- (1.) THE present special appeal, under Chapter VIII, Rule 5 of the Rules of the Court, has been filed against the judgment and order dated 26th November, 2008 passed by the learned single Judge in Writ Petition No. 20138 of 2008 (Sheet Gupta v. State of U.P. and others).
(2.) IT appears that the petitioner-appellant was having a licence for fair price shop in Gram Panchayat Lahilpar alias Ratanpura, Nyay Panchayat Pangara, Vikas Kshetra Deoria, Tehsil and District Deoria. The licence of the petitioner-appellant in respect of the fair price shop was suspended on 14th July, 2004; a copy of the said suspension order dated 14th July, 2004 has been filed as Annexure 1 to the aforesaid writ petition. It further appears that the petitioner-appellant was called upon to show cause and produce documents and thereafter, an enquiry was held in the matter. Ultimately, by the order dated 13th June, 2007 the Sub-Divisional Magistrate, Sadar, Deoria cancelled the licence of the petitioner-appellant in respect of the fair price shop; a copy of the said order dated 13th June, 2007 has been filed as Annexure 7 to the aforesaid writ petition. Thereupon the petitioner-appellant filed an appeal before the Commissioner, Gorakhpur Division, Gorakhpur being Appeal No. 53/D of 2007. By the order dated 20th December, 2007 the Commissioner, Gorakhpur Division, Gorakhpur dismissed the said appeal filed by the petitioner-appellant; a copy of the said order dated 20th December, 2007 has been filed as Annexure 9 to the writ petition. The petitioner-appellant thereupon filed the aforesaid writ petition, inter alia, praying for quashing the order dated 13th June, 2007 passed by the Sub Divisional Magistrate, Sadar, Deoria and the order dated 20th December, 2007 passed Prana Pranab Kumar Mitra v. State of W.B. and another, AIR 1959 SC 144 by the Commissioner, Gorakhpur Division, Gorakhpur. By the aforementioned judgment and order dated 26th November, 2008 the learned single Judge has dismissed the writ petition filed by the petitioner-appellant. Against the said judgment and order dated 26th November, 2008 the petitioner-appellant has filed the present special appeal.
(3.) WE have heard Sri Manish Deo Singh, learned counsel for the petitioner-appellant and the learned Standing Counsel appearing for the respondents, and perused the record. A preliminary objection has been raised by the learned Standing Counsel regarding maintainability of the special appeal against the said judgment and order dated 26th November, 2008 passed by the learned single Judge. It is submitted by the learned Standing Counsel that the writ petition was filed against the appellate order passed by the Commissioner, Gorakhpur Division, Gorakhpur, as such, the special appeal will not lie against the judgment and order passed in the writ petition. The learned Standing Counsel has placed reliance on a Division Bench decision of this Court in Vajara Yojna Seed Farm, Kalyanpur (M/s.) and others v. Presiding Officer, Labour Court II, U.P., Kanpur and another, 2003 (1) ESC 492. It is submitted by the learned Standing Counsel that the provision for appeal has been made in paragraph 28 of the UP. Scheduled Commodities Distribution Order, 2004 (hereinafter referred to as the 'Distribution Order, 2004') which has been issued by the State Government in exercise of its power conferred under Section 3 of the Essential Commodities Act, 1955 read with the order of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, dated August 31, 2001. Therefore, the appeal which was filed before the Commissioner, Gorakhpur Division, Gorakhpur under paragraph 28 of the Distribution Order, 2004 was in essence an appeal under the provisions of the Essential Commodities Act, 1955. The writ petition before the learned single Judge having been filed against the order passed in exercise of appellate jurisdiction under the Essential Commodities Act, 1955, which is a Central Act referable to Entry in the Concurrent List in the Seventh Schedule to the Constitution of India, the special appeal against the judgment and order of the learned single Judge is not maintainable.;