Babu Lal vs State Of ...
2018 Latest Caselaw 4196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18								  A.F.R.
 

 
Case :- MISC. SINGLE No. - 33726 of 2018
 

 
Petitioner :- Babu Lal
 
Respondent :- State Of U.P.Thru.Prin.Secy.Food & Civil Supply & Ors.
 
Counsel for Petitioner :- Ashish Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Srivastava,J.

1. Heard Sri Ashish Mishra Rudra, learned counsel for the petitioner and the learned Standing Counsel.

2. The Fair Price Shop licence of the petitioner was cancelled by the Sub Divisional Magistrate by an order dated 29.08.2018. On 11.10.2018 the appeal bearing No. 2863 preferred by the petitioner under Clause 13(3) of the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 was admitted by the Appellate Authority and 01.11.2018 was the date fixed for hearing. However, the application for interim relief moved by the petitioner alongwith the said appeal was rejected.

3. The order dated 11.10.2018 passed by the Appellate Authority, to the extent it relates to the rejection of the application for interim relief, is under challenge in the present writ petition.

4. The learned counsel for the petitioner has vehemently submitted that once the appeal preferred by the petitioner was admitted, judicial approach required that during the pendency of the appeal the operation of the order under challenge in the said appeal having serious civil consequences ought to have been suspended. In support of his contention, the learned counsel has placed reliance upon the decision of the Apex Court in Mool Chand Yadav & Anr. v. Raza Buland Sugar Co. Ltd., Rampur & Ors., (1982) 3 SCC 484.

5. The learned Standing Counsel on the other hand has supported the order under challenge.

6. It is well settled that the final relief should not be granted by means of an interim order. Time and again the Apex Court has deprecated the practice of granting interim orders which practically grant the principal relief sought in the petition for no better reason than a prima facie case being made out, without being concerned about the balance of convenience, the public interest and a host of other considerations. (see Bank of Maharashtra v. Race Shipping & Transport Co. (P) Ltd., (1995) 3 SCC 257, State of U.P. v. Ram Sukhi Devi, (2005) 9 SCC 733)

7. In State of U.P. v. Sandeep Kumar Balmiki, (2009) 17 SCC 555, while setting aside an interim order passed by the High Court, the Apex Court observed as under:

"5. In our view, the interim order granted by the High Court staying the order of termination could not be passed at this stage in view of the fact that if such relief is granted at this stage, the writ petition shall stand automatically allowed without permitting the parties to place their respective cases at the time of final hearing of the writ petition."

(emphasis supplied)

8. Thus, generally, the law is that interim relief which amounts to granting the final relief itself should not be granted. But exceptions to the said rule also exist. In Deoraj v. State of Maharashtra, (2004) 4 SCC 697, the Apex Court envisaged situations wherein interim relief amounting to final relief may be granted. Paragraph 12 of the said report is extracted below:

"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case -- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent."

(emphasis supplied)

9. In the case in hand, the petitioner was appointed as a dealer for distribution of essential commodities under the public distribution system. He has been found guilty of serious irregularities on account of which his license has been cancelled. The Appellate Authority has rejected the application for interim relief moved by the petitioner on the ground that the charges levelled against the petitioner were of serious nature. Admittedly, the Fair Price Shop license of the petitioner has been cancelled against which the petitioner has preferred an appeal which is pending. In case the prayer for interim relief is granted, the consequence would be that the petitioner would again start distributing the essential commodities which would mean to grant of final relief which is not permissible. No exceptional circumstances as envisaged in Deoraj (Supra) have been found to exist in the present matter. Withholding the interim relief would not cause such extreme hardship to the petitioner that the cause of justice would be totally defeated.

10. In Mool Chand Yadav case, over which strong reliance has been placed by the counsel for the petitioner, the Apex Court has held that during the pendency of an appeal the operation of the order having serious civil consequences must be suspended. The said judgment needs to be understood in the light of its own peculiar set of facts. The judgment does not lay down an absolute law that in every case where an appeal is admitted, as a matter of rule, an interim order has to be granted. In the said case, the petitioner would have been dispossessed from the property in dispute, if an interim order had not been granted in his favour. The balance of convenience would have been reversed, and irreparable injury would have been caused to the petitioner. No such compelling circumstances exist in the present matter.

11. Furthermore, in Misc. Single No. 17346 of 2017, Anil Kumar Singh v. State of U.P. & Ors., a learned Single Judge of this Court, in a case of cancellation of Fair Price Shop license, after considering the case of Mool Chand Yadav (Supra), observed as under:-

"So far as the judgement cited by learned counsel for the petitioner is concerned, when the appeal filed by the petitioner has been admitted, stay should be granted does not come into rescue of the petitioner because in the case a Division Bench of this Court after placing reliance of the judgment given by Hon'ble Apex Court in the case Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd., Rampur and others (1982) 3 SCC 484 has held that as the right of the parties are yet to be adjudicated, if the appeal is admitted so the judicial approach requires that during the pendency of appeal operation of order having serious civil consequence must be suspended in order to preserve the situation.

In the instant matter, said situation does not arise because in the event petitioner's appeal is allowed by the appellate authority then in that circumstances his license/ agreement to run the fair price will be restored, so in the instant case if stay is not granted to the petitioner by the appellate court, there is no serious civil consequence or to preserve the situation."

12. In view of the above discussion, the decision in the case of Mool Chand Yadav is of no help to the petitioner. No good ground to interfere with the order impugned in the present writ petition is made out.

13. At this stage the learned counsel for the petitioner relying upon Clause 13 (3) of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 prays that the Appellate Authority be directed to dispose of the appeal preferred by the petitioner expeditiously within a certain time frame.

14. Against the order of cancellation the petitioner has filed an appeal only on 05.09.2018. As per Clause 13 (3) of the Control Order, as far as possible the Appellate Authority is obliged to make an endeavour to dispose of the appeal within the time mentioned therein. There is nothing on record to indicate the number of appeals pending before the Appellate Authority. It is, however, not disputed that a large number of appeals filed earlier in point of time are still pending.

15. In the light of the parameters laid down by this Court in the case of Km. Shobha Bose v. Judge Small Causes & Ors., 2011 (88) ALR 850, and Ali Shad Usmani & Ors. v. Ali Isteba & Ors. 2015 (109) ALR 513, no direction can be issued to the Appellate Authority to dispose of the appeal mentioned above, within a certain time frame.

16. However, looking into the facts and circumstances of the case, liberty is granted to the petitioner to move an application before the Appellate Authority alongwith a certified copy of this order for expeditious disposal of his appeal giving cogent reasons as to why the above mentioned appeal should be given precedence over other older appeals pending before the Appellate Authority.

17. In case, such an application is moved by the petitioner, the Appellate Authority shall dispose of the same expeditiously, say within a period of two weeks from the date a certified copy of this order is placed before him by a reasoned and speaking order after taking into account its roaster of older cases and thereafter dispose of the appeal expeditiously in terms of Clause 13 (3) of the Control Order without granting unnecessary adjournments to either of the parties.

18. With the aforesaid observations, the writ petition stands disposed of finally.

Order Date :- 10.12.2018

Pradeep/-