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2025 DIGILAW 28 (ALL)

Ram Sajiwan Kori v. State of U. P.

2025-01-09

VIKRAM D.CHAUHAN

body2025
JUDGMENT : (Vikram D. Chauhan, J.) Heard Sri Vijay Kumar Pandey and Sri Ram Kinkar Shukla, learned counsels for the petitioner, Sri Himanshu Shekhar, learned counsel for respondent No. 6 and learned Standing Counsel for the State respondents. 2. It is submitted by learned counsel for the petitioner that originally the petitioner was the holder of a fair price shop licence. The fair price shop licence was suspended on 25.3.2006 by the order of the Sub-Divisional Magistrate, Lalganj, Pratapgarh. Against the order dated 25.3.2006, the petitioner had preferred an appeal before the appellate authority challenging the suspension order. While the aforesaid appeal is pending consideration, the petitioner has also filed his reply before the Sub-Divisional Magistrate concerned on 31.3.2006. In the meantime, the cancellation order was passed on 25.5.2006 against the petitioner by the Sub-Divisional Magistrate. According to learned counsel for the petitioner at the stage of cancellation of fair price shop licence by order dated 25.5.2006 no opportunity of hearing was granted nor the petitioner was granted any opportunity to file its reply before the Sub-Divisional Magistrate at this stage. Subsequently, the appeal against the suspension order was decided by order dated 29.8.2006 directing the decision by the Sub-Divisional Magistrate at the earliest. In pursuance to the aforesaid order, the petitioner filed a representation dated 24.5.2011 before the Sub-Divisional Magistrate, which was rejected by order dated 8.7.2011 disclosing that the petitioner's fair price shop licence has been cancelled on 25.5.2006 and as such at this stage no order can be passed. Against the aforesaid order, the petitioner had preferred an appeal before the appellate authority, which was rejected by order dated 12.6.2012. 3. Against the impugned order dated 12.6.2012 and 25.5.2006, the petitioner had filed writ petition being Writ-C No. 46991 of 2012 before this Court, which was allowed by order dated 29.5.2015. The respondent No. 6, being aggrieved by the judgment dated 29.5.2015 preferred Civil Appeal No. 20849 of 2017, Uma Shankar Singh v. State of U.P. and others before the Supreme Court. The aforesaid civil appeal was finally decided by the Supreme Court by order dated 4.12.2017 remanding the matter for decision a fresh before the SDM concerned. The respondent No. 6, being aggrieved by the judgment dated 29.5.2015 preferred Civil Appeal No. 20849 of 2017, Uma Shankar Singh v. State of U.P. and others before the Supreme Court. The aforesaid civil appeal was finally decided by the Supreme Court by order dated 4.12.2017 remanding the matter for decision a fresh before the SDM concerned. The relevant paragraph of the aforesaid judgment is quoted hereunder : ''We are of the view that the entire matter needs to be looked into afresh by the SDM, Lalganj, Pratapgarh particularly keeping in mind that there is no finding recorded by the Licensing Authority or even by the Appellate Authority that respondent No. 7 was not running the fair price shop in accordance with the terms of the licence/allotment. In this view of the matter, we set aside the order passed by the High Court and remand the matter to the SDM, Lalganj, Pratapgarh for fresh consideration of the entire issue. The parties will be entitled to be heard by the SDM, Lalganj, Pratapgarh before a final decision is taken. Until the decision is taken by the SDM, Lalganj, Pratapgarh, respondent No. 7 will continue to run the fair price shop.'' 4. In pursuance to the aforesaid order dated 4.12.2017 passed by the Supreme Court, the Sub-Divisional Magistrate after giving opportunity of hearing to the parties has passed an order on 24.1.2018 upholding its earlier decision of cancellation of the fair price shop licence of the petitioner. Thereafter, the petitioner has again filed an appeal before the appellate authority, which has been rejected by order dated 13.9.2018. After the order of the Supreme Court dated 4.12.2017 remanding the matter for taking decision afresh before the Sub-Divisional Magistrate concerned, the Sub-Divisional Magistrate has not decided the issue afresh and has in fact reiterated the earlier order. No finding on the arguments and the evidence produced before the Sub-Divisional Magistrate were ever considered. 5. After the order of the Supreme Court dated 4.12.2017 remanding the matter for taking decision afresh before the Sub-Divisional Magistrate concerned, the Sub-Divisional Magistrate has not decided the issue afresh and has in fact reiterated the earlier order. No finding on the arguments and the evidence produced before the Sub-Divisional Magistrate were ever considered. 5. Learned counsel for the petitioner has drawn attention of this Court to page 54 of the writ petition to submit that the Sub-Divisional Magistrate has observed that when the order dated 29.5.2015 passed by this Court was set aside by Supreme Court, earlier order dated 25.5.2006, cancelling the fair price shop licence and the appellate order dated 12.6.2012 revived and as such the petitioner's fair price shop licence was cancelled and no new facts have been brought which could dislodge the earlier cancellation order. A perusal of the order of the Supreme Court would demonstrate that the Supreme Court while remanding the matter has specifically directed the Sub-Divisional Magistrate to decide the matter afresh keeping in mind that there is no finding recorded by the licensing authority or even even by the appellate authority that the petitioner was not running the fair price shop in accordance with the terms of licence. 6. It is submitted by learned counsel for petitioner that aforesaid direction of Supreme Court is indicative of the fact that the dispute was required to be looked afresh and the previous finding recorded by authorities would not be required to be taken into consideration. However, in the present case, the previous findings have only been reiterated and in fact a new complaint dated 2.1.2018 has also been taken note of. The complaint dated 2.1.2018 of the Gram Pradhan was not the subject-matter before the Supreme Court and as such the same could not have been taken into consideration by the Sub-Divisional Magistrate without giving a fresh notice and the documents relied upon in this respect. Without the notice of the fresh allegations of the year 2018 to the petitioner, the impugned order dated 24.1.2018 by the Sub-Divisional Magistrate could not have been passed. 7. It is further submitted by learned counsel for the petitioner that even the Appellate authority has not recorded any finding with regard to the arguments raised by the petitioner against the order dated 24.1.2018. 7. It is further submitted by learned counsel for the petitioner that even the Appellate authority has not recorded any finding with regard to the arguments raised by the petitioner against the order dated 24.1.2018. The order of the appellate authority has been passed in a mechanical manner and has only taken note of that fact that the petitioner has not been able to prove his innocence in respect of the earlier allegations against the petitioner without considering the stand of the petitioner and without recording any finding with regard to the documents and the arguments submitted by the petitioner. The appellate authority has further taken note of the allegations of the year 2018, although the same were not part of the remand order of the Supreme Court and as such the order of the appellate authority is laconic and not sustainable in the eyes of law. 8. Learned Standing Counsel has opposed the writ petition and submits that the petitioner was given an opportunity to prove his innocence however, the same was not found favour by the Sub-Divisional Magistrate and the appellate authority and as such the impugned orders are sustainable in the eyes of law. 9. On a query being made to learned Standing Counsel as to whether the Sub-Divisional Magistrate and the appellate authority has recorded any fresh finding in pursuance to the order of the Supreme Court dated 4.12.2017, learned Standing Counsel submits that only the earlier finding has been reiterated by stating that the petitioner has not been able to prove his innocence. Learned Standing Counsel has also not disputed the fact that the Appellate Authority has also not recorded any finding on the arguments raised by the petitioner before the Appellate Authority. 10. Sri Himanshu Shekhar, learned counsel appearing on behalf of respondent No. 6 also could not dispute the fact that no finding has been recorded afresh in pursuance to the order of the Supreme Court dated 4.12.2017 by the Sub-Divisional Magistrate concerned or the appellate authority. 11. Both the learned Standing Counsel as well as learned counsel for respondent No. 6 could not dispute the fact that the allegations with regard to the letter dated 2.1.2018 was not part of the directions in the remand order of the Supreme Court. 12. 11. Both the learned Standing Counsel as well as learned counsel for respondent No. 6 could not dispute the fact that the allegations with regard to the letter dated 2.1.2018 was not part of the directions in the remand order of the Supreme Court. 12. It is to be seen that in the present case in earlier round of litigation the cancellation order and the appellate order were set aside by this Court by order dated 29.5.2015 against which the private respondent No. 6 has preferred a civil appeal before the Supreme Court and the order dated 29.5.2015 of this Court was set aside and the matter was remanded back to the Sub-Divisional Magistrate concerned for decision afresh with the specific direction that while deciding the issue afresh, the Sub-Divisional Magistrate concerned would keep in mind that there is no finding recorded by the licensing authority or even the Appellate Authority that the petitioner was not running the fair price shop in accordance with the terms of licence allotment. The effect of the aforesaid direction of the Supreme Court was that the matter was liable to be decided afresh without looking into the previous finding and a fresh finding after considering the evidence of both the parties were required to be recorded by the Sub-Divisional Magistrate concerned. The Sub-Divisional Magistrate concerned in its order dated 24.1.2018 passed in pursuance to the remand order passed by the Supreme Court has not recorded any new finding in respect of the remanded matter. The Sub-Divisional Magistrate concerned has taken notice that the petitioner has not been able to produce any material which would dislodge the earlier proved allegation against the petitioner. The aforesaid finding of the Sub-Divisional Magistrate concerned is wholly unsustainable in the eyes of law as the SDM concerned was required to decide the matter afresh after remand by the Supreme Court without looking into the previous finding recorded and the Sub-Divisional Magistrate concerned committed a grave error by upholding the previous proved allegations. 13. A perusal of the order of the Sub-Divisional Magistrate concerned would further demonstrates that none of the documents produced by the petitioner or the department have been taken into consideration. 13. A perusal of the order of the Sub-Divisional Magistrate concerned would further demonstrates that none of the documents produced by the petitioner or the department have been taken into consideration. Only the previous allegations have been taken to have been proved and the same has been reiterated which cannot be the scope of the remand order passed by the Supreme Court as such the order of the Sub-Divisional Magistrate concerned is not sustainable in the eyes of law. Similarly, the appellate authority has passed the order dated 13.9.2018 in a very cursory manner without recording any finding with regard to the arguments raised by the petitioner against the order dated 24.1.2018. The duty of the Appellate Authority is to examine the issue and to see whether the grounds raised in the appeal can be sustained to dislodge the order passed by the original authority. In the present case, no such exercise has been made as is admitted by learned Standing Counsel as well as learned counsel for respondent No. 6. 14. Since the order of the Supreme Court has not been complied with by the Sub-Divisional Magistrate concerned and the appellate authority has also not decided the issued in the proper perspective, the order dated 24.1.2018 passed by the Sub-Divisional Magistrate concerned and the order of the Appellate Authority dated 13.9.2018 are hereby set aside. The writ petition is allowed and the matter is remanded back to the respondent No. 3-Sub-Divisional Magistrate, Lalganj, Pratapgarh for taking decision afresh in light of the order of the Supreme Court dated 4.12.2017. The Sub-Divisional Magistrate concerned while deciding the matter afresh shall not look into any of the findings recorded on the previous occasion and shall take up the matter afresh and the arguments which have been advanced by the parties shall be considered. 15. Since the order after the remand of the Supreme Court are set aside, the position as existing in pursuance to the order of the Supreme Court dated 4.12.2017 is hereby restored. The Sub-Divisional Magistrate concerned is directed to decide the matter afresh within a period of three months from the date of production of a certified copy of this order after giving opportunity of hearing to all the parties concerned.