# Radheyshyam Nishad v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-12
- **Case number:** Civil Misc. Writ Petition No. 4649 of 2013
- **Bench:** Rajes Kumar, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radheyshyam-nishad-v-state-of-u-p-ors-43087
- **Pages:** 3

## Headnote

Constitution of India Art.- 226-Cancellation
of fair price shop license-in view of G.O.
17.08.2002-petitioner being resident of
another village-and the father's name
different than natural father-explanationthat petitioner was granted license on
consideration of fact that no any villager of
concern village willing to get license-and
being adopted son-difference of father
name
justified-held-G.
O.
having
no
applicability
of
retrospective
effect-not
applicable-non consideration of fact of
adoption-no misrepresentation on part of
petitioner found-cancellation-set-a-side.
Held: Para-7
We are of the view that the Government
Order dated 17th August 2002 cannot be
made applicable retrospectively, it only
applies prospectively and only applies in
a case of settlement of fresh fair price
shop in a village. So far as the parentage
of the petitioner is concerned, the name
of the real father of the petitioner was
Sukhdev. The petitioner explained that
he has been adopted by Faujdar Nishad
on 05.09.1974 and, therefore, he has
shown the name of his father as Faujdar
Nishad, which is not disputed by any of
the authority and, therefore, we do not
see any misrepresentation relating to the
disclosure of the parentage on the part
of the petitioner.

## Text

1 All]. Radheyshyam Nishad Vs. State of U.P. & Ors.
31
Court has held that the Motor Accident
Claims Tribunal has no power to review.
In CTO v. Makkad Plastic Agencies
(2011) 4 SCC 750, the Apex Court
observed as follows:
"Review is a creature of statute and
such an order of review could be passed
only when an express power of review is
provided under statute. In the absence of
any statutory provision for review, exercise
of power of review under the garb of
clarification/ modification/correction is not
permissible."
9. From the aforesaid, what emerges is
that if Statutory Authority/Quasi Judicial
Officer/Tribunal, does not have any express
power of review under the Statutes, the
subsequent
order
passed
by
it
recalling/modifying or reversing its earlier
order is nullity, as such order is non est and
void. Therefore, we are of the view that there
is no illegality and infirmity in the impugned
award which is hereby confirmed.
10. For the reasons aforesaid, the
appeal is dismissed. Under the facts and
circumstances of the case, there is no
order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2014
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE SHASHI KANT, J.
Civil Misc. Writ Petition No. 4649 of 2013
Radheyshyam Nishad
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri R.C. Yadav, Sri Mahtab Husain
Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh
Constitution of India Art.- 226-Cancellation
of fair price shop license-in view of G.O.
17.08.2002-petitioner being resident of
another village-and the father's name
different than natural father-explanationthat petitioner was granted license on
consideration of fact that no any villager of
concern village willing to get license-and
being adopted son-difference of father
name
justified-held-G.
O.
having
no
applicability
of
retrospective
effect-not
applicable-non consideration of fact of
adoption-no misrepresentation on part of
petitioner found-cancellation-set-a-side.
Held: Para-7
We are of the view that the Government
Order dated 17th August 2002 cannot be
made applicable retrospectively, it only
applies prospectively and only applies in
a case of settlement of fresh fair price
shop in a village. So far as the parentage
of the petitioner is concerned, the name
of the real father of the petitioner was
Sukhdev. The petitioner explained that
he has been adopted by Faujdar Nishad
on 05.09.1974 and, therefore, he has
shown the name of his father as Faujdar
Nishad, which is not disputed by any of
the authority and, therefore, we do not
see any misrepresentation relating to the
disclosure of the parentage on the part
of the petitioner.
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard learned counsel for the
parties and perused the record.
2. By means of present writ petition,
the petitioner is challenging the order dated
18th October 2012 passed by respondent
no. 2- Sub Divisional Magistrate, Sadar,
District Ghazipur by which fair price shop
licence has been cancelled on the ground
32
 INDIAN LAW REPORTS ALLAHABAD SERIES
that the petitioner was a resident of village
Chochakpur, Block Karanda, Tehsil Sadar,
District Ghazipur and was not a resident of
village Narayanpur and therefore in view of
the Government Order No. 2715 dated
17.08.2002, the petitioner is not entitled to
run the fair price shop and the petitioner has
shown his father's name as Faujdar Nishad,
while correct name of his father is Sukhdev,
which is shown in the Khatauni and in the
Parivar register.
3. The learned counsel for the
petitioner submitted that the petitioner has
been granted licence in the year 1993 on
the basis of the resolution dated 16th
March 1993 on the ground that no one is
ready to take the shop of this village and,
therefore, it has been decided on the basis
of the then Government Order, dated 3rd
July 1990, unanimously to select Sri
Radhey Shyam, son of Faujdar Nishad.
Since then the petitioner was running the
fair price shop. It is is true that on several
occasions his licence has been suspended
but on the explanation submitted by the
petitioner, the licence has been restored
by the competent authority.
4.
It is further submitted that the
Government
Order
No.
2715
dated
17.08.2002 is not applicable to the petitioner,
as the petitioner had been issued licence in
the year 1993 on the basis of the the existing
Government Order. So far as the parentage
of the petitioner is concerned, it was
explained that the petitioner's real father was
Sukhdev but he has been adopted by Faujdar
Nishad on 05.09.1974 and, therefore, he
started writing his father's name as Faujdar
Nishad in place of Sukhdev, therefore, the
licence has not been rightly cancelled.
5. We have considered the rival
submissions and perused the record.
6. The petitioner has been granted
licence of the Fair Price Shop at village
Narayanpur on the basis of the resolution
of Gram Sabha, Narayanpur dated
16.03.1993, wherein it has been resolved
that no person of the village is ready to
take the shop and it was unanimously
resolved to select Sri Radhey Shyam
resident of Chochakpur, therefore, there
was no suppression of fact on the part of
the petitioner. The petitioner has been
issued licence on the consideration that
he was not the resident of village
Narayanpur and was a resident of
Chochakpur.
7.
We are of the view that the
Government Order dated 17th August
2002
cannot
be
made
applicable
retrospectively,
it
only
applies
prospectively and only applies in a case of
settlement of fresh fair price shop in a
village. So far as the parentage of the
petitioner is concerned, the name of the
real father of the petitioner was Sukhdev.
The petitioner explained that he has been
adopted by Faujdar Nishad on 05.09.1974
and, therefore, he has shown the name of
his father as Faujdar Nishad, which is not
disputed by any of the authority and,
therefore,
we
do
not
see
any
misrepresentation relating to the disclosure
of the parentage on the part of the petitioner.
8. In view of the aforesaid facts and
circumstances of the case, we are of the
view that the impugned order dated
18.10.2012 is not sustainable and is liable
to be set aside.
9. In the result, the writ petition is
allowed and the impugned order dated
18th October 2012 is set aside. The
licence of the petitioner is restored.
--------
1 All].
 Ram Sewak Gupta Vs. State of U.P. & Ors.
33
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.12.2014
BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 4735 of 2013
Ram Sewak Gupta
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri D.S. Yadav
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-withholding
gratuity
-admittedly
neither
any
departmental enquiry either prior or after
retirement pending-recovery based upon
audit report not sustainable-quashed.
Held: Para-14 & 17
14. As observed above, admittedly, in
the instant case, no departmental or
judicial proceeding or any such inquiry
was pending, hence there cannot be any
justification for withholding the gratuity
of the petitioner.
17. Merely on the basis of said audit
report without the charge of causing loss
being
established
in
a
full-fledged
departmental inquiry, no recovery of
alleged
loss
caused
to
the
State
Exchequer can be made.
Case Law discussed:
Special Appeal Defective No. 1278 of 2013;
1993 (7) SLR 706; 2006 (110) FLR 101.
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
1.
Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for the respondents.
2.
The petitioner, who has retired on
30.06.2012 from the post of Marketing
Inspector, has filed this petition with the
prayer that the order dated 24.07.2013 passed
by the Regional Food Controller, Faizabad
Region, Faizabad whereby part of the
gratuity amount of Rs.2,62,271/- has been
withheld for recovering the same on account
of the alleged loss caused to the State
Exchequer by the petitioner, be quashed. The
petitioner has also prayed that the pension
payment order dated 04.01.2013 be also
quashed to the extent it withholds the amount
of leave encashement. Further prayer has
been made for commanding the opposite
party no.4 to accord the benefit of IIIrd
Assured Career Progression to the petitioner
with effect from 01.12.2008 in terms of the
prevalent Government Order and further that
the petitioner be permitted to withdraw the
GPF amount.
3. So far as the prayer relating to
withholding of the leave encashement
amount is concerned, learned counsel for
the petitioner states that the said amount
has been released. Accordingly, the
prayer made in this petition in respect of
the same has been rendered infructuous.
As regards the prayer relating to grant of
the benefit of IIIrd Assured Career
Progression to the petitioner, it has been
informed that the said benefit has also
been given to him which renders the
prayer made in this regard infructuous.
The petitioner, has, since been permitted
to withdraw the amount of GPF, hence in
this view, the prayer made in this regard
has also become infructuous.
4. The sole issue which now
survives for consideration in this case is
as to whether the part of the amount of
gratuity i.e. the sum of Rs.2,62,271/- has
legally been withheld by the Regional