Court No. - 45
Case :- WRIT - C No. - 20558 of 2018 Petitioner :- Smt. Seema Srivastava Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kanhaiya Lal Counsel for Respondent :- C.S.C.,Shesh Narain Mishra
Hon'ble Ajay Bhanot,J.
Heard Sri Kanhaiya Lal, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Shesh Narain Mishra, learned counsel for the respondent no. 5.
The petitioner has assailed the order of suspension of her fair price shop dated 15.11.2017 and the order of termination dated 20.2.2018 passed by the respondent no. 4.The petitioner has taken the order of termination dated 20.2.2018 in appeal before the appellate authority. The appeal is pending. The petitioner cannot be permitted to pursue two remedies simultaneously. In so far as the orders dated 15.11.2015 and 20.2.2018, prayer is rejected.
Sri Kanhaiya Lal, learned counsel for the petitioner presses the prayer challenging the order dated 5.4.2018 rejecting the stay application of the petitioner.
The memo of appeal instituting the appeal before the appellate authority was accompanied by an application for interim relief. The application for interim relief was rejected on 5.4.2018.
A perusal of the aforesaid order shows that there has been application of mind and the same is a reasoned and speaking order. No prima facie case has been made out nor is there any balance of convenience in favour of the petitioner at this stage.Consequently, there is no infirmity in the order dated 5.4.2018 passed by the appellate authority. The said order cannot be interfered with.
At this stage, Sri Kanhaiya Lal, learned counsel for the petitioner submits that the petitioner apprehends that a subsequent fair price shop dealer shall be appointed in her place. This shall cause entrenchment of third party right. The rights of the petitioner would be rendered illusory in case any subsequent allotment is made.
Per contra, Shri Sanjay Ram Tripathi, learned Standing Counsel submits that the rights of the original allottee have been amply protected 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 to 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 law laid down by the Hon'ble Supreme Court, the petitioner is also entitled to similar protection. Any subsequent allotment made upon the cancellation of licence of the petitioner shall abide by the decision of the appeal.
With the aforesaid observations, this writ petition is disposed of.
Order Date :- 30.5.2018 Pratima