Mahesh Chandra Tripathi, J. - (1.) Mandhata Rai son of Umesh Rai is before this Court assailing the order dated 25.7.2015 passed by third respondent i.e. Sub Divisional Officer, Nizamabad, Distt. Azamgarh, whereby he had allotted the license of fair price shop in favour of fourth respondent.
(2.) The record in question reflects that Smt. Malti Devi (wife of fourth respondent) was earlier licensee of fair price shop. The license was cancelled on account of irregularities in distribution of essential commodities and for which an FIR dated 16.3.2013 under Section 3/7 Essential Commodities Act was lodged. Admittedly, the said cancellation order was assailed by Smt. Malti Devi as available under Clause 28 of the U.P. Scheduled Commodities Distribution Order, 2004 (in short "Control Order") before the Commissioner, Azamgarh Region, which is stated to be pending consideration. Meanwhile, on the basis of alleged resolution passed by the Gaon Sabha, the fair price shop came to be allotted in favour of fourth respondent. The petitioner, who was also an applicant and whose name did not find favour with the Gaon Sabha has proceeded to challenge the entire action as the same is contrary to the Control Order as well as against the Government Order dated 17th August, 2002. As such it is sought to be contended that the allotment of fair price shop in favour of fourth respondent is illegal since earlier the license of his wife was cancelled and an FIR had been lodged against the malpractice and even in appeal no interim protection was accorded to her wife. Once their reputation are not upto the mark and the entire action is in the teeth of Control Order, precisely the Government Orders dated 3rd July, 1990 and 17th August, 2002, therefore, this Court should come for rescue and reprieve of the petitioner.
(3.) On the other hand Shri Sanjay Kumar Singh, learned Standing Counsel has submitted that the license of fair price shop of the erstwhile licensee was cancelled and against the said cancellation order she had preferred an appeal before the Divisional Commissioner and admittedly there is no interim order in her favour but the same is pending consideration. In such circumstances, now the relevant question is whether upon suspension or cancellation of license of fair price shop and pending disposal of appeal, whether, it is open to the State Government to make interim or temporary arrangement or not. In support of his submissions, he has placed reliance on the Full Bench judgment in Writ-C No.58211 of 2014 (Smt. Urmila Devi v. State of U.P. & Ors.) and the subsequent Government Order dated 26th November, 2014. The operative portion of the judgment in Smt. Urmila Devi is quoted as under:- "The provisions of the Control Order are conceived in public interest. The object and purpose of the Control Order is to enable the State to discharge its fundamental duty and obligation of ensuring the equitable distribution of scheduled commodities. The Control Order is conceived in the interest of those to whom the public distribution system is intended, who belong to the marginalized sections of society, including persons below the poverty line. It is their interest which is paramount. The State has to make proper arrangements to ensure the equitable distribution of essential commodities to those persons and must be guided by the public interest in securing the equitable distribution of food grains, which is the paramount concern. It would, to our mind, be a travesty of justice to hold that a person whose authorization has been suspended or cancelled for irregularities in the distribution of food grains, has a right or entitlement to prevent the State from making alternate arrangements pending the disposal of the appeal, even though the order of suspension or cancellation has not been stayed. The person whose authorization has been cancelled or suspended is merely constituted as an agent of the State Government by Clause 4(2) of the Control Order. His rights and entitlement can certainly not be paramount over the public interest in securing proper distribution of food grains to the marginalized sections of society. For these reasons, we hold that the Division Bench in Jagannath Upadhyay's case was not justified or, for that matter, correct in law in issuing a general mandamus to the effect that the Principal Secretary, Food and Civil Supplies shall ensure that till a statutory appeal is decided, the fair price shop shall not be allotted on an adhoc basis and shall be attached to some other neighbouring fair price shop. What arrangement should be made when an authorization has been suspended or cancelled, is an administrative matter for the State which has to bear in mind issues of public interest and local need over and above the private interest. In consequence, the Government Order which was issued on 10 July 2014 in pursuance of the directions issued by the Division Bench in Jagannath Upadhyay's case , decided on 19 October 2011, would have no meaning and must be recalled by the Principal Secretary, Food and Civil Supplies forthwith. As regards, the general mandamus which was issued by the Division Bench in Rajeshwar Prasad , we have already held that if the Division Bench were to disagree with the earlier decisions, the correct course of action would have been to refer the matter to the Full Bench. Since, eventually the conflicting views have been referred to the Full Bench, we have put the matter to rest by this judgment. We, accordingly, hold that the authorization granted to a person to conduct a fair price shop only constitutes such a person as an agent of the State Government under Clause 4(2) of the Control Order. If the authorization is suspended or cancelled, a remedy of an appeal is provided in Clause 28(3). During the pendency of an appeal, a provision has been made in Clause 28(5), for seeking a direction that the order under appeal shall not take effect until the appeal is disposed of. If the order of suspension or cancellation has not been stayed pending the disposal of the appeal, the cancellation or suspension, as the case may be, shall continue to remain in effect. The mere filing or pendency of an appeal or an application for stay does not result in a deemed or automatic stay of the order of suspension or cancellation. There is no such deeming provision. In such a situation, the State is at liberty to make necessary administrative arrangements to ensure the proper distribution of scheduled commodities based on the public interest in the proper functioning of the Public Distribution Scheme and on an assessment of local needs and requirements that would sub-serve the interest of the beneficiaries. We, therefore, hold that the interim mandamus in Vinod Mishra and the judgment in Jagannath Upadhyay's case which took a contrary view do not reflect the correct position in law and would consequently stand overruled. The Principal Secretary, Food and Civil Supplies, shall now on the basis of the present judgment, issue a circular to all the Divisional Commissioners and concerned officials of the State so that necessary steps in compliance are taken. The learned Standing Counsel has apprised the Court that the Government Order dated 10 July 2014 has since been withdrawn by the Principal Secretary, Food and Civil Supplies on 26 November 2014 and a new Government Order has been issued. The reference to the Full Bench is answered in the aforesaid terms. The writ petition shall now be placed before the regular Bench in accordance with the roster of work for disposal in the light of this decision.;