Hon'ble Shashi Kant,J.
Heard Sri Ram Sheel Sharma, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of the respondent nos.1 to 3 and Sri Manoj Kumar Yadav, learned counsel appearing on behalf of the respondent no.4.
By means of the present writ petition, the petitioner is challenging the order dated 29.10.2014 passed by the respondent no.3, Sub Divisional Magistrate, Tehsil Machhali Shahar, district Jaunpur, whereby the claim of the petitioner for the settlement of the fair price shop, in his favour, has been declined.
It appears that for the Gram Sabha Kharuawan, one Sri Vimal Kumar was the licencee of fair price shop. His licence has been cancelled, against which appeal has been filed, which has been dismissed. Against the appellate order, Vimal Kumar filed Writ Petition No.43701 of 2014, Vimal Kumar Vs. State of U.P., which has been entertained and the respondents were directed to file counter affidavit. No interim order has been passed. When, in pursuance of the resolution, no step has been taken by the respondent no.3 to settle the fair price shop in his favour, the petitioner filed Writ Petition No.46772 of 2014, which has been disposed of on 03.09.2014 with the observation that in view of the aforesaid development that has taken place, it shall be open to the petitioner to approach the Sub Divisional Magistrate for disposal of the approval, which is pending but any orders passed by the Sub Divisional Magistrate shall be subject to the orders under Government Order dated 10.07.2014 or further order being passed by this Court in the aforesaid writ petition. After the order of this Court, the petitioner approached Sub Divisional Magistrate, Tehsil Machhali Shahar, district Jaunpur for consideration of his claim for the settlement of fair price shop. By the impugned order, the claim of the petitioner has been rejected by the respondent no.3 relying upon the Government Order dated 10.07.2014 with the observation that during the pendency of the appeal, to avoid multiplicity of the disputes, new fair price shop could not be settled and, therefore, it would not be appropriate to settle the fair price shop in favour of the petitioner in pursuance of the resolution dated 07.08.2013.
Learned counsel for the petitioner submitted that the Government Order dated 10.07.2014 is applicable only till the disposal of the appeal before the Divisional Commissioner. It is not applicable after the disposal of the appeal. In the present case, the appeal of Vimal Kumar has been dismissed. Therefore, the aforesaid Government Order is not applicable in the present case. He further submitted that recently a Government Order has been issued by the Principal Secretary on 18.11.2014 asking the Divisional Commissioners to settle the vacant shop as early as possible. He further submitted that Division Bench of this Court in the case of Vinod Kumar Vs. State of U.P. and others, reported in 2014 (8) ADJ, 1 has observed that it is open to the State, pending disposal of an appeal, to make suitable alternate arrangements either by attaching the card holders to an existing fair price shop or by allotting the fair price shop to a new licencee subject to the result of the appeal. Therefore, in view of the aforesaid decision of the Division Bench of this Court, the order of Sub Divisional Magistrate is not sustainable and is liable to be set aside.
Learned Standing Counsel submitted that let the respondent no.3, Sub Divisional Magistrate, Tehsil Machhali Shahar, district Jaunpur be directed to pass a fresh order in the light of the Government Order dated 18.11.2014 and the Division Bench decision of this Court in the case of Vinod Kumar Vs. State of U.P. and others (Supra).
We have considered the submissions and perused the record.
We find that the Government Order dated 10.07.2014 was only applicable in a case where the appeal was pending. In the present case, the appeal has already been decided and, therefore, this Government Order is not applicable in the present case. Further the Division Bench of this Court, in the case of Vinod Kumar Vs. State of U.P. and others (Supra), has held that it is open to the State, pending disposal of an appeal, to make suitable alternate arrangements, either by attaching the card holders to an existing fair price shop or by allotting the fair price shop to a new licencee, subject to the result of the appeal. Therefore, there is no impediment now in settling the fair price shop in favour of the petitioner in pursuance of the resolution passed by the Gram Panchayat on 07.08.2013.
In view of the above, the writ petition is allowed. Order dated 29.10.2014 passed by the respondent no.3, Sub Divisional Magistrate, Tehsil Machhali Shahar, district Jaunpur is set aside and the matter is relegated to the respondent no.3 to consider the claim of the petitioner, expeditiously, preferably within a period of two weeks from the date of presentation of the certified copy of this order, in the light of the observation and direction given above, in accordance to law.
Order Date :- 1.12.2014 R./