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Hari Om v. State Of U.P. Thru Secry, & Others - WRIT - C No. 28280 of 2004 [2006] RD-AH 21383 (19 December 2006)


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Court no. 23

Civil Misc. Writ Petition No. 28280 of 2004

Hari Om..............................................................................Petitioner


The State of U.P. through the Secretary Food & Civil Supply U.P. Lucknow..............................................................................Respondents.

Hon. S.N. Srivastava, J.

Challenge in this petition is to the order dated 10.3.2004 passed by the Commissioner Agra Division Agra whereby he allowed the appeal of Opp. Party no. 4 and set aside the order dated 22.5.1998 whereby agreement to run fair price shop was rescinded.

A brief resume of necessary facts may be enumerated. The fair price shop was initially assigned to one Pooran Mal arrayed as respondent no.4. The agreement to run the fair price shop was rescinded by means of order dated 22.5.1998 passed by Sub Divisional Officer Tahsil Kol District Aligarh upon complaints received about mal -practices being indulged in by the respondent no.4 and in consequence, it was allotted to one Babu Lal. It would appear from record that the licence issued in favour of Babu Lal was also rescinded by the respondent no. 3 vide order dated 1.11.2002 in pursuance of complaints about mal practices. Aggrieved by the order, the aforesaid Pooran Mal arrayed as respondent no.4 preferred appeal before the Commissioner Agra Division Agra. It would appear from the record that in the meantime, the fair price shop was allotted to the petitioner on the basis of recommendations made by Akbar Gram Sabha vide order dated 15.12.2003.  

I have heard learned counsel for the petitioner and also learned Standing counsel.

The kernel of the argument advanced by learned counsel for the petitioner is that in the appeal preferred by Pooran Mal respondentno.4, the petitioner was not arrayed as a party and therefore, the impugned order allowing the appeal is vitiated and is liable to be quashed on this count alone.

It brooks no dispute that it was respondent no.4 who had been allotted the fair price shop. Subsequently, he ran into rough weather on account of receipt of certain complaints alluding to mal practices on his part in running of the said shop and therefore, the licence granted to him culminated in being revoked and an appeal was preferred by him which was pending and was allowed by the impugned order. It also bears no dispute that the aforesaid shop was subsequently allotted to one Babu Lal during pendency of the appeal who also met with similar fate and his licence also came to be rescinded. Thereafter, the petitioner's name was recommended by the Gram Sabha for running of the fair price shop. It would thus transpire that the arrangement made during the pendency of appeal can well be said to be interim arrangement considering the vacuum caused by cancellation of licence of the respondent no.4 and in the circumstances, the claim made by the petitioner to run the fair price shop on the basis of recommendations of the Gram Sabha Akbarpur Tahsil Kol even after allowing the appeal of Opp. Party no.4 cannot be sustained.

The next ground urged is that in the appeal preferred by Pooran Mal, the petitioner was not arrayed at all. It would appear from the record that the appeal was preferred on 22.5.1998 against the order cancelling his licence and at that stage, the petitioner was no-where in picture and was authorized to run fair price shop pending appeal and therefore the argument that the petitioner was entitled to be arrayed as a party in the appeal can also not be sustained. It is well enunciated in law that appeal is a continuation of the legal pursuit of a remedy, suit, appeal and second appeal and are steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding (See Veeraya's case AIR 1957 SC 540) and by this reckoning, any order passed in the course of these proceedings as an interim measure shall be always subject to final order passed in appeal or second appeal as the case may be. By the reasoning adopted in Veeraya's case aforesaid, any arrangement made as an interim measure pending appeal regard being had to the to the public interest, on account of revocation of licence of the fair price shop, cannot give any right to such person in case appeal is finally allowed and vacancy comes to an end and therefore, the claim cannot be sustained merely on the ground that it was made after following due procedure or for matter of that, by a valid order. It would thus follow that the order passed for the interim period in favour of the petitioner to run the fair price shop, would exhaust itself vis-à-vis the final order passed in appeal.

In the result, the petition fails and is accordingly dismissed in limine.




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