Court No. - 10
Case :- WRIT - C No. - 41364 of 2019
Petitioner :- Ram Veer Yadav
Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Suneel Kumar Rai Counsel for Respondent :- C.S.C.,Brij Kumar Yadav,Rajesh Kumar Yadav
Hon'ble Mrs. Sangeeta Chandra,J.
1) Supplementary affidavit, in terms of the earlier order dated 16.12.2019, filed today is taken on record.
2) Heard the learned counsel for the petitioner.
3) The petitioner is aggrieved by the orders dated 24.08.2019 and 05.10.2019 passed by the respondent nos.2 & 3 respectively.
4) It has been argued that the petitioner is a complainant and on his complaint an Inquiry was made with regard to the distribution of essential commodities by the respondent no.5, the Fair price shop Licensee of Village Bhulahar, Shabajpur, District Auraiya.
5) The Fair Price Shop of the respondent no.5 being suspended an inquiry was conducted thereafter. But all of a sudden, on 22.12.2017 the SDM, revoked the suspension and restored the supply. The petitioner thereafter, approached this Court in Writ Petition No.9835 of 2018 and this Court passed an order on 16.03.2018 setting aside the order dated 22.12.2017, by observing that the definition of family included the Licensee himself, his wife, his son, the mother, father, brother and unmarried daughters and there is a complete prohibition for such family members from continuing as Licensee and also those members or relatives who lived under the same roof and enjoyed food cooked from the same Kitchen. This Court relied upon the Division Bench judgment in Shiv Kumar Vs. Up-Ziladhikari Chakiya, District Chandauli and 4 Others decided on 20.08.2014 by this Court, by which this Court clarified the judgment rendered by the Division Bench in Indrapal Singh Vs. State of U.P. and Others reported in 2006 (5) ADJ 396.
6) The respondent no.5 filed a Special Appeal No.346 of 2018 against such order which was entertained and it was directed that till the next date of listing the parties shall maintain status-quo. The Special Appeal is still pending.
7) In the meantime, on 20.03.2018 the Fair Price Shop of respondent no.5 was attached with shop of Prem Narayan. Later on, it was attached with another Licensee namely Manju Devi.
8) The order dated 16.03.2018 has not been set aside or stopped by any Court. Only a direction has been issued to maintain status-quo till the next date of listing.
9) The suspension order having been revoked by the Sub Divisional Magistrate on 22.12.2017 the Writ Court had set aside the said order and therefore, the suspension order stood revived.
The respondent nos.2 & 3 ignoring the directions of this Court in Writ Petition No.9835 of 2018 in its order dated 16.03.2018 have passed the impugned order on 24.08.2019 restoring the Fair Price Shop of the respondent no.5.
10) It appears that the respondent no.5 thereafter, filed a Writ-C No.33151 of 2018 against the suspension order which was dismissed as not pressed on 01.10.2018 with a direction to the petitioner to approach the Commissioner in Appeal. The Respondent no.5, thereafter, filed an Appeal before the Commissioner against the suspension order and came to this Court in Writ- C No.23357 of 2019 praying for expeditious disposal of his Appeal which was pending since 22.10.2018. This Court without entering into the merits of the case, disposed of the writ petition on 19.07.2019 with a direction to the Appellate Authority to decide the Appeal within a period of one month from the date of production of certified copy of the order.
11) It appears that thereafter the Appeal of the petitioner has been allowed against the suspension order by the Appellate Authority. The Fair Price Shop of the respondent no.5 was restored, thereafter by the S.D.M. on 05.10.2019. Against the order passed by the Appellate Authority dated 24.08.2019 and the order dated 05.10.2019 passed by the S.D.M., this petition has been filed by the complainant.
12) This Court has perused the order passed by the Appellate Authority on 24.08.2019. A report was summoned from the Tehsil concerned wherein it was reported that when the Respondent no.5 was working as Fair Price Shop Licensee, his son was elected as Gram Pradhan, they were not having food from the same food cooked in the same kitchen, and therefore, there was no violation of Clause 4 (7) of the Government Order No.3967/03/07/19. Moreover, at the time of deciding of the Appeal the appellant's son no longer was the Pradhan as his election had been set aside by the Prescribed Authority.
13) The Appellate Authority observed that a false case had been registered against the appellant/Respondent no.5. It was also observed that by the Appellate Authority that in the Special Appeal No.346 of 2018, the Division Bench had directed the status-quo to be maintained and therefore, the appellant's license which remained suspended, was restored on 14.06.2018. A Contempt Petition was filed thereafter by the petitioner Shri Ram Veer Yadav namely Contempt Petition No.3642 of 2018, the SDM on being issued notice by the Court had passed an order dated 31.08.2018 recalled his order dated 14.06.2018.
14) The Appellate Authority while considering the Appeal observed that since the Respondent no.5 was not having food from the same kitchen as that of Gram Pradhan, there was no violation of Government Order dated 03.07.1990. The Appeal was allowed by observing that it was in respectful compliance of the order passed by this Court on 12.07.2019.
15) There is no order dated 12.07.2019 but there is a order dated 14.07.2019 in Writ-C N0.23357 of 2019 which only directs the Appellate Authority to decide the Appeal within a period of thirty days.
16) A preliminary objection has been raised by the learned counsel for the respondent no.5 regarding maintainability of the petition on the ground that it has been filed by the complainant and the complainant has no right to be heard.
17) Learned counsel for the petitioner has placed reliance upon a Co-ordinate Bench decision in Writ-C No.43188 of 2017 Akhlaq Vs. State of U.P. and three Others decided on 05.02.2019 where a judgment rendered by the Hon'ble Supreme Court in Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Others reported in AIR 2013 SC 58, it has been held by the Co-ordinate Bench that in ordinarily circumstances, a third person does not have locus-standi but in exceptional circumstances if actual persons aggrieved because of ignorance, illiteracy, in articulation of poverty, are unable to approach the Court and he is the person who has no personal agenda, or object in relation to which, he can grind his own axe, approaches the court, then the Court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the Court, requires consideration, the Court may proceed suo-motu, in such respect. The petitioner has raised a valid ground for challenging the orders passed by the respondents.
18) This Court has perused the order impugned. The order dated 24.08.2018 is completely vitiated in law as this Court in its order dated 16.03.2018 in Writ-C No.9835 of 2018 Ram Veer Yadav Vs. State of U.P. and three Others had clarified the situation on the basis of law settled by the Division Bench in Writ-C No.40973 of 2014 Shiv Kumar Vs. Zulfikar, District Chandauli and four others decided on 20.08.2014. The Division Bench had held that the Government Order dated 03.07.1990 had included within the definition of family, the Licensee himself, wife, son, mother, father, brother and unmarried daughter. A Gram Pradhan, his wife, son, mother, father, brother and unmarried daughter were included in immediate family and there was a complete prohibition for such family members. Prohibition extended to those relatives also who lived under the same roof and enjoyed food cooked from the same kitchen. The respondent no.5 was the father of current Gram Pradhan and could not continue as licensee of the Fair Price Shop. Consequently, the order passed by the SDM on 05.10.2019 being passed on the basis of order of the Additional Commissioner is also vitiated in law and is also set aside.
19) It has been submitted by the learned counsel for the respondent no.5 that the election of the son of respondent no.5 was challenged and has been set aside as he has been found under age by the Prescribed Authority by an order dated 13.05.2019 and therefore, the respondent no.5 may continue to operate the Fair Price Shop License granted to him earlier.
20) The submission made by the learned counsel for the respondent no.5 is inappropriate as the rights of the parties crystallized at the time a cause of action arose.
The respondent no.5 was the sitting Fair Price Shop Licensee when his son became Gram Pradhan and his Fair Price Shop license was thereafter suspended on the basis of the Clause 4.7 of the Government Order dated 03.07.1990. Against the revocation of the suspension order, the complainant had come to this Court in Writ Petition and this Court had clarified the position in law as settled by the Division Bench in Shiv Kumar (Supra) taking into account the Full Bench decision in Indrapal Singh Vs. State of U.P. and Others (Supra).
21) Writ petition stands allowed. The orders impugned dated 24.08.2019 and 05.10.2019 passed by the respondent nos.2 & 3 The Additional Commissioner, Kanpur Division, Kanpur and Sub Divisional Officer, Tehsil-Bidhuna, District Auraiya respectively are set aside.
22) It is clarified that this order passed in the instant petition, shall be subject to the final order passed in Special Appeal by the Division Bench.
Order Date :- 20.12.2019 PAL