# Smt. Gainda Devi v. State of U.P. & Others - **Citation:** (2012) 3 ILRA 1368 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-10-31 - **Case number:** Civil Misc. Writ Petition No. 56016 of 2012 - **Bench:** Vineet Saran, Mushaffey Ahmad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-gainda-devi-v-state-of-u-p-others-42416 - **Pages:** 3 ## Headnote Constitution of India, Article 226allotment of Fair Price Shop-Gaon Sabha passed resolution in favor of petitionersend information to Tehsil level committee-Headed by S.D.O.-on basis of complaint on Tehsil Diwas-without opportunity of hearing-by impugned order proposal canceled by accepting the version of complaint as gospel truthheld-illegal-quashed. Held: Para-7 and 8 It is true that the Committee had the authority to entertain the complaint and take cognizance, but the same would not mean that the Committee can proceed to act solely on the basis of the complaint without testing its veracity. The committee cannot be permitted to proceed in such arbitrary manner and if the same is permitted, in every case at the last moment complaint can be filed and treating the same as correct without enquiring into the complaint and without giving the affected party any opportunity of hearing, each and every resolution of the Gram Sabha can be set aside. In such view of the matter, we are of the opinion that the decision of the Tehsil 3 All] Smt. Gainda Devi V. State of U.P. & Others 1369 level Committee insofar as it relates to the case of the petitioner deserves to be quashed. ## Text 1368 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 that it does not suffer from any arbitrariness, inasmuch as, such a clause has been included to secure the final option of a candidate who after getting admission should not be allowed to change the same. This in no way prejudices a candidate who has already been given three options and he has availed of the benefit of admission accordingly. This also facilitates the adjustment of options of the candidates. 12. Even otherwise after having sought admission under the rules, the petitioner cannot be permitted to turn around and challenge the provisions of the rules itself to which he will be deemed to have acquiesced and waived his right of challenge in view of the law laid down by the apex court in the case of Dhananjay Malik and others Vs. State of Uttaranchal and others reported in (2008) 4 SCC 171. 13. In the aforesaid circumstances, the prayer made by the petitioner cannot be accepted. 14. The writ petition is however disposed of with liberty to the petitioner to approach the Vice Chancellor who may sympathetically consider the reallocation in case it is possible in view of the fact that the petitioner's brother is also studying at Malappuram. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 31.10.2012 BEFORE THE HON'BLE VINEET SARAN, J. THE HON'BLE MUSHAFFEY AHMAD, J. Civil Misc. Writ Petition No. 56016 of 2012 Smt. Gainda Devi ...Petitioner Versus State Of U.P. & Others ...Respondents Counsel for the Petitioner: Sri Gopal Verma Counsel for the Respondents: C.S.C. Constitution of India, Article 226allotment of Fair Price Shop-Gaon Sabha passed resolution in favor of petitionersend information to Tehsil level committee-Headed by S.D.O.-on basis of complaint on Tehsil Diwas-without opportunity of hearing-by impugned order proposal canceled by accepting the version of complaint as gospel truthheld-illegal-quashed. Held: Para-7 and 8 It is true that the Committee had the authority to entertain the complaint and take cognizance, but the same would not mean that the Committee can proceed to act solely on the basis of the complaint without testing its veracity. The committee cannot be permitted to proceed in such arbitrary manner and if the same is permitted, in every case at the last moment complaint can be filed and treating the same as correct without enquiring into the complaint and without giving the affected party any opportunity of hearing, each and every resolution of the Gram Sabha can be set aside. In such view of the matter, we are of the opinion that the decision of the Tehsil 3 All] Smt. Gainda Devi V. State of U.P. & Others 1369 level Committee insofar as it relates to the case of the petitioner deserves to be quashed. (Delivered by Hon'ble Vineet Saran, J.) 1. Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and perused the record. 2. By consent of the learned counsel for the parties, we dispose of this writ petition at this stage without calling for a counter affidavit. 3. The case of the petitioner is that on a vacancy of fair price shop in the village in question, the Gram Sabha passed a resolution in favour of the petitioner, which was duly communicated by the Block Development Officer to the SubDivisional Magistrate, who is the Chairman of the Tehsil Level Committee and who has to take a decision in the matter. 4. The petitioner is aggrieved by the order dated 17.07.2012 passed by the Tehsil Level Committee including the Sub-Divisional Magistrate as respondent No. 2, who is the Chairman of the said Committee. 5. The submission of the learned counsel for the petitioner is that the said order has been passed on a complaint received on 17.07.2012 at the Tehsil Diwas and on the same date the meeting of the Tehsil Level Committee was held and averments made in the compliant were accepted as gospel truth and the recommendation made by the Gram Sabha has been turned down and direction has been issued to the Gram Sabha to pass a fresh resolution. 6. It is contended that neither enquiry with regard to contents of the complaint had been made by the SubDivisional Magistrate or by any other competent officer nor the petitioner was given any opportunity of hearing prior to the decision having been taken by the Committee. 7. It is true that the Committee had the authority to entertain the complaint and take cognizance, but the same would not mean that the Committee can proceed to act solely on the basis of the complaint without testing its veracity. The committee cannot be permitted to proceed in such arbitrary manner and if the same is permitted, in every case at the last moment complaint can be filed and treating the same as correct without enquiring into the complaint and without giving the affected party any opportunity of hearing, each and every resolution of the Gram Sabha can be set aside. 8. In such view of the matter, we are of the opinion that the decision of the Tehsil level Committee insofar as it relates to the case of the petitioner deserves to be quashed. 9. Accordingly, this writ petition stands allowed. The decision of the Tehsil Level Committee dated 17.07.2012 insofar as it relates to the petitioner is quashed. The Tehsil Level Committee shall have to take a fresh decision in accordance with law, after getting the contents of the complaint made on 17.07.2012 verified and if necessary, after giving opportunity of hearing to the petitioner. Such decision 1370 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 would be taken as expeditiously as possible, preferably within six weeks from the date of filing of certified copy of this order before respondent No. 2Sub-Divisional Magistrate, Lalganj, district Mirzapur. 10. No order as to costs. ---------