VISHWAKANT GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) By means of the present writ petition, the Petitioner is seeking a writ of certiorari quashing the orders dated 7/8.4.2010 and 12.4.2010, passed by the District Magistrate, Firozabad, and a writ of mandamus to the Respondent to renew the licence of the Petitioner for the year 2010-11.

(2.) Being aggrieved by the said order, the Petitioner filed Writ Petition No. 420 of 2010. This Court vide order dated 22.3.2010 allowed the writ petition and set aside the order dated 12.3.2010 and directed the District Magistrate, Firozabad to pass a fresh order relating to the renewal of the licence after giving opportunity of hearing to the Petitioner and Sri Sanjay Kumar Gupta or any other concerned parties in accordance to law. In pursuance thereof, the District Magistrate, Firozabad has passed the impugned order dated 7/8.4.2010. The District Magistrate, Firozabad has held that there is serious dispute between the two partners and both the partners do not want to continue the partnership and, therefore, in accordance to paragraph-8 of the Rule, the application of renewal, filed by the Petitioner, has no force and accordingly rejected. It has been further directed to settle the shop by public lottery. In the impugned order, it is stated that Sri Sanjay Kumar Gupta filed an application dated 4.8.2009 alongwith an affidavit stating therein that the earlier application dated 28.4.2009 (appears to be incorrect and the date should be 15.5.2009) is false and forged and further an application was filed on 17.8.2009 before the District Magistrate with the request to take legal action against Vishwakant Gupta, and he has fraudulently obtained a licence dated 29.9.2009 in his name, which is not in accordance to law. It appears that after passing the aforesaid impugned order, a fresh lottery was held on 12.4.2010 and the said shop has been settled in favour of Sri Manish Kumar Sharma, son of Banwari Lal, Respondent No. 5.

(3.) The writ petition was reported on 28.4.2010. It has, however, been filed on 29.4.2010 which came up for consideration on 3.5.2010. On 3.5.2010, this Court has directed the learned standing counsel to seek instruction and, if so advised, may file a counter-affidavit. The matter was listed on 11.5.2010 as fresh. On 10.5.2010, notices were issued to Respondent Nos. 4 and 5 and the Petitioner was directed to serve the Respondents by dasti summon and to file an affidavit of service. Further, the service on Respondent Nos. 4 and 5 was also directed to be affected through District Excise Officer, Firozabad. Writ petition was fixed on 18.5.2010. On 18.5.2010, the date was again fixed on 19.5.2010. On 19.5.2010, Sri S.P. Kesarwani, learned Additional Chief Standing Counsel, filed a counter-affidavit annexing therewith a copy of the notices, served upon Respondent Nos. 4 and 5, and Sri H.N. Singh, learned Counsel for the Petitioner filed a rejoinder-affidavit. He also filed an affidavit of service in respect of service of notices on Respondent Nos. 4 and 5. The matter has been heard on 19.5.2010. Sri H.N. Singh, advocate, argued on behalf of the Petitioner and Sri S.P. Kesarwani, learned Additional Chief Standing Counsel, argued on behalf of Respondent Nos. 1, 2 and 3. Despite the service of notices, Respondent Nos. 4 and 5 did not appear.