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Ali Hasan v. State Of U.P. And Others - WRIT - C No. 8180 of 2006  RD-AH 6710 (28 March 2006)
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
This Writ Petition has been filed against the order of cancellation of licence of the Fair Price Shop on various grounds dated 1st February, 2006 passed by the Sub-Divisional Magistrate, Sambhal, Moradabad. In paragraph 19 it has been stated that against the said order of cancellation appeal lies under Clause 28 of the Government Order of 2004 but the petitioner has filed this Writ Petition without filing any appeal before the learned Divisional Commissioner, Moradabad. This Writ Petition was filed on 7th February, 2006 and it came for hearing before this Court on 10th February, 2006. After hearing learned counsel for the petitioner the case was adjourned for further hearing and it has been listed today. At the time of hearing Sri Rishi Chaddha has produced before us an order dated 18th February, 2006 passed by the learned Divisional Commissioner, Moradabad in the Appeal filed against the said order of cancellation. The appeal has been admitted but the application for interim relief has been rejected and the matter has been fixed for hearing on 18th March, 2006. As Sri Rishi Chaddha has filed the certified copy of the order, we do not doubt the correctness and genuineness of the said document.
It is surprising that the petitioner had filed the appeal even during the pendency of this Writ Petition. In case the petitioner had filed the appeal prior to 7th February, 2006 which is the date on which the Writ Petition was instituted, then the contents of paragraph 19 will be factually false. In case appeal had been preferred subsequent to filing the Writ Petition, it cannot be maintainable in view of the law laid down by the Hon'ble Supreme Court in M/s. Kabari Pvt. Ltd. Vs. Shivnath Shroff & Ors., AIR 1996 SC 742. It is also not permissible for any party to pursue two forums simultaneously.
In view of the above, we dismiss this Writ Petition. The learned Divisional Commissioner, Moradabad shall, however, enquire as to whether the petitioner had revealed/disclosed the factum of pendency of the Writ Petition in case the appeal has been filed subsequent to the filing the present Writ Petition and if there is such a suppression of material fact then the same must be taken into consideration while disposing the appeal.
With these observation the petition stands dismissed.
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