Vinod Kumar vs State Of U.P. Thru.Prin. Secy. ...
2014 Latest Caselaw 4489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Chief Justice's Court
 

 
Case :- MISC. BENCH No. - 7649 of 2014
 

 
Petitioner :- Vinod Kumar
 
Respondents :- State Of U.P. Thru. Prin. Secy. Food & 2 Ors.
 
Counsel for Petitioner :- S.K. Sharma
 
Counsel for Respondents :- C.S.C.
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Devendra Kumar Upadhyaya, J.

The petitioner is a resident of Village Kotara, Block and Tehsil Biswan, District Sitapur. The licence of a fair price shop in the village was cancelled by the Sub Divisional Magistrate, Biswan, District Sitapur on 27 September 2012. The licence holder filed an appeal against the order of cancellation which is stated to be pending. In the meantime, after the cancellation of the licence, the Gram Panchayat passed a resolution proposing the name of the petitioner for the allotment of the fair price shop. Since no decision was taken on the resolution of the Gram Panchayat, the petitioner filed a writ petition1 which was disposed of by a Division Bench on 19 December 2013 by directing the Sub Divisional Magistrate to take a decision expeditiously, preferably within a period of four months. Following the order of this Court, the Sub Divisional Magistrate by an order dated 9 April 2014 rejected the representation of the petitioner. The ground which weighed with the Sub Divisional Magistrate is that in view of the orders passed by two Division Benches of this Court in Shyam Behari Awasthi Vs. District Magistrate, Sitapur2 and in Vinod Kumar Mishra Vs. State of U.P.3, no decision for allotment in respect of a fair price shop can be taken until the appeal filed by the erstwhile licence holder against the order of cancellation is pending. Aggrieved, the petitioner has instituted these proceedings under Article 226 of the Constitution of India.

At the outset and before we refer to the orders which have been passed by the Division Benches as noted above, it would be appropriate to refer to the provisions of the Uttar Pradesh Scheduled Commodities Distribution Order, 20044. Clause 2 (c) defines the expression 'agent' as follows:

"(c) "Agent" means a person or a cooperative society or a Corporation of the State Government authorised to run a fair price shop under the provisions of this order."

Clause 28 provides for a remedy of an appeal. Under sub-clause (3) of Clause 28, an agent, aggrieved by an order of a competent authority suspending or cancelling an agreement in respect of a fair price shop, has the remedy of an appeal before the Appellate Authority. Clause 28 is material for the purposes of the present case and is, hence, extracted herein below:

"28. Appeal - (1) All appeals shall lie before the concerned Divisional Commissioner who shall hear and dispose of the same or may by order delegate his/her powers to the Deputy Commissioner, Food, or Additional Commissioner for hearing and disposing of the appeal.

(2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order.

(3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order.

(4) No such appeal shall be disposed of unless the aggrieved person or agent has been given a reasonable opportunity of being hear.

(5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect until the appeal is disposed of."

Clause 28 (3) provides for an appellate remedy before the Appellate Authority against an order of suspension or cancellation of an agreement in respect of a fair price shop. Under sub-clause (5), the Appellate Authority is duly empowered, pending disposal of the appeal, to direct that the order against which an appeal has been filed, shall not take effect until the appeal is disposed of. Clearly, therefore, the Appellate Authority is vested with the power to grant a stay, pending disposal of an appeal, against an order of cancellation or, as the case may be, suspension of an agreement in respect of a fair price shop. Hence, the licence holder is entitled to pursue the remedy which is provided in Clause 28 of the Control Order. The Control Order has been made in accordance with the provisions of Section 3 of the Essential Commodities Act, 1955. A person aggrieved by the suspension or cancellation of the licence is entitled to move the Appellate Authority for an interim stay. If the licence holder either does not move an application for an interim stay, or having moved an application fails to obtain an order of stay, it would not then be possible for such a licence holder to urge that pending disposal of an appeal filed by him, no steps should be taken for making alternate arrangements until the appeal is finally disposed of. The mere filing of an appeal, as the provisions of Clause 28 would indicate, does not operate as a stay of the order which is impugned. Unless an application for the grant a stay is moved before the Appellate Authority and the Appellate Authority stays the order of suspension or cancellation, the order of suspension or cancellation, as the case may be, would continue to remain in force until the appeal is finally disposed of. Having regard to this position in law which clearly emerges from Clause 28, it would not be correct to hold that the mere filing of an appeal before the Appellate Authority would either operate as a stay of the order of suspension or cancellation or preclude the State from making alternate arrangements for the due distribution of essential commodities pending disposal of the appeal. The State may either attach the card holders of the erstwhile licencee, whose licence has been suspended or cancelled, to another fair price shop or may appoint a fresh licencee to whom the fair price shop may be allotted subject to the result of the appeal. In these matters, it is necessary not to lose sight of the fact that the private interest of the licence holder is always subordinate to the public interest in ensuring the due and proper supply of foodgrains to residents of the area. In a given case, the State may, if it is of the view that an order of attachment of the card holders to another fair price shop would be administratively efficient, pass such an order. However, it may well happen that attaching the card holders to another fair price shop would entail and require the card holders to traverse a long distance which would be inconvenient and ultimately result in seriously affecting the right of the residents to an efficient supply of foodgrains under the public distribution system. Ultimately, it is for the State to take a considered decision having regard to the predominant aspect of public interest in each case.

Now, it is in this background of the legal position as it emerges from Clause 28 of the Control Order that we may advert to the earlier orders of the Division Benches which have been relied upon by the Sub Divisional Magistrate in the impugned order dated 9 April 2014.

In Vinod Kumar Mishra (supra), an interim order was passed by a Division Bench of this Court on 16 September 2011 in the following terms:

"We have heard learned counsel for parties and perused the pleadings of writ petition.

Of late we are noticing that on account of allotment of fair price shops on temporary basis, though under the resolution of Gaon Sabha, as a result of cancellation of earlier licence of fair price shops, lots of unnecessary litigations have been generated at the cost of public exchequer. Therefore, we direct the Principal Secretary, Food and Civil Supplies to ensure that till the matter is finally settled and the Statutory Appeal is decided, the fair price shops shall not be allotted on ad hoc basis and shall be attached only to some other neighbouring fair price shops, in order to avoid creating third party rights.

This order shall be circulated to all the Divisional Commissioners and District Collectors forthwith for compliance by the Principal Secretary.

Registrar of this Court shall issue a copy of this order to the Principal Secretary, Food and Civil Supplies immediately for compliance.

List the matter on 28.09.2011 for arguments."

In fact, the writ petition filed by Vinod Kumar Mishra (Writ Petition No. 11977 (M/B) of 2010) was finally disposed of by the Division Bench on 12 December 2011 in the following terms:

"Heard learned counsel for the parties and perused the record.

The licence of fair price shop of the petitioner was set aside by the appellate forum. Thereafter, it was was restored and after restoration, the same was granted in favour of the private-opposite party.

Submission of learned counsel for the petitioner is that in view of settled law, the licence of fair price shop cannot be granted in favour of the private opposite party and it should have been restored in favour of the petitioner. In case, it is so, that aspect of the matter can be looked into by the District Supply Officer concerned. Accordingly, we give liberty to the petitioner to represent his cause before the District Supply Officer, District-Barabanki, who shall look into the matter and take a decision with regard to present controversy, in accordance with law, by passing a speaking and reasoned order expeditiously say preferably within a period of two months from the date of receipt of certified copy of the present order and communicate the decision to the petitioner.

Subject to above, the writ petition is disposed of finally."

Hence, it is clear that the final decision in the aforesaid writ petition has no bearing on the issue as raised before this Court presently. The observations which have been made in the interim order will ultimately merge with the final decision of the writ petition. The interim order, we clarify, will not survive once the main writ petition was disposed of in the terms noted above.

Another order was passed by the Division Bench on 19 September 2011 in Shyam Behari Awasthi (supra) in which an interim order was passed following the earlier interim order which was passed in Vinod Kumar Mishra (supra). The former writ Petition [W.P. No. 9228 (M/B) of 2011] is pending. Be that as it may, it is clear that the observations which have been made follow an earlier interim order passed in Vinod Kumar Mishra (supra) which petition has since been disposed of.

Finally, we may take note of the decision of a Division Bench of this Court in Kaushalesh Kumar Vs. State of U.P. & Ors.5 decided on 29 November 2013. The petitioner in that writ petition had challenged an order passed by the Sub Divisional Magistrate by which a licence of a fair price shop of the petitioner, which had been allotted to respondent no.6 (in the said case), was the subject matter of an appeal which had been preferred by the petitioner. The submission of the petitioner was that no regular allotment could have been made by the Deputy Collector to respondent no.6 since that would be contrary to the interim order which was passed on 19 September 2011 in Shyam Behari Awasthi following an earlier interim order in Vinod Kumar Mishra. The Division Bench, after perusing the interim order dated 19 September 2011, observed that since the appeal was pending, the only option open to the authority was to grant a licence for the period until the controversy is adjudicated by the appellate forum. In the said case, the Division Bench held that the Sub Divisional Magistrate had not created party rights and the fair price shop had been allotted to make the service available till the result or outcome of the appeal. In fact, the petition was dismissed by the Division Bench by its order dated 29 November 2013.

At this stage, we may also take note of the final judgment and order of a Division Bench of this Court at Allahabad in Wahid Khan Vs. State of U.P. & Ors.6. In that case, the authorisation of the petitioner for conducting a fair price shop was cancelled and an appeal was pending. The contention was that until the appeal or the stay application was disposed of, the shop should not be allotted to any person by creating third party rights and reliance was placed on the interim order passed by this Court at Lucknow. The Division Bench, while dismissing the petition, held as follows:

"A fair price shop is settled under the Control Order 2004 for the benefit of the card holders belonging to the poor strata of the society. After the cancellation of the authorisation, the fair price shop owner is not left with any rights, to seek a direction for restraining the district administration to allot the shop to any other person during the pendency of the appeal. Where no interim order is granted by the Commissioner, the Court is not required to act against the very object of the scheme to provide for essential commodities at reasonable price to the poor persons on their door steps. The restriction on making fresh allotment causes extreme hardships to the poor persons for whose benefit the fair price shop is run. Such an order is against the object of public distribution system. It will be a travesty of justice to punish the poor people to travel long distances to collect the scheduled commodities from the fair price shop to which their cards are attached, until the appeal of the person, who has been found guilty of the charges of irregularities, is decided."

Hence, on considering the diverse orders which have been passed by the Division Benches of this Court, it is clear that this Court has not held, as a principle of law, that pending the disposal of an appeal before the Appellate Authority under Clause 28 (3) of the Control Order, no arrangements can be made by the State for securing the interest of the card holders. On the contrary, in our view, it is open to the State, pending disposal of an appeal, to make suitable alternate arrangements either by attaching the card holders to an existing fair price shop or by allotting the fair price shop to a new licensee subject to the result of the appeal. The reasons which were adduced in the interim order of the Division Bench in Vinod Kumar Mishra, with respect, overlooked the clear mandate of Clause 28 (5) of the Control Order which were not pointed out to the Court. Be that as it may, we may let the matter rest there since it is a well settled principle in law that any interim order of the Court will ultimately give way to the final decision in the proceedings. Writ Petition No. 11977 (M/B) of 2010 was finally disposed of on 12 December 2011. The interim order came to an end with the final disposal of the petition.

In the present case, the Sub Divisional Magistrate has rejected the representation which was submitted by the petitioner only on the basis of the interim order passed in Writ Petition No. 11977 (M/B) of 2010 and the interim order passed in Writ Petition No. 9228 (M/B) of 2011. In view of the position in law which has been clarified in terms of the present judgment, we set aside the impugned order 9 April 2014 passed by the Sub Divisional Magistrate, Biswan, District Sitapur and restore the proceedings back to the file of the Sub Divisional Magistrate for fresh orders in accordance with law.

The Sub Divisional Magistrate shall endeavour to pass fresh orders expeditiously, preferably within a period of one month of the receipt of a certified copy of this order.

The writ petition is, accordingly, allowed. There shall be no order as to costs.

Order Date :- 19.8.2014

AHA

(Dr. D.Y. Chandrachud, C.J.)

(D.K. Upadhyaya, J.)