VINOD KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) 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 petition, Misc. Bench No. 12007 of 2013, 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 v. District Magistrate, Sitapur, Writ Petition No. 9228 (M/B) of 2011 and in Vinod Kumar Mishra v. State of U.P., Writ Petition No. 11977 (M/B) of 2010, 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 Control Order, 2004. Clause 2(c) defines the expression 'agent' as follows:

(2.) 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:

(3.) 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.