Allahabad High Court
Dilip Kumar vs State Of U.P. And 5 Others on 2 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Civil Misc. Delay Condonation Application No. 2 of 2019
IN
Case :- SPECIAL APPEAL DEFECTIVE No. - 1153 of 2019
Appellant :- Dilip Kumar
Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- Surendra Prasad Sharma
Counsel for Respondent :- C.S.C.,Pusp Raj Singh
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. This is an application seeking condonation of delay in filing appeal.
2. Learned Standing Counsel for respondents- 1 to 5 and Sri Pusp Raj Singh, learned counsel for respondent-6 states that they do not propose to file any written objection and Court may consider the explanation of learned counsel for appellant and may pass appropriate order.
3. After hearing learned counsel for appellant and going through the affidavit filed in support of this application, we are of the view that delay in filing appeal has been explained satisfactorily.
4. Condoned.
5. The application is, accordingly, allowed.
6. Let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.
Order Date :- 2.1.2020 Siddhant Sahu Court No. - 34 Case :- SPECIAL APPEAL DEFECTIVE No. - 1153 of 2019 Appellant :- Dilip Kumar Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Surendra Prasad Sharma Counsel for Respondent :- C.S.C.,Pusp Raj Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Surendra Prasad Sharma, learned counsel for appellant, Sri Pusp Raj Singh, learned counsel for respondent-6 and learned Standing Counsel for respondents- 1 to 5.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment and order dated 15.10.2019 passed by learned Single Judge in Writ Petition No. 27574 of 2011 (Ramphal Vs. State of U.P. and Others), whereby order dated 28.09.2010 passed by District Supply Officer, Banda as well as order dated 25.03.2011 passed by Commissioner, Chitrakoot Dham in appeal, remanded the matter to competent Licencing Authority to reconsider the order of termination of Fair Price Shop licence of respondent-6.
3. It is admitted in para-13 of affidavit accompanying with stay application that appellant is a subsequent allotee of Fair Price Shop and his license/agreement was cancelled on 28.09.2010. Thereagainst, appellant preferred appeal which was also dismissed vide order dated 25.02.2011.
4. Grievance of appellant is that as result of setting aside aforesaid orders passed against respondent-6, his Fair Price Shop's position is restored resulting in dislodging of appellant from being the said allottee. There are two obstructions in this appeal. Firstly, Appellate order passed under U.P. Scheduled Commodities (Distribution) Order, 2004 (hereinafter referred to as the "Order, 2004") is challenged before learned Single Judge and against such order, no intra-Court appeal under Chapter VIII Rule 5 of Rules, 1952 is maintainable as held by a Division Bench of this Court in Vajara Yojna Seed Farm and Ors Vs. Presiding Officer, Labour Court II and Ors. (2003) 1 UPLBEC 496. The Division Bench in para 64 of judgment held :
"64. From the above discussions and looking into the provisions of U.P. Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories :-
(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of Superintendence.
(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.
(v) Judgment of order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be more in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.
(vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act."
5. Similar controversy came up before Full Bench arising out of provisions of U.P. Scheduled commodities Distribution Order, 2004, in Sheet Gupta vs. State of U.P. and others AIR 2010 All. 46 where matter was considered in detail and law was finally laid down in para 15 thereof. In respect of any order passed by a learned Single Judge in the exercise of jurisdiction conferred by Article 226 or 227 of Constitution in respect of any judgment or award by the Tribunal Court or Statutory Arbitrator and certain orders made by a Jude in exercise of the powers under Article 226 or 227 of Constitution, a Special Appeal has been held to be barred.
6. Para 15 of Full Bench judgment in Sheet Gupta (supra) is relevant, which reads as under :
"Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1. The judgment passed by one Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2. the order made by one Judge in the exercise of revisional jurisdiction;
3. the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4. the order made by one Judge in the exercise of criminal jurisdiction;
5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act. with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India.
7. Aforesaid authorities have also been followed by Division Bench of this Court (Lucknow Bench) in Abhishek Sahu vs. Civil Judge (S.D.), Lucknow and Ors. 2014(11) ADJ 407.
8. Secondly, appellant is a subsequent allottee, inasmuch as, his right will accrue when original allottee fails and not otherwise, hence he has no locus standi.
9. A subsequent allottee has no right as he is not a party to the lis. No appeal under U.P. Scheduled Commodities (Distribution) Order, 2004 (hereinafter referred to as the "Order, 2004") lie at the instances of a subsequent allottee. This Court in Civil Misc. Writ Petition No. 10539 of 2007 (Smt. Vimla Devi and another Vs. State of U.P. and others), decided on 13.03.2007 has held that subsequent allottee has no right to continue with fair price agreement. Same view has been taken by a Division Bench of this Court in Sri Pal Yadav Vs. State of U.P. and others, 2008(10) ADJ 718 wherein it has said:
"9. Having regard to the facts and circumstances of the case, we are of the opinion that the submission made by learned counsel for the petitioner cannot be accepted. As is evident from the narration of the facts given above, the licence was given to the respondent No. 6 for running the Fair Price Shop in question. On account of cancellation of the licence of respondent No. 6, the petitioner was permitted to run the Fair Price Shop as a stop-gap arrangement. As the licence of the respondent No. 6 has now been restored by the order dated 30.5.208, the petitioner evidently cannot be permitted to run the Fair Price Shop in question any longer, as the same would now be run by the respondent No. 6.
10. In view of the above, the Writ petition lacks merit, and the same is liable to be dismissed."
10. The aforesaid judgment has been followed subsequently by this Court in Writ Petition No. 17604 of 2012, Dinesh Kumar Vs. State of U.P. and others, decided on 09.04.2012; Writ Petition No. 19987 of 2012, Ramveer Singh Vs. State of U.P. and others, decided on 24.04.2012; Writ Petition No. 29177 of 2012, Ram Deen Vs. State of U.P. and others, decided on 01.06.2012; Writ Petition No. 21699 of 2013, Ram Dayal and another Vs. State of U.P. and others, decided on 18.04.2013; Writ Petition No. 52171 of 2012, Babu Lal Singh Vs. State of U.P. and others, decided on 06.09.2013; and, Writ Petition No. 30439 of 2014, Smt. Janki Devi Vs. State of U.P. and others.
11. The right of third party created during pendency of the matter of cancellation of fair price shop agreement to an existing shop dealer or during pendency of his appeal has been considered by a Division Bench of this Court in Writ Petition No. 19080 of 2008, Naubat Singh Vs. State of U.P. and others, decided on 11.04.2008, and this Court has explained the nature of such right precarious, contingent and conditional, which is evident from the following:
"Learned counsel for the petitioner contended that since the appeal is already pending it is not open to respondents to appoint another person as fair price shop dealer in respect to the area where the petitioner was working as fair price shop dealer.
However, we do not find any force in the submission. The petitioner's agreement for distribution of essential commodities having been cancelled admittedly, presently he has no right in the matter of distribution of essential commodities of fair price to the public at large. Since there appears to be no person available for distribution of essential commodities of fair price, the public at large cannot be made to suffer and, therefore, the respondents decided to appoint another person as a fair price shop dealer pursuant whereto the impugned order dated 02.04.2008 has been passed. The aforesaid order obviously is for appointing an intermittent dealer and subject to the result of the petitioner's appeal, inasmuch as, in case the said appeal is allowed and the petitioner's agreement is restored, any person who has been appointed in place of petitioner would have no right to continue thereafter, but till the time, appeal of petitioner is decided, in our view, the petitioner has no right, legal or otherwise, to restrain the respondents from making arrangement of distribution of essential commodities appointing another person as dealer in the area where the petitioner was operating as fair price shop dealer.
Learned counsel for the petitioner seeks to place reliance on order dated 23.11.2007 passed by Hon'ble Single Judge of this Court in Writ Petition No. 57682 of 2007 wherein an order was passed restraining the authorities from doing any fresh allotment of the fair price shop till the appeal is decided.
In our view, the aforesaid order would have no application in the present case. Firstly, in the earlier writ petition filed by the petitioner which has been disposed of this Court on 07.03.2008 directing the appellate authority to decide his appeal within three months, no such order has been passed restraining the respondents from allotting shop in question to any one and for the said purpose only no fresh petition would lie. Secondly, we are of the view that so long as the licence of a person continued to be cancelled he has no right either in law or otherwise to create any obstruction in the way of respondent-authorities in making arrangement for distribution of essential commodities to the public at large in such manner as they found expedient and in the interest of public at large. If the authorities found it appropriate that the people would be better serve if the fair price shop is allotted to a third person, we do not find any illegality or irregularity in such exercise of power unless it can be shown that it is mala fide or without jurisdiction or is inconsistent to any provision or executive order having force of law. No such provision has been placed before us."
12. Besides the fact that a subsequent allottee has no right to indulge in lis between the authorities under Order, 2004 and the original fair price shop agreement allottee, I find that if an order of restoring fair price shop has been passed by Deputy Collector in favour of original allottee, a subsequent allottee has no right to file appeal, as Clause 28 of Order, 2004 does not contemplate any such appeal at the instance of subsequent allottee.
13. Clause 28 of Order, 2004 reads as under:
"28. Appeal- (1) All appeals shall lie before the concerned Divisional Commissioner who shall hear and dispose of the same by order delegate his/her powers to the Assistant Commissioner Food for hearing and disposing of the appeal.
(2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order.
(3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order.
(4) No such appeal shall be disposed of unless the aggrieved person or agent has been given a reasonable opportunity of being heard.
(5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect until the appeal is disposed of."
14. In view thereof, appeal is dismissed as not maintainable.
Order Date :- 2.1.2020 Siddhant Sahu