Allahabad High Court
Chandrika Prasad vs State Of U.P.Thru Addl.Chief ... on 7 July, 2022
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 20
Case :- WRIT - C No. - 16162 of 2021
Petitioner :- Chandrika Prasad
Respondent :- State Of U.P.Thru Addl.Chief Secy.Food And Civil Supplies Andors
Counsel for Petitioner :- Ripu Daman Shahi
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey,Satish Kumar Sharma
Hon'ble Manish Kumar,J.
The present writ petition has been preferred against the appellate order dated 19.07.2021 passed by opposite party no. 3 by which the appeal preferred by the respondent no. 6 has been allowed.
The brief facts of the case are that a license for running fair price shop was granted in favour of the petitioner, which was cancelled by the Sub-Divisional Magistrate on 09.07.2007 as an FIR was lodged against the petitioner under Section 3/7 of the Essential Commodities Act (hereinafter referred to as 'the Act'). Against the order of cancellation, the petitioner had not preferred any appeal under Section 13(3) of the Act within thirty days as the stipulated time provided under the Act. After his acquittal in the criminal case vide judgment and order dated 21.07.2017, the petitioner made a representation before the Sub-Divisional Magistrate for restoration of his license for running fair price shop. When no action was taken by the Sub-Divisional Magistrate, the petitioner approached this Court by filing a Writ Petition bearing No. 25417 (MS) of 2017, which was disposed of by this Court vide its judgment and order dated 25.10.2017 with a direction to the Sub-Divisional Magistrate to decide the representation of the petitioner.
In compliance of the order of this Court, the Sub-Divisional Magistrate had decided the representation of the petitioner and restored the license of the petitioner vide its order dated 13.12.2017. The said order of restoration of license was challenged by the subsequent allottee i.e. opposite party no. 6 before this Court by filing a Writ Petition No. 31656 (MS) of 2017 in which initially an interim order was granted by this Court vide its order dated 22.12.2017 and subsequently, the interim order was vacated on 25.07.2018. After vacation of the interim order, the Sub-Divisional Magistrate again passed an order on 31.08.2018 restoring the license of the petitioner for running fair price shop and cancelling the license granted in favour of opposite party no. 6.
This fact was brought by the opposite party no. 6 before this Court and this Court dismissed writ petition as withdrawn and had given liberty to file an appeal against the order of restoration dated 31.08.2018. Thereafter, opposite party no. 6 preferred an appeal which was allowed and remanded the matter by the appellate authority vide its order dated 28.12.2020 to the Sub-Divisional Magistrate for re-consideration. The Sub-Divisional Magistrate on 05.03.2021 again passed an order in favour of the petitioner against which the opposite party no. 6 again preferred an appeal which was allowed by the appellate authority vide its order dated 19.07.2021, which is the subject matter of the present writ petition.
Learned counsel for the petitioner has submitted that the very basis of cancellation of license and initiating a criminal case against the petitioner under Section 3/7 of the Act in which the petitioner has been acquitted and hence he is entitled for restoration of his license. It is further submitted that the appellate court while deciding the appeal has not considered this fact, and when the very genesis of cancellation order is now no more in existence, the petitioner is entitled for restoration of his license.
On the other hand, learned counsel for opposite party no. 6 has submitted that the petitioner had not preferred any appeal against the order of cancellation dated 09.07.2007 either within the stipulated time i.e. 30 days, so the vacancy was treated as permanent. After two years, the opposite party no. 6 was selected as per the procedure provided and the license was granted in his favour for running fair price shop. It is further submitted that the petitioner has made a representation for the first time for restoration of the license after about eight years when he was acquitted in the criminal case. It is further submitted that there is no illegality in the appellate order particularly where it has been held that the Sub-Divisional Magistrate is not empowered to review, recall or modify its order under the provisions of the Act.
After hearing learned counsel for the parties, going through the record and the statutory provisions, the position which emerges out is that the petitioner had not preferred any appeal against the cancellation order passed in the year 2007. He waited for ten years and after his acquittal in the criminal case, he made a representation for the first time for restoration of his license. By not preferring any appeal vacancy resulted in permanent vacancy and the selection of opposite party no. 6 was not a temporary arrangement.
The supply of essential commodities cannot be kept in abeyance for perpetuity. It is for the benefit of the persons belonging to below poverty line and for them the supply of essential commodities is a necessity and the said right of the people, who are below poverty line cannot be the subject to the right of the petitioner.
There is no illegality in the finding of the appellate court that the Sub-Divisional Magistrate has no power to recall, review or modify its earlier order in absence of any provision under the Act, the restoration of license by the Sub-Division Magistrate was without jurisdiction.
The submission of learned counsel that the very basis of cancellation of license had gone due to acquittal of the petitioner and he is entitled for restoration of license would have some force if the petitioner would have filed an appeal without waiting for ten years. The normal practice is that if the license is either suspended or if any appeal against the cancellation is pending, in that eventuality, as a temporary arrangement, the quota of that shop is attached to nearby fair price shop and the attachment is subject to the outcome of the appeal, which is not the case here as no appeal was preferred by the petitioner meaning thereby he submitted to the order of cancellation of license. In that case, the allotment to opposite party no. 6 is against the permanent vacancy and in the meantime legally creating a third party right which cannot be disturbed or nullified.
For the facts and reasons mentioned hereinabove, the present writ petition is dismissed.
Order Date :- 7.7.2022
Nitesh
