Meera Mishra vs Satish Kumar

CIVIL APPEAL No.11763 OF 2018 (Arising out of S.L.P.(C) No. 28637 of 2018)

Meera Mishra ….Appellant(s)

VERSUS

Satish Kumar & Ors. ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

judgment and order dated 12.07.2018 passed by the

High Court of Judicature at Allahabad, Bench at Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.12.03 17:00:43 IST Reason: 1 Lucknow in Writ Petition No.3476 of 2007 whereby

the Single Judge of the High Court allowed the writ

petition filed by respondent No.1 herein and set aside

the order dated 14.02.2007 passed by the Sub­

Divisional Magistrate, Mishrit cancelling the license

of respondent No.1 for fair price shop and order

dated 07.06.2007 passed by the Commissioner,

Lucknow Division, Lucknow rejecting his appeals.

3. The issue involved in this appeal is short as

would be clear from the facts stated infra.

4. The dispute relates to a fair price shop at Gram

Panchayat Ambaghat, Block Godalamau, Tehsil

Mishrit District Sitapur (UP). It is between the two

private individuals, namely, the appellant and

respondent No. 1 herein. Both are asserting their

respective rights to run the shop.

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5. By order dated 14.02.2007, the Sub­Divisional

Magistrate, Mishrit cancelled the license of

respondent No. 1 in relation to the shop in question

and, therefore, he filed appeals before the

Commissioner, Lucknow Division, Lucknow.

6. By order dated 07.06.2007, the Commissioner

dismissed the appeals, therefore, respondent No. 1

filed a writ petition before the High Court of

Judicature at Allahabad, Bench at Lucknow.

7. By impugned order, the High Court allowed the

writ petition and set aside the order dated

14.02.2007 of SDM, Mishrit and also the order dated

07.06.2007 of the Commissioner, Lucknow in Appeal

No.38/2006­07 and Appeal No.651/2006­07.

8. The High Court set aside the order of the

Commissioner mainly on the ground that it was not a

reasoned order. In other words, the High Court was

3 of the view that the Commissioner did not discuss all

the issues arising in the case.

9. Aggrieved by the said order, the appellant has

filed this appeal by way of special leave in this Court

because according to the appellant, the impugned

order has adversely affected his right to run the shop.

10. The short question, which arises for

consideration in this appeal, is whether the High

Court was right in allowing the respondent No.1's

writ petition.

11. Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal and remand the case to

the Commissioner for deciding the appeals afresh on

merits after hearing the appellant, respondent No. 1

and State (concerned department).

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12. In our considered opinion, the High Court

having held that the order of the Commissioner was

not legally sustainable because it was an unreasoned

order, it had two options to follow. One, to decide the

controversy on merits in the writ petition itself and

the other to remand the case to the Commissioner for

deciding the appeals afresh on merits in accordance

with law by passing reasoned order after dealing with

all the contentions raised by the parties in support of

their case.

13. The High Court did not exercise any option. As a

consequence, the merits of the case could not be

examined either by the Commissioner in appeal

properly or the High Court in writ petition. In our

view, the parties were entitled for a decision of their

5 case on merits by the Appellate Court (Commissioner)

and then by the High Court in its writ jurisdiction.

In this case, neither the Commissioner could record

any finding on the merits and nor the High Court. It

is for this reason, we are inclined to prefer the second

option and while giving effect to the impugned order

remand the case (appeal) to the Commissioner to

enable him to examine the merits of the case in

accordance with law.

14. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed in part. The case

is remanded to the Commissioner, Lucknow Division,

Lucknow (UP) for deciding the appeals afresh on

merits.

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15. The appeals bearing Nos.38/2006­07 and

651/2006­2007 are accordingly restored to their

respective numbers on the file of the Commissioner

for their disposal in accordance with law on merits.

16. The appellant and respondent No.1 both will

appear before the Commissioner, Lucknow on 14 th

December, 2018 and file a copy of this Order. The

Commissioner will then fix any suitable date for

hearing the appeals and on that day will hear the

appellant, respondent No.1 and the concerned

department of the State, and after hearing all the

parties will pass a reasoned order on all the issues

arising in this case relating to fair price shop in

question uninfluenced by any observations made by

the High Court and this Court.

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17. Parties are permitted to file additional

documents, if any, in support of their case before the

Commissioner in appeals. Let the proceedings be

over within three months from the date of

appearance of the parties.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [INDU MALHOTRA] New Delhi;

December 03, 2018

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