Heard Shri Kapil Kumar Srivastava, learned counsel for the petitioner.
Notices on behalf of the opposite parties no.1 and 2 have been accepted by the office of the Chief Standing Counsel. Shri Satish Kumar Sharma, Advocate has filed his Vakalatnama today in Court on behalf of the opposite party no.3 is taken on record.
The petitioner by means of the instant petition assails the order passed by the Commissioner, Lucknow Division in case No. 3482 of 2018 "Ram Nath Vs. S.D.M. Laharpur" Computerize Case No.C201810000003482.
Briefly the facts are that the opposite party no.3 was a fair price licence holder and was running a shop in Tahsil Laharpur, District Sitapur.
Proceedings were initiated against him which finally culminated in cancellation of his licence by means of the order dated 24 of April, 2018, a copy of which has been brought on record as Annexure no.1 to the petition.
The opposite party no.3 being aggrieved against the same had preferred an appeal under Section 13(3) of the U.P. Essential Commodities Act 2016 which was registered as case No.C201810000003482. The appellate authority after considering the material on record and hearing the parties by means of the order dated 02.09.2019 has allowed the appeal of the opposite party no.3 and has set aside the cancellation order dated 24.04.2018.
It is in this backdrop that the petitioner has assailed the order passed by the Commissioner on the ground that after the cancellation of licence of the opposite party no.3 he was temporarily given the distribution work of Essential Commodities. Now that the appellate authority has set aside the order of cancellation the rights of the petitioner would be affected and therefore he has preferred the instant petition.
An objection has been raised by the learned Standing Counsel and the counsel for the opposite party no.3 to the effect that the matter relating to the grant of licence as well as proceedings arising from the cancellation of licence of fair price shop under the Essential Commodities Act and wherein a subsequent person is given the charge to run the fair price shop, does not have a right to assail the order by which the cancellation order is set aside. Learned counsel for the opposite parties has relied upon the decision of the Apex Court in the case of Poonam Vs. State of U.P. and others reported in 2016 (2) SCC 779.
Refuting the aforesaid position, the learned counsel for the petitioner has drawn the attention of the Court towards the decision rendered by the Apex Court in the case of Meera Mishra Vs. Satish Kumar and others, Civil Appeal No.11763 of 2018 decided on 3rd of December, 2018 by the Apex Court.
In so far as the dictum of the Apex Court in the case of Poonam Vs. State of U.P. (supra) is concerned, this issue has specifically been dealt with and the Apex Court in the para has held as under:-
"48. A few examples can be given so that the position can be easily appreciated. There are provisions in some legislations pertaining to Gram Panchayat or Panchayat Samiti where on certain grounds the competent authority has been conferred the power to remove the elected Sarpanch or the Chairman, as the case may be on certain counts. Against the order of the Collector, an appeal lies and eventually either a revision or a writ lies to the High Court. After his removal, someone by way of indirect election from amongst the members of the Panchayats or the Panchayat Samiti is elected as the Sarpanch or the Chairman. The removed Sarpanch assails his order of removal as he is aggrieved by the manner, method and the reasons for removal. In his eventual success, he has to hold the post of the Sarpanch, if the tenure is there. The question, thus, arises whether the person who has been elected in the meantime from amongst the members of the Panchayat Samiti or Sabha is a necessary party. The answer has to be a categorical "No", for he cannot oppose the order of removal assailed by the affected Sarpanch nor can he defend his election because he has come into being because of a vacancy, arising due to different situation.
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 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."
Whereas considering the decision of Meera Mishra (supra) as relied by the learned counsel for the petitioner, it indicates that there was a dispute regarding two persons who claimed their right to run fair price shop. It was not a case where the original licence holder whose licence has been cancelled. Moreover, the proposition of law which has been laid down in the case of Poonam (supra) is binding and is appropriately applicable in the present facts and circumstances. The decision of Meera Mishra is distinguishable on facts.
Accordingly, considering the law as has been enunciated by the Apex Court in the case of Poonam (supra) which has been quoted herein above. This Court is of the considered view that the present petition at the behest of the petitioner Ram Saran is not maintainable. Accordingly the petitioner is dismissed. There shall be no order as to cost.
Order Date :- 27.9.2019 ank