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A.F.R.
Court No. - 9 Case :- WRIT - C No. - 31056 of 2022
Petitioner :- Yogendra Prasad
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Anand Tiwari
Counsel for Respondent :- C.S.C.,Ashutosh Pandey
Hon'ble Prakash Padia,J.
1. Heard, learned counsels for the parties and perused the material on records.
2. By means of present writ petition, petitioner is seeking for quashing of the order dated 26-09-2022 passed by the respondent No-2, Deputy Commissioner (Food) Basti Region, Basti in case No. 285 of 2022 under Rule 13 (1) of UP Essential Commodities (Regulation at Sale and Distribution) Rules 2013, allowing the appeal filed by respondent No. 5. Further prayer has been made by petitioner for mandamus directing the respondents not to interefere in peaceful functioning of the petitioner as Fair Price Shop Dealer in Gram Panchayat Bhotaha, Block Pauli, Tehsil Dhankata District Sant Kabir Nagar.
3. Learned counsel for the petitioner submits that after cancellation of fair price shop licence of respondent No. 5, by the respondent No.3-Sub Divisional Magistrate, Tehsil Dhankata District Sant Kabir Nagar on 9-6-1022, the due process as prescribed under the Guidelines and Government Orders issued in this regard, was followed and the proposal for selection of petitioner as fair price shop dealer at village in question has been recommended by the Block Devlopment Officer before the respondent no.3. By order dated 6-8-2022 passed by the respondent No -3, the licence of fair price shop at village in question was granted in favour of the petitioner and at present the petitioner is functioning as fair price shop dealer without any complaint whatsoever.
4. Learned counsel for petitioner further submits that by the impugned order dated 26-9-2022, respondent no.2
has wholly illegally and in arbitrary manner, allowed the appeal filed by the respondent no.5 against the cancellation of his fair price shop licence. He further submits that before passing the order dated 26-9-2022, no opportunity of hearing has been given to the petitioner inspite of fact that petitioner was selected as fair price shop dealer after the due process. Counsel for the petitioner further submitted that the petitioner being a duly selected fair price shop dealer is the necessary party before the respondent No-2 in appellate proceedings, but without considering the same impugard order has been passed without hearing the petitioner. The counsel for the petitioner further submits that without impleading the petitioner as party before the appellate court, the decision in favour of respondent no.5 is wholly illegal and arbitrary.
5. Lastly it was contended by the counsel for petitioner that the impugned order dated 26-9-2022 was passed by violating the principles of natural justice. The respondent no.5 was very well aware regarding the allotment of fair price shop in favour of petitioner, during the pendency of the appeal, but the same has not been disclosed.
6. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgements passed by the Supreme Court in the cases of Ram kumar Vs. State of U.P. & others reported in 2022
(11) ADJ 229 (S.C.), decided on 28-9-2022; Pawan Choubey Vs. State of U.P. & others in Civil Appeal No 3668 of 2022 decided on 6-5-2022 and Sumitra Devi Vs State of UP & others in Special leave to Appeal (C) Nos. 37283-37284 of 2012 decided on 8-10-2014, and submitted that the subsequent allottee is the necessary party in the proceedings, as the orders passed in favour of original allottee adversly affects the interest of subsequent allottee.
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7. Per contra, the learned counsel for respondents No.5 and leearned Standing Counsel Submits that after restoration of fair price shop license in favour of respondents No.5 by the respondent No. 2, the petitioner being a subsequent allottee have no right to avail any remedy against the appellate order dated 26-9- 2022 passed by the respondent no.2. Counsel for the respondent no. 5 further Submits that the petitioner being a subsequent allottee is not a necessary party and the respondent no.2 have not committed error while passing the order dated 26-9-2022.
8. In support of his submission learned counsel for respondent no.5 has relied upon the judgement of Supreme Court in the case of Poonam Vs State of U.P. & others. reported in (2016) 2 SCC 779 and submitted that the present petition at the behest of subsequent alottee is not at all maintainable.
9. Another argument has been made on behalf of the private respondents that since the allotment was made in favour of the petitioner during the pendency of the appeal filed by the respondent no.5, the petitioner has no right to be heard.
10. Heard counsel for the parties and perused the record and with the consent of counsel for the parties, the writ petition is disposed of finally.
11. Since pure question of law involved in the present case is that whether a subsequent allottee has a right to be heard or not. In paragraph-49 of the judgment of Poonam (Supra) the Hon'ble Apex Court was pleased to hold that the subsequent allottee has no locus to challenge the order passed in favour of the original allottee. The subsequent allottee is a third party to the lis in this context. Paragraph-49 is reads as follows:-
"49. In the instant case, Shop No. 2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said
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shop falling vacant. The original allottee, that is, the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party. It is the State or its functionaries who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in d favour of the former allottee. She is a third party to the lis in this context."
12. Insofar as the law relied upon on behalf of petitioner is concerned, in the case of Sumitra Devi (Supra), the Hon'ble Apex Court was pleased to hold that after the cancellation of license to the original allottee, the license was granted in favour of some other person which is called as subsequent allottee. Once an application for impleadment has been filed by him, is liable to be heard. Order passed in the aforesaid SLP reads as follows:-
"Leave granted. The appellant has challenged orders dated 16.02.2012 and 06.09.2012 passed by the High Court of Allahabad. By order dated 16.02.2012 the High Court has set aside the order passed by the Licencing Authority and the appellate authority and restored the Fair Price Shop licence of respondent no.6. By order dated 06.09.2012, the High Court has rejected the review application filed by the appellant. The appellant is the subsequent allottee in the sense that after the licence of respondent no.6 was cancelled on 18.01.2008, he was granted licence on
20.02.2008.
We have heard learned counsel for the appellant and learned counsel for the respondents. Gist of the facts needs to be stated. On 18.01.2008, the Sub-Divisional Officer, Gorakhpur cancelled the Fair Price
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Shop licence of respondent no.6 on the ground that he did not deposit the requisite amount for release of quota for the month of November 2007. The appeal preferred by respondent no.6 was dismissed by the Deputy Commissioner, Food and Civil Supplies, Gorakhpur on 07.07.2008. These orders were challenged by respondent no.6 before the High Court of Allahabad. The High Court, by order dated 16.02.2012, set aside the orders cancelling the licence of respondent no.6 and restored his licence. It appears that after the 6th raspondent's Licence was cancelled, the appellant was granted licence on 20.02.2008 by the 5th respondent. The appellant being the subsequent allottee filed an application for impleadment in the writ petition on 17.10.2008. That application was neither entertained nor allowed. The impugned order came to be passed without hearing the appellant, i.e., the subsequent allottee. We notice that in the order passed on the review application, the High Court has taken note of the fact that the impleadment application of the appellant was neither entertained nor allowed. Surprisingly, the High Court has gone on to say that since it was neither entertained nor allowed, it stood rejected.
Learned counsel for the appellant urged and, in our opinion, rightly that the High Court should have heard the appellant before restoring the licence of respondent no.6 as the appellant was the subsequent allottee and his rights were affected by the Restoration of License of Respondent no.6. We are entirely in agreement with learned counsel for the appellant. In our opinion, the High Court could not have restored the licence of respondent no.6 without hearing the appellant as his rights were certainly affected by such order. Besides, he had filed an impleadment application. That application was not considered. No order was passed thereon. In our opinion, the High Court is not right in observing that since the said application was neither entertained nor allowed, it stood rejected. We are not happy with the hearing given at the stage of review application and the cryptic order passed on the review application. In our opinion, the appellant should have been heard on 16.02.2012.
In the circumstances, we set aside the impugned order. We remit the matter to the High Court. We request the High Court to give a hearing to the appellant and all concerned
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and decide the matter afresh. We make it clear that on the merits of the case, we have expressed no opinion and the High Court will decide the matter independently. It is also made clear that till such time as the High Court passes a final order, licence of respondent no.6 shall continue to be in force. He can operate the Fair Price Shop. Needless to say that the parties shall abide by the High Court's final order. The High Court is requested to dispose of the matter as early as possible.
The appeals are disposed of accordingly."
13. After the aforesaid judgment was delivered another order was passed by the Hon'ble Apex Court in the case of Pawan Chaubey (Supra) the same thing has been held in this judgement also by the Hon'ble Apex Court. The Hon'ble Apex Court in the aforesaid case after taking into consideration of law laid down in the case of Poonam (Supra) and the judgment of Sumitra Devi (Supra) was pleased to hold that the subsequent allotee should also be added as a party in the proceedings before the authorities. Taking into consideration the aforesaid judgments namely Poonam (Supra), Sumitra Devi (Supra) and Pawan Chaubey (Supra) very recently in the case of Ram Kumar (Supra) the Hon'ble Apex Court was pleased to hold that the subsequent allottee should also be arrayed as a one of the party before the authorities while hearing the matter in respect of cancellation of fair price shop.
14. Insofar as the arguments raised by the counsel for the respondent no.5 that since the allotment was made in favour of the petitioner during the pendency of the appeal, he has no right to be heard by the appellate authority. It is argued by Shri Anand Tiwari, learned counsel for the petitioner on the basis of paragraph-11 of the judgement of Ram Kumar (Supra) that the findings were duly recorded in paragraph-11 of the aforesaid judgement. Even during the pendency of the appeal before the appellate authority on the recommendation of the Tehsil Level Selection Committee a subsequent allotment has been ade, the
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subsequent allottee is also liable to be heard. Paragraph- 11 of the aforesaid judgement is reproduced below:-
"11. It is to be noticed that in the present case, during the pendency of the appeal before the Appellate Authority, on a recommendation of the Tehsil Level Selection Committee dated 19th April 2018, the present appellant, through regular allotment, was appointed as Fair Price Dealer on 15th May 2018."
15. Counsel for the petitioner further placed reliance upon paragraph-12, 18 and 19 which are relevant in order to decide the the controversy in question of the judgment of Ram Kumar (Supra) is reproduced below:-
"12. Insofar as the judgment of this Court in the case of Poonam (supra), on which strong reliance is placed by Mr. Irshad Ahmad, learned counsel, is concerned, this Court in the case of Pawan Chaubey (supra) had an occasion to consider the aforesaid judgment in the case of Poonam (supra). This Court in the case of Pawan Chaubey (supra) also noticed its earlier decision in the case of Sumitra Devi vs. State of U.P. & Ors. Noticing both these judgments, this Court observed thus:
"Our attention has been drawn to the judgment of this Court in Poonam vs. State of Uttar Pradesh & Ors. reported in (2016) 2 SCC 779. Relying on the aforesaid judgment, learned counsel appearing 3 on behalf of the Respondent No.4 contended that the appellant need not be heard. She had no right or locus to be impleaded.
In Poonam (supra), the subsequent allottee had actually been heard at all stages. What the Court held was that the subsequent allottee had been trying to establish her right independently. She contended that she had an independent legal right. This Court found that it was extremely difficult to hold that she had an independent legal right. In Sumitra Devi vs. State of U.P. & Ors. (Civil Appeal Nos. 9363-9364 of 2014), a Bench of coordinate strength of this Court comprising Hon'ble Ms. Justice Ranjana Prakash Desai and Hon'ble Mr. Justice N.V. Ramana (As His Lordship then was) passed an order dated 08.10.2014, the relevant parts whereof are extracted hereinbelow:
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"The appellant being the subsequent allottee filed an application for impleadment in the writ petition on 17.10.2008. That application was neither entertained nor allowed.
xxx xxx xxx
Learned counsel for the appellant urged and, in our opinion, rightly that the High Court should have heard the appellant before restoring the licence of respondent no.6 as the appellant was the subsequent allottee and his rights were affected by the restoration of licence of respondent no.6. We are entirely in agreement with learned counsel for the appellant. In our opinion, the High Court could not have restored the licence of respondent no.6 without hearing the appellant as his rights were certainly affected by such order." Even if a subsequent allottee does not have an independent right, he/she still has a right to be heard and to make submissions defending the order of cancellation.
It is true that the order of appointment of the appellant reads that the order is subject to the outcome of the proceedings pending in court. This does not disqualify the appellant from appearing and contesting the proceedings by trying to show that the order of cancellation had correctly been passed against the Respondent No.4."
18. It could thus be seen that respondent No. 9 was very well aware that during the pendency of the proceedings, the appellant was appointed as a Fair Price Dealer on 15th May 2018. The order of the Appellate Authority has been passed on 20th July 2018. Even this being the position, respondent No.9 has been bold enough to aver thus in the memo of the writ petition:
"33. That it is also noteworthy to mention here that during the pendency of the Fair Price Shop, no third party allotment was made and as per the direction of this Hon'ble Court, the shop of the petitioner was attached to another Fair Price Shop Holder."
19. It could thus be seen that, though respondent No.9 was very well aware that during the pendency of the proceedings before the Appellate Authority, an allotment
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was done in favour of the present appellant, she has averred in her writ petition that no third party allotment was made. She has further gone on to state that, as per the directions of the High Court, the fair price shop of respondent No.9 was attached to another fair price shop holder. The statement is factually incorrect to the knowledge of respondent No.9. The same has been reiterated in the Ground thus:
"N. Because during the pendency of the Fair Price Shop, no third party allotment was made as per the direction of this Hon'ble Court, the shop of the petitioner was attached to another Fair Price Shop Holder." "
16. Apart from the same, the Court is of the opinion that even if a subsequent allottee does not have a independent rights, he/she still has a right to be heard and to make submissions defending the order of cancellation.
17. In view of the aforesaid, the Court is of the opinion that the order passed by the appellate authority namely Deputy Commissioner (Food) Basti Region, Basti dated 26.09.2022 was passed without hearing to the petitioner is liable to be set aside and hereby set aside.
18. In the facts and circumstances of the case, the present petition is disposed of finally permitting the petitioner to file an impleadment application along-with his objections before the appellate authority within a period of three weeks from today. If it is so, the appellate authority is directed to pass a fresh order strictly in accordance with law within a period of three months thereafter.
19. In view of above, the writ petition is allowed.
Order Date :- 30.11.2022 Pramod Tripathi/Swati
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