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2019 DIGILAW 2597 (ALL)

Mohammad Ahmad v. State of U. P.

2019-11-19

VIVEK KUMAR BIRLA

body2019
JUDGMENT : Vivek Kumar Birla, J. 1. Heard learned counsel for the petitioner and learned Standing Counsel for the State- respondents. 2. Pursuant to the order dated 07.11.2019, learned Standing Counsel has produced a copy of the instructions dated 16.11.2019 sent by the District Supply Officer, Meerut. Copy of the instruction has also been supplied to the learned counsel for the petitioner. 3. The present petition has been filed with following relief:- (i) Issue a writ, order or direction in the nature of mandamus directing the respondent nos.2 and 3 not to allot the fair price shop in pursuance of notification which was published in daily news paper dated 16.10.2019 till submission of final report of S.T.F. Lucknow where enquiry/investigation is pending. 4. Submission of the learned counsel for the petitioner is that admittedly, pursuant to the direction of the Hon'ble Division Bench of this Court issued vide judgment and order dated 05.12.2018 passed in Public Interest Litigation (PIL) No. 4839 of 2018, The Sahkari Sasta Galla Vikreta Union, Tehsil Sardhana, Meerut vs. State of U.P. and Others, Senior Superintendent of Police (STF), Lucknow has been directed to complete the enquiry as far as possible within a period of six months in regard to misuse of Aadhaar authentication of E-POS. Submission is that till date the enquiry has not been completed, but the advertisement has been issued for allotment of shops involved in the enquiry. Submission is that unless the enquiry is concluded, there is no justification in making a fresh allotment and the petitioner is entitled for continuation for his shop. 5. Per contra, learned Standing Counsel submits that the enquiry is pending and longer time is being taken because the Aadhaar Card data is required for examination of the allegations. He further pointed out that it had been a large scale scam wide spread throughout the State and as many as 44 districts are involved in the same. Learned Standing Counsel further stated at the bar that in some of the districts the dealers have also deposited the amount. He further pointed out that as per information supplied dealers named in the scam in the district of Prayagraj, have already deposited amount that was being sought to be recovered from them. 6. I have considered the submission and perused the record. He further pointed out that as per information supplied dealers named in the scam in the district of Prayagraj, have already deposited amount that was being sought to be recovered from them. 6. I have considered the submission and perused the record. In so far as the present petition is concerned, the only prayer is that no fresh notification be made in regard to the shop of the petitioner, pursuant to the notification published in daily newspaper dated 16.10.2019 till submission of final report of Senior Superintendent of Police (STF), Lucknow, wherein enquiry/investigation is pending. Along with the supplementary affidavit, a copy of the cancellation order dated 05.01.2019 passed by the District Supply Officer, Meerut has been filed. 7. During the course of arguments learned counsel for the petitioner further stated that an appeal before the Commissioner being Appeal No. 694 of 2019 is pending against the aforesaid cancellation order. The cancellation order is admittedly, not under challenge before this Court. 8. Confining to the relief claimed in the present petition, a reference may be made to the judgment of Hon'ble Division Bench of this Court in the case of Vinod Kumar vs. State of U.P. and Others, 2014 (9) ADJ 761 , para-12 whereof is quoted as under:- “Hence, on considering the diverse orders which have been passed by the Division Benches of this Court, it is clear that this Court has not held, as a principle of law, that pending the disposal of an appeal before the Appellate Authority under Clause 28(3) of the Control Order, no arrangements can be made by the State for securing the interest of the card holders. On the contrary, in our view, it is open to the State, pending disposal of an appeal, to make suitable alternate arrangements either by attaching the card holders to an existing fair price shop or by allotting the fair price shop to a new licensee subject to the result of the appeal. The reasons which were adduced in the interim order of the Division Bench in Vinod Kumar Mishra, with respect, over-looked the clear mandate of Clause 28(5) of the Control Order which were not pointed out to the Court. The reasons which were adduced in the interim order of the Division Bench in Vinod Kumar Mishra, with respect, over-looked the clear mandate of Clause 28(5) of the Control Order which were not pointed out to the Court. Be that as it may, we may let the matter rest there since it is a well-settled principle in law that any interim order of the Court will ultimately give way to the final decision in the proceedings. Writ Petition No. 11977 (M/B) of 2010 was finally disposed of on 12 December 2011. The interim order came to an end with the final disposal of the petition.” (Emphasis Supplied) 9. A reference may be made to the judgment of the Hon'ble Division Bench in the case of Nasir Ali vs. State of U.P. and Others, 2015 (4) ADJ 214 (DB), para 4 whereof is quoted as under:- “A Division Bench of the Lucknow Bench of this Court in Writ Petition No. 7649 of 2014, Vinod Kumar vs. State of U.P. through Principal Secretary Food and Others, decided on 19.8.2014 after considering the interim orders passed by the Division Bench of the Lucknow Bench clarified that as a principle of law the Court had not held that pending disposal of an appeal before the Appellate Authority under Clause 28(3) of the control order, no arrangements could be made by the State for securing the interest of the card holders. The Division Bench took the view that it was open to the State Government that pending disposal of an appeal to make suitable alternate arrangements either by attaching the card holders to an existing fair price shop or by allotting the fair price shop to a new license subject to the result of the appeal.” (Emphasis Supplied) 10. A reference may be made to the judgment in the case of Vinod Kumar Gupta vs. State of U.P. and Others, 2014 (9) ADJ 761 , para 7 whereof is quoted as under:- “It appears that the Hon'ble Court was not apprised of earlier Division Bench judgment on the subject wherein this issue has been considered and decided long back. I may refer hereat the Division Bench judgment in Writ Petition No. 19080 of 2008, Naubat Singh vs. State of U.P. and Others, decided on 11.04.2008, wherein this very issue was raised but was negatived by giving reasons. I may refer hereat the Division Bench judgment in Writ Petition No. 19080 of 2008, Naubat Singh vs. State of U.P. and Others, decided on 11.04.2008, wherein this very issue was raised but was negatived by giving reasons. The Court said: “Learned counsel for the petitioner contended that since the appeal is already pending it is not open to respondents to appoint another person as fair price shop dealer in respect to the area where the petitioner was working as fair price shop dealer. However, we do not find any force in the submission. The petitioner's agreement for distribution of essential commodities having been cancelled admittedly, presently he has no right in the matter of distribution of essential commodities of fair price to the public at large. Since there appears to be no person available for distribution of essential commodities of fair price, the public at large cannot be made to suffer and, therefore, the respondents decided to appoint another person as a fair price shop dealer pursuant whereto the impugned order dated 2.4.2008 has been passed. The aforesaid order obviously is for appointing an intermittent dealer and subject to the result of the petitioner's appeal, inasmuch as, in case the said appeal is allowed and the petitioner's agreement is restored, any person who has been appointed in place of petitioner would have no right to continue thereafter, but till the time, appeal of petitioner is decided, in our view, the petitioner has no right, legal or otherwise, to restrain the respondents from making arrangement of distribution of essential commodities appointing another person as dealer in the area where the petitioner was operating as fair price shop dealer. Learned counsel for the petitioner seeks to place reliance on order dated 23.11.2007 passed by Hon'ble Single Judge of this Court in Writ Petition No. 57682 of 2007 wherein an order was passed restraining the authorities from doing any fresh allotment of the fair price shop till the appeal is decided. In our view, the aforesaid order would have no application in the present case. In our view, the aforesaid order would have no application in the present case. Firstly, in the earlier writ petition filed by the petitioner which has been disposed of this Court on 07.03.2008 directing the appellate authority to decide his appeal within three months, no such order has been passed restraining the respondents from allotting shop in question to any one and for the said purpose only no fresh petition would lie. Secondly, we are of the view that so long as the licence of a person continued to be cancelled he has no right either in law or otherwise to create any obstruction in the way of respondent-authorities in making arrangement for distribution of essential commodities to the public at large in such manner as they found expedient and in the interest of public at large. If the authorities found it appropriate that the people would be better serve if the fair price shop is allotted to a third person, we do not find any illegality or irregularity in such exercise of power unless it can be shown that it is mala fide or without jurisdiction or is inconsistent to any provision or executive order having force of law. No such provision has been placed before us.” (Emphasis Supplied) 11. A reference may also be made to Smt. Kalawati vs. State of U.P. and Others, 2011 (10) ADJ 829 , para-5 where of is quoted as under:- “Thus the third party, who is allotted the distribution, do not have any individual right but its rights are subject to the decision in appeal and therefore a fair price dealer, whose matter is pending in appeal, does not suffer in any manner.” (Emphasis Supplied) 12. It is the settled law that a subsequent allottee has not right to challenge the restoration of license as held in Poonam vs. State of U.P. and Others, 2016 (2) SCC 779 , para 49 whereof is quoted as under:- “In the instant case, shop No. 2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is, the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is, the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party. It is the State or its functionaries who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee, she is a third party to the list in this context.” (Emphasis Supplied) 13. The above quoted judgments of this Court clearly holds that the State authorities have a right to make alternative arrangements and that the new allotment is always subject to the decision of the appeal of the existing dealer whose license was cancelled. It is a settled law that in case the appeal is allowed, the subsequent allottee has no right to challenge the same. Therefore, there can be no restriction on the State Government to allot the fair price shop during pendency of the appeal. A reference may also be made to the paragraph-9 of the U.P. Essential Commodities Distribution Control Order 2016, which is quoted as under:- “(9) In case of suspension or cancellation of the agreement, the Competent Authority shall make alternative arrangement for ensuring uninterrupted supply of foodgrains to the eligible households: Provided that in case of cancellation of the arrangement of the fair price shop owner, new arrangement shall be issued within a month of cancellation.” (Emphasis Supplied) 14. Thus, Proviso to paragraph-9 clearly provides that in case of cancellation of the fair price shop, new arrangement shall be issued within a month of cancellation. 15. Thus, Proviso to paragraph-9 clearly provides that in case of cancellation of the fair price shop, new arrangement shall be issued within a month of cancellation. 15. It is needless to say that obviously the aforesaid provision has been made so that the ration card holders may not suffer on account of cancellation or suspension of fair price shop. The picture as emerges from the above noted discussion is that the State Government is empowered to make alternative arrangement either by way of attaching the card holders of another shop or by way of making fresh allotment. However, if it is by fresh allotment, in case the appeal filed by original allottee is allowed, subsequent allottee shall have no right whatsoever to challenge the same, i.e. it shall not be open to him to challenge the restoration of license in favour of the original license holder. 16. That apart, in this case in P.I.L. No. 4839 of 2018 vide order dated 05.12.2018, the Hon'ble Division Bench has directed for enquiry within a period of six months, which is being conducted by the Senior Superintendent of Police (STF), Lucknow. Aforesaid order dated 05.12.2018 is quoted as under:- “The Public Interest Litigation has been filed for an appropriate writ, order or direction for the respondents to conduct enquiry in accordance with Government Order dated 27.8.2018 and complete the same within a definite time frame. From perusal of the office order dated 29.8.2018 (Annexure-4) it reveals that the entire issue with regard to misuse of Aadhar authentication in distribution of E-POS has been handed over to Special Task Force, Uttar Pradesh. It is submitted by the learned Standing Counsel that the Special Task Force is making necessary enquiry in the matter. Having considered the statement made at Bar and having looked into the office order dated 29.8.2018, we leave it for appropriate disposal by directing the Senior Superintendent of Police (STF), Lucknow to ensure expeditious enquiry/investigation in the matter and to arrive at a logical consequence. The entire enquiry should be completed as far as possible within a period of six months from today. The writ petition stands disposed of.” 17. The entire enquiry should be completed as far as possible within a period of six months from today. The writ petition stands disposed of.” 17. This Court was further informed that when the enquiry was not completed pursuant to the above quoted order, a P.I.L. No. 1404 of 2019, Naresh Kumar Agarwal vs. State of U.P. and Others was filed, wherein order dated 18.10.2019 was passed, which is quoted as under:- “Pursuant to an order dated 5.12.2018 passed in Public Interest Litigation No. 4839 of 2018, The Sahkari Sasta Galla Vikreta Union, Tehsil Sardhana, Meerut vs. State of U.P. and Others an enquiry has been instituted but it has not been taken to its logical end. The present PIL has been filed with the grievance that in spite of the order of the Division Bench dated 5.12.2018 no further progress has been made in the said enquiry. On 16.9.2019 learned counsel for the State was granted time to seek instructions regarding progress of the enquiry. Sri A.K. Goyal, learned Addl. Chief Standing Counsel has received the instructions from S.T.F. Headquarter, Lucknow. We have perused the same and it is taken on record. In the aforementioned instructions it is recorded that in respect of the food scam 458 cases have been registered and the matter has been transferred from Inspector General, S.T.F. who was earlier appointed as Nodal Officer, to the Inspector General, Cyber Crime. List this case after six months before the appropriate Bench. By the next date, learned Addl. Chief Standing Counsel shall file progress report of the next six months. Sri P.K. Srivastava, learned Advocate has filed his memo of appearance on behalf of Union of India. It is also taken on record.” 18. For the discussion made hereinabove, I do not find any merit in the claim of the petition. Moreover, in view of the facts as highlighted by learned Standing Counsel that the E-POS machine scam is State wide and is spread over in as many as 44 districts of the State and is being investigated by the I.G. Cyber Crime, I am not further inclined to exercise powers of this Court under Article 226 of the Constitution of India. 19. 19. At this stage, learned counsel for the petitioner submitted that interim protection was granted to the petitioner in vide order dated 16.11.2019 passed in Writ C No. 37214 of 2019, M/s Sarfaraj vs. State of U.P. and Others by pointing out that till next date of listing no further allotment shall be done by the competent authority. 20. In the facts and circumstances of the case as discussed above, I am not inclined to follow the aforesaid interim order particularly in view of the law settled by the Full Bench as well as Hon'ble Division Bench of this Court by which rights were finally decided. Moreover, this petition itself is being decided finally after full length hearing. 21. The petition is devoid of merit and is, accordingly, dismissed.