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2016 DIGILAW 1905 (ALL)

ANT RAM v. STATE OF U. P.

2016-05-17

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri H.P.Singh, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 8.8.2014 passed by the Additional Commissioner, (Judicial) Chitrakoot Dham Division, Banda in Appeal No. 15/2/2013-14 (Brijnarain v. Anant Ram and others) by which the Additional Commissioner has allowed the appeal with the direction to reconsider the allotment after fresh advertisement in accordance with law in the open meeting. While doing so he has directed to attach the shop of the petitioner with another fair price shop for distribution of schedule commodities. 3. The facts giving rise to the present case, in brief, are that the petitioner was appointed as fair price shop agent of Village Bakrai, Tehsil Rath, district Hamirpur pursuant to the advertisement made in Dainik Sahara dated 9.12.2011 under the handicapped quota by the Committee in the chairmanship of the Sub Divisional Officer vide order dated 23.12.2011. Thereafter the Sub Divisional Officer, Rath, Hamirpur vide order dated 28.12.2011 had permitted the petitioner to lift the quota of the scheduled commodities. The aforesaid order was made subject-matter of Appeal No. 15/2/2013-14 filed by Sri Brij Narain son of Sri Dhani Ram resident of village Bakrai, who claimed that he had been wrongly non suited and the appointment of the petitioner under handicapped quota was made on the basis of forged certificate issued by the Chief Medical Officer. This appeal was allowed by the impugned order. 4. While assailing the impugned order, learned counsel for the petitioner has made the following submissions; (i) Without challenging the initial appointment of the petitioner as fair price shop agent dated 23.12.2011 no relief could be granted to the petitioner as the order dated 28.12.2011, against which, appeal was filed was a consequential order; (ii) the appeal was filed on 28.12.2012 and not 28.12.2011 which in the submission of the learned counsel for the petitioner was barred by time. In this regard the petitioner has brought on record the copy of the order sheet of the aforesaid appeal; (iii) No appeal lies against the order dated 28.12.2011, permitting the fair price shop agent to lift the quota, under Order 28 of the U.P.Scheduled Commodities Distribution Order, 2004 (in short the Order, 2004). 5. In this regard the petitioner has brought on record the copy of the order sheet of the aforesaid appeal; (iii) No appeal lies against the order dated 28.12.2011, permitting the fair price shop agent to lift the quota, under Order 28 of the U.P.Scheduled Commodities Distribution Order, 2004 (in short the Order, 2004). 5. Counter-affidavit to the writ petition has been filed by the learned standing counsel to which rejoinder-affidavit has been filed by the petitioner. However, no counter-affidavit has been filed by Sri Rajesh Kumar who has put in appearance on behalf of respondent No. 5. Sri Rajesh Kumar is not present before the Court today. 6. With the consent of the learned counsel for the representing parties the writ petition is taken up for final disposal. 7. It is not in dispute that on the failure of appointment of fair price shop agent in the open meeting of the Gaon Sabha, on 24.11.2011, the Sub Divisional Officer took a decision to appoint the fair price agent of Village Bakrai by the Committee constituted in his chairmanship. Pursuant thereto an advertisement was made on 9.12.2011 in Dainik Sahara in which 17.12.2011 was the last date for submission of the applications. The fair price shop agent was to be appointed under the reserved categories of Ex Servicemen, dependents of freedom fighter, handicapped persons etc.. The petitioner has also applied under the handicapped quota. For the reasons stated in the order dated 23.12.2011 the petitioner had been found suitable for appointment as fair price shop agent by the Committee. Pursuant thereto an agreement was entered into in between the petitioner and the State. Thereafter vide order dated 28.12.2011 the petitioner was permitted to lift the quota of the scheduled commodities. This order was made subject-matter of appeal before the Additional Commissioner as mentioned herein above. 8. While entertaining the writ petition on 8.1.2016 this Court has formulated a question as to whether the appellate authority could have directed for reconsideration of the allotments of the fair price shop when the resolution of the Tehsil Level Selection Committee dated 23.12.2011 was not challenged. Counter-affidavit filed by the State-respondents is silent on the point. 8. While entertaining the writ petition on 8.1.2016 this Court has formulated a question as to whether the appellate authority could have directed for reconsideration of the allotments of the fair price shop when the resolution of the Tehsil Level Selection Committee dated 23.12.2011 was not challenged. Counter-affidavit filed by the State-respondents is silent on the point. Learned standing counsel appearing for the State-respondents could also not justify that without challenging the order dated 23.12.2011 appointing the petitioner as fair price shop agent how an appeal could be entertained against the consequential order of the Sub Divisional Officer permitting the petitioner to lift quota of scheduled commodities. The order dated 23.12.2011 was the main order appointing the petitioner as fair price shop agent, unless that order is challenged the consequential order cannot be challenged. 9. However, for the sake of argument even if it is assumed that the consequential order dated 28.12.2011 can be challenged the question would be as to whether that could be challenged under Order 28 of the Order, 2004. 10. For appreciating the controversy it would be appropriate to quote the relevant provisions, i.e. Order 28 (1), (2) and (3) of the Order, 2004, which read as under: “28 Appeal.—(1) All appeals shall lie before the concerned Divisional Commissioner who shall hear and dispose of the same may be order delegate his/her powers to the Assistant Commissioner Food for hearing and disposing of the appeal. (2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card for cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order. (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.” 11. From the perusal of sub-Order (2) it is apparent that the appeal would lie against an order refusing the renewal or cancellation of the agreement that too within thirty days from the date of the order. From the perusal of sub-Order (3) it is apparent that it is the fair price shop agent who can prefer appeal and none else. 12. From the perusal of sub-Order (3) it is apparent that it is the fair price shop agent who can prefer appeal and none else. 12. Here in this case the appeal had neither been filed against the order refusing renewal or cancellation of the agreement of the fair price shop nor the appeal had been filed by the fair price shop agent, therefore, the appeal itself was not maintainable in view of sub-Orders (2) and (3) of the Order 28 of the Order, 2004 and the order passed by the Additional Commissioner is without jurisdiction. It is settled that an order which is without jurisdiction is nullity. Reference may be made to the decisions of the Apex Court in Dr. (Smt.) Kuntush Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others, AIR 198 SC 2186, Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, AIR 2007 SC 1077, Dwarka Prasad Agarwal (D) LRs. and another v. B.D. Agarwal and others, AIR 2003 SC 2686 , Thankamma v. State of Kerala and others, 1982 KLJ 309, Shakuntla Devi v. Kamla and others, 2005(3) ALD 118 (SC), Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd., (2004) 9 SCC 619 , Sarup Singh and another v. Union of India and another, (2011) 11 SCC 198 and a decision of this Court in WRIT - C No. 5610 of 2012 Ganga Raman Sharma v. State Of U.P. and others, decided on 22.4.2016. 13. Otherwise also without challenging the initial order of allotment of fair price shop in favour of the petitioner, no relief could be granted by the Deputy Commissioner Food in an appeal filed against a consequential order permitting the fair price shop agent to lift the quota. 14. So far as argument of the learned counsel for the petitioner with regard to question of limitation in filing the appeal is concerned, I don not find it appropriate to address myself on the said point here in this case. 15. In view of the foregoing discussions, the impugned order dated 8.8.2014 passed by the Additional Commissioner, (Judicial) Chitrakoot Dham Division, Banda in Appeal No. 15/2/2013-14 (Brijnarain v. Anant Ram and others) cannot be sustained in the eyes of law and the same is hereby quashed. The writ petition succeeds and is allowed. The consequences of allowing the writ petition will follow. The writ petition succeeds and is allowed. The consequences of allowing the writ petition will follow. The Sub Divisional Officer is directed to do the needful in accordance with law as discussed herein above within four weeks from the date of receipt of certified copy of the order of this Court.