# Sri Prakash Chandra Tripathi v. State Of U.P. & Ors - **Citation:** (2016) 8 ILRA 1100 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-16 - **Bench:** Ran Vijai Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-prakash-chandra-tripathi-v-state-of-u-p-ors-44140 - **Pages:** 5 ## Headnote This writ petition has been filed for quashing the order dated 08.07.2016 passed by the Additional Commissioner, Allahabad Division, Allahabad in Appeal No.C2016020000470 to the extent it relates to disposal of the stay application. The petitioner was a fair price shop licensee of Village Nyayipur, Vikas Khand Holagarh, Tehsil Soraon, District Allahabad. His agreement was cancelled by the Sub-Divisional Officer vide order dated 29.04.2016. Against the said cancellation order, the petitioner filed an appeal along with a stay application. The appellate authority by the impugned order dated 08.07.2016 admitted the appeal for hearing on merits but instead of granting or refusing stay, passed an order that in case a new shop has been allotted on the place of the cancelled shop, the said allotment shall be subject to the final outcome of the appeal. The Court held that when a statute provides a power to be exercised in a particular manner, it has to be exercised in that manner only. The appellate authority was required either to stay the implementation of the cancellation order or to refuse the stay by giving reasons. Passing an order that any fresh allotment shall be subject to the final decision of the appeal amounts to non-disposal of the stay application and is not in consonance with Order 28(5) of the Distribution Order, 2004. The writ petition is disposed of with the aforesaid directions. Held: Para- The impugned order dated 08.07.2016 is set aside to the extent of disposal of the stay application. The appellate authority is directed to pass a fresh order on the stay application of the petitioner strictly in accordance with Order 28(5) of the U.P. Scheduled Commodities Distribution Order, 2004 within two months from the date of receipt of certified copy of this order. The Principal Secretary, Food and Civil Supply, U.P. is also directed to issue a circular directing all appellate authorities to dispose of stay applications under Order 28(5) either by granting stay or by refusing the same with reasons and not to deviate from the statutory provision. 8 All. Sri Prakash Chandra Tripathi Vs State Of U.P. & Ors. 1101 Case Law discussed: Taylor Vs. Taylor (1876) 1 Ch.D. 426, Nazir Ahmed Vs. King Emperor AIR 1936 PC 253, Deep Chand Vs. State of Rajasthan AIR 1961 SC 1527, ## Text 1100 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1100 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.08.2016 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Writ C No.- 37546 Of 2016 Sri Prakash Chandra Tripathi ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Arvind Kumar Mishra Counsel for the Respondents: C.S.C., Vijay Prakash Mishra This writ petition has been filed for quashing the order dated 08.07.2016 passed by the Additional Commissioner, Allahabad Division, Allahabad in Appeal No.C2016020000470 to the extent it relates to disposal of the stay application. The petitioner was a fair price shop licensee of Village Nyayipur, Vikas Khand Holagarh, Tehsil Soraon, District Allahabad. His agreement was cancelled by the Sub-Divisional Officer vide order dated 29.04.2016. Against the said cancellation order, the petitioner filed an appeal along with a stay application. The appellate authority by the impugned order dated 08.07.2016 admitted the appeal for hearing on merits but instead of granting or refusing stay, passed an order that in case a new shop has been allotted on the place of the cancelled shop, the said allotment shall be subject to the final outcome of the appeal. The Court held that when a statute provides a power to be exercised in a particular manner, it has to be exercised in that manner only. The appellate authority was required either to stay the implementation of the cancellation order or to refuse the stay by giving reasons. Passing an order that any fresh allotment shall be subject to the final decision of the appeal amounts to non-disposal of the stay application and is not in consonance with Order 28(5) of the Distribution Order, 2004. The writ petition is disposed of with the aforesaid directions. Held: Para- The impugned order dated 08.07.2016 is set aside to the extent of disposal of the stay application. The appellate authority is directed to pass a fresh order on the stay application of the petitioner strictly in accordance with Order 28(5) of the U.P. Scheduled Commodities Distribution Order, 2004 within two months from the date of receipt of certified copy of this order. The Principal Secretary, Food and Civil Supply, U.P. is also directed to issue a circular directing all appellate authorities to dispose of stay applications under Order 28(5) either by granting stay or by refusing the same with reasons and not to deviate from the statutory provision. 8 All. Sri Prakash Chandra Tripathi Vs State Of U.P. & Ors. 1101 Case Law discussed: Taylor Vs. Taylor (1876) 1 Ch.D. 426, Nazir Ahmed Vs. King Emperor AIR 1936 PC 253, Deep Chand Vs. State of Rajasthan AIR 1961 SC 1527, (Delivered by Hon'ble Ran Vijai Singh, J.) 1. Heard Sri Arvind Kumar Mishra, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri Vijay Prakash Mishra, learned counsel for the respondent no. 7. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 8.7.2016 passed by the Additional Commissioner Allahabad Division Allahabad in Appeal No. C2016020000470 (Sri Prakash Chandra Tripathi Vs. State of U.P. and another) to the extent of the order relating to disposal of the stay application. 3. In the submission of learned counsel for the petitioner, the appellate authority, in fact, has not disposed of the stay application filed by the petitioner in the light of the prayer made in the application which precisely contains the prayer with respect to the stay/implementation of the order dated 29.4.2016 cancelling the agreement of the petitioner to run fair price shop till the disposal of the appeal. 4. The facts of this case, in brief, are that the petitioner happened to be fair price shop agent of Village Nyayipur, Vikas Khand Holagarh Tehsil Soraon, District Allahabad. His agreement to run fair price shop was cancelled by the Sub-Divisional Officer on 29.4.2016. 5. Aggrieved by the order of cancellation of his agreement, the petitioner, herein, has filed aforesaid appeal. 6. Along with the appeal, the petitioner has also filed an application for interim protection. The appellate authority has taken up the matter on 8.7.2016 and passed the impugned order, which reads as under :- fnukad% 08-07-2016 mHk;i{k ds fo}ku vf/koDrk dks lquk x;kA vihy xzkg~; dh tkrh gSA ,ylh i=koyh ryc gksA vihy esa xq.k nks"k ij lquokbZ gsrq i=koyh 27-7-16 dks izLrqr gksA ;fn fujLr nqdku ds LFkku ij u;h nqdku fu;qDr gqbZ gS rks mDr fu;qfDr bl vihy ds vafre fu.kZ; ds v/khu gksxhA 7. Sri Mishra, who appears for the complainant, submitted that after the order of cancellation dated 29.4.2016, the shop has been allotted to one Sri Kallu Ram Patel, therefore the writ petition should be dismissed. 8. I have heard learned counsel for the parties and considered their submissions. 1102 INDIAN LAW REPORTS ALLAHABAD SERIES 9. It is not in dispute that the appeal has been filed under Order 28 (3) of U.P.Scheduled Commodities Distribution Order, 2004 (in short 'Distribution Order, 2004'). 10. The Sub-Order 5 of Order 28 of the Distribution Order, 2004 reads as under :- (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. 11. From bare reading of the aforesaid provision, it transpires that the appellate authority has been empowered to direct that an order under appeal shall not be given effect to until the appeal is disposed of. 12. Learned counsel for the petitioner vehemently contended that once the statute has conferred power upon the authority may be the appellate authority then the power has to be exercised in a manner as provided under the statuteitself. Here the power conferred upon the appellate authority is to the extent to direct that an order under appeal shall not be given effect to until the appeal is disposed of but the appellate authority, instead of passing an order directing not to give effect to the order passed under appeal or to refuse grant stay order, has passed separate category of order to the effect that in case, any third party right created that shall be subject to final order passed in appeal. 13. The submissions made by the learned counsel for the petitioner carries weight as it is well settled that if the statute provides to do a thing in a particular manner, then that thing has to be done in that very manner. Reference may be had to the judgments of the Apex in Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 as well as this Court in Atar Singh Vs. State of U.P. And others, 2013(1)ADJ43, Bankey Lal and another Vs. Deputy Director of Consolidation and others,2013(5)ADJ51, Phoolpati Vs. State of U.P. And others, 2014 2 AWC1291All, Paras and another Vs.and others, 2013(8)ADJ253,Ram Pratap vs. Deputy Director of Consolidation and others 2013 (6)ADJ 457, Rambali and others vs. State of U.P. and Others 2013 (2) ADJ 91. 14. Here as has been noticed, herein above, under Order 28 (5) of the Distribution Order, 2004 the power has been conferred upon the appellate authority to consider the stay application to the extent either to restrain the implementation of order impugned in appeal or to refuse to grant interim protection. The provisions contained under Order (5) is purposive keeping in mind the other provisions which is to commence after the execution of agreement. Under the various government orders (need not to be referred), it has been mandated that an order of attachment of shop after cancellation of the agreement will not be allowed to continue beyond the period of two months, therefore the natural consequence of cancellation of an agreement would be the allotment of the shop to someone else pending appeal/any other judicial proceeding as a Full Bench of this Court in 8 All. Sri Prakash Chandra Tripathi Vs State Of U.P. & Ors. 1103 the case of Smt. Urmila Devi vs. State of U.P., 2015 (2) ADJ 368 (FB) has overruled the earlier decision on the point that pending appeal, no third party right can be created,in other words, an order restraining the State authorities not to create any third party right cannot be passed, therefore also the order passed by the appellate authority is meaningless order and it amounts non-disposal of the stay application filed by the petitioner. 15. In view of foregoing discussions, the appellate authority is directed to pass fresh order on the stay application of the petitioner in consonance with the provisions contained under Order 28 (5) of the Distribution order, 2004. 16. The Principal Secretary Food and Civl Supply, Uttar Pradesh is directed to issue a circular in this regard requiring the authorities that whenever any stay application is filed under Sub-Order 5 of Order 28 of the Distribution Order, 2004 in that eventuality the appellate authority shall dispose of the stay application in consonance with the provisions contained under Order 28 (5) of the Distribution Order, 2004 and not to deviate from that. The appellate authority in a given circumstance shall either to stay the operation/implementation of the order under appeal or to rufuse the same by giving reasons for the same. 17.In the present case, required exercise is to be done within two months from the date of receipt of certified copy of the order of this Court. 18. With the aforesaid observation/direction, this writ petition is disposed of. ---------- 1104 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1104 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.08.2016 BEFORE THE HON'BLE ANJANI KUMAR MISHRA, J. Writ C No.- 38380 Of 2016 Smt. Jadawati ...Petitioner Versus The Up Zila Adhikari, Sadar, Jaunpur & Anr. ...Respondents Counsel for the Petitioner: Suresh Chandra Tripathi Counsel for the Respondents: C.S.C. This writ petition has been filed by the petitioner seeking a writ of prohibition, The dispute in the writ petition pertains to plot no. 30 area 0.287 hectares situated in Village Sorani, District Jaunpur. The petitioner is recorded over this plot, having purchased the same by means of a registered sale deed dated 20.01.1997, executed by one Dhannu. On 12.04.2016, a complaint was made by the second respondent, alleging therein, that the sale deed in favour of the petitioner, had been executed by one Dhannu, who belonged to the scheduled caste, without obtaining the prior permission of the Collector contemplated in Section 157A of the U.P. Zamindari Abolition and Land Reforms Act. The notice has been issued to the petitioner on this miscellaneous application. The submission of learned counsel for the petitioner is that the village is under consolidation operations. The question of any violation of Section 157A of the U.P. Zamindari Abolition and Land Reforms Act can only be determined by the consolidation courts. The A.D.M. Sadar, Jaunpur, the first respondent, has no jurisdiction to go into the question especially when the unit is under consolidation operations. Hence this writ of prohibition. These are purely factual aspects and do not require or entail any declaration, in view of Section 166 of the Act. In case, the petitioner is not able to establish that the sale deed in her favour had been executed after obtaining permission contemplated by Section 157-A of the Act, the sale transaction would be deemed to be void in view of Section 166 of the Act and the consequences of such a deemed void transfer, as enumerated in Section 167, shall necessarily follow, without requiring any declaration. For the same reason, the petitioner cannot derive any benefit from the judgment in the case of Khageshwar (supra) nor of the interim order dated 24.08.2015 in writ petition no. 43570 of 2015. This writ petition was entertained on the ground that a mutation case under Section 34 of the U.P. Land Revenue Act cannot be proceeded with during the currency of consolidation operations. Besides, this order has no application in the facts and circumstances of the case for the reasons given above. The writ petition is accordingly dismissed. Held: Para-