V.K. Shukla, J. - (1.) PRESENT writ petition in question has been filed by petitioner questioning the validity of the order dated 21.12.2009 passed by Additional Commissioner (Food) Chitrakook Dham Division Banda proceedings to allow the appeal preferred on behalf of Mohd. Ishaque, fair price shop agent of the Gram Panchayat in question.
(2.) BRIEF background of the case is that petitioner claims that he has been elected as Pradhan of village Panchayat Chhanaihra Lalpur, Tehsil and District Banda in the by -election so held since year 2008. Petitioner claims that on account of irregularity of distribution of essential commodities by fair price agent, respondent No. 4, he alongwith BPL and Antodaya card holders moved complaint before S.D.M. Banda to conduct inquiry against fair price shop agent. Sub - Divisional Magistrate asked Naib Tehsildar, Banda to conduct inquiry and submit its report. Pursuant thereto Naib Tehsildar Banda submitted its report on 09.06.2009 before respondent No. 3 i.e. Sub -Divisional Magistrate. After the said report was submitted order of cancellation has been passed by Sub -Divisional Magistrate on 24.09.2009. Against the order dated 24.09.2009 passed by Licensing Authority appeal was preferred by respondent No. 4 and in the said proceedings petitioner filed impleadment application. Said application in question was rejected on 15.10.2009. Aggrieved against the same petitioner preferred Civil Misc. Writ Petition No. 57714 of 2009 before this Court and this Court on 05.11.2009 proceeded to dispose of aforesaid writ petition by passing following orders which is being quoted below: The petitioner, who is the Gram Pradhan and a complainant also, is aggrieved by the order dated 15th October, 2009 passed by the Appellate Authority by which his application for impleadment as respondent in the appeal filed by respondent No. 4 against the cancellation of fair price shop license has been rejected with the observations that he can produce the documents through the State Counsel. In view of the order that I propose to pass, it is not necessary to issue notice to respondent No. 4. Learned Standing Counsel states that it may not be necessary to file a counter affidavit. It has been stated in the writ petition that the fair price shop dealer -respondent No. 4 was sentenced to undergo life imprisonment under Section of the Indian Penal Code and even though this fact was brought to the notice of the Sub -Divisional Magistrate in the complaint filed by the petitioner, the Sub -Divisional Magistrate has not taken this into consideration and when the petitioner moved an application before the Appellate Authority for bringing on record this fact, the application has been rejected with the observation that the petitioner can file the documents through the State Counsel. Learned Counsel for the petitioner has submitted that though the petitioner had supplied all the documents to the State Counsel but he did not file them or bring this fact to the notice of the Appellate Authority and an interim order was passed on 15th October, 2009. He, therefore, submits that he would be satisfied if the State Counsel files an application in the pending appeal to bring on record all these documents. Learned Standing Counsel appearing for the respondents states that these are material facts and the State Counsel shall file an appropriate application in the appeal filed by respondent No. 4. The petition is, accordingly, disposed of with a direction that the State Counsel shall file an appropriate application in the pending appeal on which order will be passed by the Appellate Authority after giving opportunity to respondent No. 4. Thereafter petitioner claims to have moved application alongwith relevant documents and thereafter petitioner claims that said application has been rejected and thereafter appeal which has been preferred by Mohd. Ishque has been allowed. At this juncture present writ petition has been filed.
(3.) ON presentation of present writ petition in question this Court has proceeded to pass following order which is being quoted below: Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1, 2 and 3. Issue notice to respondent No. 4. Each one of respondents is granted six weeks' time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. List thereafter. It has been contended on behalf of the petitioner that the appellate authority has grossly misdirected itself by ignoring the fact that respondent No. 4 is with W.P. No. 97 of 2010 a convict in Sessions Trial No. 420 of 1991, and till date said order of conviction dated 28.03.2005 has neither been reversed nor varied nor modified. Petitioner submits that once respondent No. 4 is convict, then under Clause 25 of the Control Order, 2004, by no stretch of imagination, his fair price shop licence was liable to be revived, rather in the event of incumbent being in jail, the fair price shop licence should remain suspended and in the event of conviction, it remains of no use. Petitioner has further contended that the same officer is well aware of the statutory provisions inasmuch as while deciding appeal No. 57/60 of 2008 -09 filed by Ram Saran these facts have not been taken note of, and the appeal has been dismissed. In pith and substance the appellate authority has misdirected itself while deciding the appeal. Prima facie the argument advanced appears to have some substance and requires adjudication by this Court, as such till the next date of listing operation of the impugned order dated 21.12.2009 passed by the Additional Commissioner (Food) Chitrakoot Division, Banda shall be kept in abeyance.;