Allahabad High Court
Nazeer Ahmad vs State Of U.P. And Another on 8 May, 2013
Bench: Ashok Bhushan, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 9
Case :- WRIT - C No. - 54527 of 2012
Petitioner :- Nazeer Ahmad
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Rajesh Kushwaha,M.P. Singh Gaur
Respondent Counsel :- C.S.C.,Ashok Nath Tripathi
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Hon'ble Ashok Bhushan,J.
Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the petitioner and learned Standing counsel representing the respondents.
By this writ petition, the petitioner has prayed for quashing the order dated 2.7.2012 by which order the Sub Divisional Officer has rejected the representation of the petitioner in which representation, the petitioner has claimed restoration of his fair price shop.
The petitioner was a fair price shop allottee. The petitioner's mother was elected as Pradhan hence, his shop was cancelled on 27.3.2007. A writ petition being writ petition No. 19278 of 2006 was filed against the cancellation order, which writ petition was ultimately dismissed on 25.5.2006. After cancellation of the petitioner's fair price shop, one Mehnaz Jahan was appointed as a fair price shop dealer on 7.7.2012. Subsequently shop of Mehnaz Jahan was cancelled on 28.2.2012. On the basis of the resolution dated 27.4.2012, one Mohammad Yamin was appointed as fair price shop dealer. The tenure of petitioner's mother as Pradhan came to an end in 2010. The petitioner thereafter filed representation on 2.6.2012 for restoration of fair price shop. The petitioner also filed writ petition being writ petition No. 20983 of 2012, which writ petition was disposed of on 1.5.2012 directing the Sub Divisional Officer to consider the petitioner's claim. After order of this Court, the petitioner's representation has been rejected on 2.7.2012.
Learned Counsel for the petitioner challenging the impugned order contended that petitioner was entitled for restoration of his fair price shop after the tenure of petitioner's mother as Pradhan came to an end. He submits that Mohammad Yameen, who is running the fair price shop being subsequent allottee, his fair price agreement ought to have been cancelled. Reliance has been placed on (1984) 3 SCC 99 Dularey Lodh Vs. The IIIrd Addl. District Judge Kanpur and others.
We have considered the submissions of learned counsel for the parties and have perused the record.
The first submission of learned Counsel for the petitioner is that petitioner was entitled for restoration of his shop after the disqualification which was ensued on election of petitioner's mother as Pradhan, came to an end. The petitioner's fair price shop was cancelled on 27.3.2007 due to his mother having been elected as Pradhan. The said issue was considered by the Division Bench in the case of Ram Murat Vs. Commissioner Azamgarh Division 2006 (5) ADJ 396. Along with the said writ petition, the petitioner's writ petition being writ petition No. 19278 of 2006 was also connected. The Division Bench upheld the cancellation of fair price shop on the ground of election of family members as Pradhan or Up Pradhan of the village. Thus cancellation of the petitioner's fair price shop was upheld by judgment dated 25.5.2006. There was no such observation in the judgment that after tenure of Pradhan or Up Pradhan comes to an end, the fair price shop can be restored. The cancellation of the shop was upheld and thereafter it was allotted to one Mehnaz Jahan and subsequently to Mohammad Yameen. The petitioner's shop having never been restored, the submission of the petitioner that Mohammad Yamin being subsequent allottee, his shop should be cancelled and restored in favour of the petitioner, cannot be accepted. Mohammad Yameen was appointed when there was clear vacancy due to cancellation of fair price shop of Mehnaz Jahan. The submission which has been pressed by learned Counsel for the petitioner is that agreement of the petitioner at best can be said to become dormant during the tenure of petitioner's mother as Pradhan and since the tenure of his mother came to an end, agreement of fair price shop was to be restored. Reliance has been placed on the judgment in Dularey Lodh Vs. The IIIrd Addl. District Judge Kanpur and others (supra). In the said case, landlord filed a suit for ejectment in the year 1971 and obtained a decree of ejectment against the appellant tenant. The decree holder filed an execution in the year 1973 in which tenant raised jurisdictional objection that the transfer of the suit before conferment of the jurisdiction to the Judge Small Causes Court was not competent and therefore, the decree was not executable. The Court held that the decree remained inexecutable, but by virtue of U.P. Urban Buildings (regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. Section 9 of the U.P. Civil Laws Amendment Act, 1972 was made applicable with retrospective effect to remove the injustice and remedy the mischief which had been caused to the decree holders. As a result of the amendment, the decree become executable. In the aforesaid context following observations were made in paragraph 16 and 17:
16. Similarly, in the case of Kailash Sonkar v. Smt. Maya Devi, to which one of us (Fazal Ali, J.) was a party, this Court made the following observation:
"In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life-time the person is reconverted to the original religion the eclipse disappears and the caste automatically revives."
17. Thus, applying the rule of law laid down by this Court, there would be no difficulty in upholding the judgments of the courts below in this particular appeal. By virtue of the 1972 Act, the decree could not have been set aside or invalidated and the only consequence which would ensue is that the decree would be lying dormant and could not be executed. Once the bar placed by the 1972 Act is 751 removed, by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable. The courts below have rightly decided that after the 1976 Amendment Act the decree became legally executable"
In the aforesaid case, decree in favour of the landlord became executable by statutory amendments and the decree which was inexecutable became executable. In the above context, the Court held that the decree which was lying dormant can be executed since the bar has been removed. The said judgment in no way help the petitioner since the petitioner's cancellation of the fair price agreement was never set aside nor there was any statutory provision that after tenure of the petitioner's mother as Pradhan comes to an end, his agreement will be restored.
Learned Counsel for the petitioner lastly contended that petitioner was not permitted to participate in any subsequent allotment of fair price shop. We are of the view that in the present writ petition, the issue raised is for quashing the order dated 2.7.2012 by which the petitioner's representation was rejected. In the representation of the petitioner, no issue was raised to the effect that petitioner was not permitted to participate in the subsequent allotment hence, there is no occasion to consider any such submission. No case has been made out for setting aside the order dated 2.7.2012 or for issuing any mandamus as prayed for in the writ petition.
The writ petition is dismissed.
Order Date :- 8.5.2013
LA/-
