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Satya Veer Singh v. State Of U.P. And Others - WRIT - C No. 16954 of 2006 [2006] RD-AH 10817 (3 July 2006)


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Court No.34

Civil Misc. Writ Petition No. 16954 of 2006

Satya Veer Singh


State of U.P. & Others


Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This writ petition has been filed to restrain the respondents from opening another Fair Price Shop in view of the fact that the Government Order provides that the second Fair Price Shop can be set up provided there are more than 4000 units in the village. In the instant case when the petitioner, who is running a Fair Price Shop since long, apprehended the opening of the second Fair Price Shop he approached this Court by filing Writ Petition No. 47102/2005 contending that there were less than 4000 unit in that village. The Court disposed of the writ petition by means of the judgment and order dated 4th July, 2005 by directing the petitioner to submit a representation explaining the factual matrix and furnishing the particulars of units etc. before the District Collector, Jyotiba Phule Nagar who was required to consider the grievance of the petitioner and pass an appropriate order but till the matter was decided by the District Collector, the second Fair Price Shop was not to be opened. It is strange that the petitioner did not file the copy of the aforesaid order of the Court and nor made any representation at all to decide his grievances till 14th February, 2006 i.e. about 7 and 1/2 months. In the meantime on 10th February, 2006 the Sub-Divisional Magistrate passed the order after recording a finding of fact that there were more than 4000 units in the village. The petitioner then filed this petition apprehending the opening of the Fair Price Shop in view of the order of the Sub-Divisional Magistrate dated 10th February, 2006 and obtained the interim order.

The writ petition has been filed without disclosing the material fact as to whether the District Collector decided his representation. The petitioner is enjoying the benefit of the interim order passed by this Court and has succeeded in getting it extended from time to time as the respondents failed to file the counter affidavit in spite of the fact that several opportunities had been afforded to them. In view of the law laid down by the Hon'ble Supreme Court in the case of State of Punjab Vs. G.P. Duggal & Ors., AIR 1977 SC 196, the Court cannot force the respondents to file the counter affidavit and can only in view of the provisions of Section 114, Illustration E of the Evidence Act, draw an adverse inference.

We have gone through the petition and asked Sri Dubey, learned counsel appearing for the petitioner repeatedly to explain under what circumstances the representation was made before the District Collector after a period of about seven and half months after the disposal of the first writ petition. No satisfactory explanation could be furnished. We feel that the petitioner delayed the filing of the representation only to take advantage of the earlier order passed by us that till the disposal of the representation a new Fair Price Shop in the village could not be opened. It is only when the Sub-Divisional Magistrate passed the order on 10th February, 2006 that there were more than 4000 units in the village, that the representation was immediately moved before the District Collector along with the copy of the order on 14th February, 2006.

This apart, this writ petition was filed on 22nd March, 2006 but it has not been stated anywhere as to what order was passed by the District Collector on his belated representation. Even several stay extension applications were filed but in none of them it has been mentioned by the petitioner as to what happened to the representation made before the District Collector. To us it is a case where the petitioner has not approached this Court with clean hands, clean mind and clean objective.

The finding of fact recorded by the Sub-Divisional Magistrate that there are more than 4000 units cannot be disturbed in exercise of judicial review in view of the fact that there is nothing on the record to show that the finding so recorded is perverse or factually incorrect.

Learned counsel for the petitioner, however, placed strong reliance upon the averments made in paragraph 9 of the petition that the respondents intend to open another Fair Price Shop in view of the pressure exerted by certain persons belonging to political parties. This contention cannot be accepted in view of the fact that they are not only vague but even the concerned persons have not been arrayed as party-respondents in the writ petition as held in Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi & Anr. AIR 1996 SC 326, State of Bihar & Anr. Vs. P.P. Sharma, IAS & Anr. 1992 Suppl (1) SCC 222, I.K. Mishra Vs. Union of India & Ors, (1997) 6 SCC 228, All India State Bank Officers Federation & Ors. Vs. Union of India & Ors. JT 1996 (8) SC 550 and Federation of Railway Officers Association & Ors. Vs. Union of India, 2003 AIR SCW 1764.

In view of the above, we do not see any ground to entertain this petition. It is, accordingly, dismissed. The interim order passed earlier in this petition shall stand vacated.

Date: 3.7.2006



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