Allahabad High Court
Om Prakash vs State Of U.P. And Another on 15 November, 2011
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 2
Case :- WRIT - C No. - 64834 of 2011
Petitioner :- Om Prakash
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Gulab Chandra
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. This is a thoroughly ill-advised and misconceived writ petition.
2. Petitioner's appeal against cancellation of fair price shop agreement has been admitted by appellate authority but his application for interim relief has been rejected by means of impugned order.
3. Learned counsel for the petitioner submitted that he had good hope of success in appeal, therefore, his application for interim relief ought to have been allowed whereby he has requested that during pendency of appeal agreement for fair price shop ought not be allotted to anyone else, i.e., no third party right be created.
4. The submission is thoroughly misconceived. The purpose of appointing dealer for distribution of essential commodities under public distribution system is not basically for the benefit of dealers but for the benefit of poor persons to provide them essential commodities on subsidies rate. In case a dealer has been found guilty of some irregularities and proceedings for cancellation are pending or his agreement has been cancelled by licensing authority but appeal is pending, the competent authority within its wisdom can always proceed to appoint another dealer so as to maintain smooth functioning of distribution of essential commodities to beneficiaries. Such appointment does not confer an indefeasible right vested to subsequent allottee since such a right is always subject matter of final decision in pending proceedings taken by earlier allottee. This Court in Civil Misc. Writ Petition No. 10539 of 2007 (Smt. Vimla Devi and another Vs. State of U.P. and others), decided on 13.03.2007 has held that subsequent allottee has no right to continue with fair price agreement. Same view has been taken by a Division Bench of this Court in Sri Pal Yadav Vs. State of U.P. and others, 2008(1)) ADJ 718 wherein it has said:
"9. Having regard to the facts and circumstances of the case, we are of the opinion that the submission made by learned counsel for the petitioner cannot be accepted. As is evident from the narration of the facts given above, the licence was given to the respondent No. 6 for running the Fair Price Shop in question. On account of cancellation of the licence of respondent No. 6, the petitioner was permitted to run the Fair Price Shop as a stop-gap arrangement. As the licence of the respondent No. 6 has now been restored by the order dated 30.5.208, the petitioner evidently cannot be permitted to run the Fair Price Shop in question any longer, as the same would now be run by the respondent No. 6.
10. In view of the above, the Writ petition lacks merit, and the same is liable to be dismissed."
5. In this view of the matter when legal position is very clear, petitioner's application for obstructing appointment of another allottee was wholly misconceived and has rightly been rejected by Commissioner.
6. Learned counsel for the petitioner placed reliance on a Division Bench decision of this Court in Mukesh Kumar Vs. State of U.P. and others, 2009(3) ADJ 583 but therein I find that nothing has been discussed on this aspect as to why another person cannot be allotted fair price shop during pendency of appeal. In order to construe binding precedent a judgment must deal with the issue raised, argued and decided but if there is no such discussion, mere operative part of judgment granting a particular relief would not construe a binding precedent. [See Kanoria Chemicals & Industries Ltd. Vs. U.P State Electricity Board, AIR 1994 Allahabad 273 (para 10)].
7. In view of above, I find no reason to interfere with the impugned order. Dismissed.
Order Date :- 15.11.2011
AK
