# Smt. Urmila Devi v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-06
- **Case number:** Writ-C No. 58211 of 2014
- **Bench:** Dr. Dhananajaya Yeshwant Chandrachud, C.J. Pradeep Kumar Singh Baghel, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-urmila-devi-v-state-of-u-p-ors-43199
- **Pages:** 13

## Headnote

Distribution Order 2004- clause 28-pending
appeal-G. O. Creating third party rights if
proper? Whether the direction contained for
interim arrangement by creating third party
rights
in
case
of
'Vinod
Misra'
and
'Jagannath Upadhyay' is proper? held-'No'
in absence of interim order in appeal-not
annulled
the
order
under
appealaccordingly interim mandamus issued in
Vinod Misra and Jagannath Upadhyay not
correct law.
Held: Para-24
468
 INDIAN LAW REPORTS ALLAHABAD SERIES
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
(supra) 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.
Case Law discussed:
Misc. Bench No. 11977 of 2010; Misc. Bench
No. 10373 of 2011; Writ -C No. 30600 of
2012; Writ-C No. 36241 of 2014; AIR 1968 SC
372; (1998) 5 SCC 637; (1998) 2 SCC 44.

## Text

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1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
467
wives died while in service, held that second
marriage was void under the Hindu law and
hence second wife having no status of widow
is not entitled to anything, however, children
from the second wife would equally share
the benefits of gratuity and family pension as
per law.
31. In G.L. Bhatia v. Union of India
and another9, the Supreme Court held that
if a nomination is made contrary to
statutory
provision,
it
would
be
inoperative. In the facts of that case, the
husband of the deceased employee
claimed family pension while nomination
was not in his favour. The authorities
rejected the claim of the husband for the
reason that he was staying separately from
the wife and thus was not entitled to
family pension. The Apex Court held that
the husband was entitled to family
pension, where the rights of the parties are
governed by statutory provisions, the
individual nomination contrary to the
statute will not operate.
32. The Apex Court in Smt. Sarbati
Devi and another Versus Smt. Usha
Devi10, AIR 1984 SC 346, held that a
mere nomination made in an insurance
policy does not have the effect of
conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the
assured. The nomination only indicates
the hand which is authorised to receive
the amount on the payment of which the
insurer gets a valid discharge of its
liability under the policy. The amount,
however, can be claimed by the heirs of
the assured in accordance with the law of
succession governing them.
33. For the reasons and law stated,
hereinabove, the second wife cannot
claim pension on the consent of the first
wife, even if the second wife is eligible
under the Rules to receive family pension,
as long as, the first wife is alive or does
not remarry.
34. I do not find any illegality or
infirmity in the order.
35. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2015
BEFORE
THE HON'BLE DR. DHANANAJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 58211 of 2014
Smt. Urmila Devi
 ..Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Bimal Prasad
Counsel for the Respondents:
C.S.C., Sri R.B. Yadav
Uttar
Pradesh
Scheduled
Comodities
Distribution Order 2004- clause 28-pending
appeal-G. O. Creating third party rights if
proper? Whether the direction contained for
interim arrangement by creating third party
rights
in
case
of
'Vinod
Misra'
and
'Jagannath Upadhyay' is proper? held-'No'
in absence of interim order in appeal-not
annulled
the
order
under
appealaccordingly interim mandamus issued in
Vinod Misra and Jagannath Upadhyay not
correct law.
Held: Para-24
468
 INDIAN LAW REPORTS ALLAHABAD SERIES
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
(supra) 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.
Case Law discussed:
Misc. Bench No. 11977 of 2010; Misc. Bench
No. 10373 of 2011; Writ -C No. 30600 of
2012; Writ-C No. 36241 of 2014; AIR 1968 SC
372; (1998) 5 SCC 637; (1998) 2 SCC 44.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The present reference to the Full
Bench has been occasioned by an order of
the Division Bench dated 3 November
2014. Before we set out the issues which
have been referred for adjudication by the
Full Bench, a brief reference to the
background in which the reference arose
would be in order.
2. Clause 3 of the Uttar Pradesh
Scheduled
Commodities
Distribution
Order, 20041 provides that with a view to
effecting a fair distribution of scheduled
commodities, the State Government may
issue directions under Section 3 of the
Essential Commodities Act, 19552 to set
up such number of fair price shops in an
area and in the manner as it deems fit.
Clause 4 requires that 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
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
469
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
returns, issuance of receipts and other
matters. There is a prohibition on the
transfer of an agency under Clause 26.
Clause 27 provides for a penalty. In that
clause, contraventions of the provisions of
the Control Order, are liable to be
punished in accordance with the orders
issued by the State Government from time
to time. Clause 28 provides for an appeal
and is in the following terms:-
"28. Appeal. - (1) All appeals shall
lie before the Concerned Divisional
Commissioner who shall hear and dispose
of the same or may by order delegate
his/her
powers
to
the
Assistant
Commissioner Food for hearing and
disposing of the appeal.
(2) Any person aggrieved by an order
of the Food Officer or the designated
authority refusing the issue or renewal of
a ration card or cancellation of the ration
card may appeal to the Appellate
Authority within thirty days from the date
of receipt of the order.
(3) Any agent aggrieved by an order
of the competent authority suspending or
cancelling agreement of the fair price
shop may appeal to the Appellate
Authority within thirty days from the date
of receipt of the order.
(4) No such appeal shall be disposed
of unless the aggrieved person or agent
has been given a reasonable opportunity
of being heard.
(5) 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."
3. In sub-clause (3) of Clause 28, an
agent who is aggrieved by the order of a
competent
authority,
suspending
or
cancelling an agreement of a fair price
shop, has the remedy of an appeal to the
appellate authority. Under Clause 28(5),
the appellate authority is empowered,
pending the disposal of the appeal, to
direct that the order under appeal shall not
take effect until the appeal is disposed of.
4. The issue which forms the bone
of contention is whether, upon the
suspension or cancellation of a licence of
a fair price shop and pending the disposal
of an appeal, it is open to the State
Government to make an interim or
temporary
arrangement
by
the
appointment of a new fair price shop
holder. Initially, this issue came up for
consideration before a Division Bench of
this Court at Lucknow consisting of Uma
Nath Singh and Anil Kumar, JJ in Vinod
Kumar Mishra Vs. State of U.P., through
Secretary, Food & Civil Supplies & Ors.3
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
470
 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
5. On 19 October 2011, another writ
petition, Jagannath Upadhyay Vs. State of
U.P., through Principal Secretary, Food &
Civil Supplies & Ors.4, came up before
the same Division Bench at Lucknow.
The Division Bench in that case was
seized of a grievance that though the
appeal filed under Clause 28(3) was
pending before the Commissioner, the
State had proceeded to create third party
rights. This, the Division Bench held, was
contrary to the directions issued on 16
September 2011 at the interim stage in
Vinod Kumar Mishra (supra). Though the
directions which were issued on 16
September 2011 were of an interlocutory
nature, this time, the Division Bench in
Jagannath Upadhyay's case disposed of
the writ petition finally in terms of the
interim directions in the earlier case with
the following observations:-
"Learned
counsel
for
petitioner
submitted that though appeal of petitioner
filed under Order 28(3) of the U.P.
Schedule
Commodities
Distribution
Order, 2004 is pending before the
Commissioner
concerned
still
the
respondents have proceeded to create a
third party right which is contrary to the
directions given in order dated 16.09.2011
passed in Writ Petition No. 11977 (MB)
of 2010 (Vinod Kumar Mishra Vs. State
of U.P. & others).
Thus, we take a serious view of the
matter and with a note of caution dispose
of this writ petition with direction to
authorities to act in terms of the directions
as contained in the aforesaid order which
on reproduction reads as under:-
"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 ad hoc 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
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
471
Secretary, Food and Civil Supplies
immediately for compliance.
List the matter on 28.09.2011 for
arguments."
Writ petition thus stands disposed
of."
6. 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 private-opposite 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 District Supply Officer,
District-Barabanki, who shall look into
the matter and take a decision with regard
to present controversy, in accordance with
law, by passing a speaking and reasoned
order expeditiously say preferably within
a period of two months from the date of
receipt of certified copy of the present
order and communicate the decision to the
petitioner.
Subject to above, the writ petition is
disposed of finally."
7. Thus, it is clear that in the original
case in which an interim direction had
been issued, namely, Vinod Kumar
Mishra (supra), the final judgment of the
Division Bench was that liberty was
granted to the petitioner to represent his
cause before the District Supply Officer,
who was directed to take a fresh decision
with a reasoned and speaking order.
However, as we have noted above, in the
meantime, in Jagannath Upadhyay's case
(supra), the interim direction in Vinod
Kumar Mishra's case, had been converted
into a final operative direction. The
consequence thereof was a direction to the
effect that the Principal Secretary (Food
and Civil Supplies) would ensure that
until an appeal is decided under Clause
28(3), the fair price shop should not be
allotted on an adhoc basis and units of the
existing fair price shop shall be attached
only to some other neighbouring fair price
shop without creating third party rights. In
Wahid Khan Vs. State of U.P. and
others5, which was decided on 21 June
2012, the authorization of the petitioner
for conducting a fair price shop had been
cancelled and an appeal was pending. In
the writ petition, it was urged that pending
the disposal of the appeal, no third party
rights should be created. The Division
Bench, while dismissing the writ petition,
had observed as follows:-
"A fair price shop is settled under the
Control Order 2004 for the benefit of the
card holders belonging to the poor strata
of the society. After the cancellation of
the authorization, the fair price shop
owner is not left with any rights, to seek a
direction for restraining the district
administration to allot the shop to any
other person during the pendency of the
appeal. Where no interim order is granted
by the Commissioner, the Court is not
472
 INDIAN LAW REPORTS ALLAHABAD SERIES
required to act against the very object of
the scheme to provide for essential
commodities at reasonable price to the
poor persons on their door steps. 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."
8. Subsequently, another writ
petition, Rajeshwar Prasad Vs. State of
U.P. and 3 others6, 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 Division Bench by a
judgment dated 16 July 2014 held as
follows :-
"5. We have, sitting in Division
Bench, issued several orders clarifying
that no general mandamus can be issued
by this Court. The High Court in its
extraordinary jurisdiction must confine
itself to the facts of the case and issues
raised before it. The Supreme Court has
also cautioned that the High Courts
should not ordinarily, unless it is
imperative and in the interest of general
public, issue any such directions, which
result into serious injustice to large
number of people. Where the fair price
shop is cancelled and an appeal is
pending, the card holders are attached to
some other shops, which in rural areas are
at the distances of several kilometers. The
pendency of the appeals forces thousands
of the beneficiaries under the Scheme
living below poverty line and seeking
benefit
under
the
Antyodaya
and
Anyapurna Schemes to travel a long
distance to collect their entitlement of
scheduled commodities.
6. The object of the Public
Distribution
Scheme
is
to
provide
scheduled
commodities
to
the
beneficiaries at their doorsteps regularly
on fair and reasonable prices. The
beneficiaries cannot be punished on
account of irregularities committed by the
fair price shop dealer, who has suffered
cancellation of the licence and has filed
an appeal. In such cases fresh shops
should be immediately settled for the
benefits of the beneficiaries under the
Scheme subject to the result of the appeal.
7.
We
find
that
the
general
mandamus issued on 19.10.2011 is
causing injustice to the general public
specially poor persons, who have to travel
several kilometers until the person, who
has committed irregularities, gets a
decision in his appeal.
8. We thus declare that firstly no
such general mandamus can be issued by
the Court and secondly the Court is not
required to pass orders which ultimately
result into hardships to the people at large.
9. If any Government Order has been
issued in compliance with the directions
of this Court dated 19.10.2011 by which a
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
473
general mandamus is issued, such orders
shall be forthwith withdrawn. The State
Government will give publicity to the
orders with directions that in cases of
cancellations of fair price shop, the fresh
fair price shop should be immediately
settled for the convenience of the general
public.
10. This writ petition 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."
9. 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.
10. 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 others7. 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
take effect until the appeal is disposed of.
Clearly,
therefore,
the
Appellate
Authority is vested with the power to
grant a stay, pending disposal of an
appeal, against an order of cancellation or,
as the case may be, suspension of an
agreement in respect of a fair price shop.
Hence, the licence holder is entitled to
pursue the remedy which is provided in
Clause 28 of the Control Order. The
Control
Order
has
been
made
in
accordance with the provisions of Section
3 of the Essential Commodities Act, 1955.
A person aggrieved by the suspension or
cancellation of the licence is entitled to
move the Appellate Authority for an
interim stay. If the licence holder either
does not move an application for an
interim stay, or having moved an
application fails to obtain an order of stay,
it would not then be possible for such a
licence holder to urge that pending
disposal of an appeal filed by him, no
steps should be taken for making alternate
arrangements until the appeal is finally
disposed of. The mere filing of an appeal,
as the provisions of Clause 28 would
indicate, does not operate as a stay of the
order which is impugned. Unless an
application for the grant a stay is moved
before the Appellate Authority and the
Appellate Authority stays the order of
suspension or cancellation, the order of
suspension or cancellation, as the case
may be, would continue to remain in force
until the appeal is finally disposed of.
Having regard to this position in law
which clearly emerges from Clause 28, it
would not be correct to hold that the mere
filing of an appeal before the Appellate
Authority would either operate as a stay
of the order of suspension or cancellation
or preclude the State from making
alternate
arrangements
for
the
due
distribution of essential commodities
pending disposal of the appeal. The State
474
 INDIAN LAW REPORTS ALLAHABAD SERIES
may either attach the card holders of the
erstwhile licensee, whose licence has been
suspended or cancelled, to another fair
price shop or may appoint a fresh licensee
to whom the fair price shop may be
allotted subject to the result of the appeal.
In these matters, it is necessary not to lose
sight of the fact that the private interest of
the licence holder is always subordinate to
the public interest in ensuring the due and
proper supply of food grains to residents
of the area. In a given case, the State may,
if it is of the view that an order of
attachment of the card 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."
11. 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, it would be reasonable to
assume that the conflict between two
Division Benches would have resulted in
a reference to a Full Bench.
12. The present reference before the
Full Bench has been occasioned as a
result of the conflict between the views
expressed in the final judgment of the
Division Bench in Jagannath Upadhyay's
case and in Rajeshwar Prasad. We may
also note that the view of the Division
Bench in Wahid Khan is along the same
lines as in Rajeshwar Prasad. The
following questions have been referred
for adjudication by the Full Bench in this
reference :-
"(a) Whether the Division Bench in
the case of Rajeshwar Prasad (supra) was
justified in declaring the mandamus
issued by a coordinate Bench as bad and
thereby directing that any Government
Order issued in pursuance thereof may be
withdrawn forthwith or it should have
referred the matter to a larger bench.
(b) Whether both the Division
Benches in the case of Jagannath
Upadhyay (supra) and Rajeshwar Prasad
(supra) were correct in issuing general
mandamus either way in the matter of
fresh settlement of shop during the
pendency of the appeal before the
Commissioner or not."
13. We proceed to deal with each of
the two questions separately.
Re Question '(a)'
14. The narration in the earlier part
of this judgment would indicate that in
Jagannath Upadhyay's case (supra), a
Division Bench of this Court in its
judgment dated 19 October 2011 had
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
475
followed the interim directions issued in
Vinod Kumar Mishra's case (supra) on 16
September 2011. The interim directions
were to the effect that when an agent,
whose authorization to conduct a fair
price shop had been terminated, files an
appeal under Section 28(3) of the Control
Order, the Principal Secretary, Food and
Civil Supplies, shall ensure that until the
matter is finally settled and the statutory
appeal is decided, the fair price shop shall
not be allotted on an adhoc basis and that
the unit holders would only be attached to
a neighbouring fair price shop in order to
avoid creating third party rights. In
Jagannath Upadhyay's case, the Division
Bench adopted the interim directions in
the earlier decision and converted them
into a final operative order in its judgment
dated 19 October 2011. Thus, what was
initially an interim direction assumed the
character of a final judgment albeit in
another case. Once this was the position,
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 line who had to
travel large distances until the agent,
whose authorization has been cancelled
for irregularities, gets a decision on his
appeal.
15. We will, as a larger bench, be
required to consider the merits of the
issues separately. But insofar as question
'(a)' is concerned, this Court has to deal
with the issue of propriety and procedure.
The law on the issue is clearly well
settled.
An
earlier
judgment
of
a
coordinate Bench binds a subsequent
Bench of the High Court. If a subsequent
Bench, considering the same issue is of
the view that the earlier decision is
erroneous or has failed to consider the
correct legal position, the correct course
of action is to make an order referring the
case to a larger bench. Consequently, if a
Single Judge is inclined to disagree with
the view of another Single Judge, a
reference is made to a Division Bench and
if a Division Bench is unable to subscribe
to the view of an earlier Division Bench
on the subject, a reference has to be made
to the Full Bench. This is not merely a
matter of procedure but of judicial
propriety which is founded on sound
considerations
of
public
policy.
Adjudication of cases in the High Court
must have an element of certainty.
Consistency in judicial decision making is
a hallmark of a system based on the rule
of law. Errors in judicial decision-making
can be resolved by adopting recourse to
476
 INDIAN LAW REPORTS ALLAHABAD SERIES
well settled judicial procedures within the
Court which consist of making a reference
to the larger bench.
16. This position has been set out in
several decisions of the Supreme Court.
In Tribhovandas Purshottamdas Thakkar
Vs. Ratilal Motilal Patel8, while dealing
with a case in which a Judge of the High
Court had failed to follow an earlier
judgment of a larger bench in the same
Court, the Supreme Court observed as
follows :-
"...Judicial decorum, propriety and
discipline required that he should not
ignore it. Our system of administration of
justice aims at certainty in the law and
that can be achieved only if Judges do not
ignore decisions by courts of coordinate
authority
or
of
superior
authority.
Gajendragadkar,
C.J.,
observed
in
Bhagwan v. Ram Chand: (AIR p. 1773,
para 18).
"18. ... It is hardly necessary to
emphasise that considerations of judicial
propriety and decorum require that if a
learned Single Judge hearing a matter is
inclined to take the view that the earlier
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."
17. We may advert to the decision in
State
of
Tripura
Vs.
Tripura
Bar
Association and others9, 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 matter to a larger Bench. We
are not satisfied that the said reasons
justified their deciding the matter and not
referring it to the larger Bench..."
18. In Usha Kumar Vs. State of
Bihar and others10, the Supreme Court
observed as follows:-
"...One Division Bench cannot ignore
or refuse to follow the decision of an
earlier Division Bench of the same Court
and proceed to give its decision contrary
to the decision given by the earlier
Division Bench. If it is inclined to take a
different view, a request should be made
to the Chief Justice to refer the same to a
Full Bench..."
19. For these reasons, we answer the
first question, by holding that the Division
Bench which decided the issue in
Rajeshwar
Prasad
(supra)
was
not
justified in declaring the mandamus
issued by a coordinate Bench as bad and
thereby directing that any Government
Order issued in pursuance thereof may be
withdrawn forthwith. The correct course
of action for the Division Benches which
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
477
heard Wahid Khan and Rajeshwar Prasad
(supra), if they found themselves unable
to agree with the earlier decisions, was to
have referred the matter to a larger bench.
Re Question '(b)'
20. The second question which has
been referred for decision by the Full
Bench essentially turns upon the merits of
the issue. The Control Order provides in
Clause 28(3) a remedy of an appeal to an
agent who is aggrieved by the suspension
or cancellation of his agreement for a fair
price shop. Sub-clause (5) of Clause 28
contemplates that pending the disposal of
the appeal, the appellate authority may
direct that the order under appeal shall not
take effect until the appeal is disposed of.
21.

Where
a
person
whose
authorization to conduct a fair price shop
is aggrieved either by the suspension or
cancellation of that authorization, such a
person is entitled to pursue the remedy of
a statutory appeal. In such an appeal, a
provision for seeking an interim stay has
been made in sub-clause (5) of Clause 28
of the Control Order. If the order of
suspension or cancellation is not stayed, it
necessarily continues to remain in force
and effect pending the disposal of the
appeal. If no application for stay is made
at all, the same consequence would
follow. Equally, if an application for stay
has been made and refused, the order of
suspension or cancellation, as the case
may be, would continue to remain in
force. 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.
22. 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
478
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
23. 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
(supra),
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
(supra), 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.
24.
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.