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2017 DIGILAW 764 (ALL)

Rakesh Kumar v. State of U. P.

2017-03-10

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Surya Prakash Kesarwani,J. Heard learned counsel for the petitioner, learned standing counsel for the State-respondents and the learned counsel for the respondent no.5 - Village Panchayat. 2. With the consent of the learned counsel for the parties, this writ petition is being finally heard without calling for a counter affidavit. 3. Briefly stated, facts of the present case are that the petitioner was a fair price shop agent of Village Yakoobpur, Block Sahar, Tehsil Bidhuna, District Auraiya. On 17.10.2007, F.I.R. under Section 3/7 of E.C. Act being Case Crime No.148 of 2007, Police Station Bela, District Auraiya, was registered against the petitioner. As a consequence of lodging of the aforesaid F.I.R., the fair price shop agreement of the petitioner was cancelled by the respondent no.3 vide order/letter no.382 dated 02.11.2007 with the observation that cancellation shall abide by the order of the Court in criminal case. By judgment dated 18.06.2015 in Criminal Case No.1011 of 2010 (Case Crime No.148 of 2007) under Section 3/7 E.C. Act, passed by the Chief Judicial Magistrate, Auraiya, the petitioner was acquitted. A finding was recorded by the Trial Court that the foodgrains in question were found in private bags and it was not Government foodgrains. Against the aforesaid judgment passed by the C.J.M., Auraiya, the State Government preferred a Criminal Appeal No.11 of 2015 in the Court of Session Judge, Auraiya which was dismissed by the Court of Session Judge, Auraiya vide judgment dated 25.01.2016. This judgment has attained finality. 4. Against the order dated 02.11.2007, cancelling the fair price shop agreement, the petitioner had preferred an Appeal No.376 of 2007 which was dismissed by the Deputy Commissioner (Food), Kanpur Division, Kanpur by order dated 06.08.2009. Since the order of cancellation of fair price shop agreement was made by the respondent no.3 to be subject to decision in criminal case and as such on acquittal by the Court of C.J.M., Auraiya by judgment dated 18.06.2015, the petitioner moved an application on 09.07.2015 before District Magistrate, Auraiya alongwith certified copy of the judgment of the C.J.M., Auraiya and requested for restoration of his fair price shop agreement and recall of the order dated 02.11.2007. It appears that an application was also moved by the petitioner in Appeal No.376 of 2007 in view of the order of acquittal passed by the Court of the C.J.M., Auraiya in the criminal case. It appears that an application was also moved by the petitioner in Appeal No.376 of 2007 in view of the order of acquittal passed by the Court of the C.J.M., Auraiya in the criminal case. However, the application of the petitioner was dismissed by the Appellate Authority by order dated 30.09.2015 providing that the petitioner should move an application before the respondent no.3 who had passed the order of the cancellation dated 02.11.2007. Thereafter, the petitioner moved an application before the respondent no.3 on 20.10.2015 Since nothing was done by the respondent no.3 and as such the petitioner filed a Writ C No.46188 of 2016 before this Court, which was disposed of by order dated 23.09.2016 directing as under; "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. 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 (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." 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. With the aforesaid observation/direction the writ petition is disposed of." 5. Thereafter, the petitioner submitted an application before the respondent no.3 alongwith a certified copy of the aforesaid order dated 23.09.2016 passed by this Court in Writ C No.46118 of 2016. The respondent no.3 rejected the application of the petitioner by the impugned order dated 26.10.2016. Aggrieved with this order, the petitioner has filed the present writ petition. 6. Learned counsel for the petitioner submits that the impugned order passed by the respondent no.3 is not only arbitrary but also abuse of power and dereliction in duty. He also submits that the impugned order dated 26.10.2016 passed by the respondent no.3 is contemptuous inasmuch as the respondent no.3 has completely ignored the directions made by this Court as aforequoted. He submits that since the order of the cancellation was made subject to decision in the Trial Court in criminal case and the petitioner has been acquitted in the criminal case and as such the fair price shop agreement of the petitioner, was liable to restored. 7. I have carefully considered the submissions of learned counsels for the parties. 8. This writ petition, despite there being an alternative remedy of appeal under Clause 13 of the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, is being entertained for reason that the petitioner is pursuing the matter from last ten years and despite an order in his favour, the same is not being given effect to by the respondent no.3 arbitrarily and illegally, which clearly resulted in breach of his fundamental rights under Article 14 of the Constitution of India. 9. 9. It is wholly undisputed that the fair price shop agreement of the petitioner was cancelled by the respondent no.3 by order dated 02.11.2007 and the cancellation was made subject to decision in criminal case. It was observed that cancellation shall abide by the order of the Court in criminal case. The petitioner has been acquitted in the criminal case by the judgment of the C.J.M., Auraiya, as aforesaid. Appeal filed by the State Government challenging the order of the acquittal in the aforesaid criminal case, was dismissed by the Court of Session Judge, Auraiya, as aforementioned. The petitioner, then moved an application before the District Magistrate, and also before the Appellate Authority (Deputy Commissioner, Food). The Appellate Authority rejected the application observing that the petitioner should approach the respondent no.3 for recall of the order of cancellation of the fair price shop agreement. The petitioner then filed an application before the respondent no.3 who showed inaction and kept the application pending. Consequently, the petitioner filed a Writ C No.46118 of 2016 which was disposed of by this Court by order dated 23.09.2016 with clear observation that in the order of cancellation dated 02.11.2007, the S.D.O. has mentioned that 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 Government has been dismissed there is no justification for not taking final decision by the S.D.O. on the application of the petitioner and sitting tight over the matter. This Court also observed that the status of the person, in whose favour any right has been created during the pendency of the appeal, he would be a subsequent allottee as per settled law. The subsequent allottee has no right to hold license in the event the original allottee succeeds. Reference in this regard has been made to several judgments of this Court and the judgment of the Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others, 2015 (12) SCALE 277. In the light of these observations, this Court directed the respondent no.3 to pass an appropriate order on the application of the petitioner. Reference in this regard has been made to several judgments of this Court and the judgment of the Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others, 2015 (12) SCALE 277. In the light of these observations, this Court directed the respondent no.3 to pass an appropriate order on the application of the petitioner. However, the respondent no.3 again acted arbitrarily and rejected the application of the petitioner on the ground that original records have not been produced by the petitioner and photostat copy of sale register filed by him, is not legible and as such it could not be verified. The aforesaid reasons advanced by the respondent no.3 to reject the application of the petitioner, are wholly arbitrary. The respondent no.3 had cancelled the fair price shop agreement of the petitioner by order dated 02.11.2007, merely on the ground that F.I.R. was lodged against him under Section 3/7 of E.C. Act. He himself has made the order of cancellation subject to decision in criminal case. In the criminal case, the petitioner has been acquitted and the appeal of the State Government challenging the order of acquittal has also been dismissed by the Court of Session Judge, Auraiya. The Trial Court in the criminal case has recorded a clear finding that the foodgrains intercepted was not the Government foodgrains. Consequently, on the facts of the present case, the respondent no.3 was left with no option except to restore the fair price shop agreement of the petitioner. 10. Under the circumstances, the impugned order dated 26.10.2016 passed by the respondent no.3 cannot be sustained and, is hereby, quashed. Writ petition is allowed. 11. Respondent no.3 is directed to restore the fair price agreement of the petitioner within a week from the date of presentation of a certified copy of this order. He is further directed to allow the petitioner to run his fair price shop in question in accordance with law. 12. Writ petition is allowed with the cost of Rs.5,000/- which shall be paid to the petitioner by the State-respondents within one month.