Allahabad High Court
Virendra Kumar vs State Of U.P. And Others on 19 August, 2011
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 21
Case :- WRIT - C No. - 46945 of 2011
Petitioner :- Virendra Kumar
Respondent :- State Of U.P. And Others
Petitioner Counsel :- O.P. Chaube,Shrawan Kumar Mishra
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. The sole ground challenging the appellate order is that Deputy Commissioner has no jurisdiction to decide appeal against an order passed by the Deputy Collector cancelling the fair price agreement of the petitioner. He submit that power is conferred only upon Commissioner and not Deputy Commissioner.
2. Learned Standing Counsel disputing aforesaid placed before this Court U.P. Scheduled Commodities Distribution (First Amendment) Order, 2010 published in U.P. Gazette, Extra Ordinary, Part-4, Division (Kha) dated 2nd July, 2010 page No. 1-2, which has made amendment in para 28(1) empowering Deputy Commissioner (Food) and Additional Commissioner also to hear an appeal liable to be heard by Commissioner under the said provision. The amended provision reads as under:
^^32 [kk| ,oa jln vuqHkkx&6] vf/klwpuk la- [email protected]&6&10&18lk0&1] fnukad 2 tqykbZ] 2010] m0iz0 xtV vlk/kkj.k] Hkkx&4] [k.M ¼[k½] fnukad 2 tqykbZ] 2010 dks i`"B la- 1&2 ij izdkf'kr gqvkA
Hkkjr ljdkj] miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;] [kk| vkSj lkoZtfud forj.k foHkkx ds th-,l-vkj- 630 ¼bZ½ fnukad 31 vxLrk] 2001 ds v/khu izdkf'kr vkns'k ds lkFk ifBr vko';d oLrq vf/kfu;e] 1955 ¼vf/kfu;e la[;k 10 lu~ 1955½ dh /kkjk 3 ds v/khu 'kfDr vkSj bl fufeRr leFkZdkjh leLr vU; 'kfDr;ksa dk iz;ksx djds] Jh jkt;iky] mRrj izns'k vuqlwfpr oLrq forj.k vkns'k] 2004 ¼2005&LLT-VI-12/91½ esa la'kksf/kr djus dh n`f"V ls fuEufyf[kr vkns'k djrs gSa&
1- laf{kIr uke vkSj izkjEHk& ¼1½ ;g vkns'k mRrj izns'k vuqlwfpr oLrq forj.k ¼izFke la'kks/ku½ vkns'k] 2010 dgk tk;sxkA
¼2½- bldk foLrkj lEiw.kZ mRrj izns'k esa gksxkA
¼3½- ;g bl vf/klwpuk ds xtV esa izdk'ku ds fnukad ls izkIr gksxkA
2- [k.M 28 dk la'kks/ku& la'kks/ku mRrj izns'k vuqlwfpr oLrq forj.k vkns'k&2004 ds [k.M 28 ds mi[k.M ¼1½ ds LFkku ij fuEufyf[kr mi[k.M j[k fn;k tk;sxk] vFkkZr&
^^28-a¼1½ lHkh vihys lEcfU/kr e.Myk;qDr dks ¼sic fu/kkZfjr½ dh tk;saxh] tks mudh lquokbZ ;k fuiVkjk djsxk vFkok og vihy dh lquokbZ ;k fuiVkjk djus dh viuh 'kfDr ds vkns'k ds }kjk mik;qDr] [kk| vFkok vij vk;qDr dks izR;k;ksftr dj ldrk gSA**
3. Learned counsel for the petitioner however placed before this Court a judgment dated 21st July, 2011 in Writ Petition No.50134 of 2009 (Girish Chandra Vs. State of U.P. & Ors.) to contend that it was held therein that such power of appeal could not have been exercised by Deputy Commissioner.
4. However, learned Standing Counsel explained that despite time granted when Girish Chandra's (supra) matter was heard, he could not find out said amendment and therefore could not assist the Court and in absence of proper assistance, the Court decided the matter vide judgment dated 21st July, 2011. The said judgment being in ignorance of the notification dated 2nd July, 2010 making amendment in Clause 28(1) is per incuriam and ought not to be relied. He further submits that a review/recall application has been filed in the case of Girish Chandra (supra) which is pending before this Court.
5. Be that as it may, since amended notification has been placed before this Court, which clearly shows that power of appeal can be exercised by Deputy Commissioner or Additional Commissioner, it cannot be said that appellate order is without jurisdiction. No other point has been raised.
6. Writ petition therefore lacks merit.
7. Dismissed.
Order Date :- 19.8.2011
KA
