Hon'ble Ashok Bhushan, J. - (1.) HEARD Sri Ashish Kumar Srivastava, learned counsel for the petitioner, Sri H.N. Shukla learned counsel appearing for respondent No. 7 and the learned Standing Counsel.
(2.) COUNTER and rejoinder-affidavits have been exchanged and the writ petition is being finally decided by consent of the learned counsel for the parties. By this writ petition, the petitioner has prayed for quashing the order dated 14th March, 2011 passed by the Sub-Divisional Officer appointing respondent No. 7 as second fair price shop dealer in the Gram Panchayat Kamhariya Bujurg. Brief facts, which emerge from pleadings of the parties, are; the Sub- Divisional Officer wrote a letter dated 24th January, 2011 to the Block Development Officer for obtaining a resolution of the Gram Panchayat for appointment of fair price shop dealer in view of the fact that number of units in the village are more than 4000. The petitioner made an application dated 5th February, 2011 to the Sub-Divisional Officer praying that he is also an applicant for fair price shop. One Subhawati and Mohd. Ali also made similar applications. A resolution dated 9th February, 2011 was passed by the Gaon Sabha in favour of respondent No. 7. Against the resolution dated 9th February, 2011 complaint was filed by the petitioner on which a report was obtained by the Sub-Divisional Officer from the Block Development Officer, who submitted report dated 20th February, 2011 that resolution has been passed in accordance with the procedure prescribed. The Sub-Divisional Officer issued order dated 14th March, 2011 appointing respondent No. 7 as fair price shop dealer. This writ petition has been filed challenging the aforesaid order.
(3.) LEARNED counsel for the petitioner, challenging the order, has contended that respondent No. 7 is the wife of brother of present Pradhan of the village, hence she was disqualified to be appointed as fair price shop dealer in view of the Government order dated 3rd July, 1990. It is submitted that respondent No. 7 being disqualified allotment in her favour is illegal and is liable to be set-aside. He further submits that brother's wife is also included within the definition of family as contemplated under paragraph 4.7 of the Government order dated 3rd July, 1990. LEARNED counsel for the petitioner also submits that there was no proper Munadi for the meeting of the Gaon Sabha, hence the order deserves to be set-aside. Sri H.N. Shukla, learned counsel appearing for respondent No. 7, refuting the contention of counsel for the petitioner, has submitted that brother's wife of Pradhan is not included in the definition of family as mentioned in paragraph 4.7 of the Government order dated 3rd July, 1990. He submits that only members who are prohibited allotment of fair price shop are; self, wife, son, unmarried daughter, mother, father and brothers. He submits that respondent No. 7 being brother's wife is not covered by the prohibition and the allotment in her favour is valid and is in accordance with law. Sri Shukla further submits that the husband of respondent No. 7 has been living separately from his brother who is Pradhan of the village for the last more than 15 years and both the brothers have separate kitchen, hence prohibition is not applicable on the respondent No. 7. It is further submitted that resolution was passed after proper Munadi and respondent No. 7 received 710 votes as compared to 241 votes received by one Saifullah.;