case, in brief, are that the petitioner herein was appointed as fair price shop agent of village Deva Patti in the year 1993 and since then he has been running the shop. However, her wife was elected as Pradhan of Village Panchayat Machligaon in the year 2010. The caveator, namely Smt. Uttama Devi, wife of Ram Raj has filed a complaint on 19.7.2011 on Tehsil Divas for cancelling the agreement of the petitioner's fair price shop on the ground that her wife has been elected as Village Pradhan. On the aforesaid complaint the Block Development Officer was required to submit a report. The Block Development Officer, pursuant thereto on 14.8.2011 informed that the matter has been enquired by the Assistant Development Officer, Panchayat who reported that the wife of the petitioner has been elected as Pradhan of Village Panchayat Machligaon whereas the petitioner is running fair price shop of Village Deva Patti since 1993. Simultaneously a report was also submitted by the Supply Inspector who taking shelter of the Government Order dated 17.5.2010 has reported that in the event, any family member of the fair price shop agent is elected as Pradhan or Up Pradhan then the agreement to run the fair price shop 648 INDIAN LAW REPORTS ALLAHABAD SERIES has to be cancelled with immediate effect. Taking note of that the petitioner's agreement to run the fair price shop was cancelled for the reason that the petitioner's wife has been elected as Pradhan of Village Panchayat Machligaon. 5. Aggrieved by the aforesaid order the petitioner herein has filed Appeal No. 123 of 2011 (Samar Bahadur vs. State) on the ground that while passing the order dated 24.8.2011 no opportunity was ever offered to the petitioner and the provisions contained in the Government Order dated 17.5.2010 are not applicable upon the petitioner as the petitioner's wife was not elected as Pradhan of Village Panchayat Deva Patti but the Additional Commissioner vide order dated 31.3.2012 has discarded the argument of the petitioner and dismissed the appeal. 6. Aggrieved by the aforesaid orders the petitioner has filed the present writ petition. 7. While entertaining the writ petition this Court on 5.10.2013 has passed the following order: "List after three weeks. The learned Standing Counsel will file an affidavit enclosing the Government Order, which prohibits a family member to hold a fair price shop license, if any, member of the family becomes a Pradhan. The learned Standing Counsel will also file an affidavit indicating as to whether, the petitioner is a member of the village, in which, she has been elected as a Pradhan. The learned Standing Counsel will also indicate as to whether the petitioner's wife could be elected as a Pradhan of a different village, when her husband is residing in another village." 8. Learned standing counsel was directed to file counter affidavit. Pursuant thereto, learned standing counsel has filed counter affidavit as well as supplementary counter affidavit to which learned counsel for the petitioner has filed rejoinder affidavit. Another counter affidavit has been filed by the Gaon Sabha to which no rejoinder affidavit has been filed. On being confronted as to whether learned counsel for the petitioner desires to file rejoinder affidavit as well as supplementary rejoinder affidavits to the counter affidavit filed by the Gaon Sabha as well as supplementary counter affidavit filed by the State, learned counsel for the petitioner submited that the question involved is with regard to the interpretation of the relevant Government Orders and in that respect the reply has already been given in the rejoinder affidavit to the counter affidavit filed by the State, therefore, he does not propose either to file rejoinder affidavit to the counter affidavit filed by the Gaon Sabha or the supplementary rejoinder affidavit to the supplementary counter affidavit filed by the State. 9. In view of the fact that counter and rejoinder affidavits have been exchanged, with the consent of learned counsel for the parties, the writ petition is taken up for final disposal. 10. It is not in dispute that the petitioner was appointed as fair price shop agent of Deva patti in the year 1993 and since then he continued to operate the fair price shop till the date of the 8 All. Samar Bahadur Yadav Vs State Of U.P. & Ors. 649 order of cancellation dated 24.8.2011. It is not in dispute that the petitioner's wife has been elected as Pradhan of Village Panchayat Machligaon. The Government Order dated 3.7.1990, which has been taken note of by the Supply Inspector, while submitting the report before cancellation of the agreement of the fair price shop, provides that no proposal for appointment of fair price shop shall be made in favour of the family members of elected Pradhan and Up Pradhan. For convenience, paragraph 4.7 of the aforesaid Government Order is reproduced herein below: 4.7 ग्राम प्रधान या उप प्रवान के पररवार के सदस्ों / संबंतधयों के पक्ष में उतचत दर की दुकान के आबंटन का प्रस्ताव नहीं तकया जायेगा। पररवार की पररभाषा तनम्नतलखखत मानी जायेगी स्वयं स्वी पुतः अतववातहत पुती माता, तपता, भाई या अन्य कोई सदस् जो साथ में रहता हो तथा एक ही चूल्हे का बना खाना खाता हो। 11. In continuation thereto a Government Order was issued on 18.7.2002. Relevant paragraph no. 2 of the said 12. Government Order is reproduced herein below: 2. इस संबंध में सम्यक तवचारोपरांत जचोहज्ञताक्षरी को यह कहने का तनदेि हुआ है तक उक्त िासनादेि के प्रस्तर 4.7 के आगे प्रस्तर- 4,7 अ तनम्नानुसार जोड तदया गया है यतद तकसी दुकानदार या उसके पररवार के तकसी सदस् को तजसकी पररभाषा प्रस्तर 4.7 में दी गई है प्रवान या उप प्रधान चुन तलया जाता है तो उसकी दुकान का आबंटन तनरस्त कर तदया जायेगा। कृपया उक्त िासनादेि कुल समय तक संिोतधत समझा जाये। 13. It appears another Government Order was issued on 28.2.2007 in which it was stated that if the appointment of the fair price shop agent is prior in time to the election of his family member as Pradhan or Up Pradhan then his or her agreement to run fair price shop be not cancelled. 14. However, this Government Order was superseded by another Government Order dated 17.5.2010. Relevant paragraph no.2 of the same is reproduced herein below: 2 इस सम्बन्ध में पूवष में तनगषत िासनादेि तदनाुँक 03-07-90 को अंितः संिोतधत करते हुए िासनादेि संख्या-276/29-62002-162सा/01 तदनाुँक 18.7.2002 द्वारा प्रातवधातनत तकया गया है तक यतद तकसी दुकानदार या उसके पररवार के तकसी सदस् को तजसकी पररभाषा िासनादेि तदनाुँक 03.07.90 के प्रस्तर 47 में दी गयी है प्रधान या उपप्रधान चुन तलया जाता है तो उसकी दुकान का आवंटन तनरस्त कर तदया जायेगा। िासन का पत्र संख्या सख्या-255/29.6. 2008-162 सा/01 टीसी तदनॉक 28 िरवरी 2007 तनगषत तकये जाने के पूवष उक्त िासनादेि तदनांक 18.7.2002 का संज्ञान नहीं तलया गया है। 3- अतएव िासन स्तर पर सम्यक तवचारोपरान्तः िासन का पत्र संख्या-555/29.6.2007-162 सा/01टीसी तदनाुँक 28 िरवरी, 2007 एतद द्वारा तनरस्त तकया जाता है। पुनः यह स्पष्ट तकया जाता है तक इस सम्बन्ध में िासनादेि तदनॉक 18.7.2002 (सुलम सन्दभष हेतु प्रतत संलग्न) में उखिखखत प्रातवचान ही लागू होगें। िासन के पत्र तदनांक 28.2.2007 का लाम तजन दुकानदारों को तदया गया हो तो कृपया उनके अनुबन्ध भी तत्काल प्रभाव से तनरस्त कर तदये जाय। 15. From the bare reading of the Government Order dated 3.7.1990, which has been brought on record as Annexure 5 to the writ petition, it transpires that the Government has intended to open fair price shop in each Gaon Sabha. 650 INDIAN LAW REPORTS ALLAHABAD SERIES 16. It was also made clear that where units are more than 4000, on the recommendation to the Gaon Sabha, another fair price shop can be opened. In paragraph 4.4 of the Government order it is provided that proposal for appointment of fair price shop shall be made in open meeting of the Gaon Sabha. As has been noticed earlier in paragraph no. 4.7 of the aforesaid Government Order, it is provided that no proposal shall be made for appointment of fair price shop agent in favour of the falimy member of Pradhan or Up Pradhan. The definition of the family has been described as wife, son, unmarried daughter, mother, father, brother or any other member who is living with Pradhan or Up Pradhan and takes meal together. The Government Order dated 18.7.2002 provides that if any family member of the fair price shop agent is elected as Pradhan or Up Pradhan, his or her agreement to run fair price shop be cancelled, which was slightly modified vide Government Order dated 28.2.2007 where relaxation was given, if after the appointment of the fair price shop agent any family member is elected as Pradhan or Up Pradhan then the agreement to run the fair price shop will not be cancelled. However, that Government Order dated 28.2.2007 has been superseded by the Government Order dated 17.5.2010 with the further direction that if the person is continuing as fair price shop agent whose family member has been elected as Pradhan or Up Pradhan his agreement shall be cancelled forthwith. 17. These Government orders are purposive and have been issued with the view to achieve certain objectives, which in my opinion, are that while electing/ selecting a fair price shop agent, there must be transparency in the process of selection and ruling out possibility any favouritism, nepotism etc. Provision was also made in the Government Order dated 3.7.1990 that no proposal for appointment of fair price shop agent of the family members of Pradhan or Up Pradhan shall be made and the rigour of not appointing the family members of Pradhan or Up-Pradhan is continuing till date. In the government order dated 3.7.1990, it has also been provided that the election/selection of the fair price shop agent be made in the open meeting of the gaon sabha. The word open meeting of the gaon sabha means open meeting of that very gaon sabha where the fair price shop agent is proposed to be appointed. In my opinion, it will not include any other gaon sabha as limit of apprehension of favourtism, nepotism is not intended to be allowed beyond the territorial limit of the gaon sabha from the bare reading of prohibitory language used in the various government orders referred herein above. 18. The purpose behind not electing/selecting the family members of the Pradhan/UpPradhan as fair price shop agent is to avoid favourtism, nepotism and to maintain transparency in the process of the selection which is limited to that very gaon sabha and in case, any relative of Pradhan or Up-Pradhan has been appointed as fair price shop agent in another village Panchayat, the possibilty of nepotism, favourtism cannot be apprehended. The Division Bench of this Court in Samiullah Vs. State of U.P. and others, 2011 (6) ADJ 68, of which I was also member, while interpreting the aforesaid government order, has observed as under :- The purpose and object for which the prohibition is contained is not far to seek. In a Gram Panchayat Pradhan plays a very pivotal role and with regard to distribution of essential commodities by a fair price shop dealer the Pradhan has specific role under the relevant Government orders and the scheme enforced by the State Government. The Pradhan supervise the 8 All. Samar Bahadur Yadav Vs State Of U.P. & Ors. 651 distribution of commodities of a fair price shop dealer to ensure that essential commodities are distributed to the members of the village. The distribution of essential commodities by a fair price shop dealer in public distribution system is one of the most important function entrusted to Gram Panchayat. The provision prohibiting family members and relatives of Pradhan to get a fair price shop has been incorporated with some object to achieve, i.e. there may be no favouritism or nepotism with regard to distribution of essential commodities and if a fair price shop dealer is not relative or family member of the Pradhan there shall be more transparency and faith of the villagers. 19. Here in this particular case as would appear from the order and the report submitted by the Block Development Officer contains that the wife of the petitioner has been elected as a Pradhan of Village Panchayat Machligaon whereas the petitioner is running fair price shop of Village Deva Patti that too since 1993, therefore the government order dated 3.7.1990 which prohibits the election/selection of fair price shop agent of the relative of Pradhan or Up-Pradhan in order to avoid favourtism, nepotism in the process of the election/selection or in distribution will not be applicable under the facts and circumstances of the case and the authorities have erred in cancelling the agreement of the petitioner to run fair price shop and dismissing the appeal. 20. In view of foregoing discussions, the writ petition succeeds and is allowed. The impugned orders dated 24.8.2011 passed by the Sub-Divisional Officer, Tehsil Badlapur District Jaunpur as well as the order dated 31.3.2012 passed by the Additional Commissioner (Food and Civil Supplies) Varanasi are hereby quashed. 21. So far as the election of the petitioner's wife as a Pradhan of Village Machligaon is concerned, in this regard, learned counsel for the petitioner contended that it is a separate issue and that question cannot be gone into in this writ petition. 22. I find substance in the submissions of learned counsel for the petitioner. Since the wife of the petitioner has already been elected as a Pradhan of Machligaon it is for the aggrieved person to question election of fair price shop agent. Otherwise also, assuming election of the petitioner's wife as Pradhan of Village Machligaon is illegal, it will go in favour of the petitioner. ------------ 652 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 652 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.08.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. Writ Tax No.- 70 Of 2016 Sri Harbhajan Singh Chadha ...Petitioner Versus Deputy Commissioner Of Income Tax & Ors. ...Respondents Counsel for Petitioner: Suyash Agarwal Counsel for Respondents: C.S.C (I.T.Deptt.), Ashok Kumar, Manish Goyal Income Tax - Transfer of Cases - Section 127(2)(a) of Income Tax Act, 1961 - Opportunity of Hearing - Recording of Reasons - Phrase "Wherever it is Possible to Do So" - Coordinated Investigation - Search and Seizure INCOME TAX ACT, 1961 - Section 127(2)(a) - Transfer of income tax cases from ACIT, Moradabad to ACIT, New Delhi - Challenge to transfer order - Grounds: no show cause notice, no opportunity of hearing, no reasons recorded - Held: Section 127(2)(a) contemplates two distinct requirements: (i) affording Assessee a reasonable opportunity of hearing, wherever it is possible to do so; and (ii) recording of reasons for passing the transfer order - First requirement of opportunity of hearing is conditional and not mandatory in all cases - It is subject to the phrase "wherever it is possible to do so" - However, second requirement of recording of reasons is mandatory and absolute in all cases irrespective of whether opportunity of hearing was afforded or not - Reasons must not merely be recorded in file but must be contained in the order itself and communicated to Assessee - Non-communication of reasons renders the order of transfer bad in law. (Paras 12, 13, 17 and 28) INCOME TAX ACT, 1961 - Section 127(2)(a) - Phrase "Wherever it is Possible to Do So" - Meaning and scope - Held: The phrase "wherever it is possible to do so" qualifies only the requirement of opportunity of hearing and not the requirement of recording of reasons - Legislature has consciously used this phrase and it cannot be rendered redundant or ignored - When Authority bona fide and reasonably concludes that grant of opportunity is not possible in the facts and circumstances of the case, order of transfer without hearing is not ipso facto vitiated - Authority must act reasonably and bona fide in arriving at such conclusion - Mere absence of notice to Assessee will not vitiate order of transfer if circumstances justify such non-affording of opportunity - Requirement of opportunity is not mandatory but discretionary, subject to feasibility. (Paras 20, 23, 24 and 25)