Heard Mr. Ram Ji Trivedi, learned counsel for the petitioner as well as the learned Standing Counsel for opposite party nos.1 to 3 and Mr. Ashok Kumar Singh, learned counsel appearing for the opposite party no.5.
The writ petition has been filed challenging the order dated 21.8.2018 passed by the Joint Commissioner (Food), Lucknow Division, Lucknow, a copy of which is annexed as Annexure No.1 to the writ petition and the impugned order dated 2.8.2018 passed by the Up Ziladhikari, Sandila, District Hardoi, a copy of which is annexed as Annexure No.2 to the writ petition to the effect that the fair price shop license of the petitioner has been cancelled and the appeal preferred thereafter has been dismissed.
Learned counsel for petitioner submits that the opposite parties in a most arbitrary and illegal manner have cancelled the fair price shop license of the petitioner on the ground that he is a subsequent allottee and once the fair price shop license of opposite party no.5-Bhagwan Deen was restored, he has no right to hold the license. The appeal preferred has also been dismissed without properly considering the correct facts of the case.
Submission is that the petitioner is not a subsequent allottee. The allotment of fair price shop license of the petitioner dated 16.2.2018 clearly indicates that he was given the fair price shop license on the vacancy having been created over the fair price in question pursuant to the death of the then allottee Smt. Sushila Devi. The allotment order also indicates that a condition was put that in case any order is passed in favour of the dependents of the deceased licensee Smt. Sushila Devi that shall be final and allotment of fair price shop license of the petitioner shall be subject to any such order.
It is contended that in the allotment order dated 16.2.2018 there was no mention with respect to the allotment of fair price shop license in favour of opposite party no.5 and as such it cannot be treated that the petitioner is a subsequent allottee to the allotment of fair price shop license which was done earlier in favour of opposite party no.5.
Mr. Ashok Kumar Singh, learned counsel for the opposite party no.5 submits that the opposite party no.5 was the original allottee of the fair price shop in question. He was allotted the fair price shop license in the year 2005, the same was, however, suspended on the alleged irregularities vide order dated 13.11.2005. The fair price shop license of opposite party no.5 was subsequently cancelled against which the opposite party no.5 had preferred an appeal before the Commissioner (Food), Lucknow Division, Lucknow which was dismissed. The writ petition preferred thereafter was also dismissed.
It is also submitted that in this regard an F.I.R. under Section 3/7 E.C. Act and Section 420 I.P.C. was lodged against the opposite party no.5 and a criminal case was registered on the basis of the said F.I.R. In the meantime, the allotment of fair price shop was made in favour of one Smt. Sushila Devi wife of Ram Dayal vide order dated 18.5.2007. After the death of Smt. Sushila Devi the name of the petitioner was recommended for allotment of fair price shop license by the Gram Panchayat and he was given the fair price shop license vide order dated 16.2.2018.
It is submitted that in the meantime, the opposite party no.5 was acquitted in case Crime No.865 of 2005 under Section 3/7 E.C. Act and Section 420 I.P.C. The opposite party no.5 after his acquittal in the aforesaid case had moved an application before the Up Ziladhikari for restoration of his fair price shop license as the charges levelled against him were not been found proved and he was acquitted by the criminal court. The competent authority vide order dated 14.1.2013 had restored the fair price license of the opposite party no.5, however the said order was withdrawn by the Up Ziladhikari vide order dated 29.3.2014. Against the said order the opposite party no.5 had filed the Writ Petition no.4155 (M/B) of 2014. The Division Bench of this Court vide order dated 14.10.2015 had permitted the petitioner to withdraw the writ petition with liberty to file appeal before the competent authority. The opposite party no.5 had thereafter preferred an appeal before the opposite party no.2-Joint Commissioner (Food), Lucknow Division, Lucknow. The said appeal has been allowed by the impugned order and the appellate authority has directed the Up Ziladhikari to pass a fresh order in accordance with law. It was thereafter that the Up Ziladhikari, Sandila, Hardoi has directed the District Supply Officer to submit the report after obtaining advise from the D.G.C.(Civil), Hardoi and it was thereafter that the opposite party no.5 was allotted the fair price shop in question vide order dated 2.8.2018, treating him to be the original allottee and finding the petitioner as a subsequent allottee.
Learned Standing Counsel appearing for the opposite party nos. 1 to 3 has supported the contention raised by counsel for the opposite party no.5 and has submitted that the petitioner being the subsequent allottee has no right to claim the allotment of fair price shop in question once the license of fair price shop of opposite party no.5 has been restored. It is also submitted that the Writ Petition No.8365 (M/S) of 2018 preferred by the petitioner earlier was dismissed on the ground that the allotment of fair price shop in question was an independent allotment and the petitioner being the subsequent allottee has no right to challenge the impugned order.
I have considered the submissions made by learned counsel for the parties and gone through the records.
As per the given facts of the case as borne out from the records, the fair price shop license was initially granted in favour of opposite party no.5-Bhagwan Deen in the year 2005. The license of opposite party no.5-Bhagwan Deen was suspended vide order dated 13.11.2005 and subsequently it was cancelled vide order dated 25.5.2006. The appeal preferred against the said order was dismissed and the Writ Petition No.2352 (M/S) of 2007 preferred thereafter by the opposite party no.5-Bhagwan Deen was also dismissed. It is also borne out from the records that the Case Crime No. 865 of 2005 under Section 3/7 E.C. Act and Section 420 I.P.C. was registered against the opposite party no.5 and on the basis of the charge sheet a criminal case was proceeded against the opposite party no.5. In the said criminal case the opposite party no.5 was acquitted vide judgment and order dated 23.5.2009. In the meanwhile, one Smt. Sushila Devi was allotted the fair price shop in question. Smt. Sushila Devi had died and a vacancy was created. Against the said vacancy the petitioner was given the fair price shop license vide order dated 16.2.2018. After acquittal of opposite party no.5 in the aforesaid criminal case he had moved an application before the Up Ziladhikari, Sandila, Hardoi for restoration of his fair price shop license. The Up Ziladhikari, Hardoi vide order dated 14.1.2013 restored the fair price shop license of opposite party no.5 and the license of subsequent allottee Smt. Sushila Devi was cancelled, however thereafter vide order dated 29.3.2014 the Up Ziladhikari withdrew the order dated 14.1.2013.
The opposite party no.5 feeling aggrieved thereafter filed the Writ Petition No.4155 (M/B) of 2014. The said writ petition was allowed by the Court to be withdrawn with liberty to file the appeal. The opposite party no.5 thereafter filed the appeal before the opposite party no.2. The opposite party no.2 thereafter vide impugned order dated 21.2.2018 allowed the appeal and quashed the order dated 29.3.2014. It was thereafter that the fair price shop of opposite party no.5 was restored vide order dated 2.8.2018. The petitioner has also challenged the order dated 2.8.2018 by filing the Appeal No.01954 of 2018 before the Joint Commissioner (Food), Lucknow Division, Lucknow which was dismissed being not maintainable vide order dated 21.8.2018. The instant writ petition has been filed thereafter before this Court by the petitioner.
It is the admitted fact that for the fair price shop in question the license was originally given in favour of opposite party no.5. After cancellation of fair price shop license of opposite party no.5 it was subsequently given in favour of Smt. Sushila Devi and after the death of Smt. Sushila Devi the fair price shop license was allotted in favour of the petitioner.
It is also the admitted fact that in the criminal case lodged against the opposite party no.5 under Section 3/7 E.C. Act and Section 420 I.P.C., the opposite party no. 5 was acquitted vide judgment and order dated 23.5.2009. After the acquittal of opposite party no.5 the Up Ziladhikari vide order dated 14.1.2013 had restored the fair price shop license of opposite party no.5. The said order was, however, withdrawn vide order dated 29.3.2014. The opposite party no.5 challenged the order dated 29.3.2014 by filing the Appeal No.C-201710000002923. The said appeal was allowed vide order dated 21.2.2018 and thereafter the fair price shop license of opposite party no.5 was restored vide order dated 2.8.2018. It appears that subsequent allottee Smt. Sushila Devi had died and after her death the fair price shop license for the shop in question was given in favour of the petitioner vide order dated 16.2.2018.
It is to be noted that the fair price shop license of opposite party no.5 was restored vide order dated 2.8.2018. The appeal preferred by the petitioner against the said order has been dismissed. The petitioner has been allotted the fair price shop license only on the basis of the vacancy created on the death of Smt. Sushila Devi who was a subsequent allottee subsequent to the cancellation of fair price shop license of opposite party no.5. As such the petitioner for all purposes was a subsequent allottee and cannot be said to have independent right to get allotment of fair price shop license. Once the fair price shop license of opposite party no.5 was restored it cannot be said that the petitioner can continue to hold the license of fair price shop in question. The competent authorities have taken the decision to restore the fair price shop license of opposite party no.5 and, as such, the petitioner cannot have any claim over the fair price shop in question.
The writ petition being devoid of merits is dismissed.
The orders impugned in the instant writ petition are upheld.
Order Date :- 29.8.2019 Arjun/-