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2016 DIGILAW 2815 (ALL)

MUKESH KUMAR v. STATE OF U. P.

2016-08-16

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Suresh Chandra Verma, alongwith Sri Devesh Kumar Verma, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri Brij Kumar Yadav, learned counsel for the gaon sabha and Sri Anil Kumar Singh, learned counsel for the respondent No. 4. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 20.6.2016 passed by the Additional Commissioner, Kanpur Division, Kanpur in Appeal No. 166 of 2015 (Mukesh Kumar v. State of U.P.), order dated 6.7.2015 passed by the Additional Commissioner, Kanpur Division, Kanpur in Appeal No. 416/2013 (Suman Devi v. State) and order dated 4.8.2015 passed by the Deputy Collector, Bidhuna. Vide order dated 20.6.2016, the appeal filed by the petitioner against the order dated 4.8.2015, restoring the agreement of respondent No. 4 to run fair price shop, has been allowed, vide order dated 4.8.2015, the Deputy Collector has restored the agreement of respondent No. 4 to run fair price shop pursuant to the order passed by the Additional Commissioner dated 6.7.2015. 3. The facts giving rise to this case, in brief, are that the petitioner happened to be the fair price shop agent of Village Sarai Pratham, Tehsil Bidhuna, District Auraiya. His agreement to run fair price shop was cancelled on 10.6.2009. Aggrieved by the aforesaid order, the petitioner herein filed Appeal No. 315/154/12-13 (Mukesh Kumar v. State). Pending appeal, the shop in question was allotted to Smt. Suman Devi (respondent No. 4). The aforesaid appeal was allowed and remanded by the Additional Commissioner, Kanpur Division, Kanpur on 1.6.2013 by setting aside the order dated 10.6.2009, cancelling the agreement of the petitioner to run fair price shop. After the order passed by the appellate authority on 1.6.2013, the Sub Divisional Officer, vide order dated 29.8.2013, restored the agreement of the petitioner to run fair price shop and cancelled the agreement executed in favour of Suman Devi (the respondent No. 4). 4. Aggrieved by the aforesaid order, respondent No. 4 filed Appeal No. 416/2013 (Suman Devi v. State). The aforesaid appeal was allowed by the Additional Commissioner, Kanpur Division, Kanpur on 6.7.2015 by setting aside the order dated 29.8.2013 restoring the agreement of the petitioner to run fair price shop. 4. Aggrieved by the aforesaid order, respondent No. 4 filed Appeal No. 416/2013 (Suman Devi v. State). The aforesaid appeal was allowed by the Additional Commissioner, Kanpur Division, Kanpur on 6.7.2015 by setting aside the order dated 29.8.2013 restoring the agreement of the petitioner to run fair price shop. After the aforesaid order was passed, the Sub Divisional Officer, vide order dated 4.8.2015, restored the agreement of the respondent No. 4 to run fair price shop. Aggrieved by the order dated 4.8.2015, the petitioner herein filed Appeal No. 166 of 2015 (Mukesh Kumar v. State of U.P.), which was dismissed. 5. While assailing these orders, learned counsel for the petitioner submits that once the cancellation order of the petitioner’s agreement to run fair price shop was set aside by the Additional Commissioner, Kanpur Division Kanpur and the petitioner’s agreement was restored vide order dated 29.8.2013, the subsequent allottee, i.e., the respondent No. 4, had no right to file appeal against the order dated 29.8.2013 passed by the Sub Divisional Officer restoring the agreement of the petitioner to run fair price shop. 6. Learned counsel for the respondent No. 4 submits that after cancellation of the petitioner’s agreement, a new agreement was executed in favour of the respondent No. 4, which has created an independent right, therefore, no infirmity can be attached to the impugned orders. The law regarding the right of continuance of the subsequent allottee is no more res integra. This Court in number of cases has held that the subsequent allottee has no right. Reference may be had to the judgments of this Court in Nasarudin v. State of U.P. and others, 2015(11) ADJ 557 , Smt. Javitri Devi v. State of U.P. and others (WRIT - C No. - 63117 of 2015, decided on 18.11.2015), Shyam Singh v. State of U.P. And 4 Others (WRIT - C No. - 63882 of 2015, decided on 4.12.2015) and Roop Kishor v. State of U.P. And 4 Others (Writ-C No. 68087 of 2015, decided on 18.12.2015). 7. The view taken by this Court although in different case has been approved by the Apex Court in Poonam v. State of U.P. and others ( 2016 (2) SCC 779 ). 7. The view taken by this Court although in different case has been approved by the Apex Court in Poonam v. State of U.P. and others ( 2016 (2) SCC 779 ). Otherwise also, the appeal was not maintainable under Order 28(3) of the U.P. Scheduled Commodities Distribution Order, 2004 against an order restoring the appointment of erstwhile fair price shop agent pursuant to the order of the appellate authority allowing the appeal against an order of cancellation of the agreement of erstwhile fair price shop agent as under Order 28(3), appeal can only be filed against an order of suspension or cancellation of agreement and an order restoring the agreement of erstwhile fair price shop agent is neither an order of suspension or cancellation. Therefore, the order dated 6.7.2015 passed by the Additional Commissioner, Kanpur Division, Kanpur was without jurisdiction and it is settled that an order without jurisdiction is nullity and no positive inference can flow from such order. Reference may be had to the decisions of the Apex Court in 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 , Sarup Singh and another v. Union of India (UOI) and another, AIR 2011 SC 514 , Chandrabhai K. Bhoir and others v. Krishna Arjun Bhoir and others, AIR 2009 SC 1645 , Hasham Abbas Sayyad v. Usman Abbas Sayyad and others, AIR 2007 SC 1077 and State of Haryana and another v. Kartar Singh (D) through LRs., 2013 (1) AWC 996 SC and a Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of U.P. and others, in Special Appeal No. 164 of 2012 decided on 25.1.2012. 8. In view of the settled legal position that the subsequent allottee has no right of continuance after allowing of appeal of the erstwhile fair price shop agent, I am of the considered opinion that the impugned order dated 20.6.2016 passed by the Additional Commissioner, Kanpur Division, Kanpur in Appeal No. 166 of 2015 (Mukesh Kumar v. State of U.P.), order dated 6.7.2015 passed by the Additional Commissioner, Kanpur Division, Kanpur in Appeal No. 416/2013 (Suman Devi v. State) and order dated 4.8.2015 passed by the Deputy Collector, Bidhuna cannot be sustained in the eyes of law. The same are hereby quashed. The writ petition succeeds and is allowed. 9. The respondents are directed to restore the agreement of the petitioner to run fair price shop within a period of ten days from the date of receipt of certified copy of the order of this Court. 10. However, in the interest of justice, it is provided that proceedings for cancellation after the order passed by the appellate authority on 1.6.2013 passed in Appeal No. 315/154/12-13 (Mukesh Kumar v. State) shall be concluded by the Sub Divisional Officer concerned expeditiously in accordance with law, if possible, within a period of four months from the date of receipt of certified copy of the order of this Court.