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2016 DIGILAW 3171 (ALL)

JAI KUMAR v. STATE OF U. P.

2016-09-16

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Shravan Kumar Mishra, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Anand Kumar Yadav, learned counsel for the gaon sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 10.8.2016 passed by the Sub Divisional Officer, Jhansi, by which the Sub Divisional Officer has bifurcated the fair price shop, which was initially run by the petitioner, by continuing the allotment made in favour of one Sri Dipendra Yadav (the respondent No. 4), who was appointed as fair price shop agent in place of the petitioner during the pendency of the writ petition before this Court. 3. While assailing the impugned order, learned counsel for the petitioner submits that the allotment of fair price shop in favour of respondent No. 4 was dependant upon the fate of the writ petition filed by the petitioner and once the writ petition filed by the petitioner has been allowed, whatever right had accrued temporarily in favour of the respondent No. 4 that has come to an end and therefore, the Sub Divisional Officer has erred in passing the impugned order. 4. The facts giving rise to this case are that the petitioner was the fair price shop agent of Village - Simravari, Tehsil and District - Jhansi. However, while functioning as such, his agreement to run fair price shop was cancelled by the Sub Divisional Officer on 18.7.2014. Aggrieved by the aforesaid order, the petitioner filed Appeal No. 28 of 2013-14 (Jai Kumar v. State) before the Divisional Commissioner, Jhansi, which was dismissed on 18.5.2015. 5. Challenging the order of cancellation of agreement to run fair price shop dated 18.7.2014 and the appellate order dated 18.5.2015 passed by the Divisional Commissioner, Jhansi, the petitioner herein filed Writ C No. 36002 of 2015 (Jai Kumar v. State of U.P. and others). The said writ petition has been allowed by this Court on 26.7.2016 by quashing the order of cancellation of agreement to run fair price shop dated 18.7.2014 and the appellate order dated 18.5.2015 passed by the Divisional Commissioner, Jhansi. 6. The said writ petition has been allowed by this Court on 26.7.2016 by quashing the order of cancellation of agreement to run fair price shop dated 18.7.2014 and the appellate order dated 18.5.2015 passed by the Divisional Commissioner, Jhansi. 6. The petitioner, after receipt of the certified copy of the order dated 26.7.2016 passed by this Court, served the copy upon the Sub Divisional Officer, Jhansi, who, it appears, in turn obtained opinion from the learned District Government Counsel as to what should be done after allowing of the writ petition by this Court on 26.7.2016. It may be noticed that during the pendency of the writ petition, the respondent No. 4 was appointed as fair price shop agent in place of the petitioner. It appears, the learned District Government Counsel has opined that pursuant to the order of this Court dated 26.7.2016, the petitioner’s agreement to run fair price shop must be restored. However, the Sub Divisional Officer, without following the opinion in toto, carved out an exception by observing that since the learned District Government Counsel has not given any opinion with regard to continuance or discontinuance of of the shop of respondent No. 4, who was appointed in place of the petitioner, therefore, it would be appropriate to bifurcate the fair price shop of the village concerned. 7. Learned counsel for the petitioner submitted that the appointment of respondent No. 4 was with a view to meet out the exigency, which occurred on account of the cancellation of the agreement of the petitioner and because of the pendency of the writ petition before this Court with a view to facilitate the distribution of scheduled commodities to the card holders as the attachment of the shop could not be allowed to continue beyond the period of two months and once the writ petition has been allowed, the subsequent allottee, i.e., the respondent No. 4, had no right to continue and the petitioner’s agreement to run fair price shop ought to have been restored without permitting the respondent No. 4 to continue as fair price shop agent. 8. So far as the submission made by the learned counsel for the petitioner is concerned, it is fully supported with the numerous decisions of this Court as well as of the Hon’ble Apex Court. 8. So far as the submission made by the learned counsel for the petitioner is concerned, it is fully supported with the numerous decisions of this Court as well as of the Hon’ble Apex Court. 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). 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 ). 9. Here, another question would be as to whether the writ petition can be decided without there being any notice to the respondent No. 4. The answer would be yes, as it is settled, in numerous decisions of this Court as well as the Hon’ble Apex Court, that even after giving an opportunity to a person, if the same result is likely to come and the order has been passed without affording any opportunity of hearing, in that circumstances, those orders should not be interfered with. 10. The Apex Court in the case of Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, has held that the breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute, but relief can be refused when the case of the applicant is not one of “real substance” or that there is no substantial possibility of his success or that the result will not be different even if natural justice is followed. The same view has been reiterated in the case of Glynn v. Keele University, Cinnamond v. British Airports Authority, not only in England but here also the Hon’ble Supreme Court in the case of S.L.Kapoor v. Jagmohan and others, (1980) 4 SCC 379 , has held as under: “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.” 11. The same view has been reiterated in the decisions of the Hon’ble Apex Court in M.C. Mehta v. Union of India and others, (1999)6 SCC 237 , Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529 and Mohd. Sartaj and another v. State of U.P. and others, AIR 2003 SC 3492, as well as the decision of this Court in Manish Kumar v. State of U.P. and others, 2010(9) ADJ 762 . 12. In view of the aforesaid settled legal position, I do not propose to issue notice to the respondent No. 4 for the simple reason that the status of respondent No. 4 is of a subsequent allottee, who has no right in the event of allowing of the writ petition filed by the petitioner, as the consequence of allowing the writ petition would be restoration of the agreement of the petitioner to run fair price shop as it was being run. 13. In view of the foregoing discussions, I am of the considered opinion that the Sub Divisional Officer, Jhansi has erred in continuing the agreement to run fair price shop in favour of the respondent No. 4, may be in part as his order to bifurcate the shop is not based upon any statutory provision. In the result, the writ petition succeeds and is allowed. The impugned order dated 10.8.2016 passed by the Sub Divisional Officer, Jhansi is hereby quashed to the extent by which the Sub Divisional Officer has permitted the respondent No. 4 to function as fair price shop agent of the part of the fair price shop.