The High Court held that a writ petition filed after the dismissal of an appeal is premature and not maintainable when the commission has not yet considered the petitioner's stay application on merits, distinguishing a prior precedent involving injunction orders.
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Court No. - 46
Case :- WRIT - C No. - 14597 of 2019
Petitioner :- Lokman Das Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjive Kumar Gupta,Brij Raj Counsel for Respondent :- C.S.C.,Arun Kumar Srivastava
Hon'ble Saral Srivastava,J.
Heard Sanjive Kumar Gupta, learned counsel for the petitioner and Sri Vivek Srivastava, learned counsel for the respondent.
The petitioner is fair price shop agent of village Nurpur, Block & Tehsil Gunnaur, District Sambhal.
The fair price shop of the petitioner has been cancelled by the respondent no. 2 by order dated 12.4.2018. The said order has been impugned by the petitioner in the present writ petition.
Against which the petitioner approached this Court by filing Writ Petition No. 4174 of 2019 in which this Court directed the petitioner to file an appeal and further a direction was issued to Commissioner to consider the stay application of the petitioner.
The petitioner has filed appeal along with stay application registered as case no. 00527 of 2019 (Computerized Case No. C201913000000527)
The Commissioner-respondent no. 3 by order dated 8.4.2019 admitted the appeal and summoned the lower court record and fixed 2.5.2019 for consideration of stay application.
The grievance of the petitioner is that this Court has directed the Commissioner to consider the stay application at the time of admission of appeal and, therefore, he should have considered the stay application and stayed the operation of the order of licensing authority. In respect of his submission learned counsel for the petitioner relied upon a judgment of this Court in the case of Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. and another 1982(3) SCC 484.
Per contra, learned standing counsel contends that the stay application is yet to be considered of 2nd May, 2019 by respondent no. 3 and therefore, the writ petition is premature at this stage.
I have considered the rival submissions of the parties and
perused the record.
The judgment of this Court in the case of Mool Chand Yadav (supra) relied upon by the learned counsel for the petitioner is not applicable in the facts of the present case, inasmuch as, the said judgment is rendered in the context where the defendant was asked to vacate the house in question on the strength of the injunction order. Against the said injunction order, the defendant preferred the appeal and in that context the Court found that when the appeal is admitted the order should have been stayed as it would have caused irreparable injury to the defendant but in the present case, the stay application is yet to be considered on merit and Commissioner has fixed the date for disposal of the stay application on 2.5.2019. Thus, the writ petition is premature and is not maintainable at this stage, accordingly, the writ petition is dismissed.
Order Date :- 26.4.2019 Ishan
2 issues framed by the court
Whether the writ petition is premature and maintainable when the stay application is yet to be considered on merit by the Commissioner.
Whether the judgment in Mool Chand Yadav is applicable to the present facts where the stay application is pending consideration.
Colour shows how this judgement treated each authority
Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. and anotherDistinguished¶11
Mool Chand Yadav and another Vs. Raza Buland Sugar Co. Ltd. and another 1982(3) SCC 484 · Who else cites this
Lokman Das
State Of U.P.
Other Respondents
Saral Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
