# Vinod Kumar Gupta v. The State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 851
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-24
- **Case number:** Civil Misc. Writ Petition No. 37999 of 2014
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-gupta-v-the-state-of-u-p-ors-42993
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.-226cancellation of fair prices shop licenseappeal
pending-but
stay
application
rejected-contention of petitioner that in
view of two Division Bench directionauthorities restrained to create third
party interest-hence stay ought to have
granted-held-earlier judgment without
specific issue regarding creation of third
party interest-not binding effect while by
subsequent Division Bench taking view
of fresh allotment of fair price shopbeing interlocutory measure subject to
decision of appeal-in so long appeal
allowed and license restored-petitioner
no right to run the shop-rejection of stay
application held-proper.

Held: Para-8
The exposition of law laid down in
aforesaid
Division
Bench
judgment,
where the issue has been raised, argued
and
decided,
constitute
a
binding
precedent on this Court, with which I
find myself bound.

Case Law discussed:
W.P. No. 19080 of 2008.

## Text

2 All]. Vinod Kumar Gupta Vs. The State of U.P. & Ors.
851
unnecessary adjournment to the learned
counsel for the parties.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 37999 of 2014

Vinod Kumar Gupta ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Yadav, Sri S.C.
Shukla

Constitution
of
India,
Art.-226cancellation of fair prices shop licenseappeal
pending-but
stay
application
rejected-contention of petitioner that in
view of two Division Bench directionauthorities restrained to create third
party interest-hence stay ought to have
granted-held-earlier judgment without
specific issue regarding creation of third
party interest-not binding effect while by
subsequent Division Bench taking view
of fresh allotment of fair price shopbeing interlocutory measure subject to
decision of appeal-in so long appeal
allowed and license restored-petitioner
no right to run the shop-rejection of stay
application held-proper.

Held: Para-8
The exposition of law laid down in
aforesaid
Division
Bench
judgment,
where the issue has been raised, argued
and
decided,
constitute
a
binding
precedent on this Court, with which I
find myself bound.

Case Law discussed:
W.P. No. 19080 of 2008.
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Birendra Singh, learned
counsel for the petitioner and perused the
record.

2. The only argument advanced in
the writ petition is that during pendency
of appeal of petitioner the fair price shop
cannot be allotted to a third party.

3. It is not in dispute that petitioner had
entered into a contract with respondents for
running fair price shop sometimes in 1990 in
Gram Panchayat Murara, Block Muftiganj,
Tehsil Kerakat, District Jaunpur so as to
distribute essential commodities to card
holders within that area. On the ground of
illegalities and irregularities in distribution of
essential commodities petitioner's fair price
shop agreement was suspended by Deputy
Collector vide order dated 27.12.2013, which
was passed in exercise of powers conferred
under
U.P.
Scheduled
Commodities
(Distribution)
Order,
2004
(hereinafter
referred to as the "Order, 2004").

4. The petitioner preferred Appeal No.
32 of 2014 against aforesaid order of
suspension and appeal was pending. In the
meantime, Deputy Collector completed his
inquiry and after considering petitioner's
reply to show cause notice dated 27.12.2013
passed a final order dated 04.04.2014
cancelling fair price shop agreement of
petitioner. Thereagainst petitioner preferred
Appeal No. 52 of 2014, which is also
pending. In this appeal petitioner filed an
application requesting Appellate Authority
that during pendency of appeal, petitioner's
fair price shop should not be allotted to any
third person but the application has been
rejected by Appellate Authority by impugned
order dated 04.07.2014, hence this writ
petition.
852 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Learned counsel for petitioner
drew my attention to an interim order
dated 16.09.2011 passed by a Division
Bench of this Court in Lucknow in Misc.
Bench No. 11977 of 2010, Vinod Kumar
Mishra Vs. State of U.P. and others,
providing that during pendency of appeal
third party rights should not be created by
appointing another shop dealer. He also
drew my attention to another order dated
19.10.2011 passed in Misc. Bench No.
10373 of 2011, Jagannath Upadhyay Vs.
State of U.P. and others, disposing of that
writ petition in terms of interim order
dated 16.09.2011.

6. It is contended that aforesaid
decisions compel the Appellate Authority
not to allow third party rights during
pendency of appeal and, therefore, the
impugned order is liable to be set aside.

7. It is no doubt true that a Division
Bench decision is binding on this Court
when I am sitting single. However, what
is binding is a precedent laid down in the
judgment and not the ultimate order
passed as such. A binding precedent is
arrived at by the Court when an issue is
raised, argued and decided. In the two
orders placed before this Court, I do not
find that "third party right cannot be
created", was an issue raised, argued and
decided. There is no discussion in the
judgment and only an operative part of
the order which was an interim order
initially, relied and followed subsequently
in subsequent writ petition which was
only disposed of in terms of that interim
order.

7. It appears that the Hon'ble Court
was not apprised of earlier Division
Bench judgment on the subject wherein
this issue has been considered and
decided long back. I may refer hereat the
Division Bench judgment in Writ Petition
No. 19080 of 2008, Naubat Singh Vs.
State of U.P. and others, decided on
11.04.2008, wherein this very issue was
raised but was negatived by giving
reasons. The Court said:

"Learned counsel for the petitioner
contended that since the appeal is already
pending it is not open to respondents to
appoint another person as fair price shop
dealer in respect to the area where the
petitioner was working as fair price shop
dealer.

However, we do not find any force in
the
submission.
The
petitioner's
agreement for distribution of essential
commodities
having
been
cancelled
admittedly, presently he has no right in
the matter of distribution of essential
commodities of fair price to the public at
large. Since there appears to be no person
available for distribution of essential
commodities of fair price, the public at
large cannot be made to suffer and,
therefore, the respondents decided to
appoint another person as a fair price shop
dealer pursuant whereto the impugned
order dated 02.04.2008 has been passed.
The aforesaid order obviously is for
appointing an intermittent dealer and
subject to the result of the petitioner's
appeal, inasmuch as, in case the said
appeal is allowed and the petitioner's
agreement is restored, any person who has
been appointed in place of petitioner
would
have
no
right
to
continue
thereafter, but till the time, appeal of
petitioner is decided, in our view, the
petitioner has no right, legal or otherwise,
to restrain the respondents from making
arrangement of distribution of essential
commodities appointing another person as
2 All]. Moti Lal Nehru Inter College, Bareily Vs. Peethaseen Adhikari Labour Court & Anr. 853
dealer in the area where the petitioner was
operating as fair price shop dealer.

Learned counsel for the petitioner
seeks to place reliance on order dated
23.11.2007 passed by Hon'ble Single
Judge of this Court in Writ Petition No.
57682 of 2007 wherein an order was
passed restraining the authorities from
doing any fresh allotment of the fair price
shop till the appeal is decided.

In our view, the aforesaid order would
have no application in the present case.
Firstly, in the earlier writ petition filed by the
petitioner which has been disposed of this
Court on 07.03.2008 directing the appellate
authority to decide his appeal within three
months, no such order has been passed
restraining the respondents from allotting
shop in question to any one and for the said
purpose only no fresh petition would lie.
Secondly, we are of the view that so long as
the licence of a person continued to be
cancelled he has no right either in law or
otherwise to create any obstruction in the
way of respondent-authorities in making
arrangement for distribution of essential
commodities to the public at large in such
manner as they found expedient and in the
interest of public at large. If the authorities
found it appropriate that the people would be
better serve if the fair price shop is allotted to
a third person, we do not find any illegality
or irregularity in such exercise of power
unless it can be shown that it is mala fide or
without jurisdiction or is inconsistent to any
provision or executive order having force of
law. No such provision has been placed
before us." (emphasis added)

8. The exposition of law laid down
in aforesaid Division Bench judgment,
where the issue has been raised, argued
and
decided,
constitute
a
binding
precedent on this Court, with which I find
myself bound.

9. In view thereof, the writ petition
lacks merit. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2014

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 42027 of 2005
alongwith W.P. No. 42028 of 2005.

Moti Lal Nehru Inter College, Bareily
 ...Petitioner
Versus
Peethaseen Adhikari Labour Court & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Dinesh Chandra Mishra, Sri M.C. Mishra

Counsel for the Respondents:
Sri S.S. Nigam, S.C., Sri Shivendra Kumar
Gupta, Sri T.S. Dabas, Sri Abhay Raj Singh,
Sri Harish Chandra Dwivedi

Constitution of India, Art.-226-Service Lawdismissal from service-on conviction in
criminal case-honorably acquittal-entitled
for reinstatement without back wages.

Held: Para-21
This apart, it is trite law that once the order
of conviction passed by the trial court is set
aside by the higher court , there does not
exist any conviction in the eye of law at all.
Punitive
action
taken
against
the
respondents-employees was based solely
on the order of conviction and the removal
of the order of conviction has the result of
removing the entire basis of the order of
termination.

Case Law discussed:
1961 (2) FLR 241; (2006) 5 SCC 446; (2009) 6
SCC 791; 2010 (2) SCC 252.