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2016 DIGILAW 1860 (ALL)

SAVITRI DEVI v. STATE OF U. P.

2016-05-13

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri S.B. Singh, learned counsel for the petitioner. 2. The fair price shop agreement of the petitioner was cancelled by the order dated 19.3.2016 passed by the District Magistrate. Against the said order, the petitioner filed an appeal and the same has been entertained on 12.4.2016 directing for summoning of the record fixing a date for final hearing of the appeal on merits but no stay order has been passed. 3. Aggrieved by the above order or the refusal on part of the the appellate authority to grant stay during the pendency of the appeal the petitioner has preferred this writ petition. 4. The argument is that Clause 28(5) of Uttar Pradesh Scheduled Commodities Distribution Order, 2004 empowers the appellate authority to grant interim stay during the pendency of the appeal and therefore, in the facts and circumstances of the case, the denial of stay to the petitioner is improper. 5. Sub-Clause (5) of Clause 28 of the Distribution Order 2004 provides that in a pending appeal the appellate authority may direct for the stay of the order impugned. The said sub-clause reads as under: “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.” 6. The use of the word ‘may’ in the aforesaid clause makes it clear that the power vested in the appellate authority to grant stay is discretionary and not mandatory in nature. Thus, in every appeal it is not necessary for the appellate authority to grant stay as of right. 7. The Full Bench of this Court in Smt. Urmila Devi v. State of U.P. and others, 2015(2) ADJ 368 (FB), while dealing with Sub-Clause 5 of Clause 28 of the Distribution Order 2004 held that during the pendency of an appeal a direction may be obtained that the order appealed against may not take effect until the appeal is disposed. However, where no such direction is given by the appellate authority the order impugned therein would continue to remain in operation. The mere filing or pendency of an appeal or even an application for stay does not result in a deemed or automatic stay of the order impugned in the appeal. 8. This also shows that the power to grant stay by the appellate authority is discretionary. 9. The mere filing or pendency of an appeal or even an application for stay does not result in a deemed or automatic stay of the order impugned in the appeal. 8. This also shows that the power to grant stay by the appellate authority is discretionary. 9. A perusal of the impugned order dated 12.4.2016 reveals that the appellate authority has considered the facts of the case and since the petitioner has failed to submit any explanation in response to the show-cause notice has declined to grant ex parte interim order. 10. There is no flaw in the reasoning adopted by the appellate authority in exercising its discretion. 11. In view of above, I find no merit in this petition and the same is dismissed. 12. The petitioner may however approach the appellate authority for expeditious disposal of the appeal.