Court No. - 10
Case :- WRIT - C No. - 23380 of 2018 Petitioner :- Jagannath Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Punya Sheel Pandey,Anurag Shukla,Devi Shanker Shukla,Pankaj Dubey Counsel for Respondent :- C.S.C.,Ashish Kumar Srivastava,Madan Mohan,Prem Sagar Verma
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri B.B. Pandey, learned Addl. Chief Standing Counsel. Shri Ashish Kumar Srivastava has accepted notice on behalf of Gaon Sabha.
The petitioner, who is subsequent allottee of the fair price shop in question, is before this Court assailing the validity of the order dated 15.11.2017 passed by the Sub Divisional Magistrate, Sadar, Agra by which the fair price shop in question earlier allotted in favour of original allottee i.e. fifth respondent (Ghanshyam) has been restored and further assailing the order dated 15.5.2018 passed by Addl. Commissioner (Food and Civil Supply), Agra Mandal, Agra in Appeal No.C. 201801000000134/17 (Jagnnath v. State of U.P.) filed by the petitioner by which the order dated 15.11.2017 has been affirmed.
It appears that against the order dated 15.5.2018 passed in the aforesaid appeal, the petitioner (the subsequent allottee) preferred a writ petition in which interlocutory order has been passed. Against the same the fifth respondent (original allottee) preferred Special Appeal No.676 of 2018 (Ghanshyam v. State of U.P. & Ors.), which was allowed on 8.8.2018 relying on the judgment rendered in Sukhpal Singh v. State of U.P. & Ors., Special Appeal No.669 of 2018 and while setting aside the order impugned the matter was remitted before the learned Single Judge for disposal of the writ petition in the light of the observations made in the aforesaid special appeal. For ready reference, the relevant portion of the judgment in Sukhpal Singh (Supra) is reproduced as under:-
"The legal position with regard to a subsequent allottee or of one to whose fair price shop card holders may be temporarily attached is no longer res integra. It has been authoritatively held that once the licence of the original allottee stands restored, no legal rights exist in the allottee to whom card holders may have been temporarily attached. The consistent view taken by this Court as well as the Supreme Court on the subject is that the original allottee alone is entitled to continue and that the interim arrangement made by the State-respondents during the period when his licence stood cancelled stands effaced. One may in this connection only refer to the following pertinent observations as entered by the Supreme Court in Poonam Vs. State of U.P. And Others; 2016 (2) SCC 799 to the following effect:
"48. 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 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 favour of the former allottee. She is a third party to the lis in this context. The decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan makes it absolutely clear. We have explained the authority in J.S. Yadav's case and opined that it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner whose licence is cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. 1999 1 SCC 738. The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation" an anarchy in law.
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."
Considering the facts and circumstances of the present case and in view of the aforesaid judgments passed in Ghanshyam v. State of U.P. & Ors. (Supra) and Sukhpal Singh v. State of U.P. & Ors. (Supra) no reprieve, as has been asked for, can be extended to the petitioner, who is admittedly a subsequent allottee.
Consequently, the writ petition fails and is accordingly dismissed.
Order Date :- 27.11.2018 SP/