# Jagdish v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 1798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Writ - C No. 27068 of 2017
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-v-state-of-u-p-anr-51888
- **Pages:** 6

## Headnote

Civil Law -order cancelling fair price shop
licence-under
challenge-alternative
statutory remedy under Section 13(3) of
The Uttar Pradesh Essential Commodities
(Regulation
of
Sale
and
Distribution
Control)
Order,
2016-adequate
opportunity of hearing given to the
petitioner-not availed by him- Petition
dismissed. (Paras 14 and 19)

HELD:

It has categorically been St.d in para 7 of the
counter affidavit that ins spite of giving repeated
opportunities, the petitioner did not submit any
reply / explanation or the records and this fact
remains uncontroverted, as the petitioner has not
filed any rejoinder affidavit. In view of the
aforesaid factual position, the allegation of the
petitioner that no opportunity of hearing was
provided to him is not acceptable. It appears that
adequate opportunity of hearing was provided to
the petitioner but the petitioner deliberately
failed to avail the same. (Para 14)
5 All. Jagdish Vs. State of U.P. & Anr.
1799
In these circumstances, the impugned order
dated 12.10.2017 does not suffer from any such
illegality as may warrant any interference by this
Court in exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of India. The
writ petition lacks merit and the same is hereby
dismissed. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

## Text

1798 INDIAN LAW REPORTS ALLAHABAD SERIES
her name. What is shown to us is a notarized
document and admittedly this document,
even though it may have been in existence,
was formalised into a lease agreement only
on 20th December, 2012 and that was
registered on 21st December, 2012. The
notarized document, therefore, does not
advance the case of the respondent any
further. Therefore, it is quite clear that the
respondent was not eligible on the date of
application, i.e., 13th September, 2011.
Under the circumstances, we allow these
appeals and set aside the order passed by
the Division Bench of the Calcutta High
Court. No costs........."

11. From all that has been narrated
hereinabove, it is clear that law on the issue
regarding the lease of the offered land is
well settled, i.e., for the successful
application
of
the
award
of
retail
dealership outlet, it is incumbent upon the
applicant that he/she must have a lease
deed duly executed by all the co-sharers of
the offered land on the date of the
application.

12. In view of the facts as narrated
hereinabove, it is abundantly clear that the
petitioner was not having the lease in
respect of the offered land in terms of
clause 4(vi)(a) of the Dealership Selection
Guidelines, 2023 and as such, in the light
of the judgment rendered by this Court in
the case of Rahul Singh (Supra), he was
not eligible for being considered for the
allotment/award of the retail dealership
outlet. The impugned rejection of the
candidature of the applicant/petitioner
vide E-mail/order dated 01.03.2024 does
not suffer from any illegality or infirmity.
Therefore,
the
decision
of
BPCL/respondent no. 3 in rejecting the
candidature of the applicant/petitioner
needs no interference.

13. The writ petition lacks merit and is
accordingly dismissed.

14. Parties shall bear their own costs.
----------
(2024) 5 ILRA 1798
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ - C No. 27068 of 2017

Jagdish ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Awadhesh Kumar Singh

Counsel for the Respondents:
C.S.C.

Civil Law -order cancelling fair price shop
licence-under
challenge-alternative
statutory remedy under Section 13(3) of
The Uttar Pradesh Essential Commodities
(Regulation
of
Sale
and
Distribution
Control)
Order,
2016-adequate
opportunity of hearing given to the
petitioner-not availed by him- Petition
dismissed. (Paras 14 and 19)

HELD:

It has categorically been St.d in para 7 of the
counter affidavit that ins spite of giving repeated
opportunities, the petitioner did not submit any
reply / explanation or the records and this fact
remains uncontroverted, as the petitioner has not
filed any rejoinder affidavit. In view of the
aforesaid factual position, the allegation of the
petitioner that no opportunity of hearing was
provided to him is not acceptable. It appears that
adequate opportunity of hearing was provided to
the petitioner but the petitioner deliberately
failed to avail the same. (Para 14)
5 All. Jagdish Vs. State of U.P. & Anr.
1799
In these circumstances, the impugned order
dated 12.10.2017 does not suffer from any such
illegality as may warrant any interference by this
Court in exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of India. The
writ petition lacks merit and the same is hereby
dismissed. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

1. N. P. Ponnuswami Vs Returning Officer,
Namakkalconstituency & Ors: 1952 SCR 218

2. M/s Mahatma Gandhi Upbhokta Samiti Vs St.
of U.P. & ors: 2001 19 LCD 513

3. Lokman Singh Vs Deputy General Manager,
Western Zone, UPSRTC, Meerut & ors: 2006 (8)
ADJ 646

4. Whirlpool Corpn. Vs Registrar of Trade Marks:
(1998) 8 SCC 1

5. Harbanslal Sahnia Vs Indian Oil Corpn. Ltd.,
(2003) 2 SCC 107

6. Radha Krishan Industries Vs St. of H.P.: (2021)
6 SCC 771

(Delivered by Hon'ble Subhash Vidyarthi, J.)

Order on I.A. No. 4 of 2023 and I.A. No.
5 of 2023

I.A. No. 4 of 2023 has been filed
seeking condonation of delay in filing
application for recall of the order dated
26.09.2022. I.A. No. 5 of 2023 has been
filed seeking recall of the order dated
26.09.2022 whereby the writ petition was
dismissed due to non-appearance of the
learned counsel for the petitioner. The
reason assigned in the affidavits filed in
support of the applications is that the clerk
of the petitioner's Counsel mistakenly failed
to mark the case in the cause list of
26.09.2022 and for this reason, the petitioner
and his Counsel were not aware about the
listing of the case on that date. The cause
shown for recall of the order and for non
appearance of the learned counsel for the
petitioner is sufficient. The applications are
allowed. The delay in filing the application
for recall of order dated 26.09.2022 is
condoned and order dated 26.09.2022 is
recalled. The writ petition is restored to its
original number.

Order on Writ Petition

1. Heard Sri Awadhesh Kumar Singh,
the learned counsel for the petitioner and Sri
Rajeev Ranjan Chaudhary, the learned
counsel for the respondents.

2. By means of the instant petition filed
under Section 226 of the Constitution of
India, the petitioner has challenged validity
of an order dated 12.10.2017 passed by the
Sub-Divisional
Magistrate,
Tulsipur,
District Balrampur whereby the fair price
shop license of the petitioner was cancelled.

3. A counter affidavit was filed in this
case on 31.02.2018 after serving a copy
thereof on the learned counsel for the
petitioner on 30.03.2018 but no rejoinder
affidavit has been filed till date in spite of
time having been sought and granted
repetitively on 17.08.2018, 18.05.2018 and
24.08.2022, but the petitioner did not file a
rejoinder affidavit. Therefore, the averments
made in the counter affidavit remained
uncontroverted.

4. The learned Standing Counsel has
raised a preliminary objection that the
petitioner has a statutory remedy of filing an
appeal under Section 13(3) of The Uttar
Pradesh Essential Commodities (Regulation
of Sale and Distribution Control) Order,
2016.
1800 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The learned Standing Counsel has
relied upon a decision of the Hon'ble
Supreme Court in N. P. Ponnuswami v.
Returning
Officer,
Namakkalconstituency & Ors: 1952 SCR
218, wherein the Hon'ble Supreme Court
has held that "It is now well-recognized that
where a right or liability is created by a
statute which gives a special remedy for en-
forcing it, the remedy provided by that
statute only must be availed of."

6. Replying to the aforesaid preliminary
objection, the learned counsel for the
petitioner has relied upon a decision of this
Court in M/s Mahatma Gandhi Upbhokta
Samiti v. State of U.P. & Ors: 2001 19 LCD
513 and Lokman Singh v. Deputy General
Manager,
Western
Zone,
UPSRTC,
Meerut & Ors: 2006 (8) ADJ 646.

7. In M/s. Mahatma Gandhi Upbhokta
Samiti, this Court had entertained the writ
petition on the ground that if there is a
violation of principles of natural justice,
alternative remedy shall not stand as a bar.

8. In Lokman Singh (supra), this Court
had declined to relegate the petitioner to
alternative remedy for the reason that the writ
petition had been entertained in the year 1997
and counter and rejoinder affidavit have been
exchanged and, therefore, it would not be
proper to relegate the petitioner to an
alternative remedy after the writ petition
having remained pending for almost 10 years.

In Whirlpool Corpn. v. Registrar of
Trade Marks: (1998) 8 SCC 1, a two-Judge
Bench of the Hon'ble Supreme Court had
held that: -

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental
Rights contained in Part III of the
Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if an
effective
and
efficacious
remedy
is
available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar in
at least three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or where
the order or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field." (Emphasis in original)

Following the dictum of this Court
in Whirlpool,
in
Harbanslal
Sahnia v. Indian Oil Corpn. Ltd., (2003) 2
SCC 107, the Hon'ble Supreme Court held
that: -

"7. So far as the view taken by the
High Court that the remedy by way of
recourse to arbitration clause was available
to the appellants and therefore the writ
petition filed by the appellants was liable to
5 All. Jagdish Vs. State of U.P. & Anr.
1801
be dismissed is concerned, suffice it to
observe that the rule of exclusion of writ
jurisdiction by availability of an alternative
remedy is a rule of discretion and not one of
compulsion. In an appropriate case, in spite
of availability of the alternative remedy, the
High Court may still exercise its writ
jurisdiction in at least three contingencies
: (i) where the writ petition seeks
enforcement of any of the fundamental
rights; (ii) where there is failure of
principles of natural justice; or (iii) where
the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged.
[See
Whirlpool
Corpn. v. Registrar of Trade Marks, (1998)
8 SCC 1]. The present case attracts
applicability of the first two contingencies.
Moreover,
as
noted,
the
appellants'
dealership, which is their bread and butter,
came to be terminated for an irrelevant and
non-existent cause. In such circumstances,
we feel that the appellants should have been
allowed relief by the High Court itself
instead of driving them to the need of
initiating
arbitration
proceedings."
(Emphasis in original)

In Radha Krishan Industries v. State
of H.P.: (2021) 6 SCC 771, a three Judge
Bench of the Hon'ble Supreme Court
considered the judgments of Whirlpool
Corporation and Harbanslal Sahnia
(Supra) and culled out the following
principles in this regard: -

"27.1. The power under Article
226 of the Constitution to issue writs can be
exercised not only for the enforcement of
fundamental rights, but for any other
purpose as well.

27.2. The High Court has the
discretion not to entertain a writ petition.
One of the restrictions placed on the power
of the High Court is where an effective
alternate remedy is available to the
aggrieved person.

27.3. Exceptions to the rule of
alternate remedy arise where : (a) the writ
petition has been filed for the enforcement of
a fundamental right protected by Part III of
the Constitution; (b) there has been a
violation of the principles of natural justice;
(c) the order or proceedings are wholly
without jurisdiction; or (d) the vires of a
legislation is challenged.

27.4. An alternate remedy by itself
does not divest the High Court of its powers
under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ
petition should not be entertained when an
efficacious alternate remedy is provided by
law.

27.5. When a right is created by a
statute, which itself prescribes the remedy
or procedure for enforcing the right or
liability, resort must be had to that
particular
statutory
remedy
before
invoking the discretionary remedy under
Article 226 of the Constitution. This rule of
exhaustion of statutory remedies is a rule of
policy, convenience and discretion.

27.6. In cases where there are
disputed questions of fact, the High Court
may decide to decline jurisdiction in a writ
petition. However, if the High Court is
objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily
be interfered with." (Emphasis added)

9. I proceed to examine whether the
aforesaid principles laid down in the cases
cited by the learned counsel for the
petitioner are applicable to the facts of the
present case.

10. It is recorded in the impugned
cancellation order dated 12.10.2017 that the
petitioner's fair price shop agreement was
1802 INDIAN LAW REPORTS ALLAHABAD SERIES
suspended by means of an order dated
15.04.2017 and the petitioner was directed
to submit his explanation regarding the
charges, along with the distribution register
and stock register for the period of past six
months.

11. When the petitioner did not submit
his explanation within the time provided to
him, a reminder notice dated 24.07.2017
was sent to him. It was tendered to the
petitioner by supply inspector, Gaisdi on
25.07.2017 but the petitioner declined to
receive the same. Thereafter, the notice was
pasted on the house of the petitioner and its
photograph was taken and put on the file
along with a report of the Supply Inspector,
Gaisdi.

12. The petitioner had filed Appeal No.
34 under Section 28(3) of The Uttar Pradesh
Essential Commodities (Regulation of Sale
and Distribution Control) Order, 2016,
which was allowed and the matter was
remanded by means of an order dated
29.08.2017
passed
by
the
Deputy
Commissioner (Food), Devi Patan Mandal,
Gonda providing that a fresh order be passed
within 15 days and the petitioner was
directed to cooperate in the inquiry.

13. After remand of the matter, a final
reminder dated 02.09.2017 was sent to the
petitioner asking him to submit his
explanation and requisite documents in
furtherance of the earlier letter dated
24.07.2017. The reminder was sent through
registered post and it was tendered to the
petitioner by the Supply Inspector, Gaisdi by
visiting the petitioner's house but the family
members of the petitioner present there
declined to accept the notice. Upon this, the
supply inspector again pasted the notice
upon the house of the petitioner, took its
photograph and attached it to the file.

14. It has categorically been stated in
para 7 of the counter affidavit that ins spite
of giving repeated opportunities, the
petitioner did not submit any reply /
explanation or the records and this fact
remains uncontroverted, as the petitioner
has not filed any rejoinder affidavit. In view
of the aforesaid factual position, the
allegation
of
the
petitioner
that
no
opportunity of hearing was provided to him
is not acceptable. It appears that adequate
opportunity of hearing was provided to the
petitioner but the petitioner deliberately
failed to avail the same.

15. The learned counsel for the
petitioner next submitted that the petitioner
had filed Writ Petition No. 21310 (M/S) of
2017 challenging validity of the suspension
order and the cancellation order has been
passed during pendency of that Writ
Petition.

16. While entertaining Writ Petition No.
21310 (M/S) of 2017, on 11.09.2017 this Court
had passed an order directing the Standing
Counsel to file counter affidavit in the matter.
However, it was specifically provided in that
order that the licensing authority may proceed
in the matter in question in accordance with the
law. Therefore, it appears that the licensing
authority proceeded with the matter under
directions of this Court contained in the order
dated 11.09.2017 passed in Writ Petition No.
21310 (M/S) of 2017 and the order cannot be
held to be bad in law on the ground that it has
been passed during pendency of the writ
petition.

17. The learned counsel for the
petitioner lastly submitted that a copy of the
inquiry report was not provided to him.

18. A notice was sent to the
petitioner through registered post and the
5 All. Shatakshi Mishra Vs. Deepak Mahendra Pandey (Deceased) & Ors.
1803
Supply Inspector himself repetitively went
to the petitioner's house himself to serve a
notice asking him to show cause and the
petitioner declined to receive the notice. Had
he appeared in response to the notice, a copy
of the enquiry report could have been
provided to him or he could have demanded
the same. In view of this conduct of the
petitioner
in
deliberately
avoiding
participation in the enquiry, he cannot
complain of denial of a proper opportunity
of hearing to him.

19. In these circumstances, the
impugned order dated 12.10.2017 does not
suffer from any such illegality as may
warrant any interference by this Court in
exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of
India. The writ petition lacks merit and the
same is hereby dismissed.
----------
(2024) 5 ILRA 1803
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

First Appeal No. 394 of 2024

Shatakshi Mishra ...Appellant
Versus
Deepak Mahendra Pandey (Deceased) &
Ors. ...Respondents

Counsel for the Appellant:
Shailendra Kumar Ojha, Shyam Surat Shukla

Counsel for the Respondent:
Rakesh Dubey

Family Law - Hindu Marriage Act, 1955 -
Section 5 r/w Section 11 - Respondent
(Husband) filed petition under Section
11 - Ground - Marriage was an outcome
of fraud - Appellant (Wife) was already
married
-

During
marriage,
she
projected herself as unmarried - she has
not
converted
into
Hinduism
and
marriage be declared - Husband died in
road accident - Application filed by
parents after the respondent's death -
Said application was allowed - Held,
provisions of Order 22 of CPC are
applicable in view of provisions of the
Family Court Act - parents were made
party to the proceedings to pursue the
petition - Impugned order challenged in
appeal (Para - 2, 3, 4 )

Held: The provisions of Order 22 CPC are
applicable in the proceedings pending before
the Family court under Section 11 of the Act.
Legal Representative who is not "either of the
parties" and was not one of the spouse to the
marriage in question can pursue the petition
filed under Section 11 of the Hindu Marriage
Act, 1955 that marriage should be declared
void and therefore, their application filed
under Order 22 Rule 3 CPC would be
maintainable. It is clear that in such matters
the declaration would have an impact on
proprietary rights and socio-legal status of the
parties cannot be said to have died with such
a person. Hence, no illegality or infirmity in
the order impugned. (Para - 17, 27, 29, 32)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Garima Singh Vs Pratima Singh & anr., 2023
(9) ADJ 101 (DB)

2. Maharani Kusumkumari & anr. Vs Smt.
Kusumkumari Jadeja & anr., (1991) 1 SCC 582

3. Samar Kumar Roy (Dead) through Legal
Representative (Mother) Vs Jharna Bera, (2017)
9 SCC 591

4. Yallawwa Vs Shantavva, (1997) 11 SCC 159

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)