SUPREME COURT JUDGMENTS:
14. In Sumitra Devi vs. State of U.P. and others (supra) the appeal of the original allottee was dismissed. During the pendency of the writ petition, the subsequent allottee filed an impleadment application but no orders were passed on it. The writ petition was allowed and the license was restored. The subsequent allottee filed a review which was dismissed which led to the filing of the SLP. The Supreme Court held that the writ petition could not have been decided without hearing the subsequent allottee as his rights were being affected.
15. In Poonam (supra), the subsequent allottee was impleaded in the appeal before the Commissioner and heard on merit before the appeal was allowed. The writ petition filed by the subsequent allottee was dismissed that a subsequent allottee had no independent right. The SLP (later converted into civil appeal) was dismissed by the Supreme Court on the ground that the subsequent allottee had no independent legal right to continue the proceedings as he was heard at the appellate stage.
16. In Pawan Chaubey (supra), the subsequent allottee made an application for impleadment in the writ proceedings but it was not considered.
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Upon the writ being allowed and the order of cancellation of license of original allottee being set aside, the subsequent allottee filed the SLP (later converted into civil appeal). The Supreme Court after considering Poonam (supra) and Sumitra Devi (supra) held that if the subsequent allottee has not been heard at any stage then the subsequent allottee has a right to be heard. The Court distinguished Poonam (supra) on the ground that in the said case, the subsequent allottee was heard at every stage and hence there is no independent right in favour of the subsequent allottee.
17. In Ram Kumar (supra), the subsequent allotment was made during the pendency of the appeal. No impleadment application was filed by the subsequent allottee in the appeal. In the writ petition by the original allottee a false averment was made that there was no allotment. The subsequent allottee challenged the order setting aside the cancellation by filing the SLP (later converted into civil appeal). The Supreme Court while allowing the appeal held that the subsequent allottee is a necessary party without whom the appeal and the writ petition could not have been heard. The Supreme Court relied upon the abovementioned cases to come to the conclusion that a subsequent allottee is a necessary party in the proceedings.
HIGH COURT JUDGMENTS:
18. In Reena Devi vs. State of U.P. and others, the question arose whether a subsequent allottee could challenge the appellate order in favour of the original allottee. The Court while relying upon Poonam (supra) held that the subsequent allottee has no right to file the writ petition. However, this judgment was before the judgment of Ram Kumar (supra).
19. In Yogendra Prasad (supra), the writ petition filed by the subsequent allottee was allowed after noticing the abovementioned Supreme Court cases. The Court held that even if the subsequent allottee was given license after due process during the pendency of the appeal, the subsequent allottee has a right to be heard in light of Ram Kumar (supra).
20. In Rajesh Kumar (supra), the writ petition filed by the subsequent allottee was dismissed on the ground that the allotment of the petitioner was subject to the outcome of litigation and once the appeal was allowed the
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petitioner would have no right. The allotment was contingent upon the outcome of the appellate proceedings and hence no right accrued. Even though Ram Kumar (supra) was considered by the Court but the Court relied upon the judgment of Poonam (supra) to dismiss the writ petition.
21. In Dinesh Kumar (supra), the impleadment of the subsequent allottee was sought in the writ petition filed by the original allottee which was rejected on the ground that the subsequent allottee is neither necessary party nor a proper party relying upon Ram Kumar (supra) and Rajesh Kumar (supra) and thereafter the writ petition was allowed.
22. In12Smt. Kalawati vs. State of U.P. and others; the writ petition of the subsequent allottee was dismissed on the ground that as the allotment was a contingent allotment and not a regular allotment hence no right accrues.
23. In Rajesh (supra), the writ petition filed by the subsequent allottee was dismissed on the ground that the subsequent allottee did not get himself impleaded in the appellate proceedings therefore there is no right to challenge the appellate order allowing the appeal setting aside the cancellation order. The Court after considering the Supreme Court judgment noted above was of the opinion that once the impleadment application was not filed by the subsequent allottee then there is no right to challenge.
24. It is worthwhile to note that the judgment of Rajesh (supra) was passed taking into consideration that no impleadment application was filed in the appellate stage by the subsequent allottee hence there is no right to challenge as the onus was on the subsequent allottee to get himself impleaded. However, the Division Bench has overruled the judgment holding that it does not lay down the correct interpretation of law in light of Ram Kumar (supra). Therefore, what flows is that the right of subsequent allottee to be heard is protected even if the subsequent allottee did not file any impleadment application before the Commissioner. His right to challenge the appellate order in absence of any impleadment application is also protected.
Writ C No. 9059 of 2023
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25. In Hiramani Yadav (supra), a Division Bench of this Court after taking into consideration Ram Kumar (supra) and Rajesh (supra) held that the decision of Rajesh does not lay down the correct position of law with regard to right of subsequent allottee. The Court after allowing the special appeal, remanded the matter back for consideration after impleading the appellant as a part in the writ proceedings.
26. In Smt. Pooja Bharti (supra), the writ petition filed by the subsequent allottee challenging the appellate order was dismissed relying upon Ram Kumar (supra) on the ground that since no impleadment application was filed by petitioner hence there is no right to challenge the order. The subsequent allotment order was created during the pendency of the appeal.
27. In13Nav Durga Mahila Swayam Sahayata Samooh vs. State of U.P. and others, the writ petition filed by the subsequent allottee was dismissed on the ground that no impleadment application was moved by the subsequent allottee during the pendency of the appeal and as such no right accrued in favour of the subsequent allottee.
28. In14M/s Sajid vs. State of U.P. and others; along with other connected matters; the Court allowed the petitions filed by the original allottee with a further direction to restore the fair price shop license. One of the connected petitions was Dinesh Kumar and others vs. State of U.P. and others. The subsequent allottee, who was not a party in the writ petition, challenged the judgment by means of Special Appeal No. 908 of 2025 which was dismissed by the Court. Challenging the order in the Special Appeal, a SLP (later converted into Civil Appeal) was filed before the Supreme Court registered as
15 Abhishek Gupta Vs. Dinesh Kumar and others. The Civil appeal was allowed by the Supreme Court holding non-impleadment of the subsequent allottee affected the material rights of the subsequent allottee, and the order of the single judge is liable to be invalidated. The Court further directed that the Special Appeal, along with the Leave to Appeal application, be heard by the Division Bench.
15
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29. What can reasonably be inferred from the above noted judgments of the Supreme Court is that the Court protected the right of subsequent allottee to be heard in the appeal proceedings/ writ proceedings. The ratio of the judgment of the Supreme Court in Ram Kumar (supra) as well as Abhishek Gupta (supra) is conclusive and unequivocal to the point that the subsequent allottee has to be made a party in the appellate proceedings and writ petitions and in case the same is not done then the subsequent allottee can challenge the orders. For ready reference the relevant paragraph of Ram Kumar (supra) is quoted below:
"13. It could thus be seen that this Court had held that, 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.
14. It is further to be noticed that in the said case, i.e., Pawan Chaubey (supra), the order of appointment of the appellant therein was subject to the outcome of the proceedings pending in court. The case at hand stands on a much better footing. The appellant herein had been selected by the Tehsil Level Selection Committee in its meeting dated 19th April 2018 and thereafter, he was appointed as Fair Price Dealer vide order of the Competent Authority dated 15th May 2018, on a regular basis.
15. In this background, we find that the appellant was a necessary party to the proceedings before the High Court. The present appeal deserves to be allowed on this short ground. However, there is another more serious ground on which the present appeal deserves to be allowed.
Similarly, the paragraphs of Abhishek Gupta (supra) are quoted below:
"19. For the foregoing reasons, we hold that where an allegation of non- joinder of a necessary party is raised in an intra-court appeal, the High Court, if satisfied that such allegation has merit, should either remand the matter to the Single Judge or decide it on the merits. Such an approach while not militating against the object and purpose of Rule 5 would, at the same time, accord with the maxim ubi jus, ibi remedium."
Thus, the law as envisaged in Ram Kumar (supra) is the law of the land and it has to be followed. Therefore, any proceedings initiated by the original allottee would stand vitiated in case the subsequent allottee is not made a party. Even in writ proceedings the same ration would be applicable.
30. While examining the judgments of this Court, there appears to be some variance with regard to the correct interpretation of ratio as laid down in Ram
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Kumar (supra). Some of the judgments have held that in case the subsequent allottee did not file any impleadment application then the right to challenge the appellate order would not accrue with the subsequent allottee. The judgments of Rajesh Kumar (supra), Dinesh Kumar (supra), Smt. Kalawati (supra), Rajesh (supra), Smt. Pooja Bharti (supra), Nav Durga Mahila Swayam Sahayata Samooh (supra) are to the effect that:
(i) subsequent allottee has no right to challenge the appellate order if no impleadment was filed and;
(ii) the condition in the subsequent allotment stipulates that the license is subject to the Court proceedings.
These judgments must be examined in light of Hiramani Yadav (supra) in which the Division Bench of this Court has repelled both the above noted contentions. The Court held that even in cases where impleadment application was not filed by the subsequent allottee, even then the right to challenge the order of appellate authority still accrues to the subsequent allottee. Thus, in light of the judgment in Hiramani Yadav and Abhishek Gupta, it is the considered view of this Court that the above noted judgments of this Court do not hold to be the correct law and hence no reliance can be placed upon them to defeat the right of the subsequent allottee to participate or challenge the proceedings.
31. The Supreme Court in its various judgment has not decided the question of onus of impleadment is on which party. The Supreme Court has decided the larger question of right of the subsequent allottee. The judgments of this Court in Rajesh (supra), Smt. Pooja Bharti (supra), Nav Durga Mahila Swayam Sahayata Samooh (supra) are to the effect that in case the subsequent allottee did not file any impleadment application, then the right to challenge the appellate order is lost. However, the judgment of Rajesh (supra) was overruled by the Division Bench, thus the above-noted judgments lose their efficacy as binding precedents. Furthermore, in Abhishek Gupta (supra), the Supreme Court also protected the right of a subsequent allottee who was not a party in the appeal or writ. Thus, the question about onus is open to interpretation.
32. Before this Court deals with the legal issue of onus, it would be appropriate to refer to the Control Order and Government Orders through
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which such rights are created. It would be equally important to refer to the process by which such allotments are made.
33. The appointment and regulation of fair price shops is being done in accordance with the provisions of section 7 of The U.P. Essential Commodities (Regulations of Sales and Distribution) Control Order, 2016 by which it is provided that the State Government shall issue directions under section 3 of the Act to such number of fair price shop in an area and in the manner as it may deem fit.
34. The detailed procedure for allotment of the fair price shop is described in Section (III) of Government Order dated 05.08.2019. The allotment of fair price shop is done in accordance with the provisions of clause III of the Government Order dated 05.08.2019. For reference the relevant provision is quoted below:
"(III) ग्रामसभाओ ंमें उचि त दर दकुानों के यन की प्रक्रि या :-
(1) ग्रामसभाओ ंके उपयुक्तानुसार चि न्हाकंन के पश्चात ग्रामीण के्षत्र में राशन की दकुानों का यन ग्राम सभा की खलुी बठैक में प्रस्ताव पारिरत करके क्रिकया जायेगा। तद्नुसार पारिरत प्रस्ताव को सम्बन्धिन्4त खण्ड क्रिवकास अचि4कारी द्वारा पारिरत होने की चितथि: से अचि4कतम दो सप्ताह के भीतर उप जिजलाचि4कारी की अध्यक्षता में गक्रिठत तहसील स्तरीय यन सक्रिमचित को क्रिनयकु्रिक्त हेतु क्रिव ारा: पे्रक्रि>त क्रिकया जायेगा।
तहसील स्तरीय सक्रिमचित द्वारा उक्त प्रस्ताव पर क्रिवलम्बतम 15 क्रिदवस में क्रिनणय ले लिलया जायेगा। प्रस्ताव स्वीकृचित की न्धिस्:चित में इसी अवचि4 में उप जिजलाचि4कारी द्वारा क्रिनयकु्रिक्त आदेश जारी कर क्रिदया जायेगा एवं अस्वीकृचित की न्धिस्:चित में उक्त अवचि4 में ही प्रस्ताव सकारण वापस प्रेक्रि>त कर क्रिदया जायेगा"
"After the identification by Gram Sabhas as mentioned above, the selection of ration shops in the rural area will be done by passing a resolution in an open meeting of the Gram Sabha. Accordingly, the passed resolution will be sent by the concerned Block Development Officer for consideration for appointment to the Tehsil level selection committee, constituted under the chairmanship of the Sub-Divisional Magistrate, within a maximum of two weeks from the date of passing. The Tehsil level committee will take a decision on the said proposal within a maximum of 15 days. In case of approval of the proposal, the appointment order will be issued by the Sub-Divisional Magistrate within this period, and in case of disapproval, the proposal will be sent back with reasons within the said period."
(English translation by Court)
In case of any dispute with regard to the proposal to be forwarded or if no proposal can be made then the relevant process is provided in clause VI of the Government order.
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35. A perusal of the Government Order shows that after identification of the shops, the process of allotment has to be done in an open meeting of the members of the Gaon Sabha and thereafter once a resolution is passed for allotment, it is forwarded to the concerned Block Development Officer who shall in turn place it before the Tehsil Level Selection Committee headed by the concerned Sub Divisional Magistrate. the order of approval of the license is to be granted by the Sub Divisional Magistrate.
36. The process of suspension/ termination of license is given in another Government Order dated 05.09.2019. Clause 6 of the said Government order reads as follows:
"6- उचि तदरदकुानकाक्रिनरस्तीकरण-
(1) उचि तदरक्रिव ेताकेक्रिवरूद्धलगायेगयेआरोपजिसद्धपायेजानेकीदशामेंप्रकरण कीगम्भीरताकेदृक्रिHगतअनुबन्4पत्रकाक्रिनरस्तीकरणएकस्वतःस्पHस्पीकिंकगआदेश केमाध्यमसेक्रिकयाजायेगा, जिजसमेंक्रिनरस्तीकरणकेक्रिनणयतकपहु ंनेकेपूवक्रिव ेता केसम्बन्4में कृतसमस्तकायवाही का क्रिववरणहोगा , जिजसमें थिशकायतोंकीजाँ , आरोपोंकाक्रिववरण , क्रिव ेताद्वारा प्रस्तुतस्पHीकरणवउसकेपरीक्षणमेंपायीगयी न्धिस्:चित, नसैर्गिगकन्यायकाअनुपालनक्रिकयेजानेकीन्धिस्:चितकाभीस्पHवणनक्रिकया जायेगाऔरस्पीकिंकगआदेशकेमाध्यमसेक्रिनरस्तीकरणआदेशजारीक्रिकयाजायेगा।
(2) उचि तदरदकुानोंपरकायवाहीकेसम्बन्4मेंमात्रप्रा:क्रिमकीदजहोनेकेकारण उचि तदरक्रिव ेताकेअनुज्ञक्रिप्तकेक्रिनरस्तीकरणकीकायवाहीनहींकीजायेगी , वरन् सम्बन्धिन्4तउचि तदरक्रिव ेताके क्रिवतरणकीसम्यकप्रकारसेजां करनेकेपश्चात् क्रिवक्रिव4प्रस्तरोंमें क्रिवक्रिहत व्यवस्:ा का अनुपालनसुक्रिनचिश्चतकरते हुये कायवाही की जायेगी।
(3) यक्रिद दण्ड स्वरूप दकुानदार की क्रिनलन्धिम्बत दकुान क्रिनरस्त की जाती है , तो क्रिनरस्तीकरणआदेशकी चितथि:सेअचि4कतमएकमाहके अन्दरनयेउचि तदरके दकुानदारकीक्रिनयकु्रिक्तअक्रिनवायरूपसेहोजानी ाक्रिहएताक्रिकदकुानकीसम्बद्धताजल्दी सेजल्दीसमाप्तहोसके।
(4) क्रिनयकु्रिक्तप्राचि4कारी (जिजलापूर्तितअचि4कारी/सम्बन्धिन्4तउपजिजलाचि4कारी) उपरोक्त आदेशोंकाकड़ाईसेपालनकरेंगेऔरकायवाहीकेलिलएऊपरदीगयीसमयसारिरणी कोसुक्रिनचिश्चतकरेंगे।समयसारिरणीकेअनुसारजाँ कीकायवाहीएकमाहमेंत:ा दकुानकेक्रिनरस्तीकरणकीन्धिस्:चितमेंएकऔरमाहमेंनयीक्रिनयकु्रिक्तकेलिलयेक्रिन4ारिरतह।ै अतःक्रिनलन्धिम्बत/क्रिनरस्तदकुानकाक्रिकसीअन्यदकुानसेसम्बद्धीकरणअचि4कतमदो माहकेलिलएहोगा।"
"6- Cancellation of Fair Price Shop-
(1) In case the charges against the fair price shop seller are proved, the cancellation of the agreement letter will be done through a self-explanatory speaking order, keeping in view the seriousness of the case, which will contain the details of all the actions taken in respect of the seller before reaching the decision of cancellation, in which the investigation of complaints, details of the charges, the explanation submitted by the seller and the situation found in its examination, the situation of compliance with natural justice will also be clearly described and the cancellation order will be issued through a speaking order.
(2) In relation to the action on fair price shops, the proceedings for cancellation of the license of the fair price shop seller will not be taken merely because of the registration of a First Information Report (FIR), but after proper investigation of the distribution by the concerned fair price
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shop seller, action will be taken ensuring compliance with the system prescribed in various paragraphs.
(3) If the suspended shop of the shopkeeper is cancelled as a punishment, then the appointment of a new fair price shopkeeper must be made within a maximum period of one month from the date of the cancellation order so that the attachment of the shop can be terminated as soon as possible.
(4) The appointing authority (District Supply Officer/concerned Sub- Divisional Magistrate) will strictly comply with the above orders and will ensure the timeline given above for the action. According to the timeline, the investigation proceedings are scheduled for one month and in case of cancellation of the shop, another month is scheduled for a new appointment. Therefore, the attachment of a suspended/cancelled shop with any other shop will be for a maximum of two months." (English translation by Court)
37. A perusal of the above shows that in case of cancellation of the shop, the new allotment has to be made within a period of one month from the date of cancellation of the shop. Interim attachment with another shop can only continue for a period of two month.
38. The process with regard to filing of appeals is also provided in clause 8 of the Government Order. The same is reproduced below:
"8- उचि तदरदकुानोंकेक्रिवरुद्धकीगयीदण्डात्मककायवाहीकेक्रिवरुद्धअपील-
(1) क्रिनलम्बन/क्रिनरस्तीकरणआदेशकेक्रिवरुद्धकेवलअपीलनन्धिम्बतरहनेकीन्धिस्:चितको उक्तआदेशकेक्रिवरुद्धस्:गननहींमानाजासकताऔरवैकन्धिल्पकव्यवस्:ाकरनाराज्य कादाचियत्वह।ैवैकन्धिल्पकव्यवस्:ाकरतेसमयजनक्रिहतकोप्रा:क्रिमकताक्रिदयेजानेकी प्र4ानताह,ै नक्रिकलाईसेन्स4ारककेक्रिनजीक्रिहतको।जनक्रिहत , सम्बन्धिन्4तके्षत्रके लाभार्थि:योंकोअनुमन्यखाद्यात्रकीसमुचि त/सगुमउपलब्4तामेंक्रिनक्रिहतहैऔरइसकी पूर्तितहेतु, उचि तदरदकुानकेक्रिनलम्बनक्रिनरस्तीकरणकीन्धिस्:चितमें , राज्य (अ:ात सक्षमअचि4कारिरयों) द्वाराक्रिनलन्धिम्बत/क्रिनरस्तदकुानकेराशनकाड4ारकोंकोक्रिनकटवत` दकुानसेसम्बद्धक्रिकयाजासकताहैअ:वाआवश्यकहोनेपरअपीलमेंहोनेवाले क्रिनणयकेअ4ीनरखतेहुएनईदकुानकीक्रिनयकु्रिक्तपरक्रिव ारक्रिकयाजासकताह।ै
(2) उचि तदरदकुानोंके क्रिनलम्बन/क्रिनरस्तीकरणआदेशोंके क्रिवरुद्धसक्षमअपीलीय प्राचि4कारी केस्तरपरअपीललन्धिम्बतहोने कीदशामें क्रिनलन्धिम्बत /क्रिनरस्तदकुानके सापेक्षवकैन्धिल्पकव्यवस्:ाकेरूपमेंउक्तदकुानकेकाड4ारकोंकोक्रिनकटवत`दकुानमें सम्बद्धकरनेअ:वाअपीलीयप्राचि4कारीद्वारास्पHस्:गनआदेशपारिरतनक्रिकयेजाने कीन्धिस्:चितमेंलन्धिम्बतअपीलमेंहोनेवालेक्रिनणयकेअ4ीननयेदकुानदारकीक्रिनयकु्रिक्त करनेहेतुमक्षमअचि4कारिरयोंद्वारास्वक्रिववेकसेक्रिनणयलिलयाजायेगाऔरऐसाक्रिनणयलेते समयसम्बन्धिन्4तके्षत्रकेलाभार्थि:यों के व्यापक क्रिहतएवं उन्हेंअनुमन्यखाद्यानकी समुचि त/सुगम उपलब्4ता को सुक्रिनचिश्चत कराने की अपरिरहायता को प्रा:क्रिमकता दी जायेगी।
(3) क्रिनलम्बन/क्रिनरस्तीकरण आदेश के क्रिवरुद्धअपील लन्धिम्बत होने त:ा अपीलीय प्राचि4कारी द्वारा कोई स्:गन आदेश पारिरत न क्रिकये जाने की दशा में स्:ानीय आवश्यकताकेदृक्रिHगतयक्रिदनयीदकुानआवंक्रिटतकीजातीहैतोऐसेआवंटनआदेशोंमें
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स्पHउले्लखक्रिकयाजायेक्रिकउक्तआवंटनप्रत्रगतअपीलमेंहोनेवालेअन्धिन्तमक्रिनणयके अ4ीनहोगाऔरअपीलीयप्राचि4कारीद्वारायक्रिदअपीलस्वीकारकरतेहुएपवूआवंक्रिटत केपक्षमेंक्रिनणयपारिरतक्रिकयाजाताहैतोनयेआवंक्रिटतक्रिव ेताकाकोईदावामान्यनहीं होगा।
(4) उचि तदरक्रिव ेताकेक्रिवरुद्धकायवाहीसमयबद्धरूपसेपूणकीजाएसा:ही क्रिनलम्बन/क्रिनरस्तीकरणआदेशोंकेक्रिवरुद्धदालिखलअपीलोंकेबारेमेंभीसक्षमअपीलीय प्राचि4कारीद्वाराऐसीअपीलों/स्:गनप्रा:नापत्रोंकाशीघ्राचितशीघ्रक्रिनस्तारणसकु्रिनचिश्चत क्रिकयाजायेगा। ताक्रिकलम्बेसमयतकअपीलकेलन्धिम्बतरहने के कारणसम्बन्धिन्4त पक्षकारों को असमन्जसपूण न्धिस्:चित का सामना न करना पडे़ और उस के्षत्र के सावजक्रिनकक्रिवतरणप्रणालीकेलाभार्थि:योंकोआवश्यकवस्तुओं/खाद्यान्नकीक्रिनवा4 आपूर्तितकोसुक्रिनचिश्चतक्रिकयाजासके"
"8- Appeal against punitive action taken against fair price shops-
(1) The mere pendency of an appeal against a suspension/cancellation order cannot be considered a stay against the said order, and it is the responsibility of the State to make alternative arrangements. While making alternative arrangements, priority is to be given to the public interest, not to the private interest of the license holder. The public interest lies in the proper/easy availability of permissible food grains to the beneficiaries of the concerned area, and to fulfil this, in the event of suspension/cancellation of a fair price shop, the state (i.e., the competent authorities) may attach the ration card holders of the suspended/cancelled shop to a nearby shop or, if necessary, the appointment of a new shop may be considered, subject to the decision to be made in the appeal.
(2) In case an appeal against the suspension/cancellation orders of fair price shops is pending at the level of the competent appellate authority, a decision will be taken at the discretion of the competent authorities to attach the cardholders of the said shop to a nearby shop as an alternative arrangement for the suspended/cancelled shop, or in the absence of a clear stay order passed by the appellate authority, to appoint a new shopkeeper subject to the decision to be made in the pending appeal. While taking such a decision, priority will be given to the wider interest of the beneficiaries of the concerned area and the indispensability of ensuring the proper/easy availability of permissible food grains to them.
(3) In case an appeal against the suspension/cancellation order is pending and no stay order has been passed by the appellate authority, if a new shop is allotted in view of the local requirement, then it should be clearly mentioned in such allotment orders that the said allotment will be subject to the final decision to be made in the pending appeal, and if the appellate authority accepts the appeal and passes a decision in favour of the previously allotted person, then no claim of the newly allotted vendor will be valid.
(4) The proceedings against the fair price vendor should be completed in a time-bound manner, and similarly, the competent appellate authority shall ensure the expeditious disposal of such appeals/stay applications filed against suspension/cancellation orders."
(English translation by Court)
39. A perusal of the above shows that in case of pendency of appeal against suspension/ cancellation, new arrangements including fresh allotment can be made. However, the fresh allotment would be subject to the outcome of the appeal and the subsequent allottee would have no right in this regard. The
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process of fresh allotment will be initiated suo moto by the concerned authorities.
40. Thus, in light of the above discussed two Government Orders, it is clear that the allotment is made by passing a resolution in an open meeting of the Gaon Sabha. Once the resolution is made, the same is forwarded to the Block Development Officer who in turn places it before the Sub Divisional Magistrate concerned for his approval via the Tehsil Level Selection Committee. In the even of suspension/ cancellation an appeal can be filed under clause 8 of the relevant Government Order and during the pendency of the appeal, if no stay order is granted, then the shop can be attached to some other shop or a fresh allotment can be made. The fresh allotment can be made by the concerned authorities suo moto. Thus, the selection process consisting of resolution being passed in open meeting of Gaon Sabha forwarding the same to Block Development officer and its approval by Sub Divisional Magistrate in Tehsil level Selection Committee has to be followed again. The eligibility of proposed candidate is examined by the Tehsil Level Selection Committee and on its recommendation, the allotment order is passed by Sub Divisional Magistrate with direction to complete the necessary formalities for the fair price shop and after completion of the same by the selected candidate, the order for lifting and distribution of the food grains and essential commodities is passed by the Sub Divisional Magistrate. Thereafter, the selected fair price shop dealer obtains the food grains from F.C.I. godown and distribute the same within cardholders in accordance with the settled procedure by the department.
41. Thus, in light of the above discussion the legal question of onus is to be seen. While examining the onus, two situations would arise which have to be dealt with:
(I) When the appeal is filed before the subsequent allotment is made:
In a situation where the appeal is filed immediately after the cancellation order is passed and the subsequent fresh allotment is made thereafter then as per the government order, the subsequent allotment is subject to the Court proceedings. The particular wording of the government order are " उक्त आवंटन आवंटन प्रश्नगत अपील में होने वाले अन्तिम निर्णय के अधीन में होने वाले अन्तिम निर्णय के अधीन होन े वाले अन्तिम निर्णय के अधीन वाल में होने वाले अन्तिम निर्णय के अधीने वाले अन्तिम निर्णय के अधीन अन्तित आवंटन म न्तिन र्णय के अधीन के वाले अन्तिम निर्णय के अधीन अधीन
"होगा [said allotment will be subject to the final decision to be made in the
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pending appeal] meaning thereby that the subsequent order of allotment must contain the details of the appeal that has been filed so as to enable the subsequent allottee to have knowledge about the appeal as the appeal is preferred to the Divisional Commissioner.
In both the writ petitions, the order of fresh allotment states that "यह क्रिनयकु्रिक्तमा०सक्षमन्यायालयकेआदेशोंकेअ4ीनहोगी। [said allotment will be subject to the final decision to be made in the pending appeal (English translation by Court)]" but the allotment orders do not state the pending appeal number. The Government order in this regard is very clear in as much as it states that the allotment shall be subject to the concerned appeal. Since the allotment orders do not disclose the appeal number pending before the concerned Divisional Commissioner, therefore it cannot be inferred that the subsequent allottee has knowledge of the pending appeal. As detailed in the government order and also stated in the allotment letter, the fresh allotment is made after obtaining a proposal from the concerned Gaon Sabha which is passed in the open meeting. After approval by the Sub Divisional Magistrate, an order is passed for lifting of the food grains and its distribution in the village. Thus, it can be inferred that the original allottee will have knowledge of the fresh allotment made as the distribution of the food grains starts immediately after fresh allotment. Thus, in the view of this Court, the first onus of impleading the subsequent allottee in this situation will be upon the original allottee as in case impleadment is not done, then the subsequent allottee has a right to challenge any order in favour of the original allottee.
(II) When the appeal is filed after the subsequent allotment is made:
In such a situation, there can be no dispute with regard to the knowledge of allotment as the process of allotment abovementioned is carried out. It can be inferred that the original allottee will have knowledge of the fresh allotment made as the distribution of the food grains starts immediately after fresh allotment. It can also be inferred that the appeal has been filed to protect the rights of the original allottee viz-a-viz the subsequent allottee. Thus, in the view of this Court, the onus of impleading the subsequent allottee in this situation will also be upon the original allottee as in case impleadment is not done, then the subsequent allottee has a right to challenge any order in favour of the original allottee.
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42. Thus, in both the scenarios, the first onus of impleading the subsequent allottee is on the original allottee, may it be in the appeal proceedings or the writ proceedings.
43. The Court is also conscious of the fact that in the appeal before the Divisional Commissioner, the State of U.P. along with other subordinate authorities are a necessary party. The Court is flooded with a spate of litigation in which the technical issues with regard to opportunity of hearing are raised. The most common cause of action is non-impleadment of the subsequent allottee. This issue can easily be rectified at the admission/ final hearing of appeal itself by calling for a report from the concerned authority with regard to any proposal for any fresh allotment. In case a fresh allotment is made, then the subsequent allottee should be made a party and be heard by the appellate authority. Thereafter, the challenge to the appellate order is on merits and not technicalities of opportunity of hearing. This would also ensure that the ratio of Ram Kumar (supra) is implemented in letter and spirit.
ANSWERS TO THE POINTS OF DETERMINATION:
(I) With regard to whether the subsequent allottee has any right to be heard in the appellate proceedings on the ground that the subsequent allottee is a necessary party to the appeal, the answer is in affirmative holding that the subsequent allottee is a necessary party and has a right to be heard in appeal/ writ proceedings.
(II) With regard to the onus of impleading the subsequent allottee, whether the allotment is before or after filing of the appeal, is on which party to the lis, in the view of the Court in both the scenarios, the first onus of impleading the subsequent allottee is on the original allottee, may it be in the appeal proceedings or the writ proceedings.
CONCLUSIONS:
44. In light of the findings and the views given above, the following conclusions are drawn:
(I) WRIT C No. 1448 of 2026; M/s Mahalakshmi Self Help Group vs. State of U.P. and 4 others:
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The writ petition is allowed. The impugned order dated 19.12.2025 passed by Deputy Commissioner, Food and Civil Supplies in 16Naresh Kumar vs. District Supply Officer, Etah and others, is set aside. The petitioner is directed to place on record before the appellate Court, a copy of this order along with an application for impleadment within a period of two weeks from today. Furthermore, a direction is issued to the appellate Court to implead the petitioner herein in the appeal and thereafter decide the appeal, expeditiously, preferrable within a period of three months from the date of production of certified copy of this order after given due opportunity of hearing to both the allottees. There shall be no order as to costs.
(II) WRIT C No. 1444 of 2026; Raj Kumar alias Raju vs. State of U.P. and others:
The writ petition is allowed. The impugned order dated 28.10.2025 passed by Addl. Commissioner (Admn)/ Deputy Commissioner, Food in
17 Bane Singh vs. State of U.P. and others is set aside. The petitioner is directed to place on record before the appellate Court, a copy of this order along with an application for impleadment within a period of two weeks from today. Furthermore, a direction is issued to the appellate Court to implead the petitioner herein in the appeal and thereafter decide the appeal, expeditiously, preferably within a period of three months from the date of production of certified copy of this order after given due opportunity of hearing to both the allottees. There shall be no order as to costs.
(III) Further directions for effective implementation of the judgment and order of Ram Kumar (supra):
In light of the discussions and findings above, it is an appropriate case that further directions be issued to all the Divisional Commissioners of the State of U.P. to ensure effective compliance of the judgment and order of Ram Kumar (supra). Therefore, the following directions are issued:
(a) In the event of any appeal being filed against the cancellation of fair price shop license, the respective appellate authority shall at the time of admission/ final hearing of appeal, call for a report from the concerned Sub Divisional Magistrate with regard to any fresh allotment of the fair
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(b) In the event of a fresh allotment of the shop in question, the subsequent allottee shall be given a notice with regard to the pendency of the appeal. The notice shall be served through the concerned Sub Divisional Magistrate to negate any chances of non-delivery of notice.
(c) The notice shall state the date on which the subsequent allottee shall appear before the appellate Court.
(d) The subsequent allottee shall be given an opportunity of hearing before the appeal is finally decided.
45. Registrar (Compliance) is directed to send a copy of this judgment and order to all the concerned Divisional Commissioners for necessary compliance forthwith.
(Kunal Ravi Singh, J.) March 28, 2026
Sumit S