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2018 DIGILAW 1539 (ALL)

MOOL CHANDRA v. STATE OF U. P.

2018-07-12

AJAY BHANOT

body2018
JUDGMENT Hon’ble Ajay Bhanot, J.—Heard Sri Anubhav Chandra, learned counsel for the petitioner and learned Standing Counsel for the State. 2. The petitioner was a fair price shop dealer of Kasba and Tehsil-Chhata, District Mathura. The fair price shop licence of the petitioner was terminated by order dated 27.1.2018 passed by the respondent No. 3. The petitioner took the said order of termination in appeal. The memo of appeal was accompanied by a stay application. The appeal was registered as Appeal No. C201801000000744 of 2018, Mool Chandra v. State of U.P., in the Court of Deputy Commissioner (Food & Civil Supplies), Agra Division, Agra. The application for interim relief was rejected by the appellate Court by order dated 10.4.2018. 3. The petitioner has assailed the order dated 27.1.2018 passed by the respondent No. 3 terminating the licence of the petitioner and the order dated 10.4.2018 passed by the respondent No. 4 rejecting the stay application filed by the petitioner. 4. The petitioner is admittedly prosecuting the appeal before the appellate authority wherein the order of termination of his licence dated 27.1.2018 passed by the respondent No. 3 has been challenged. 5. Learned Standing Counsel submits that petitioner cannot pursue two remedies simultaneously. 6. Faced with the aforesaid submissions, Sri Anubhav Chandra has confined his challenge to the order dated 10.4.2018 passed by the appellate authority rejecting the stay application. 7. Learned counsel for the petitioner submits that petitioner apprehends that the fair price shop dealership shall be awarded to another person. This would cause entrenchment of third party right. The remedy of appeal will be rendered illusory and rights of the petitioner shall be defeated by fait accompli. 8. Per contra Sri Sanjay Ram Tripathi, learned Standing Counsel submits that the apprehensions of the petitioner are misplaced as rights of a subsequent allottee have been amply protected by the Hon’ble Supreme Court in the case of Poonam v. State of U.P. and others, 2016(7) ADJ 530. 9. I have heard learned counsel for the parties. A perusal of the order dated 10.4.2018 shows that the authority has applied its mind to all germane considerations as required in law while deciding the application for interim relief. The appellate authorities has passed a reasoned and speaking order. Prima facie, the material in the record supports the charges of malpractices committed by the petitioner in the distribution of essential commodities. The appellate authorities has passed a reasoned and speaking order. Prima facie, the material in the record supports the charges of malpractices committed by the petitioner in the distribution of essential commodities. The material has been duly considered by the appellate authority while declining to grant any interim relief. There is no infirmity in the impugned order. No interference is called for in the aforesaid order. 10. A vacancy of a fair price shop dealer was created in the village panchayat, after the termination of fair price shop licence of the petitioner. Consequent to the rejection of application for interim relief by the appellate authority, the village panchayat continues to be without a regularly appointed fair price shop dealer. Absence of a regularly appointed fair price shop dealer in the village panchayat is apt to disrupt the supply of essential commodities and deny the card holders their rightful dues under the National Food Security Act, 2013 and entitlements under the welfare schemes run by the State Government. This state of affairs cannot be permitted by the authorities and shall not be countenanced by the Court. In such situations, the authorities are under obligation of law to ensure that alternative measures are put in place to ensure uninterrupted supply of essential commodities to the card holders. These measures may also include appointment of a new fair price shop dealer for the village panchayat. In case the authorities appoint a fresh fair price shop dealer in place of the petitioner, no exception can be taken to the same. It is prerogative of the authorities. In fact such course would be in public interest. The question arises whether such appointment is in conflict with the rights of the erstwhile fair price shop dealer. The appointment of the subsequent fair price shop dealer shall not denude leave alone defeat the rights of the erstwhile fair price shop dealer like the petitioner. The perceived controversy of a conflict of rights between the erstwhile fair price shop dealer and the subsequent allottee has been set at rest by the Hon’ble Supreme Court in the case of Poonam (supra). 11. The Hon’ble Supreme Court in the case of Poonam (supra) held thus : “50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. 11. The Hon’ble Supreme Court in the case of Poonam (supra) held thus : “50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party.” 12. The Hon’ble Supreme Court in the case of Poonam (supra) has addressed the competing claims of the erstwhile fair price shop dealer and the subsequent allottee. The rights of the erstwhile fair price shop dealer have been adequately protected by the Hon’ble Supreme Court in the case of Poonam (supra) against the claims of a subsequent allottee. The fate of the subsequent allottee shall depend upon the result of the litigation instituted by the original allottee. At the same time by permitting the subsequent allottee to discharge his obligations as a fair price shop dealer, the overriding public interest of ensuring the smooth functioning of the public distribution system and unimpeded supply of essential commodities to the card holders, has been secured. The Hon’ble Supreme Court in the case of Poonam (supra) achieved the ultimate balance of protecting the rights of the original fair price shop allottee and preserving the efficacy of the public distribution system. 13. The petitioner is entitled to the protection granted by the Hon’ble Supreme Court in the case of Poonam (supra). The appellate authority shall hear the appeal on merits. The appointment of any subsequent dealer shall abide by the decision of the appeal. 14. With aforesaid observations present writ petition stands disposed of.