Court No. - 45
Case :- WRIT - C No. - 19632 of 2018 Petitioner :- Shailendra Prakash Kushwaha Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Sanjay Kumar Singh,Shrawan Kumar Pandey Counsel for Respondent :- C.S.C.,Ram Babu Yadav
Hon'ble Ajay Bhanot,J.
Heard learned counsel for the petitioner, Sri Babu Lal Ram, learned counsel for the respondent no.6 and learned Standing Counsel appearing for the respondent-State.
The petitioner is a subsequent allottee of the fair price shop of Village Panchayat Bihasara Khurd, District Mirzapur. The fair price shop license of the erstwhile allottee was cancelled by order dated 29.1.2018. The original allottee who is arrayed as respondent no.8 carried the order of termination in appeal. By order dated 11.5.2018 the aforesaid appeal which was registered as Appeal No.C201816000000180 of 2018, Sheshmani Pal Vs. S.D.M., Sadar, Mirzapur, has been allowed by the appellate authority. The petitioner being subsequent allottee has assailed the order passed by the appellate authority allowing the appeal of the original allottee respondent no.8. The appointment of the petitioner was stop gap measure till the fate of the license of the respondent no.8 was determined by the appellate authority.
The subsequent allottee has no right over and above the original allottee. His appointment is a stop gap arrangement and his existence depends upon the fate of the appeal filed by the fair price shop dealer. 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."
In this view of the matter, the petitioner being a subsequent allottee does not have any right to challenge the reinstatement of the original allottee.
The writ petition is dismissed.
Order Date :- 28.5.2018 Pramod