- (1.) The present reference to the Full Bench has been occasioned by an order of the Division Bench dated 3 November 2014. Before we set out the issues which have been referred for adjudication by the Full Bench, a brief reference to the background in which the reference arose would be in order. Clause 3 of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 (Control Order) provides that with a view to effecting a fair distribution of scheduled commodities, the State Government may issue directions under Section 3 of the Essential Commodities Act, 1955 (the Act) to set up such number of fair price shops in an area and in the manner as it deems fit. Clause 4 requires that a fair price shop be run through such person and in such manner as the Collector, subject to the directions of the State Government, may decide. A person appointed to run a fair price shop under sub-clause (1) acts as an agent of the State Government. Moreover, under sub-clause (3), a person so appointed is required to sign an agreement, as directed by the State Government, regarding the running of a fair price shop in terms of the draft appended to the Control Order before the competent authority prior to the coming into effect of the appointment. Several provisions have been thereafter made in the Control Order for identification of families living below the poverty line, the issuance of ration cards, the quantities that may be purchased, increase in the number of units and for dealing with malpractices, including in regard to the issuance of bogus ration cards. Clause 25 requires the agent to observe such conditions as the State Government or the Collector may, by an order in writing, direct from time to time in respect of opening of the shop, maintenance of stocks, supply and distribution of scheduled commodities, maintenance of accounts, keeping of registers, filing of returns, issuance of receipts and other matters. There is a prohibition on the transfer of an agency under Clause 26. Clause 27 provides for a penalty. In that clause, contraventions of the provisions of the Control Order, are liable to be punished in accordance with the orders issued by the State Government from time to time. Clause 28 provides for an appeal and is in the following terms: "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 Assistant Commissioner Food 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 heard. (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."
(2.) In sub-clause (3) of Clause 28, an agent who is aggrieved by the order of a competent authority, suspending or cancelling an agreement of a fair price shop, has the remedy of an appeal to the appellate authority. Under Clause 28(5), the appellate authority is empowered, pending the disposal of the appeal, to direct that the order under appeal shall not take effect until the appeal is disposed of.
(3.) The issue which forms the bone of contention is whether, upon the suspension or cancellation of a licence of a fair price shop and pending the disposal of an appeal, it is open to the State Government to make an interim or temporary arrangement by the appointment of a new fair price shop holder. Initially, this issue came up for consideration before a Division Bench of this Court at Lucknow consisting of Uma Nath Singh and Anil Kumar, JJ in Vinod Kumar Mishra v. State of U.P., through Secretary, Food & Civil Supplies and others, Misc. Bench No. 11977 of 2010. On 16 September 2011, the Division Bench issued an interim direction 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 28.9.2011 for arguments.";