Court No. - 39
Case :- WRIT - C No. - 11464 of 2009 Petitioner :- Raj Bahadur Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.C. Kishan Srivastava,Kailash Nath Singh Counsel for Respondent :- C.S.C.,Anuj Kumar,R.N. Yadav,Ram Raj
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Kailash Nath Singh, learned counsel for the petitioner, R.N. Yadav, learned counsel for the respondent no.7 and the learned Standing Counsel for the State respondents. No one appears on behalf of respondent nos. 1,2,3 and 5. No one appears for the respondent no.6, even through the notice has been accepted by Sri Anuj Kumar, learned Counsel for Gaon Sabha.
The petitioner in the writ petition is seeking quashing of the order dated 13.02.2009 whereby his fair price shop has been allotted to the respondent no.7.
At the admission stage this Court had recorded the facts and passed the following order:-
"The petitioner was running a fair price shop duly allotted to him in gaon Sabha Sikandra, Pargana Haveli, Tehsil Sadar District jaunpur. His agreement to run fair price shop was cancelled on 11.02.2008. Against that petitioner has filed an appeal before Food Commissioner, Varanasi Division, Varanasi being Appeal No. 94 of 2008 (Raj Bahadur Vs. State of U.P. and others).
The said appeal was allowed on 17.01.2009 and the impugned orderdated 11.02.2008 cancelling the fair price shop of the petitioner was set aside and positive directions was given to the Sub Divisional Officer concerned to restore the shop of the petitioner.
Learned counsel for the petitioner submits that the copy of the order passed by Deputy Food Commissioner, Varanasi Division, Varanasi was served on respondent no.3 but the respondent no.3 instead of complying the order passed by Deputy Food Commissioner, Varanasi Division, Varanasi has allotted the shop in favour of respondent no.7 stating that the shop is reserved for scheduled caste.
Prima facie we are of the view that once the cancellation of agreement to run the fair price shop of the petitioner was set aside and direction was given to restore the shop of the petitioner, there was no occasion to allot the sho belonging to petitioner to respondent no.7 as the vacancy occurred after the cancellation of the petitioner's shop and once the appeal has been allowed there was no scope to treat the shop as vacant."
Briefly stated the facts of the case are that the petitioner was running a fair price shop in the Gaon Sabha Sikandra, Pargana Haveli, Tehsil Sadar District-Jaunpur. His agreement to run the fair price shop was cancelled by an order dated 11.02.2008. Aggrieved, the petitioner filed an appeal before the Additional Commissioner Food, Varanasi Division, Varanasi being appeal no. 94 of 2008 (Raj Bahadur Yadav Vs. State of U.P. & others). The said appeal was allowed on 17.01.2009 Annexure no.4, to the writ petition. However, during the pendency of the case of the petitioner before the appellate authority the shop was allotted to the respondent no.7. Admittedly the respondent no. 7, is a subsequent allottee but when the appeal of the petitioner stood allowed by the order dated 17.01.2009 and his licence was restored by the appellate authority, he would be entitled to run the fair price shop as before.
Shri R.N. Yadav, learned counsel for the respondent no.7, on the other hand submitted that the shop in question was validly allotted to him and, therefore, he is entitled to run the same. Although no counter affidavit has been filed in the case by the State Government but the learned Standing Counsel on the basis of several judgements of this Court submits that it has already been held by this Court that a subsequent allottee does not acquire any valid right, if the proceeding initiated for cancellation of the fair price shop licence is allowed by the Sub Divisional District Supply Officer/District Magistrate or in the appellate proceedings. The judgements cited by the learned Standing Counsel are as under:-
1. WRIT - C No. - 37129 of 2018 (Neelam Devi Vs. State of U.P. & Others) decided on 13.11.2018.
2. WRIT - C No. - 38061 of 2018 (Rama Shankar Nishad Vs. State of U.P. & Others) decided on 20.11.2018.
Even otherwise once the petitioner's appeal has been allowed and the cancellation of his licence has been set aside, his fair price shop has to be restored to him and the order of the appellate authority has to be respected and the respondent no. 7, cannot insist on any ground whatsoever that merely because the allotment has been made in his favour during the pendency of proceedings against the petitioner, he should be allowed to continue in the shop in question. The respondent no.7, is a subsequent allottee and has absolutely no right to continue to run the fair price shop once the petitioner's appeal has been allowed and his licence to run the fair price shop has been restored. The impugned order ignores the effect of the order of the appellate authority and is based merely upon the opinion of the D.G.C. Civil, on the premise that the shop was vacant. The impugned order fails to notice that the shop was vacant only because the licence of the petitioner had been cancelled and the matter was still subjudice before the appellate authority. We accordingly, set aside the impugned order dated 13.02.2009.
The writ petition is allowed.
Order Date :- 29.11.2018 Rahul.