(1) Heard the learned counsel for the petitioner and Shri Piyush Shrivastava who appears for the contesting respondent no.4 and perused the record.
(2) It is the case of the petitioner that the contesting respondent no.4 had applied for allotment of Fair Price Shop License on compassionate grounds on 26.10.2018 after the death of the erstwhile Licensee on 22.07.2018. The claim of the respondent no.4 was rejected by the S.D.M. on 25.08.2019 on the ground that the respondent no.4 was not educated and therefore, could not maintain the account and run the Fair Price Shop in question properly if the same is allotted to her. The Respondent no.4 filed an Appeal against the order dated 25.08.2019 in the court of Commissioner, Prayagraj Division on 24.12.2019 and the same was transferred to the court of Joint Commissioner (Food), Prayagraj Mandal, Prayagraj. The Appellate Authority allowed the Appeal and remanded the matter to the S.D.M. to consider afresh. In pursuance of such order, the S.D.M. has allotted the Fair Price Shop in question to the respondent no.4 in fact she has three sons who are in Government employment and after the rejection of the claim of the respondent no.4 earlier recommendation was made in favour of the petitioner by the Gaon Sabha in the Open General Meeting the grandson of Rajaram the erstwhile Licensee and respondent no.4 had also contested. The Appeal was filed after four months of the recommendations made by the Gaon Sabha through Open General Meeting in favour of the petitioner without impleading the petitioner and without hearing him the Commissioner has passed the order on the basis wherefor the S.D.M. has considered the case of the respondent no.4 afresh and passed the impugned order.
(3) This Court has considered the language of Paragraph-13 of U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016. Sub Clause-1 of the Paragraph-13 of the order provides for an Appeal against the appointment, Suspension and Cancellation of Fair Price Shop License by the Competent Authority before the Divisional Commissioner. The order dated 25.08.2019 passed by the S.D.M. was not an order of appointment of a Licensee. It was also not an order for suspending the license or of cancelling the Fair Price Shop license of a licensee. It was an order passed on application moved by the respondent no.4 for allotment of Fair Price Shop to her own compassionate ground as her husband Rajaram had died on 22.07.2018.
(4) The Appeal was entertained without jurisdiction and the order passed by the Commissioner being nullity the order passed by the S.D.M. in compliance of the said order passed by the Joint Commissioner (Food) also become vitiated. The order dated 02.07.2021 is set aside. The petitioner shall be allowed to lift the essential commodities in terms of the earlier allotment order made in his favour, in pursuance of the recommendations made in his favour in the Open General Meeting of the Gaon Sabha.
(5) The writ petition stands allowed.
Order Date :- 17.8.2021 PAL