Case :- WRIT - C No. - 42505 of 2018 Petitioner :- Smt. Asha Devi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjay Kumar Counsel for Respondent :- C.S.C.,Amresh Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Sanjay Kumar, learned counsel for the petitioner; Shri Siddharth Singh, learned Additional Chief Standing Counsel for the State respondents and Shri Amresh Singh, learned counsel appearing for the Gaon Sabha.
The petitioner is before this Court with request to issue direction to the third respondent, Sub Divisional Magistrate, Tehsil Meerganj, District Bareilly to take into account his version while considering the claim set up by the respondent no.5 in pursuance of the order of the Appellate Authority dated 13.11.2018.
Shri Siddharth Singh, learned Additional Chief Standing Counsel has raised preliminary objection as to the maintainability of this writ petition on the ground that the petitioner is subsequent allottee and once the appellate authority as per own wisdom has directed to the Sub Divisional Magistrate to revisit in the matter, then in such situation the petitioner cannot be asked to put his appearance in the said proceeding and as such, the claim set up by the petitioner cannot be accepted. In support of his submission, he relied upon the decision of this Court dated 20.02.2017 passed in Writ - C No. 5137 of 2017 in which this Court referred to several judgments and held as under:
"In view of the judgment of Hon'ble Supreme Court in the case of Poonam v. State of U.P. and others 2016 (7) ADJ (SC) 530 and the judgments of this Court in the case of Shyamawati v. Commissioner, Agra and others ADJ 2007 (5) 233, Mr Asraf Ali v. State of U.P., Writ-C No.6870 of 2016, decided on 25.2.2016 (Paragraph Nos. 15 and 16 ), Nasaruddin v. State of U.P. and others, 2015 (11) ADJ 557, Smt. Javitri Devi v. State of U.P. and others Writ-C No.63117 of 2015, decided on 18.11.2015, Shyam Singh v. State of U.P. and four others, Writ -C No.63882 of 2015, decided on 4.12.2015 and Roop Kishor v. State of U.P. and four others Writ-C No.68087 of 2015, decided on 18.12.2015, the writ petition deserves to be dismissed, inasmuch as the petitioner being a subsequent allottee has no right to hold the license when the appeal of the original allottee has been allowed.
The Court has proceeded to examine the record in question and finds that the petitioner is the subsequent allottee, who was accorded fair price shop licence as a stopgap arrangement during the pendency of the appeal filed by the respondent no.5 against the order of termination of his fair price shop licence. By the impugned order the Appellate Authority has allowed the appeal in question and the matter has been remanded back to the Sub Divisional Magistrate to revisit in the matter.
It is well settled that the subsequent allottee has no right over and above the original allottee. The position of the law in this regard has been well settled by the Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others 2016(7) ADJ 530. The Hon'ble Supreme Court held thus:-
"50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."
The law laid down by the Hon'ble Supreme Court in the case of Poonam (supra) as quoted above, is applicable on the facts of the present case also and thus, the petitioner has even no locus standi to pray for his continuation as a fair price shop agent of the village Panchayat in question in the event the appeal of the original allottee has been allowed and the matter has been remanded back to the Sub Divisional Magistrate to revisit in the matter.
In view of the aforesaid, the writ petition is dismissed.
Order Date :- 19.12.2018 RKP