Court No. - 2
Case :- WRIT - C No. - 28547 of 2018 Petitioner :- Smt. Mukesh Devi Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
The petitioner has assailed the order dated 24.3.2018 whereby his fair price shop licence has been cancelled and the order dated 17.7.2018 whereby the appellate authority has dismissed the appeal of the petitioner.
Learned counsel for the petitioner apprehends that third party rights may be created by the appointment of subsequent dealer.
Learned Standing Counsel for the respondent-State may file counter affidavit within four weeks.
List thereafter.
The rights of a fair price shop dealer against the claims of a subsequent allottee were considered by the Hon'ble Supreme Court in the case of Poonam versus State of U.P., reported in 2016 (2) SCC 779. The Hon'ble Supreme Court in the case of Poonam (supra) 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 come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."
In the light of the laid down by the Hon'ble Supreme Court in the case of Poonam (supra), it is open to the authorities to appoint any alternative dealer. However, no independent rights shall accrue in favour of such newly appointed dealer over and above the rights of the petitioner. The rights of the newly appointed dealer shall be subject to the decision of this writ petition.
Order Date :- 24.8.2018 Ashish Tripathi