Court No. - 10
Case :- WRIT - C No. - 26239 of 2018 Petitioner :- Azmat Respondent :- State Of U P And Another Counsel for Petitioner :- Brijesh Kumar Pandey Counsel for Respondent :- C.S.C.,Rajesh Kumar Mishra
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri B.K. Pandey, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
The petitioner is before this Court assailing the validity of the order impugned dated 22.5.2018 passed by the second respondent, Sub Divisional Magistrate, Tehsil Sadar, District Rampur, by which he has cancelled the fair price shop of the petitioner.
Earlier, the matter was taken up on 2.8.2018 and on the said date, the Court had proceeded to pass following order:-
"Heard learned counsel for the parties and perused the record.
The brief facts giving rise to this petition are that the petitioner has filed a detailed reply and pursuant to the reply being filed, the petitioner preferred a writ petition. Order dated 30.11.2017 is the order of this Court. Pursuant to the appeal, the appeal preferred by the petitioner has been partly allowed and the order of cancellation has been quashed. The order came to be served on respondent No.2 on 22.2.2018. Instead of restoring the license and following the orders of both the authorities and despite the fact that supply inspector gave a report in favour of the petitioner on 10.4.2018, the order of cancellation was set aside. The petitioner has again filed writ petition being Writ Petition No.17950 of 2018 (Azmat Vs. State of U.P. and Others) and vide order dated 18.5.2018 a report which was back dated was prepared and on 22.5.2018 an order was passed whereby the report dated 10.4.2018 which was infavour of the petitioner was superseded. There are certain lapses in the subsequent order also which shows that because the petitioner has approached this Court, the respondents are taking hyper technical stand. This high handed action goes to show that the respondents are not following the proper procedure of law.
The order impugned shall remain stayed as it appears that it is nothing else but over reaching the High Court's order. It is clear that the earlier report was in favour of the petitioner and just because the petitioner had approached this Court and directions were given, a high handed action is taken by the respondent herein.
The respondent No.2 who has passed the impugned order dated 22.5.2018 shall personally file an affidavit explaining all the circumstances as to how he has taken a contrary view than the report submitted.
List on 17.8.2018."
In compliance of the aforesaid order, an affidavit of Dr. Rajesh Kumar, posted as Sub Divisional Magistrate, Tehsil Sadar, District Rampur has been filed.
On the matter being taken up today, learned Standing Counsel appearing for the respondents has raised objection regarding maintainability of the writ petition on the ground that the present writ petition has been preferred by concealment of material fact. Admittedly, the order impugned has been subjected to challenge in Appeal No.01223 of 2018, Computerized Case No.C-201813000001223 under Section 28 of U.P. Scheduled Commodities Distribution Order, 2004 and the same has been entertained by the Commissioner, Moradabad Division, Moradabad on 1.8.2018. Even thereafter the matter was listed on various occasions and at no point of time the petitioner has apprised to the Court regarding pendency of the appeal. Two simultaneous proceedings cannot be permitted to go on and the writ petition is liable to be dismissed with exemplary cost on the ground of concealment of material facts.
Confronted with this situation, learned counsel for the petitioner very fairly states that while filing the present writ petition at no point of time the petitioner has apprised him regarding pendency of the aforesaid appeal. The request has been made for issuing direction to the Appellate Authority to decide the appeal in question within stipulated time.
In view of the above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally with a direction to the Commissioner, Moradabad Division, Moradabad to decide the aforesaid appeal by a speaking order within a period of three months from the date of production of a certified copy of this order before him.
Order Date :- 30.11.2018 RKP