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2009 DIGILAW 3070 (ALL)

BABU RAM SINGH v. STATE OF U. P.

2009-09-08

A.P.SAHI

body2009
Judgment Hon’ble A.P. Sahi, J.—Heard Shri G.S. Mishra, learned counsel for the petitioner, Shri Ramesh Rai, learned counsel for the respondent Nos. 6 and 7 and the learned standing counsel for the respondent Nos. 1 to 5. 2. The writ petition has been preferred questioning the order dated 29.3.2007 passed by the learned Commissioner, whereby while admitting the appeal under Clause 28 of the U.P. Scheduled Commodities Distribution Order, 2004 a stay order has been passed staying the operation of the order dated 14.3.2007 passed by the Sub-Divisional Magistrate. 3. The facts in brief are that the petitioner is a fair price shop dealer of Village Padari, Block Ranipur, Tehsil Mohammadabad, District Mau. The license of the petitioner was suspended on 12th October, 2006 calling upon him to submit his reply to the said show cause notice. The petitioner submits his reply whereafter the Sub-Divisional Magistrate concerned passed an order on 14.3.2007 restoring the petitioner’s license and allowing him to continue as a fair price shop dealer. Against the said order dated 14.3.2007 an appeal was filed by the Gram Sabha through its Pradhan on the ground that no reasons have been disclosed for accepting the explanation of the petitioner. In the said appeal a preliminary objection was raised on behalf of the petitioner that the appeal would not be maintainable keeping in view the provision of sub-clause 3 of Clause 28 of the U.P. Scheduled Commodities Distribution Order, 2004. The same is quoted herein below for ready reference. “(3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order.” 4. Learned counsel for the petitioner contends that the appeal can only be filed by the aggrieved agent and that the word “agent” is defined under Clause 2(c) of the said order, which is quoted below : “(c) “agent” means a person or a co-operative society or a Corporation of the State Government authorised to run a fair price shop under the provisions of this order;” 5. It is further submitted that without taking notice of the said preliminary objection, the learned Commissioner proceeded to pass an interim order in an incompetent appeal. 6. It is further submitted that without taking notice of the said preliminary objection, the learned Commissioner proceeded to pass an interim order in an incompetent appeal. 6. Learned counsel for the respondents have filed their counter-affidavits and it is urged on behalf of the respondent-Gaon Sabha that the Gaon Sabha is not precluded from filing any appeal and further the matter is still pending before the Appellate Authority and, therefore, such a issue should be decided therein and there is no cause for interference at this stage. 7. Learned standing counsel, on the other hand, contends that to deprive the Gaon Sabha of its right of appeal would be allowing such unscruplous persons to get away on a technical plea and therefore even otherwise the matter ought to be left open keeping in view the fact that the order of the Sub-Divisional Magistrate does not contain any reason for restoring the license of the petitioner. 8. Having heard learned counsel for the parties, the position in law is more than clear, inasmuch as, sub-clause (3) of Clause 28 clearly prescribes that an appeal shall be maintainable on behalf of an aggrieved agent. The word “agent” has also been defined under Clause 2 (c). In such a situation the Gaon Sabha cannot be said to have been conferred with a right to prefer an appeal under Clause 28. 9. It is by now well settled that an appeal is a creation of a statute and the right therein can neither be enhanced or reduced on the strength of any interpretation as suggested on behalf of the Gaon Sabha. Had the rule making authority intended to provide for an appeal on behalf of the Gaon Sabha then the words prescribing the right of appeal in sub-clause (3) of Clause 28 would have been any person instead of any aggrieved agent. 10. An appeal is provided under a statute for the correction of an error which might have crept in on account of incorrect application of law and such right of appeal has been explained by the Apex Court in the case of Sita Ram and others v. State of Uttar Pradesh, (1979) 2 SCC 656 (see paragraphs 25, 41 and 45). 11. 11. Accordingly this Court is of the opinion that where the statute is explicit and clear, and does not suffer from any ambiguity there is no scope for the Courts to read a provision which does not exist. The Gaon Sabha ought to have either filed a writ petition before this Court or could have approached a forum which may be otherwise available in law. 12. In the facts and circumstances of this case, the Gaon Sabha filed an appeal under the said provision which obviously was not maintainable before the Commissioner at the instance of the Gaon Sabha. In view of this, the interim order passed by the Commissioner on an incompetent appeal cannot be sustained. 13. The argument advanced on behalf of the respondent is that interference with the impugned order would amount to restoring an equally illegal order and therefore this Court, may refrain to do so. The aforesaid wide proposition, no doubt, is correct inasmuch as this Court would not interfere with an order merely on the ground of technicality, yet in the instant case the issue raised is as to whether the Gaon Sabha has a right of appeal under the statute or not. The right of appeal is a substantive right and is not a mere rule of procedure. In this view of the matter, it is not a mere technicality but it is consideration of a substantive right, which is involved in the present proceeding. An appeal is a creature of a statute and is not generally available unless a right to such appeal is expressly provided for. It cannot be inferred by interpretation. Accordingly, the argument advanced on this score cannot be accepted. 14. In view of the conclusion drawn herein above the order impugned and the entertainment of the appeal at the instance of the Gaon Sabha cannot be sustained. The impugned order is quashed and it is further held that the learned Commissioner had no authority to entertain the appeal on behalf of the Gram Pradhan or Gaon Sabha keeping in view the law as indicated herein above. 15. The third question is to the illegality or otherwise of the order of the Sub-Divisional Magistrate, whereby he has restored the fair price license of the petitioner. 15. The third question is to the illegality or otherwise of the order of the Sub-Divisional Magistrate, whereby he has restored the fair price license of the petitioner. It is no doubt true that while restoring the license of the petitioner the Sub-Divisional Magistrate has not withdrawn the notice whereby the petitioner has been called upon to give reply to the charges levelled against him. It was merely a revocation of the suspension and therefore the proceedings have not come to an end. 16. In such view of the matter, the petitioner shall submit his reply before the Sub-Divisional Magistrate and the Sub-Divisional Magistrate shall thereafter proceed to pass an appropriate order in accordance with the U.P. Scheduled Commodities Distribution Order, 2004 as expeditiously as possible preferably within a period of three months from the date of presentation of a certified copy before him after giving an opportunity of hearing to the Gaon Sabha as well. 17. The writ petition stands allowed subject to the observations made herein above. ————