Allahabad High Court
Nidhi Vishnoi vs State Of U.P. And Others on 19 April, 2012
Bench: Ashok Bhushan, Prakash Krishna
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT TAX No. - 1797 of 2011
Petitioner :- Nidhi Vishnoi
Respondent :- State Of U.P. And Others
Petitioner Counsel :- G.C. Upadhayay,S.C. Upadhayay
Respondent Counsel :- C.S.C.,Murtuza Ali
Hon'ble Ashok Bhushan,J.
Hon'ble Prakash Krishna,J.
Heard Sri G.C. Upadhayay, learned counsel for the petitioner, Sri S.P. Kesharwani, learned Addl. Chief Standing Counsel for the State and Sri Murtaza Ali, learned counsel for newly impleaded respondent no. 5 Vivek Kumar.
By this writ petition, the petitioner has prayed the following reliefs:
"i) issue a writ, order or direction in the nature of a writ of certiorari quashing the impugned press commeasure dated 12.12.2011 (Annexure No. 5) issued by respondents no. 3 and 4 vide letter no. 472 dated 12.12.2011 by which the petitioner's F.L.-5 licenses situated at "Ayana' in the District Aurayya is being settled afresh through public lottery on 22.12.2011.
ii) issue a writ, order or direction in the nature of a writ of Mandamus commanding the respondents no.3 and 4 not to proceed with the afresh settlement of the petitioner's F.L.-5 at 'Ayana' in the District Aurayya through public lottery on 22.12.2011 in pursuance of the impugned advertisement published on 13.12.2011.
iii) issue a writ, order or direction in the nature of writ of Mandamus commanding the respondent no.3 to consider the renewal application dated 13.12.2011 of the petitioner and renew the same for the year 2012-13.
iv) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
v) award cost of the writ petition to the petitioner."
The petitioner was granted license of F.L.-5 at 'Ayana' in the District Aurayya for the year 2009-10 and 2010-11. The period of the petitioner's license was till 31st March, 2012. Under the changed policy of the State, all existing licensees were required to submit application for renewal of their licenses. In this regard, notices were published in the newspaper on 1st December, 2011. That notices have been brought on record by the State along with supplementary counter affidavit. In the notice, 12.12.2011 was the last date for making application for renewal. Unfortunately, the petitioner could not apply within the time and she submitted an application to the Excise Commissioner, U.P., Mumfordganj, "Abkari Bhawan", Allahabad-respondent no. 2 for renewal on 13.12.2011. The petitioner having not been able to file application for renewal within time allowed, respondent put the shops for fresh settlement by lottery on 22.12.2011. Although, the petitioner also participated on 22.12.2011 but the same was settled in favour of respondent no. 5 for the year 2012-13. The petitioner filed the present writ petition on 21st December, 2011. However, the order was passed by this Court on 23.12.2011 that the settlement of shop in question pursuant to open lottery shall be subject to the result of the writ petition.
Learned counsel for the petitioner challenging the advertisement dated 12.12.2011 contended that respondent ought to have entertained the application dated 13.12.2011 and pass an order and his application being still pending for renewal, the entire process for fresh settlement by lottery is bad He submitted that there are several shops vacant in district Aurayya in which respondent no. 5 can be adjusted.
Sri S.P. Kesharwani, learned counsel for the State refuting the above contention that it was open for the petitioner to apply for renewal within time allowed and she has not filed application for renewal by 12.12.2011 by 4:00 P.M. The shop has already been settled by lottery on 22.12.2011. The petitioner also participated in the lottery proceeding on 22.12.2011 and having been unsuccessful cannot challenge the advertisement dated 12.12.2011. It is submitted that there is no occasion to consider the application for renewal of the petitioner dated 13.12.2011 which was submitted subsequent to the period provided for making an application for renewal. Sri S.P. Kesharwani further submits that in fact, no application for renewal in proforma was submitted by the petitioner after depositing the necessary fee. It was only representation dated 13.12.2011 which has been filed as annexure-4 to the writ petition.
Sri Murtuza Ali, learned counsel for the respondent no. 5 also adopted the submissions of learned counsel for the State.
Considered the respective submissions of the learned counsel for the parties and perused the record.
There is no dispute that the notice was published in newspapers inviting the sitting licensees to submit an applications for thier renewal. 12.12.2011 was the date fixed as last date for submitting the application for renewal. Admittedly, no application for renewal could be filed by the petitioner by 12.12.2011 and only representation dated 13.12.2011 praying for consideration of her renewal application was moved.
We do not find any error in the selection proceeding held on 22.12.2011. On 22.12.2011, the petitioner has also participated in the proceeding for selection by lottery but the shop in question has already been settled in favour of respondent no. 5, Vivek Kumar. Thus, prayer of the petitioner to quash the advertisement dated 12.12.2011, Annexure-5 to the writ petition, cannot be granted. The settlement on the basis of lottery dated 22.12.2011 has already been accomplished. The petitioner's submission that his application dated 13.12.2011, Annexure-4 to the writ petition by which she prayed for consideration of her renewal application be directed to be considered. There being no vacancy in the shop which has already been settled on 22.12.2011, we see no justification to issue any direction at this distance of time. However, as submitted by learned counsel for the petitioner that there are several shops which have not yet been settled and are lying vacant. Suffice it to say, if that is so, it is open for the petitioner to participate in the allotment proceedings for the shop which are said to be vacant in accordance with law. The petitioner's application will also be considered on merits, in accordance with law.
Subject to these observations, the writ petition is disposed of.
(Prakash Krishna,J) (Ashok Bhushan,J)
Order Date :- 19.4.2012
MK/
