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AWADH KISHOR versus STATE OF U.P. THRU' SECRETARY FOOD & CIVIL SUPPLY & 3 OTHERS

High Court of Judicature at Allahabad

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Awadh Kishor v. State Of U.P. Thru' Secretary Food & Civil Supply & 3 Others - SPECIAL APPEAL No. 454 of 2007 [2007] RD-AH 6594 (11 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.32

Special Appeal No.454 of 2007

Awadh Kishor .....Appellant

Versus.

State of U.P. & others .....Respondents

*****

Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This intra Court appeal, under the Rules of the Court, is preferred against the judgment of the Hon'ble Single Judge dated 14.3.2007 dismissing the petitioner-appellant's Civil Misc. Writ Petition No.13579 of 2007 on the ground of delay of seven months.

We have heard learned counsel for the appellant and the learned Standing Counsel for the State- respondents.

It appears that respondent no.4, being aggrieved by the order of the licensing authority cancelling his fair price shop licence, went in appeal. The appellate authority, after hearing the parties, remitted back the matter to the licensing authority for taking a fresh decision in the light of the observations made in the order/judgment dated 6.3.2006. However, the licensing authority, without deciding the matter afresh in terms of the direction of the appellate authority, passed the impugned order dated 12.4.2006 bifurcating the fair price shop between the petitioner-appellant and respondent no.4 which was impugned in the writ petition.  

Learned counsel for the appellant vehemently contended that the Hon'ble Single Judge dismissed the writ petition only on the ground of seven months delay without appreciating the facts that when the licensing authority, i.e., the Sub Divisional Magistrate did not decide the matter pursuant to the judgment of the appellate authority dated 6th March, 2006, within a reasonable time then only the petitioner could have approached this Court. It is submitted that the Sub Divisional Magistrate has not taken any decision pursuant to the order of the Assistant Commissioner dated 6.3.2006 though almost a period of one year has lapsed and thus, the appellant cannot be said to have been guilty of laches and unreasonable delay in approaching the Court.

Sri G.C.Upadhyaya, learned Standing Counsel appearing on behalf of the State-respondents no. 1, 2 and 3 fairly submitted that the impugned order is in a pending proceeding before the licensing authority and appropriate decision in the light of the direction of the appellate authority if not taken, will be taken by the authority concerned.

No notice is required to be issued to respondent no.4 nor we think it necessary to hear her at this stage in view of the order, which we propose to pass in this appeal.

It appears that respondent no. 4 being aggrieved by the order of the Sub-Divisional Magistrate, Akbarpur, Kanpur Dehat, dated 22.2.2006 cancelling her fair price shop/allotment, went in appeal. The Assistant Commissioner, Kanpur Region, Kanpur having heard the parties, after setting aside the order of the Sub-Divisional Magistrate, disposed of the appeal vide order dated 6.3.2006 with the direction to the Sub-Divisional Magistrate to decide the matter on merit after considering the evidence and after affording opportunity of hearing to the parties.

It is, however, alleged that the Sub-Divisional Magistrate thereafter did not decide the matter on merit as per direction of the appellate authority and passed the order dated 12.4.2006 impugned in the writ petition bifurcating the quota of fair price shop between the appellant and respondent no. 4, which is in violation of the order of the appellate authority dated 6.3.2006.

The order passed by a higher authority in exercise of quasi judicial function is binding on the lower authority. The Assistant Commissioner being appellate authority, his order is binding on the Sub-Divisional Magistrate and, therefore, the judicial discipline and propriety demands that the Sub-Divisional Magistrate ought to have decided the matter afresh in the light of the observations made by the appellate authority in the judgment dated 6.3.2006. It is well settled legal proposition of law that the direction or order of the superior tribunal in exercise of its appellate power cannot be refused by the subordinate tribunal to carry out such direction. The Hon'ble Apex Court in the case of Bhopal Sugar Industries Ltd. Vs. Income Tax Officer, Bhopal, reported in AIR 1961 SC 182, has held that such refusal in effect is denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of courts. It further observed that if a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice.

It is apparent from the order dated 12.4.2006 that the matter after remand by the appellate authority has not been decided on merit after affording opportunity of hearing and considering the submissions made by the parties and the quota of the fair price shop was divided between the two contesting parties, i.e. the appellant and respondent no. 4, which is contrary to the order of the appellate authority.

In view of above and in the facts of the case, we dispose of this appeal at this stage without expressing any opinion so far as the merit is concerned, with the direction to the Sub-Divisional Magistrate, Akbarpur, Kanpur Dehat, respondent no. 2 to decide the controversy in respect of the aforesaid fair price shop between the petitioner-appellant and respondent no.4 in the light of the order of the Commissioner dated 6.3.2006, as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order before him, after hearing all the necessary parties including respondent no.4, if not already decided. It is, however, made clear that our order may not be interpreted to have expressed any opinion on the merit of the claim of the appellant.

With the above order, this special appeal and the writ petition stand finally disposed of.

11.4.2007

SKM


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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