Riyasat Ali (In Wric 1358 Of 2022) vs State Of U.P. Thru. Its Prin. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 138 of 2022
 

 
Appellant :- Riyasat Ali (In Wric 1358 Of 2022)
 
Respondent :- State Of U.P. Thru. Its Prin. Secy.Food And Civil Supplies U.P. Civil Secrtt. Lko. And Ors
 
Counsel for Appellant :- Vinod Mishra,Vaibhav Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Vaibhav Srivastava, learned counsel for the appellant-petitioner and learned State counsel.

2. By means of this special appeal filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, the appellant-petitioner impeaches the judgment and order dated 11.03.2022 passed by learned Single Judge in Writ C No. 1358 of 2022, whereby the writ petition preferred by the appellant-petitioner has been dismissed.

3. At this juncture itself, it is noted that the appellant-petitioner had filed Writ C No. 1358 of 2022 challenging the order dated 18.11.2021 passed by the appellate authority/ Commissioner, Lucknow Division, Lucknow exercising his appellate jurisdiction under the U.P. Scheduled Commodities Dealers (Licensing & Restoration on Hoarding) (Fifty Third) Order, 2016 (hereinafter referred to as the 'Control Order') issued under the relevant provisions of the Essential Commodities Act,1955. The appellant-petitioner in the said writ petition had also challenged the order dated 25.01.2022 passed by the Sub Divisional Magistrate, Laharpur, District Sitapur whereby the fair price shop license was restored in favour of respondent no.4- Swami Dayal.

4. For appropriately adjudicating the issue which has been raised in this special appeal, the Court may first notice certain facts.

5. The respondent no.4- Swami Dayal was the license holder to run a fair price shop in the village concerned. However, his license was suspended by means of an order dated 09.01.2008 and subsequently it was cancelled by the Sub Divisional Magistrate vide an order passed by him on 07.12.2016. On account of suspension of the license to run the fair price shop run by respondent no.4, in a stop-gap arrangement the petitioner was given the license to run the fair price shop on 15.07.2008. It is to be noticed that occasion to grant the license to the appellant-petitioner to run the fair price shop had arisen on account of suspension of the license which was earlier being operated by the respondent no.4- Swami Dayal.

6. Against the order cancelling the fair price shop license, the respondent no.4-Swami Dayal preferred an appeal before the appellate authority which was allowed by means of an order dated 07.10.2017 and the matter was remitted back to the Sub Divisional Magistrate for decision afresh. On remand, the matter was again considered by the Sub Divisional Magistrate, who passed an order on 13.08.2021 whereby the license of the respondent no.4- Swami Dayal was again cancelled. However, this order dated 13.08.2021 of cancellation of license to run fair price shop, was again challenged by the respondent no.4- Swami Dayal before the appellate authority and by means of the order dated 18.11.2021 the Appellate Authority allowed the appeal filed by the respondent no.4-Swami Dayal and set aside the order of cancellation of the license, dated 13.08.2021.

7. When the respondent no.4- Swami Dayal was not permitted to lift the essential commodites for distribution even after his appeal was allowed by the appellate court by means of the order dated 18.11.2021, he approached this Court by filing Writ Petition No.29877 (MS) of 2021, which was finally disposed off with a direction to the Sub Divisional Magistrate to take necessary action in accordance with the order passed by the appellate authority on 18.11.2021. In compliance of the said order dated 20.12.2021 passed by this Court the Sub Divisional Magistrate passed an order on 25.01.2022 whereby the appellant- petitioner has been permitted to operate the fair price shop and take appropriate steps to lift the food grains and other essential commodities for distribution. It is this order dated 25.01.2022 passed the Sub Divisional Magistrate, Laharpur, Sitapur and order dated 18.11.2021 passed by the appellate authority, which were challenged in Writ C No. 1358 of 2022 filed by the appellant-petitioner, which has been dismissed by the learned Single Judge by passing the judgement and order under challenge herein.

8. So far as maintainability of this Special Appeal against that portion of the judgment and order dated 11.03.2022 passed by the learned Single Judge, whereby the same has been dismissed in respect of the challenge made to the appellate order dated 18.11.2021 is concerned, in view of the Full Bench decision rendered by this Court in the case of Sheet Gupta Vs. State of U.P. and others, reported in 2010 (28) LCD 1045, the Special Appeal is not maintainable.

9. As regards the portion of the judgment and order under appeal, dated 11.03.2022 whereby challenge made to the order passed by Sub-Divisional Magistrate on 25.01.2022 has been dismissed, we may only notice that the said order dated 25.01.2022 was passed by the Sub-Divisional Magistrate to ensure compliance of the order dated 20.12.2021 passed by this Court in Writ Petition No.29877 (MS) of 2021. It is further to be noticed that subsequent license holder of a fair price license does not have any right to challenge the restoration of a fair price shop license, that too on the basis of an order passed by the appellate authority, wherein challenge is made by the earlier license holder to cancellation of his license. This view expressed by us is supported by law laid down by Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others, Civil Appeal No. 6774 of 2015 decided on 29.10.2015. Para 50 of the said judgment which is relevant for appropriate decision of the present special appeal is extracted hereinunder:-

"50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."

10. Even otherwise, the right of subsequent allottee of the fair price shop, where license is granted in a stop-gap arrangement on account of suspension/ cancellation of the license of the earlier license holder, is subject to decision of the proceedings, if the same are instituted by the earlier licensee challenging the order of suspension or cancellation of his license. In the instant case, there is no denial of the fact that the order of cancellation of the license of the earlier licensee has been set aside by the appellate court/ forum by means of order dated 25.01.2022. Thus in our considered opinion, the appellant-petitioner would operate the fair price shop only till the order of cancellation of the license of the earlier licensee subsisted. In respect of challenge made to the appellate order dated 18.11.2021 before the learned Single Judge, we have already noticed that this Special Appeal would not be maintainable.

11. Learned counsel for the appellant-petitioner at this juncture has placed reliance upon the judgment rendered by learned Single Judge in the case of Smt. Farzana Vs. State of U.P. and other in Writ C No. 39800 of 2017, decided on 28.02.2018. Reliance to the said judgment has been made for asserting that the Control Order under which the appeal is permitted to be filed against the order of cancellation of the license permits the subsequent allotee to challenge the order of restoration of a license.

12. So far as the reliance placed by the learned counsel for the appellant-petitioner on the aforesaid judgment in the case of Smt. Farzana is concerned, we may only notice that the said judgment only clarifies the scope of appeal under the relevant Control Order. However, we are not in a position to make any comment upon the submission made by learned counsel for the appellant-petitioner in this regard, for the reasons it is not a case where the appellant-petitioner has challenged the order of restoration of the license of the earlier licensee, dated 25.01.2022 by filing any appeal before the appellate authority.

13. In the light of the aforesaid reasons, we are of the considered opinion that the judgment and order dated 11.03.2022 passed by learned Single Judge, which is under challenge hereinunder, does not warrant any interference by this Court in this special appeal.

14. The special appeal is thus dismissed.

15. However, no order as to costs.

Order Date :- 7.4.2022

Abhishek Singh