- (1.) Heard Sri Manoj Kumar Singh, along with Sri Pramod Kumar, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Tariq Maqbool Khan, learned counsel for the gaon sabha. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 30.8.2016 passed by the Sub Divisional Officer, Rudrapur, District - Deoria, by which the Sub Divisional Officer has required the Block Development Officer, Rudrapur, District - Deoria to get a fresh resolution passed in the open meeting of the Gaon Sabha with respect to the selection of fair price shop agent of Village - Kuraiti, Rudrapur, District - Deoria amongst reserved category candidate. While assailing this order, learned counsel for the petitioner submits that the earlier resolution was made in favour of the petitioner in the open meeting of the gaon sabha and the same was forwarded to the Sub Divisional Officer, but before it could be approved, it appears, one Sri Anwarul Hasan (respondent no. 6 herein) has made complaint before the District Magistrate, Deoria regarding irregularities committed in the open meeting of the gaon sabha and the complaint was forwarded to the Sub Divisional Officer. The Sub Divisional Officer has returned the paper along with the complaint for passing a fresh resolution.
(2.) The submission is that before passing this order, the Sub Divisional Officer or the District Magistrate ought to have applied their mind and inquired about the correctness of the complaint and without arriving at the finding that the complaint is genuine or not, no order could be passed for holding a fresh meeting of the gaon sabha for getting the resolution passed for appointment of fair price shop agent amongst the reserved category candidate. Learned standing counsel as well as counsel for the gaon sabha have vehemently contended that merely by passing a resolution, no right has been accrued in favour of the petitioner petitioner and the writ petition is not maintainable. I have heard the learned counsel for the parties and perused the records. It is not in dispute that appointments of fair price shop agents are being made only in accordance with the Government Orders dated 3.7.1990 and 17.8.2002 and in both the Government Orders, there is a consistency with regard to the procedure of selection / election of the Village Panchayat, i.e., in the open meeting of the gaon sabha. After 73rd Amendment of the Constitution, the Village Panchayats have attained the position of the constitutional functionaries and once, something is done in the open meeting of the gaon sabha, then that has got legal sanctity and that legal sanctity cannot be disturbed or superseded without there being effective application of mind. Here, in this case, the resolution was passed in the open meeting of the gaon sabha in the supervision of the government authorities and after examining the factum and correctness of the same, the matter was forwarded by the Block Development Officer to the Sub Divisional Officer/Committee for approval, issuance of appointment letter and execution of the agreement, etc., but before the Sub Divisional Officer / Committee could consider the resolution, it appears, the Sub Divisional Officer without applying his mind returned the papers before the Block Development Officer for getting a fresh resolution.
(3.) In the submission of learned counsel for the petitioner, this could not be done and the factum of the complaint was to be ascertained and inquired about before returning the same to the Block Development Officer for getting a fresh resolution. I find substance in the submissions of learned counsel for the petitioner, as return of the papers would amount to disapproval of the proposal. The Apex Court in the case of Sahodara Devi and Others Vs. Govt. of India and Another, 1971 AIR(SC) 1599 has held that once the authority has been conferred upon the power of approval / disapproval, then mind has to be applied and reason has to be recorded. A Division Bench of this Hon'ble Court, almost in the identical circumstance, in Gainda Devi Vs. State of U.P. and Others, 2012 11 ADJ 717 has observed as under: "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 level Committee insofar as it relates to the case of the petitioner deserves to be quashed. ";