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Vijay Prakash Yadav v. Staet Of U.P. Thru' Secy. Food And Civil Supply And Others - WRIT - C No. 37637 of 2006  RD-AH 19647 (20 November 2006)
Hon.Shishir Kumar, J.
By means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the order dated 23.6.2006 (Annexure 8 to the writ petition) passed by the respondent No.2. Further issuing a writ in the nature of mandamus commanding the respondents not to stop the supply of food articles to the petitioner for running his fair price shop in the status prior to passing the impugned order dated 23.6.2006.
The respondent No.3 who was a licensee of Fair Price Shop, it appears that on the basis of some complaint an order was passed on 15.2.2005 canceling the license of the respondent No.3. Aggrieved by the aforesaid order, the respondent No.3 filed an appeal and the said appeal was allowed by the appellate authority vide its order-dated 6.10.2005.
The petitioner who has been granted license for Fair Price Shop in lieu of cancellation of Fair Price Shop license of the respondent No.3 by order dated 12.4.2005 (Annexure 3 to the writ petition). Aggrieved by the order of the appellate authority dated 6.10.2005 in favour of the respondent No.3, the petitioner filed a writ petition before this Court. Initially the interim order was granted but subsequently by order dated 30.3.2006, the writ petition was allowed and the matter was remanded back to the appellate authority to decide as a fresh after affording an opportunity to the relevant parties as well as contesting respondent No.3. The appellate authority again passed the same order allowing the appeal of the respondent No.3 by its order-dated 23.6.2006. A copy of the same has been annexed as Annexure 8 to the writ petition. Aggrieved by the aforesaid order, the petitioner has approached this Court.
The notices were issued and the respective parties were directed to file counter and rejoinder affidavits. Counter and rejoinder affidavits have been exchanged. While entertaining the writ petition this Hon'ble Court was pleased to pass the following orders on 19.7.2006.
" Learned counsel or the caveator-respodnent No.3 prays for and is granted ten days time to file counter affidavit. The petitioner shall have two weeks thereafter to file rejoinder affidavit. List immediately thereafter.
Learned Standing Counsel has accepted notice for respondents no.1 and 2. He may file counter affidavit by the next date.
Issue notice to respondent No.4 who may also file counter affidavit by the next date explaining as to under what circumstances when the earlier order dated 6.10.2005 had been set aside and the matter was remanded back, on the same grounds and in the same language a fresh order has been passed on 23.6.2006 allowing the appeal of respondent No.3.
Considering the facts and circumstances of this case, it is directed that till the next date of listing, the operation of the impugned order dated 23.6.2006 passed by respondent No.2/4 shall remain stayed. However, it is provided that no fresh license for the fair price shop in question shall be issued till the next date of listing and the card holders of the respondent No.3 may be attached to some other licensed dealer besides the petitioner."
It has been submitted on behalf of the petitioner that the appellate authority in spite of the direction issued by this Court as the earlier order was set aside, was obliged to pass the order according to law. But from the perusal of the order dated 23.6.2006 it is apparent that same and similar order even various paragraphs of the earlier order are the same, as such, the order passed by the appellate authority dated 23.6.2006 is liable to be set aside.
I have heard learned counsel for the petitioner Sri S.S.P.Gupta and Sri Irshad Ali, who appears for the respondent No.3.
The counsel for the respondent No.3 has submitted that the appellate authority has considered each and every aspect and has passed the order in favour of the respondent No.3. As the complaints filed against the respondent No.3 have been found incorrect and there was nothing on record to show that the respondent No.3 has committed some irregularity in distributing the articles to the card holders as such, the appellate authority has allowed the appeal, therefore, the respondents submits that the writ petition is liable to be dismissed.
From the record, it is clear that the respondent no.3 was a licensee of the Fair Price Shop and on the basis of complaints his license was cancelled and the appeal filed by the respondent No.3 was allowed. Admittedly, the petitioner was granted license immediately after the cancellation of the license of the respondent No.3 and when the appeal of the respondent No.3 was allowed and the petitioner filed a writ petition and obtained the interim order only during that period the petitioner was permitted to operate the Fair Price Shop and subsequently when the appeal of the respondent no.3 was allowed on the basis of the direction issued by this Court dated 30.3.2006, the petitioner was not permitted to continue the Fair Price Shop which is apparent from the order dated 19.7.2006 passed by this Court but as regards the appellate order, the court is surprised to see that the order dated 6.10.2005 passed by the appellate Court and the order dated 23.6.2006 is the same even the paragraphs and wording of both the orders are the same. When the writ petition filed by the petitioner was allowed vide its order dated 30.3.2006, the appellate authority was obliged to pass the appropriate orders after affording an opportunity to the parties which is apparent from the order dated 30.3.2006 but the appellate authority respondent No.4 without taking into consideration has passed the same order even the wording of both the orders are the same. Therefore, in my opinion, the order passed by the respondent No.4 is not sustainable in law and is liable to be quashed.
In view of the aforesaid fact, the writ petition is allowed. The order dated 23.6.2006 (Annexure 8 to the writ petition) is hereby quashed and the respondent No.2 is directed to pass appropriate orders after affording an opportunity to the petitioner as well as the respondent no.3 and will pass a detailed and reasoned order according to law within a period of six weeks from the date of production of the certified copy of the order. It will, however, open to the petitioner as well as the respondent No.3 to make an application for stay before the appellate authority.
There shall be no order as to costs.
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