Allahabad High Court
Smt. Muneeta vs State Of U.P. And 5 Others on 6 February, 2020
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 41 Case :- WRIT - C No. - 21915 of 2019 Petitioner :- Smt. Muneeta Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Amrendra Nath Rai,Adarsh Bhushan,Deepak Kumar Tripathi Counsel for Respondent :- C.S.C.,Dharam Deo Chauhan,Ram Mani Upadhyay Hon'ble Siddhartha Varma,J.
Since the writ petition was to be decided on a pure question of law no time was granted to the respondents to file counter affidavit. The question was as to whether when the petitioner alongwith Ram Bhawan who were complainants and had filed complaints against the functioning of the private respondent then were they to be heard while the appeal was being decided by the Appellate Court under Clause 13 U.P. Essential Commodities (Regulation of Sale & Distribution Control) Order, 2016, (hereinafter referred to as "the Control Order").
Learned counsel for the petitioner has submitted that under Clause 13(4) of the Control Order every person who was aggrieved by the order of appointment, suspension, cancellation and against the restoration of licence had to be heard. The complainants who had initiated the proceedings against the fair price shop dealer were aggrieved parties and, therefore, had to be heard. Since the learned counsel for the petitioner relied upon Clause 13 of the Control Order, the same is being reproduced here as under:-
13.(1) Appeal in relation to action or subject covered under the National Food Security Act, 2013 and rules framed under it shall lie before the authority mentioned in sub-clause (10) of clause 11 of this order but appeal against appointment, suspension and cancellation of fair price shop by the Competent Authority shall lie before the Divisional Commissioner.
(2) Any person aggrieved by an order of the Designated Authority denying the issue or renewal of a ration card or cancellation of the ration card under the National Food Act, 2013, may appeal to the Appellate Authority within thirty days of the date of receipt of the order.
(3) Any person aggrieved by an order of the Competent Authority denying the issue or renewal of the agreement to the fair price shop owner, suspension or cancellation of the agreement may appeal to the Appellate Authority namely the Divisional Commissioner or the Joint Commissioner/Deputy Commissioner (Food) authorized by him in writing to hear and dispose appeal within thirty days of the date of receipt of the order and the Appellate Authority shall, as far as practicable, dispose the appeal within a period of sixty days.
Provided that once an appeal has been disposed of by the Appellate Authority, the time for issue or renewal of the agreement of the fair price shop owner by the Competent Authority referred to in sub-clause (9) of clause 10 shall begin from the date of decision of the Appellate Authority on the appeal:
Provided further that an appeal pending before an Appellate Authority appointed under the Uttar Pradesh Schedule Commodities Distribution Order, 2004, shall be disposed of by such authority as if this order had not been made.
(4) No appeal shall be disposed of unless the aggrieved person 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 for such period as the authority may consider necessary for giving a reasonable opportunity to the other party under sub-clause (4) or until the appeal is disposed of, whichever is earlier.
Learned counsel for the petitioner stated that since "aggrieved person" had not been defined in the Control Order, the complainants would be considered to be aggrieved persons as they were aggrieved by the actions of the fair price shop dealer and, therefore, when the Appeal under Clause 13(1) of the Control Order was filed they ought to have been arrayed as opposite parties in the Appeal and, thereafter, they should have been heard when the Appeal was heard. Therefore, he submits that since in the Appeal the respondent no. 6 had not arrayed the petitioner/complainant alongwith the other complainant as respondents in the array of parties, the Appeal itself was defective and, therefore, the Appellate order could not be sustained in the eyes of law.
Learned counsel further submitted that even a victim under Section 2(wa) of the Cr.P.C. had been held to be a sufferer of the offence and even he under the criminal laws had now been given the right to prefer an Appeal under Section 372 Cr.P.C. and, therefore, he submits that when the petitioner who was a complainant was not arrayed as an opposite party in the Appeal and was not heard, not only was the Appeal defective but the order also passed in the Appeal became erroneous.
Learned Standing Counsel appearing for the State and Sri R.M. Upadhyay and Sri Vikrant Pandey, learned Advocate, appearing for the caveator-respondent no. 6, however, submitted that the petitioner who was a complainant was not a "person aggrieved".
Having heard the learned counsel for the petitioner, learned Standing Counsel and the counsel for the Caveator, I am of the view that when the proceedings against the respondent no. 6 were initiated on the complaint of the petitioner then it cannot be said that the petitioner who had lodged the complaint was not a "person aggrieved" and when a person aggrieved had to be heard while deciding an Appeal under Clause 13 (1) of the Control Order then firstly the complainants should have been arrayed as opposite parties in the memo of Appeal and, thereafter, they should have also been heard by the Appellate Court. The very fact that the complainant had not been arrayed in the Appeal, the memo of Appeal had become defective and when the Appellate Court did not hear the complainants i.e. the petitioner alongwith Ram Bhawan then the Appellate order would also become erroneous as it had not heard the "aggrieved person".
Under such circumstances, the Appellate order dated 13.6.2019 passed by the respondent no. 2 is quashed and the writ petition is allowed.
The Appeal shall now be heard only if the Appellant impleads the petitioner as a respondent in the Appeal.
Order Date :- 6.2.2020 PK