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2016 DIGILAW 3270 (ALL)

Rakesh Kumar v. State of U. P.

2016-09-23

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh,J. Heard Sri Pratik Chandra, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri A.K.Srivastava, learned counsel for the Gaon Sabha 2. This writ petition has been filed with the following prayers: "1. issue a writ, order or direction in the nature of certiorari quashing the order dated 30.9.2015 passed by the Appellate Authority i.e. Additional Commissioner Kanpur Division, Kanpur in Appeal No. 376 of 2009 (Annexure no. 8 to the writ petition) so far as it relates to cancellation of agreement made by the respondent no 3/4 and to revive / restore the licence/ agreement of fair price shop of petitioner. 2. issue a writ, order or direction in the nature of certiorari quashing the order dated 2.11.2007 passed by respondent no. 3/4 (Annexure no. 1 to the writ petition). 3. issue a writ, order or direction in the nature of mandamus directing the respondent no. 3/4 to restoration/ revival of the agreement/ licence of fair price shop of petitioner. 4. issue a writ, order or direction in the nature of mandamus directing the respondent no. 3/4 to restore/ revive the licence of the petitioner and to permit him to run his fair price shop and further to pass an order for distribution of essential commodities. 5. issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. 6. Award cost." 3. Vide order dated 30.9.2015 the appellate authority has rejected the application of the petitioner to restore the supply of the essential commodities with liberty to him to file an appropriate application before the Sub Divisional Officer whereas vide order dated 2.11.2007 passed by the Sub Divisional Officer, Bidhuna, district Auraiya the agreement of the petitioner to run the fair price shop has been cancelled. 4. Brief facts of the case are that the petitioner herein was appointed as fair price shop agent of Village Yakoobpur Tehsil Bidhuna District Auraiya. While working as such the agreement of the petitioner to run the fair price shop was suspended vide order dated 22.10.2007 on account of lodging of a FIR on 19.10.2007 in Case No. 148 of 2007 under section 3/7 of the Essential Commodities Act, 1955, (in short the Act of 1955), Police Station Bela, Auraiya. Thereafter, the agreement of the petitioner was cancelled on 2.11.2007. Thereafter, the agreement of the petitioner was cancelled on 2.11.2007. Aggrieved by the order of cancellation the petitioner filed an appeal being Appeal No. 176 of 2009 (Rakesh Kumaar vs. S.D.N. Bidhuna) before the Divisional Commissioner which in turn was heard by the Additional Commissioner and the appeal was dismissed on 6.8.2009. It appears that in the meantime the case under sectoin 3/7 of the Act of 1955 has proceeded before the Chief Judicial Magistrate Auriaya being Case Crime No. 1911 of 2010 (State vs. Rakesh Kumar). The Chief Judicial Magistrate has acquitted the petitioner from the charges levelled against him under section 3/7 of the Act, 1955 vide order dated 18.6.2015. Aggrieved by the aforesaid order the State of U.P. has filed appeal being Appeal No. 11 of 2015 (State vs. Rakesh Kumar) before the Sessions Judge, Auraiya which too has been dismissed on 25.1.2016. 5. Submission of the learned counsel for the petitioner is that while passing the cancellation order dated 2.11.2007 the Sub Divisional Officer himself has observed that the order of cancellation would be dependent upon the fate of the criminal case. Taking note of that after acquittal of the petitioner from the criminal case vide order dated 18.6.2015 and dismissal of the appeal filed by the State vide order dated 25.1.2016 the petitioner filed an application before the Divisional Commissioner for restoring the supply. The Divisional Commissioner has rejected the application of the petitioner on the ground that the same is not maintainable and the petitioner/applicant may file an appropriate application before the concerned Sub Divisional Officer. Pursuant thereto the petitioner has filed an application before the Sub Divisional Officer but till date no order has been passed thereon. 6. Learned counsel for the petitioner contends that once the petitioner has been acquitted in the criminal case there is no justification to the respondents to withhold the agreement of the petitioner to run the fair price shop. Submission is that the Sub Divisional Officer is not proceeding with the matter and has not passed any order on the application of the petitioner. 7. Submission is that the Sub Divisional Officer is not proceeding with the matter and has not passed any order on the application of the petitioner. 7. Having heard the learned counsel for the parties and considering the fact that in the order of cancellation dated 2.11.2007 itself the Sub Divisional officer has mentioned that the order of cancellation shall abide by the order of the Court in criminal case and once the petitioner has been acquitted in the criminal case and the appeal filed by the State of U.P. has been dismissed there is no justification for not taking any final decision by the Sub Divisional Officer on the application of the petitioner and sitting tight over the matter. 8. It has also been informed that in the meantime third party right has been created. The status of the person, in whose favour any right has been created during the pendency of appeal, would be of a subsequent allottee and it is settled by this Court in Sri Pal Jatav vs. State of U.P. and others, 2009 (74) ALR 61, Smt. Mithilesh Kumari Vs. State of U.P. and others (Writ Petition No. 45893 of 2008 decided on 18.11.2010), Mahendra Singh Vs. State of U.P. and others (Writ Petition No. 54498 of 2009, decided on 16.11.2009, Bhurey Singh Vs. State of U.P. and others (Writ-C No. 45768 of 2012 decided on 10.9.2012) and Nasarudin Vs. State of U.P. and others (WRIT-C No. 60018 of 2015, decided on 27.10.2015) that creation of third party right does not confer any right upon the subsequent allottee. The view taken by this Court has also been approved by Hon'ble the Apex Court in Poonam Vs. State of U.P. and others, 2015 (12) SCALE 227 although in a different case. 9. Considering the aforesaid legal position and in view of the foregoing discussions, the Sub Divisional Officer is directed to pass an appropriate order on the application of the petitioner in view of the observations made, herein above, and in accordance with law within a period of two weeks from the date of production of a certified copy of the order of this Court. 10. With the aforesaid observation/direction the writ petition is disposed of.