JUDGMENT By the Court.—Heard learned counsel for the petitioner, Sri Ranjan Srivastava appearing for respondent No. 3 and learned Standing Counsel appearing for respondents No. 1 and 2. 2. A counter affidavit has been filed on behalf of respondent No. 3 to which rejoinder affidavit has also been filed. With the consent of the learned counsel for the parties, the writ petition is being finally decided. 3. By this writ petition, the petitioner has prayed for quashing the order dated 19th December, 2009 by which order the petitioner’s fair price agreement has been suspended and supply of respondent No. 3 has been restored. 4. Brief facts necessary for deciding the writ petition are; the petitioner was appointed as fair price shop dealer in the year 2007. Certain complaints were received against the petitioner. A notice dated 22nd November, 2008 was issued to the petitioner to show cause with regard to certain irregularities in distribution. On 2nd December, 2008 on Tahsil Divas villagers made complaint to the District Magistrate. Under the direction of the District Magistrate a first information report was lodged against the petitioner on 2nd December, 2010 itself under Section 3/7 of the Essential Commodities Act. A direction was also issued by the District Magistrate to the Sub-Divisional Officer to obtain a resolution in favour of Ghasi Ram, respondent No. 3.By order dated 4th December, 2009 the Sub-Divisional Officer cancelled the petitioner’s fair price agreement. The petitioner filed an appeal against the order dated 4th December, 2008. The appeal of the petitioner was admitted but the stay application was rejected on 9th January, 2009. A writ petition being Writ Petition No. 17944 of 2009 was filed by the petitioner, which writ petition was disposed of on 8th April, 2009. This Court took the view that appellate authority ought to have stayed the order dated 4th December, 2008 and an order was passed by this Court staying the order dated 4th December, 2008 during pendency of the appeal. The appeal subsequently was allowed by the appellate authority vide order dated 13th July, 2009 setting aside the order dated 4th December, 2009. The appellate authority observed that appellant was entitled for opportunity mentioning the irregularities and after receiving his reply further proceedings were to be taken. The appellate authority also observed that after giving opportunity the Sub Divisional Officer may take fresh decision. The appellate authority observed that appellant was entitled for opportunity mentioning the irregularities and after receiving his reply further proceedings were to be taken. The appellate authority also observed that after giving opportunity the Sub Divisional Officer may take fresh decision. Against the order dated 13th July, 2009 a writ petition being Writ Petition No. 40996 of 2009 was filed by the respondent No. 3, which was dismissed by this Court on 12th August, 2009. It appears that some notice was issued by the Sub Divisional Officer on 7th September, 2009. The petitioner submitted reply to the notice dated 7th September, 2009 on 29th September, 2009. The Sub Divisional Officer by the impugned order dated 19th December, 2009 suspended the petitioner’s fair price shop agreement and directed that supply in favour of respondent No. 3 be restored. The petitioner has come up in this writ petition challenging the aforesaid order. 5. Learned counsel for the petitioner, challenging the order, has contended that Sub Divisional Officer has suspended the fair price agreement observing that lodging the first information report against the petitioner with regard to which charge-sheet has also been submitted was not brought in to the notice of the appellate authority, which cannot be a ground of suspension. He further submits that respondent No. 3 was appointed as fair price shop dealer on 12th December, 2008 after cancellation of petitioner’s fair price shop agreement and the cancellation order dated 4th December, 2008 having been set-aside by the appellate authority, the appointment of respondent No. 3 came to an end and there was no occasion for restoring the supply of respondent No. 3 specially when there is no vacancy in place of the petitioner. It is further submitted that writ petition filed by respondent No. 3 against the order of the appellate authority allowing the appeal of the petitioner has been dismissed by this Court. 6. Sri Ranjan Srivastava, learned counsel appearing for respondent No. 3, has submitted that petitioner having remedy of filing an appeal against the order of suspension under Clause 28 of the U.P. Schedule Commodities Order, 2004, the writ petition cannot be entertained. 6. Sri Ranjan Srivastava, learned counsel appearing for respondent No. 3, has submitted that petitioner having remedy of filing an appeal against the order of suspension under Clause 28 of the U.P. Schedule Commodities Order, 2004, the writ petition cannot be entertained. It is further submitted that although certain exceptions have been laid down to the general rule of non entertainment of the writ petition when alternative remedy is available but present is not a case which is covered by any of the exceptions referred to in the judgment of the Apex Court in the case of Wirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, 1998(8) SCC 1 . It is submitted that exceptions which have been laid down in the said case are, (i) when the order is without jurisdiction, (ii) when order is passed in violation of principles of natural justice and (iii) when the vires of the statute under which the order has been passed itself is under challenge. It is submitted that show cause notice was already issued to the petitioner on 7th September, 2009, hence there is no breach of rules of natural justice. The Sub-Divisional Officer has every authority and jurisdiction to pass an order of suspension and the order impugned in the writ petition cannot be said to be without jurisdiction. 7. Learned counsel for the petitioner in rejoinder has submitted that mere lodging of a first information report is not a ground for suspension. Reliance has been placed on a judgment of this Court in Writ Petition No. 28051 of 2008 (Jagdish Narain Mishra v. State of U.P. and others) decided on 30th October, 2009. 8. We have considered the submissions of learned counsel for the parties and have perused the record. 9. The order impugned in the writ petition is in two parts. By first part of the order the petitioner’s fair price shop agreement has been suspended and by second part of the order, the supply of respondent No. 3 has been restored. In so far as the suspension of the fair price shop agreement is concerned, there is substance in the submission of learned counsel for respondent No. 3 that against the suspension order the petitioner has remedy of filing an appeal under Clause 28 of the 2004 order, hence it is not a fit case to be entertained under Article 226 of the Constitution of India. There being statutory remedy against the suspension order, we are satisfied that present is a case in which petitioner may avail remedy of appeal before the appellate authority and take all such pleas and grounds as are being raised in the present writ petition. 10. Now comes the second part of the order by which supply in favour of respondent No. 3 has been restored. Learned counsel for the petitioner contends that the said order is beyond the jurisdiction since the fair price shop agreement in favour of respondent No. 3 has automatically come to an end after the appeal filed by the petitioner against cancellation order was allowed. He submits that petitioner’s fair price agreement being no more cancelled, there is no vacancy and the restoration of supply in favour of respondent No. 3 is an order, which is arbitrary and contrary to law. It is further submitted by learned counsel for the petitioner that writ petition filed by respondent No. 3 against the order of the appellate authority by which appeal of the petitioner was allowed, was dismissed by this Court on 12th August, 2009. 11. From the facts brought on the record, it is clear that allotment in favour of respondent No. 3 was made after cancellation of the fair price shop agreement of the petitioner on 4th December, 2008. The cancellation order was set-aside by the appellate authority on 13th July, 2009, the consequence of which was that there existed no vacancy. The allotment in favour of respondent No. 3 dated 12th December, 2008 being consequential to cancellation, the same shall automatically come to an end. 12. The Division Bench judgment of this Court in Special Appeal (Defective) No. 877 of 2009 (Smt. Sandhya Devi v. State of U.P. and others) decided on11th August, 2009 fully supports the contention of learned counsel for the petitioner. In the said case the respondent No. 5 to appeal was original licence holder whose licence was cancelled on 30th November, 2007 in whose vacancy the appellant to the appeal was appointed as fair price shop holder on 10th October, 2008. Aggrieved against the cancellation of licence respondent No. 5 to the appeal had filed an appeal before the Divisional Commissioner, which was allowed on 1st May, 2009 setting aside the cancellation order. Aggrieved against the cancellation of licence respondent No. 5 to the appeal had filed an appeal before the Divisional Commissioner, which was allowed on 1st May, 2009 setting aside the cancellation order. It was contended by the appellant that mere fact that licence was restored in favour respondent No. 5, the licence granted in favour of the appellant could not have been cancelled. The view taken by the learned Single Judge dismissing the writ petition has been approved by the Division Bench. It is useful to quote the following observations of the Division Bench : “We do not find any substance in the submission of Mr. Singh. Undisputedly, the appellant was granted the licence on account of vacancy arising out of the cancellation of licence of respondent No. 5. That cancellation has been found to be illegal by the Divisional Commissioner in appeal and his licence has been restored. Therefore, the authorities did not err in restoring the licence in favour of respondent No. 5. As regards the plea of the appellant that the Commissioner ought to have given notice to the appellant, we are of the opinion that the lis was not between the appellant and respondent No. 5 and, therefore, it was not necessary to give her any notice. It is worth reproducing the view of the learned Judge in this regard, which reads as follows : “From the facts as they are admitted on record, it is apparently clear that the petitioner is neither the complainant nor the Pradhan of the Gram Sabha. She in fact is the beneficiary of the order cancelling the fair price shop of respondent No. 5. The rights of the petitioner were dependent upon the outcome of the appeal. The Hon’ble Supreme Court of India in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association DCSI Cinod Secretariat, Madras, (1992) 3 SCC 1 has explained, that once an order is set aside then what follows in the eyes of law is that as if the order, which has been set aside, had never been passed. What logically follows in the facts of this case from the order of the Commissioner dated 1.5.2009 is that the order of cancellation of the Sub Divisional Magistrate is presumed to have not been passed in eyes of law at all. What logically follows in the facts of this case from the order of the Commissioner dated 1.5.2009 is that the order of cancellation of the Sub Divisional Magistrate is presumed to have not been passed in eyes of law at all. Consequently, there ceases to be a vacancy against which the petitioner can continue as the agent.” We do not find any error in the view taken by the learned Judge. We do not find any merit in the appeal and it is dismissed accordingly.” 13. In view of the foregoing discussions, we are satisfied that licence of respondent No. 3 being not continuing, the order of the Sub-Divisional Officer restoring the supply in favour of respondent No. 3 was in excess of his authority and the same cannot be sustained and is hereby set-aside. 14. In result, the writ petition is partly allowed quashing part of the order dated 19th December, 2009 in so far as it restores the supply of respondent No. 3. In so far as the suspension of fair price agreement of petitioner is concerned, the petitioner may avail remedy of appeal before the appellate authority. We, however, further provide that in case the petitioner files an appeal within two weeks from today, no fresh allotment of the shop in question shall be made. It shall be open for the authorities to carry on distribution by attachment of the shop in question till any decision is taken by the appellate authority in that regard. 15. Parties shall bear their own costs. ————