TaxTMI 
TaxTMI 
2015 (2) TMI 1424
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....at 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 retu....
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.... 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 adhoc 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 28.09.2011 for arguments." ....
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....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 28.09.2011 for arguments." Writ petition thus stands disposed of." Subsequently, Vinod Kumar Mishra's case (supra), in which interim directions had been issued on 16 September 2011, was heard by the Division Bench at Lucknow and was disposed of with the following observations:- "Heard learned counsel for the parties and perused the record. The licence of fair price shop of the petitioner was set aside by the appellate forum. Thereafter, it was was restored and after restoration, the same was granted in favour of the privateopposite party. Submission of learned counsel for the petitioner is that in view of settled law, the licence of fair price shop cannot be granted in favour of the private opposite party and it should have been restored in favour of the petitioner. In case, it is so, that aspect of the matter can be looked into by the District Supply Officer concerned. Accordingly, we give liberty to the petitioner to represent his cause before the Dis....
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..... The restriction on making fresh allotment causes extreme hardships to the poor persons for whose benefit the fair price shop is run. Such an order is against the object of public distribution system. It will be a travesty of justice to punish the poor people to travel long distances to collect the scheduled commodities from the fair price shop to which their cards are attached, until the appeal of the person, who has been found guilty of the charges of irregularities, is decided." Subsequently, another writ petition, Rajeshwar Prasad Vs. State of U.P. and 3 others Writ - C No. - 36241 of 2014, came up before a Division Bench of this Court. In that case, the authorization of the petitioner to sell scheduled commodities had been cancelled for irregularities in distribution after a notice to show cause. The petitioner filed an appeal before the Commissioner under Clause 28 of the Control Order and thereafter moved this Court, seeking directions restraining the State from settling the shop afresh until his appeal was decided. In support of the writ petition, reliance was placed on the general mandamus, which was issued at Lucknow in Jagannath Upadhyay's case (supra). The Divis....
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....n has been filed within a few days of filing the appeal. There is no such delay much less unreasonable delay to interfere in the matter. 11. The writ petition is accordingly dismissed. A copy of the order will be given to Chief Standing Counsel for compliance." The writ petition was accordingly dismissed. The Division Bench also observed that if any Government Order had been issued in compliance with the directions issued on 19 October 2011 in Jagannath Upadhyay's case (supra), that shall be withdrawn forthwith. A Division Bench of this Court at Lucknow considered the provisions of Clause 28 of the Control Order in Vinod Kumar Vs. State of U.P. and others [2014(8) ADJ 1 (DB)(LB)]. That decision was rendered on 19 August 2014. The Division Bench, while construing the provisions of Clause 28, observed as follows:- "Clause 28 (3) provides for an appellate remedy before the Appellate Authority against an order of suspension or cancellation of an agreement in respect of a fair price shop. Under sub-clause (5), the Appellate Authority is duly empowered, pending disposal of the appeal, to direct that the order against which an appeal has been filed, shall not t....
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....rd holders to another fair price shop would be administratively efficient, pass such an order. However, it may well happen that attaching the card holders to another fair price shop would entail and require the card holders to traverse a long distance which would be inconvenient and ultimately result in seriously affecting the right of the residents to an efficient supply of food grains under the public distribution system. Ultimately, it is for the State to take a considered decision having regard to the predominant aspect of public interest in each case." We may note, at this stage, that the Division Bench at Lucknow duly took note of the interim order which was passed in Vinod Kumar Mishra (supra) on 16 September 2011 and to the final order disposing of that petition on 12 December 2011. The Division Bench also took note of the judgment of a Division Bench in Wahid Khan (supra). The attention of the Division Bench at Lucknow was, however, not drawn to the fact that the interim directions in Vinod Kumar Mishra's case had been embodied in the form of a final operative judgment in Jagannath Upadhyay's case. Had this fact been drawn to the attention of the Division Bench,....
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....osition, and when a subsequent Division Bench hearing Wahid Khan's case was apprised of the final judgment dated 19 October 2011 in Jagannath Upadhyay's case, the judgment of the coordinate Division Bench ought to have been followed or, if the Division Bench had reservations about the correctness of the view, a reference ought to have been made to the Full Bench. The judgment in Wahid Khan's case was rendered on 21 June 2012 and expressly refers to the final judgment dated 19 October 2011 in which a general mandamus had been issued. Subsequently, in Rajeshwar Prasad's case, which was decided on 16 July 2014, once again a reference was made to the final decision in Jagannath Upadhyay's case. Despite the fact that there was a final judgment in Jagannath Upadhyay's case, the Division Bench observed in its operative directions that the Government Order which had been issued in compliance with the directions of the Court on 19 October 2011, shall be withdrawn forthwith. On merits, the Division Bench took the view that the general mandamus which was issued on 19 October 2011 was causing injustice to the general public, specially those who are below the poverty lin....
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....rlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety." We may advert to the decision in State of Tripura Vs. Tripura Bar Association and others (1998) 5 SCC 637, in which the following position in law was laid down:- "We are of the view that the Division Bench of the High Court which has delivered the impugned judgment being a coordinate Bench could not have taken a view different from that taken by the earlier Division Bench of the High Court in the case of Durgadas Purkayastha. If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the ....
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.... The mere filing or pendency of an appeal or, for that matter, even the pendency of an application for stay in the appeal does not operate to stay the order of suspension or cancellation. An order of suspension or cancellation would continue to remain in effect unless and until it is either stayed at the interim stage under Clause 28(5) or upon the order being set aside at the final disposal of the appeal. In view of this clear position in law, it is not open to a person whose authorization is suspended or cancelled to seek an order from the writ court under Article 226 of the Constitution restraining the State from making alternate arrangements despite the fact that no stay operates during the pendency of the appeal. If a stay has been refused, undoubtedly, the agent whose authorization has been suspended or cancelled, may take recourse to his lawful remedies but unless and until the operation and effect of the suspension or cancellation has been stayed or set aside, the plain consequence in law is that it would continue to remain in full force and effect. The provisions of the Control Order are conceived in public interest. The object and purpose of the Control Order is ....
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....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 l....