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2022 DIGILAW 503 (ALL)

Vijay Kumar v. State of U. P.

2022-04-05

SAUMITRA DAYAL SINGH

body2022
ORDER : 1. Heard Sri S.M. Iqbal Hasan, learned counsel for the petitioner in Writ C No. 1220 of 2022, Sri Rishi Kant Rai, learned counsel holding brief of Sri Jai Singh Yadav in Writ C No. 617 of 2022, Sri Arun Kumar Pandey, learned counsel for the Gaon Sabha and learned Standing Counsel for the State-respondents. 2. In short, earlier, a proposal was claimed to have been made in favour of Arshad Ali (the petitioner in Writ C No. 1220 of 2022) to run a fair price shop at village Badaun Darwaja, Kabir Ki Sarai, District-Sambhal. It was cancelled by the order of the SDM dated 01.11.2018. That became subject matter of appeal in Appeal No. 315 of 2019 (Arshad AN Vs. State of U.P. & Others). While the aforesaid appeal was pending, a second resolution was passed in favour of Vijay Kumar (the petitioner in Writ C No. 617 of 2022) dated 02.09.2019. Apparently an agreement was also executed in his favour. Later, the appellate authority set aside the order dated 01.11.2018 cancelling the earlier resolution in favour of Arshad AN. That order became subject matter of challenge in Writ (C) No. 38025 of 2019, Vijay Kumar Vs. State of U.P. & Others. It was allowed by order dated 19.12.2019 and the matter was remitted to the appellate authority to pass a fresh order after hearing the said Vijay Kumar, as well. 3. The impugned order dated 17.11.2021 passed by the appellate authority in Appeal No. 171 of 2020 (Arshad Ali Vs. State of U.P. & Others) is the order passed by the appellate authority while giving effect to the order dated 19.12.2019, passed by this Court in Writ C No. 38025 of 2019. 4. Having heard learned counsel for the parties and having perused the record, learned counsel for the petitioner, Arshad Ali, would submit that the appellate authority has recorded positive finding in his favour to confirm the resolution dated 25.06.2018. In that view of the matter, the appellate authority has erred in providing for a fresh resolution with respect to allotment of the fair price shop at village-Badaun Darwaja. 5. On the other hand, learned counsel for the petitioner, (in cross writ petition), Vijay Kumar, would submit that the order passed by this Court dated 19.12.2019 in Writ C No. 38025 of 2019 has not been given effect to. 5. On the other hand, learned counsel for the petitioner, (in cross writ petition), Vijay Kumar, would submit that the order passed by this Court dated 19.12.2019 in Writ C No. 38025 of 2019 has not been given effect to. In fact, observations have been made against the allotment made in his favour without there being any challenge thereto. 6. At present, it is seen, the appeal proceedings had arisen at the instance of the petitioner, Arshad Ali, who was aggrieved by the order dated 01.11.2018 cancelling the resolution passed in his favour by the Gaon Sabha dated 25.06.2018. Perusal of the impugned order does not bring out any discussion of fact confirming the resolution dated 25.06.2018. In absence of any cogent finding recorded by the appellate authority, further submission advanced by learned counsel for the petitioner Arshad Ali cannot be sustained. However, the appellate authority has erred in not recording any finding as to the legality of the resolution dated 25.06.2018. To that extent, the matter deserves to be remitted back to the appellate authority. 7. As to the objection raised by learned counsel for the cross-petitioner Vijay Kumar, his case has been dealt with by the appellate authority, though, while dealing with the sustainability of his objection on the strength of the second resolution dated 25.02.2019. In that, the second resolution dated 25.02.2019 has been found to be bogus. Learned counsel for the petitioner, Vijay Kumar, has seriously contested the correctness of that finding recorded by the appellate authority. 8. In view of the fact that the matter is being remitted to the appellate authority, at the instance of the petitioner, Arshad Ali, no useful purpose would be served in entertaining the separate challenge raised to the impugned order by Vijay Kumar. It is desirable that the appellate authority may hear the parties on the entire scope of the appeal including the validity of the resolutions dated 25.06.2018 and 25.02.2019. 9. Accordingly, the order dated 17.11.2021 is set aside and the matter remitted to the appellate authority. Parties shall appear before the appellate authority on the date fixed. Appellate authority shall pass a fresh order in accordance with law, after hearing all sides. In that, the petitioner, Arshad Ali, is permitted to seek a formal amendment in the appeal to raise challenge to the proposal dated 25.02.2019 and the consequential order dated 17.11.2021. Parties shall appear before the appellate authority on the date fixed. Appellate authority shall pass a fresh order in accordance with law, after hearing all sides. In that, the petitioner, Arshad Ali, is permitted to seek a formal amendment in the appeal to raise challenge to the proposal dated 25.02.2019 and the consequential order dated 17.11.2021. Upon such amendment being sought, the appellate authority may allow the contesting respondent Vijay Kumar to file reply thereto. Such direction has been issued to bring a fair end to a protracted litigation. 10. In view of the fact that at present the defects have been found by the appeal authority in the proposal claimed by the petitioner Vijay Kumar, it is further provided that the fair price shop of village Badaun Darwaja may be attached to any third party dealer and not to either of the petitioners (Vijay Kumar & Arshad Ali) before this Court. That arrangement may survive up to conclusion of the appeal proceedings, within a period of three months from today. 11. Accordingly, the petitions are disposed of.