Disposed

Kiran Devi v. State of U.P Thru. Secy. Food Civil Supply Govt. Lko. and 2 Others

Allahabad HC16 Jul 2024WRIC/6102/2024

Case brief

AI extract

What is this about?

Petitioner, wife of deceased licensee, challenged order dismissing her husband's appeal against license cancellation via writ. Court distinguished 2023 precedent due to lapse of limitation for substitution, refusing interference but permitting recall of impugned order and filing of substitution application.

What did the court decide?

Writ petition disposed of; petitioner allowed to move application for recall of impugned order and application for substitution before appellate authority.

Kiran Devi vs State of U.P Thru. Secy. Food Civil… — Property and Title | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:48099

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Court No. - 7

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Case :- WRIT - C No. - 6102 of 2024

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Petitioner :- Kiran Devi Respondent :- State Of U.P Thru. Secy. Food Civil Supply Govt. Lko. And 2 Others Counsel for Petitioner :- Satish Kumar Sharma Counsel for Respondent :- C.S.C.

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Hon'ble Alok Mathur,J.

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Heard Sri Satish Kumar Sharma, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

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The petitioner is aggrieved by order dated 05.01.2024, passed by the Joint Commissioner (Food), Lucknow Division, Lucknow wherein he has dismissed the appeal preferred by the husband of petitioner wherein order of cancellation of fair price shop license has been challenged.

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It has been submitted by learned counsel for the petitioner that husband of petitioner was fair price shop licensee and on the basis of certain allegations an inquiry was held and subsequently his fair price shop license was suspended on 15.09.2022 and after due inquiry same was cancelled on 26.10.2022. Aggrieved by order dated 26.10.2022, husband of petitioner filed an appeal being Appeal No. 1926 of 2021 before the Joint Commissioner (Food), Lucknow Division, Lucknow. During pendency of appeal, husband of petitioner died and when the appellate authority was informed about the said fact by learned counsel for the State, the appellate authority has recorded that there could not be any reason for continuing with the appellate proceedings since the appellant himself has died and accordingly has consigned the said appeal to records.

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Learned counsel for the petitioner submits that the petitioner being wife of the fair price shop licensee has right to be substituted in the appellate proceedings and could have continued with the proceedings on her behest, but without permitting her to be substituted, the appeal has been consigned to records.

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Learned counsel for the petitioner has further submitted that in similar circumstances, this Court in Writ - C No. 10937 of 2023 - Ibrar and 2 Others Vs. State of U.P. Through Principal

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Secretary, Food and Civil Supplies, Lucknow and 2 Others (decided on 18.12.2023), coordinate Bench of this Court has allowed the writ petition and set aside the order of appellate authority granting time to petitioner therein to move an application for substitution.

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Learned Standing Counsel on the other hand has opposed the writ petition by submitting that firstly no date of death has been disclosed either before the appellate authority or before this Court and nor any certificate has been annexed indicating date of death of husband of petitioner. He has further submitted that after the death of the husband of petitioner it is open for her to move appropriate application for substitution in case the right to sue survives to the petitioner and on considering such application appropriate orders would have been passed by the appellate authority, but, admittedly no such application has been moved by the petitioner till date.

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It is further submitted by learned Standing Counsel that in these circumstances where on the face of it right to run fair price shop devolves upon an individual licensee who had died during pendency of the proceedings and no application for substitution was made, hence there is no infirmity in the impugned order, wherein after recording death of appellant the appeal has been consigned to records.

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Learned counsel for the petitioner on being asked as to whether without making an application for substitution and also that the period prescribed for moving such application having been lapsed, could the petitioner have moved an application for substitution, the answer is that no such application for substitution was in fact moved by the petitioner before the appellate authority at any time prior to passing of impugned order dated 15.01.2024.

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The facts of the present case are clearly distinguishable from the fact as mentioned in the order dated 18.12.2023, passed by the coordinate Bench of this Court in Writ - C No. 10937 of 2023, where the appeal was dismissed within ten days of the death of the appellant. Therefore, it cannot be said that the wife of the fair price shop license holder could have made an application for substitution within statutory prescription of limitation and in case such an application was moved it could have been adequately considered and these circumstances persuaded this Court to interfere in the said matter, while in the present case though date of death of her husband has not been given by the petitioner who died in 2023, while the appeal was dismissed on 05.01.2024, which seems to be beyond statutory prescription of limitation for moving an application for

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substitution.

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In the aforesaid circumstances, no ground for interference is made out.

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However, it is open for the petitioner to move an application for recall of impugned order dated 05.01.2024 alongwith an application for substitution before the appellate authority, who in case being satisfied that the application is within four corners of law, he may pass appropriate orders on the application(s) preferred by the petitioner.

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With aforesaid directions the writ petition stands disposed of .

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Order Date :- 16.7.2024 A. Verma

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(Alok Mathur, J.)

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Digitally signed by :- ANURAG VERMA High Court of Judicature at Allahabad, Lucknow Bench

Kiran Devi v. State of U.P Thru. Secy. Food Civil Supply Govt. Lko. and 2 Others

Case brief

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Kiran Devi v. State of U.P Thru. Secy. Food Civil Supply Govt. Lko. and 2 Others

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