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2022 DIGILAW 604 (ALL)

Alok Kumar v. State Of U. P.

2022-04-21

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Shri Sukesh Kumar, learned counsel for the petitioner, Shri Santosh Kumar Shukla, learned counsel for the respondent no.5 and learned Standing Counsel for the State. 2. In undisputed facts, no counter affidavit is proposed to be filed by the private respondents. Accordingly the matter has been proceeded finally, at this stage. 3. Challenge has been raised to the order dated 24.01.2022 passed by Sub Divisional Magistrate, Bidhuna, Auraiya, whereby, while giving effect to the appellate order dated 20.12.2021 the S.D.M. has provided for running a single fair price shop that may cater to both villages Purwa Khuman and Raipur Phaphund to the private respondent. 4. Grievance of the petitioner is that two separate shops were established at village Purwa Khuman and Raipur Phaphund. The first shop was alloted to the petitioner's father Virendra Kumar in the year 1987-88. Upon his death the petitioner has been awarded the same fair price shop on compassionate considerations. On the other hand, upon cancellation of the earlier fair price shop agreement in favour of one Suraj Singh for village Raipur Phaphund, allotment was made in favour of Sanjeev Kumar/ private respondent no.5 with respect to that shop on 19.7.2013. 5. In that fact of background, the petitioner's father suffered a fair price shop (agency) cancellation proceeding. In that petitioner's agreement was cancelled on 22.05.2012. Appeal therefrom was dismissed. The petitioner's father approached this court by means of Writ C -No.66420 of 2012 (Virendra Kumar Vs. State of U.P. and others). It was disposed of vide order dated 05.12.2018. The writ petition was disposed of on the following terms :- "Once such is the factual situation, then it strikes in the mind of the Court that most leisurely the entire proceeding has been drawn against the petitioner and even the procedure, which has been so prescribed by the Government Order dated 29.07.2004 and the law laid down by the Full Bench of this Court in Puran Singh (surpa) has not been followed properly and in most cursory manner, the orders impugned have been passed, which cannot sustain in the eyes of law. Consequently, both the orders impugned are set aside. Consequently, both the orders impugned are set aside. The matter is remitted back to the Sub Divisional Officer, Kaptanganj, Kushinagar to have a revisit in the matter and decide the same expeditiously, preferably within a period of two months from the date of production of certified copy of this order keeping in mind the procedure prescribed in Government Order dated 29.07.204 as well as the law laid down in the case of Puran Singh (supra). With these observations, the Writ Petition stands allowed." 6. While giving compliance to the order passed by writ Court, the S.D.M by its order dated 13.02.2019 restored the fair price shop agreement of the petitioner. At the same time due to ambiguity in the language used by the S.D.M. in that order, a single allotment arose in favour of the petitioner both with respect to the shop at village Purwa Khuman and that at village Raipur Phaphund. Thus, the then existing fair price shop agreement of the private respondent came to an abrupt end. He challenged that order before the commissioner in Appeal No.02411 of 2019. While allowing that appeal the appeal authority set-aside the order dated 13.02.2019. It remitted that matter with a positive observation that the fair price shop agreement of Sanjeev Kumar/private respondent with respect to village Raipur Phaphund be restored. 7. This time the S.D.M. has passed the impugned order dated 20.12.2021 and made single allotment of the two shops of village Purwa Khuman and Raipur Phaphund in favour of private respondent Sanjeev Kumar. 8. The facts are too clear as may warrant any further discussion with respect to the same. As to the rights, in the face of orders noted above, it cannot be denied that the petitioner had a per- existing right to run a fair price shop for village Purwa Khuman. It also cannot be denied that the respondent no.5 Sanjeev Kumar had a similar pre-existing right to run a fair price shop at village Raipur Phaphund. In fact both agreements existed simultaneously during the period of 1994-2012 i.e. for a period of 18 years. 9. It also cannot be denied that the respondent no.5 Sanjeev Kumar had a similar pre-existing right to run a fair price shop at village Raipur Phaphund. In fact both agreements existed simultaneously during the period of 1994-2012 i.e. for a period of 18 years. 9. Merely because the petitioner's fair price shop license was cancelled and by way of interim arrangement the beneficiaries attached to his shop were temporarily attached with the respondent no.5 did not result in either abolition of the shop of the petitioner or creation of any lien in favour of the private respondents as made survive the order of restoration of fair price shop agreement of the present petitioner. 10. Thus both the petitioner and respondent no.5 have pre-existing rights over their respective shops at village Purwa Khuman and Raipur Phaphund. 11. The reasoning given by the S.D.M. based on the number of existing units in the two villages is therefore extraneous. 12. In face of pre-existing rights/ agreement both petitioner and the private respondents would have right to continue to run their shops at villages Purwa Khuman and Raipur Phaphund respectively. 13. Accordingly the order is set-aside. Mandamus is issued to the S.D.M. to make necessary arrangements to ensure parallel running of the shops at Purwa Khuman at village Purwa Khuman (by the petitioner), and at village Raipur Phaphund (by respondent no.5). As to the allotment of units the same arrangements may arise as existed prior to cancellation of the petitioner’s fair price shop in the year 2012. Additional units may be alloted following the same principle. Such exercise may be completed within a period of one month from today.