Alok Kumar v. State Of U.P. Thru Prin Secy Food & Civil Supply Lko And Others

Sangeeta Chandra, J.:— Learned Standing Counsel has placed reliance upon a judgment rendered by this court in Rajesh Kumar v. State of U.P. decided on 31.7.2017 and reported in 2017 (35) LCD 2448. This court has considered the concept of person aggrieved and person annoyed and also whether legal right of a complainant can be said to be infringed so as to enable him file a writ petition against an order passed by the appellate authority restoring the licence of the fair price shop licensee. In that case, the petitioner Rajesh Kumar was a card holder/complainant who had approached this court challenging the order dated 20.4.2017 passed by the appellate court allowing the appeal of the opposite party No. 5 to the said writ petition. This court after detailed consideration of judgments relating to locus as well as to the question as to who can be said to be a necessary or proper party has dismissed the writ petition holding that a card holder/complainant has got no right to challenge an order passed in favour of a licensee.

2. Learned counsel for the petitioner on the other hand has placed reliance upon a judgment rendered by the Supreme Court in Civil Appeal Nos. 9363-9364 of 2014, Sumitra Devi v. State of U.P. decided by the Hon'ble Supreme Court on 8.10.2014. The appellant Sumitra Devi was the subsequent allottee after the licence of the erstwhile licensee was cancelled. The erstwhile allottee filed an appeal which was also dismissed, thereafter he filed a writ petition challenging the order of cancellation and rejection of appeal. The appellant being a subsequent allottee filed an application for impleadment. The said application was neither entertained nor the appellant was heard. The Supreme Court observed that the subsequent allottee's rights were affected by the restoration of the licence of the erstwhile allottee. The order passed by the High Court was set aside with a request to the High Court to give hearing to the subsequent allottee and all concerned and to decide the matter afresh.

3. Learned Additional Chief standing Counsel Mr. Alok Sharma has referred to the judgment of Supreme Court in Civil Appeal No. 6774 of 2015 decided on 29.10.2015 and reported in 2016 (2) SCC page 779, Poonam v. State of U.P. which is a subsequent judgment to the order passed in Civil Appeal of Sumitra Devi (supra) on 8.10.2014. The appellant therein Poonam had filed a writ petition under Article 226 of Constitution for issuance of writ of certiorari for quashment of the order dated 2.3.2012 passed by the Commissioner, Azamgarh in appeal No. 85 of 2008 on the ground that initially the 5 respondent to the said Civil Appeal had been operating the fair price shop, his licence was cancalled on 23.7.2008. The 5 respondent approached the Commissioner Azamgarh Division who allowed the appeal. During the pendency of the proceeding before the appellate authority due to the fair price shop lying vacant on cancellation of licence on 23.7.2008, the appellant Poonam had been allotted the fair price shop. It was her case that she was not heard.

4. The Supreme Court had relied upon a judgment rendered by it earlier Sri. Pal Yadav v. State of U.P. reported in 2008 (1) ADJ 718 and dismissed the writ petition on the ground that the appellant being the subsequent allottee had no right to continue the litigation for she had no independent right. The Supreme Court taking into account several judgments with regard to issue of “necessary” and “proper” parties and also with regard to the issue of “independent right of subsequent allottee” and the locus standi to file such petition the Supreme Court observed that after the shop had become vacant on cancellation of the licence of the erstwhile allottee, the appellant was alloted the shop in the resultant vacancy. The original allottee assailed his cancellation and ultimately succeeded in appeal. The subsequent allottee was neither a “necessary” nor “proper” party. The subsequent allottee would have continued with the shop, had the original allottee lost the appeal. The State and its functionaries could also have challenged the restoration of licence in appeal but the subsequent allotee had no right to challenge such an order passed in favour of allottee. The subsequent allottee is a third party to the “lis” in this context.

5. With regard to the issue of “whether the right of the subsequent allottee stood curtailed”, the Supreme Court observed that the subsequent allottee has no independent legal right. It was only a fortuitous circumstance that the original allottee could not get any interim order in his appeal and in the resultant vacancy due to cancellation order being passed against him, the subsequent allottee had come to be allotted fair price shop.

6. The facts in the present writ petition are almost the same as the petitioner was allotted a fair price shop by the licensing authority in the vacancy resulting on cancellaton of fair price shop of the respondent No. 4. Once the appeal was allowed by the Divisional Commissioner vide his order dated 16.1.2018, the licence of the original allottee had stood restored.

7. The petitioner aggrieved by such an order has filed this petition.

8. Having considered the law settled by the Hon'ble Supreme Court in the judgment rendered in Poonam v. State of U.P. decided on 29.10.2015 as aforesaid, and also the observations of the Supreme Court in its order dated 8.10.2014 in Civil Appeal No. 9363 of 2014 Sumitra Devi v. State of U.P., this court finds the judgment rendered subsequently by the Supreme Court having considered all the binding precedents and all relevant issues relating to whether the subsequent allottee had an independent right and was a necessary or proper party in the appeal and was entitled to be heard. The subsequent judgment of the Supreme Court in Poonam v. State of U.P. (supra) applies on all fours to this case and is being most respectfully followed by this court. The petitioner is a subsequent allottee aggrieved by the order passed by the Divisional Commissioner allowing the appeal of respondent No. 4 Smt. Neelam and restoring the fair price shop licence.

9. This writ petition is dismissed.