Court No. 21
Civil Misc. Writ Petition No. 2323 of 2010
Ram Velas
Versus
State of U.P. and others
Hon'ble V.K.Shukla,J
Present writ petition has been filed questioning the validity of the
order dated 09.11.2009 passed by Commissioner, Gorakhpur Division
Gorakhpur as contained in Annexure No. 1 to the writ petition.
Brief background of the case is that one Sita Ram has been licensee
of fair price shop and on account of various irregularities being committed
his fair price shop licences was suspended on 12.06. 2007 and thereafter
order of cancellation was passed. Against the said order Sita Ram preferred
appeal which was allowed on 15.02.2008 and matter was remanded back to
Sub-Divisional Officer to re decide the matter. Thereafter pursuant to
remand order matter was re-examined on 19.03.2008 and again order of
cancellation has been passed. Aggrieved against the same Sita Ram
preferred appeal and same has been allowed. At this juncture present writ
petition has been filed.
Learned counsel for the petitioner Sri Ved Byas Mishra contended with
vehemence that in the present case appellate authority has clearly
misdirected itself while allowing the appeal without considering the order
under challenge and the record and material which were available before it,
as such writ petition in question deserves to be allowed.
Countering said submission, learned standing counsel as well as Sri
Sayed Wazid Ali, appearing for respondent no. 5 on the other hand
contended that petitioner who is subsequent allottee has got no locus to
maintain present writ petition, as such writ petition in question is liable to be
dismissed on said score as well as on merit also.
With the consent of the parties present writ petition is being heard
and is being finally decided.
First question which is to be adverted to is the question of locus. It is
admitted position that fair price shop licensee of Sita Ram has been
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cancelled and thereafter in the vacancy which has occurred petitioner was
offered license of said fair price shop in Gram Panchayat Ranipur Vikas
Khand Paniyara, District Maharajganj in accordance with law. Direct effect of
passing of the order in appeal is that license which has been issued to the
petitioner same would automatically stands cancelled, as such to say that
petitioner has got no locus to maintain present writ petition cannot be
accepted specially when on the basis of order in question, immediate right
of the petitioner has been infringed. It is true that continuance of the
petitioner is dependent on the outcome of appeal. Once Appellate forum has
passed order and on the basis of said order right of the petitioner has been
infringed, then incumbent has got locus to maintain present writ petition, in
this background present writ petition at the behest of petitioner is
maintainable, and the validity of said order will be tested on the parameters
of judicial review.
Now coming to the merit of the case, in the present case on
19.03.2008 reasoned order has been passed and appellate authority
proceeds to mention that he has perused the written argument and
documents from perusal of the same it is apparent that without undertaking
any inquiry against the appellant in one day without considering the
evidence and without providing opportunity of hearing order has been
passed. Order dated 19.03.2008 from page 43 to 47 shows that record have
been taken into account, opportunity has been provided and thereafter
order has been passed. Once reasoned order has been passed then to set
aside the said reasoned order by unreasoned, laconic order by appellate
authority cannot be sustained.
Consequently, order dated 09.11.2009 passed by respondent no. 2 is
hereby quashed and set aside. Appellate Authority is directed to decide the
matter in accordance with law preferably within next eight weeks from the
date of presentation of certified copy of this order after affording
opportunity of hearing to the parties concerned on the material available on
record.
With the above direction present writ petition is allowed.
Dated 19.01.2010
Dhruv