Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2425 (ALL)

Indrawati Devi v. State of U. P. and Others

2012-10-12

DILIP GUPTA

body2012
Dilip Gupta, J.— This petition seeks the quashing of the order dated 1st December, 2011 passed by the Commissioner, Basti Division Basti by which the appeal filed by respondent No.5-Vinod Kumar against the order dated 25th May, 2011 passed by the Sub-Divisional Magistrate for cancellation of the fair price shop license of respondent No.5 has been allowed. 2. It is submitted by learned counsel for the petitioner that in view of clause 4.7 of the Government Orders dated 3rd July, 1990 and the Government Order dated 18th July, 2002, respondent No.5-Vinod Kumar could not have continued as a licensee of a fair price shop since his brother had been elected as a Gram Pradhan of the village. It is, therefore, his contention that the Commissioner committed an illegality in allowing the appeal filed by respondent No.5-Vinod Kumar against the order passed by the Sub-Divisional Magistrate for cancellation of the fair price shop license of respondent No.5. 3. Sri C.P. Mishra, and Sri Ali Hasan, learned counsel appearing for respondent No.5, however, have raised a preliminary objection that the petitioner was a complainant and, therefore, does not have a locus to maintain the writ petition and in support of their contention they have placed reliance upon the Division Bench judgment of this Court in Dharam Raj Vs. State of U.P. & Ors. report in 2009 (108) RD 689. Learned counsel for the respondents have also submitted that even otherwise, the fair price shop license of respondent No.5 could not have been cancelled under clause 4.7 of the Government Orders inasmuch as there was no material before the authorities to come to the conclusion that respondent No.5 and his brother were residing in the same house and food was being cooked in one kitchen. 4. Learned counsel for the petitioner has, however, submitted that the petitioner, as a complainant, has the locus to file the writ petition because she is a person "aggrieved" since has no other alternative forum available to her. It is contended that it is on the basis of the complaint filed by the petitioner that the proceedings were initiated by the Licensing Authority and ultimately the license was cancelled. Learned counsel for the petitioner has placed before the Court the order passed by the Appellate Authority to point out the alleged illegalities. 5. I have considered the submissions advanced by learned counsel for the parties. 6. Learned counsel for the petitioner has placed before the Court the order passed by the Appellate Authority to point out the alleged illegalities. 5. I have considered the submissions advanced by learned counsel for the parties. 6. The Division Bench of this Court in Dharam Raj (supra) examined in detailed whether a complainant is a person "aggrieved" has the locus to assail the order passed by the Appellate Authority for annulling the order passed by the Licensing Authority and has held that the complainant is not a person "aggrieved" and does not have the locus to assail the order. 7. A learned Judge of this Court in Writ Petition No.40626 of 2010 (Lala Ram Maurya Vs. State of U.P. & Ors.) also dismissed the writ petition on 15th July, 2010 holding that the Appeal filed by the complainant against the order passed by the Licensing Authority is not maintainable. The same view was taken by a learned Judge in Kapil Dev Yadav Vs. State of U.P. & Ors. reported in 2011 (9) ADJ 666 . 8. Thus, in view of the decision of the Division Bench of this Court in Dharam Raj (supra), it is not possible to accept the contention of the learned counsel for the petitioner that the complainant is a person "aggrieved" and has a locus to maintain the writ petition. 9. It also needs to be noticed that the Government Orders dated 3rd July, 1990 and 18th July, 2002 have been interpreted by the Division Bench of this Court in Ram Murat Vs. Commissioner, Azamgarh Division Azamgarh & Ors., 2006(4) AWC 3419 and while dealing with clause 4.7 observed:- "22. The effect of the above finding is that the disqualification for grant of fair price shop licence as well as the provisions for cancellation of the licence shall per se apply where the licence holder himself or his wife, son, unmarried daughter, mother and father have been elected as Pradhan or Up-Pradhan, but if any brother of the licence holder or his any other relation has been elected as Pradhan or Up-Pradhan, this disqualification shall apply only in that case when they are residing together in the same house and their food is being cooked in one kitchen." 10. It is, therefore, seen that the fair price shop license is not to be cancelled automatically if the brother of the license has been elected as the Gram Pradhan. The conditions mentioned in clause 4.7 have to be established and as there is nothing on the record to indicate that the licensee and his brother are residing in the same house and their food has been cooked in the same kitchen, it is not possible to accept the contention of learned counsel for the petitioner. 11. Learned counsel for the petitioner has, however, placed reliance upon the decision of this Court in Naeem Ahmad Vs. State of U.P. & Ors., 2009(10) ADJ 170 and of the Supreme Court in Baldev Sahai Bangia Vs. R.C. Bhasin 1982 (2) SCC 210 . 12. In Naeem Ahmad (supra) the Court interpreted clause 10(e) of the Government Order dated 28th October, 1982 which prohibits grant of license to a person of same family. In Baldev Sahai Bangia (supra) the Court interpreted the provisions of the Delhi Rent Control Act. In the present case, clause 4.7 of the Government Order dated 3rd July, 1990 and the Government Order dated 18th July, 2002, have been interpreted by the Division Bench of this Court. The decisions relied upon by learned counsel for the petitioner, therefore, do not help the petitioner. 13. There is, therefore, no merit in this petition. It is, accordingly, dismissed. _____________