# Vimla Devi and another v. State of U.P

- **Citation:** (2011) 2 ILRA 878
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-26
- **Case number:** Civil Misc. Writ Petition No. 41342 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimla-devi-and-another-v-state-of-u-p-41989
- **Pages:** 2

## Headnote

Constitution
of
India
Article
226cancellation of Fire Arm License-on
ground
the
petitioner
involved
in
criminal case-and fail to produce his fire
arm-cancellation
based
upon
Police
report-during
pendency
of
appealpetitioner not only got fair acquittal but
also recommended for prosecution U/S
182
Cr.P.C.-No
reason
disclosed-for
ignoring the judgment of Criminal CourtHeld-possession of fire arm in fact
fundamental
right-caused
senior
prejudice
on
unsustainable
reasonspetition allowed with cost of Rs. 25000/.

Held Para 12

Unfortunately, that is not so. The matter
of firearm is being dealt with by
respondents in a very fanciful and
strange manner having no reasonable
nexus with the purpose sought to be
achieved. I really failed to understand as
to why the Commissioner could not
consider
the
matter
in
correct
perspective while deciding appeal of the
petitioner after decision of Court in
criminal case no.849 of 2008 (Case
Crime No.400/07). This has caused
serious
prejudice
to
the
petitioner,
inasmuch as, he has been put in a

## Text

878 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Tribunal to hear the case on merit and
decided the same in accordance with law.

12. There shall be no order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 41342 of 2011

Smt. Kalawati

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Vishwa Pratap Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Article
226cancellation of Fair Price Shop licenceappeal admitte4d but 'Stay Rejected'-
petition filed on apprehension-if not
interim protection given-third party right
shall
be
created-held
misconceivedpublic distribution system shall not
suffer-subsequent allottee has no right
to
continue
on
revocation
of
cancellation-petition dismissed.

Held: Para 5

Thus third party, who is allotted the
distribution, do not have any individual
right but its rights are subject to the
decision in appeal and therefore a fair
price dealer, whose matter is pending in
appeal, does not suffer in any manner.
Case law discussed:
Civil Misc. Writ Petition No. 10539 of 2007
(Smt. Vimla Devi and another Vs. State of U.P.
and others); Kanoria Chemicals & Industries
Ltd. Vs. U.P State Electricity Board, AIR 1994
Allahabad 273 (para 10)

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. The petitioner's fair price
agreement having been cancelled by order
dated 24th June, 2011, the petitioner
preferred an appeal which has been
admitted by the Deputy Commissioner
vide order dated 5th July, 2011 but he has
declined to grant any interim order. Hence
this writ petition.

2. In my view, it is wholly
misconceived and not entertainable writ
petition. Mere admission of an appeal,
which is provided in the statute, does not
entitle a person to get an interim order as
a matter of routine. Learned counsel for
the petitioner could not point out any
error apparent on the face of record in the
impugned order warranting interference.

3. Learned counsel for the petitioner
relied on certain decisions of this Court
requesting that till his appeal is decided,
no third party right will be created.

4. The public distribution system is
not meant for providing source of
livelihood to a dealer and those who
execute agreement but they are only part
of the system to achieve the real objective
of the same i.e. providing subsidized
essential commodities to poor. Where the
agreement of a particular dealer has been
cancelled and the matter is pending in
appeal, distribution has to be maintained
and therefore so long as the matter of
cancellation of agreement of a dealer is
pending for consideration in appeal before
the authority concerned, they are to
continue
with
the
system
so
that
distribution may not hamper. Thus for this
reason and to maintain public distribution
system, as an interim measure somebody
has to be appointed. This Court in Civil
2 All] Rakshapal Singh V. State of U.P. and others
879
Misc. Writ Petition No. 10539 of 2007
(Smt. Vimla Devi and another Vs. State
of
U.P.
and
others),
decided
on
13.03.2007 has held that subsequent
allottee has no right to continue with the
fair price agreement, if the predecessor
comes back due to revocation of his
cancellation order.

5. Thus third party, who is allotted
the
distribution,
do
not
have
any
individual right but its rights are subject
to the decision in appeal and therefore a
fair price dealer, whose matter is pending
in appeal, does not suffer in any manner.

6. In the circumstances, I do not find
any reason for directing the respondents
not to make any arrangement for
maintaining
distribution
to
the
beneficiaries
as
a
matter
of
fact.
Moreover, nothing has been discussed in
the judgment cited by the learned counsel
for the petitioner as to how petitioner, as a
matter of right, can request for not
creating third party right in the meantime.
Therefore, the judgment to this extent are
not a binding precedent. In order to
constitute binding precedent a judgment
must show that the issue was raised,
argued and decided and only then the law
laid down therein would be binding on the
coordinate
Bench.
[See
Kanoria
Chemicals & Industries Ltd. Vs. U.P
State Electricity Board, AIR 1994
Allahabad 273 (para 10)]

7. The writ petition therefore lacks
merit. Dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 41618 of 2010

Rakshapal Singh

 ...Petitioner
Versus
State of U.P. Thru' Principal Secy. Home
U.P. Govt. & others.
 ...Respondents

Counsel for the Petitioner:
Sri Digvijay Tiwari

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Article
226cancellation of Fire Arm License-on
ground
the
petitioner
involved
in
criminal case-and fail to produce his fire
arm-cancellation
based
upon
Police
report-during
pendency
of
appealpetitioner not only got fair acquittal but
also recommended for prosecution U/S
182
Cr.P.C.-No
reason
disclosed-for
ignoring the judgment of Criminal CourtHeld-possession of fire arm in fact
fundamental
right-caused
senior
prejudice
on
unsustainable
reasonspetition allowed with cost of Rs. 25000/.

Held Para 12

Unfortunately, that is not so. The matter
of firearm is being dealt with by
respondents in a very fanciful and
strange manner having no reasonable
nexus with the purpose sought to be
achieved. I really failed to understand as
to why the Commissioner could not
consider
the
matter
in
correct
perspective while deciding appeal of the
petitioner after decision of Court in
criminal case no.849 of 2008 (Case
Crime No.400/07). This has caused
serious
prejudice
to
the
petitioner,
inasmuch as, he has been put in a