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Harish Chandra v. State Of U.P. & Others - SPECIAL APPEAL No. - 1231 of 2007  RD-AH 15802 (20 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 3
Special Appeal No. 1231 of 2007.
Harish Chandra. ....... ........ Appellant-Petitioner.
State of U.P. and others. ........ ........... Respondents.
(Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice S.P.Mehrotra)
For the appellant. : Sri Vikas Budhwar &
Sri Manoj Misra.
For the Respondents. : Standing Counsel.
The Court:- This Special Appeal is arising out of the judgement and order of learned Single Judge passed on 3rd August, 2007, whereunder the writ petition was dismissed.
The subject matter of the writ petition was that the petitioner wanted allotment of a fair price shop in his favour on compassionate ground as his father was the fair price shop holder. Initially, the allotment was made in his favour on 17th July, 2006 but subsequently, the authority, upon hearing the parties pursuant to the earlier order dated 4th August, 2006 passed by a Bench of this Court in a writ petition filed by the Gram Pradhan, considered the matter and cancelled the allotment by its order dated 31st March, 2007. Against such order, the petitioner preferred an appeal and upon hearing the parties, the appellate authority upheld the order of cancellation of the allotment. Both these orders were challenged in a writ Court when the Court was pleased to pass the order, impugned in this appeal, holding that the allotment on compassionate ground pre-supposes certain conditions which shall be mandatory and not directory. Therefore, no relief can be granted in favour of the petitioner when the condition for allotment on compassionate ground was not fulfilled by him.
Initially when the appeal was taken up, prima facie we were of the view that no special appeal is maintainable when the order impugned arose out of appellate order. But a Division Bench of this Court in Ram Dhyan Singh vs. State of U.P. and others (2004 (3) AWC 2559), held that the special appeal would lie even where it is passed in exercise of appellate jurisdiction conferred by a Government Order and not by an Act. Hence, we entertained the appeal to go into the merit of the same for the purposes of admission.
The basic point as taken by the learned counsel appearing for the appellant is that the conditions which are there under U.P. Commodity Control Orders are in respect of allotment on compassionate ground and not with regard to the cancellation of the allotment already made on compassionate ground.
We do not find any basic difference in between the aforesaid two situations. Either way, if the authority finds that certain mandatory conditions for allotment on compassionate ground are not fulfilled, such allotment can be cancelled. Therefore, when the mandatory condition has not been fulfilled, whether the allotment was granted rightly or wrongly, the same can be cancelled. The position is similar to that of non grant of such allotment for non- fulfilment of the mandatory conditions.
In view of the discussions made above, we find no reason to interfere with the impugned order passed by the learned Single Judge. Thus, the special appeal cannot be admitted and is accordingly dismissed without imposing any cost.
However, passing of this order will no way affect the right of the appellant to apply for allotment of fair price shop independently and in that case, the same shall be considered by the concerned authority in accordance with law.
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