Ramveer Singh vs State Of U.P. And Others
2012 Latest Caselaw 719 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 19987 of 2012
 
Petitioner :- Ramveer Singh
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Dr. Aditya Kumar Trivedi
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard learned counsel for the petitioner and perused the record.

2. By means of impugned order dated 20.03.2012 the Commissioner, while admitting appeal of petitioner against order dated 01.03.2012 passed by Deputy Collector Puwayan cancelling fair price shop agreement of petitioner, has declined to grant any stay order for lack of any justification.

3. Learned counsel for the petitioner submitted that cancelling authority has passed a wholly illegal order without considering the case of petitioner property and, therefore, it was incumbent upon appellate authority to pass stay order in favour of petitioner particularly when he possess such power. He also submitted that application for stay was confined to the fact that either operation of cancellation order dated 01.03.2012 be stayed or that no fresh allotment of fair price shop be made to any third party during pendency of appeal.

4. Copy of stay application has been placed on record as Annexure-4 to the writ petition. Firstly, I come to the question of justification of interim order in favour of petitioner.

5. The petitioner has sought stay against cancellation order dated 01.03.2012. It means that petitioner wanted that cancellation order should be stayed, as a result whereof he should be allowed to run his fair price shop. This amounts to grant of final relief. It is well settled that in the garb of interim order, the relief which amounts to final relief, cannot be granted. (See: State of U.P. and others Vs. Ram Khelawan & others JT 1995 (6) SC 305, Bank of Maharashtra Vs. Race Shipping and Transport Co. Pvt. Ltd. AIR 1995 SC 1368 and Division Bench Judgment of this Court in State of U.P. & another Vs. Smt. Dayavanti Khanna 1994 (24) ALR 140).

6. Following catena of decisions of the Apex Court on this aspect, a Division Bench of this court in District Judge Baghpat Vs. Anurag Kumar 2005 (2) ESC 1509 has held as under:

"It is settled that a final relief cannot be granted at the interim stage. We are, therefore, of the view that the interim order under appeal is unsustainable.

It is settled legal proposition that no interim relief at the initial stage which amounts to final relief should be granted. The Hon'ble Apex Court has consistently and persistently held that the Court should not pass an order at the interim stage, which can be granted only at the time of disposal of the petition."

7. This very aspect was considered by this Bench also in Special Appeal No. 74 of 2007 U.P. Power Corporation Ltd. & others Vs. Suraj Bhan Sharma & others decided on 30.1.2006 and after quoting with approval the Division Bench Judgement in Anurag Kumar (supra) we further observed as under :

"Now coming to the merit of the order, the part of the order under appeal whereby the direction has been issued to allow the petitioner respondent to continue till attaining the age of 60 years i.e. 31st January 2006, after staying the operation of the order dated 12th December 2005, amounts to granting final relief to the petitioner respondent and thus cannot be sustained. Whether the petitioner respondent is entitled to continue till the age of 60 years or 58 years is a matter subjudice in the aforesaid writ petition and in case the petitioner respondent succeeds he can be compensated by directing the appellant to pay his salary and other benefits as found due in accordance with Rules. However, if the petitioner respondent under interim order is allowed to continue to discharge duties till the age of 60 years and is paid full salary, then after dismissal of the writ petition, the salary already paid cannot be recovered since he may claim that since he has worked therefore salary cannot be asked to be refunded. The appellant cannot be compensated in such case and the petitioner respondent will enjoy the interim order like final order without any risk of losing salary for the extra period even if ultimately he has lost. This court while passing interim order has to adjust the interest and equity in favour of both the parties, since it is a settled law that the act of the court shall prejudice none.

Further before passing an interim order in favour of the petitioner, the relevant considerations like prima facie case, balance of convenience and irreparable loss have to be considered.

In Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, the Apex Court held that ex-parte injunction could be granted only under exceptional circumstances. It has held that the factors which should weigh for grant of injunction are - (a) whether irreparable or serious mischief will ensure to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve; (c) even if ex-parte injunction should be granted, it should only be for limited period of time; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.

In view of the discussion made above we are of the view that such an order could not have been passed and the order under appeal to the aforesaid extent cannot be sustained."

8. Now coming to the second aspect of the matter that fair price shop agreement ought not to have been granted to a third party during pendency of appeal, it is admitted that state of affairs as on today is that petitioner has been found guilty of committing serious irregularities and illegalities in distribution of essential commodities to beneficiaries, as a result whereof his agreement has been cancelled. In case no arrangement of distribution of essential commodities to poor persons is made, it would seriously cause prejudice to those beneficiaries for whose benefit the scheme has been launched. Scheme of public distribution system is not meant for the benefit of fair price shop dealers but they are only the modes and means to achieve the object, i.e., availability of essential commodities to poorest persons of the country on subsidized rates. In case any dealer constituting distribution chain commits illegalities, the authorities responsible for the scheme are bound to make alternative arrangement. It is also well settled that third party rights created are always subject to final decision of pending dispute of earlier dealer. In respect to right of a subsequent 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."

9. In these circumstances also petitioner's request that till his appeal is pending, no third party right should be created, cannot be accepted.

10. Now coming to the merits of the issue that various objections raised by petitioner against cancellation order have not been considered, this Court find it sufficient to observe that all these aspects are to be considered by appellate authority at the time of final hearing of appeal. Therefore, at the stage of considering the application for stay, Commissioner has found no justification and I do not find any reason to interfere with impugned order only for this reason.

11. Learned counsel for the petitioner also addressed this Court on merits of the cancellation order stating that the order of cancelling authority is patently illegal.

12. He was apprised that in case his submissions on merits of cancellation order are noticed and considered by this Court, the same may adversely influence the final hearing of appeal but learned counsel for the petitioner despite thereof said that he is making his submissions and the Court is under an obligation to consider the same and pass order.

13. The cancelling authority has observed in cancellation order that despite repeated opportunity the petitioner did not produce original sale register and instead submit only photocopy of the same. Therein the cancelling authority found that distribution of sugar and kerosene oil has not been made regularly to beneficiaries. There is nothing on record to show that these findings are perverse or contrary to material on record.

14. In the circumstances, I do not find any reason to interfere with the impugned order. The writ petition lacks merit. Dismissed.

Order Date :- 24.04.2012

AK