Court No. - 10
Case :- WRIT - C No. - 39212 of 2018 Petitioner :- Shiv Chand Saroj Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Narendra Deo Shukla,Amit Kumar Tiwari,Vivek Shukla Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel.
The petitioner is before this Court assailing the order dated 21.5.2018 passed by second respondent and the order dated 24.10.2018 passed by fourth respondent by which the fair price shop in favour of seventh respondent (original allottee) has been restored.
Learned Standing Counsel has raised preliminary objection as to the maintainability of this writ petition on the ground that the petitioner being subsequent allottee has no right to hold the license after the fair price shop agreement of respondent no.7 was restored by the order impugned. In support of his submission, he relied upon the decision of this Court dated 20.02.2017 passed in Writ - C No. 5137 of 2017 in which this Court referred to several judgments and held as under:
"In view of the judgment of Hon'ble Supreme Court in the case of Poonam v. State of U.P. and others 2016 (7) ADJ (SC) 530 and the judgments of this Court in the case of Shyamawati v. Commissioner, Agra and others ADJ 2007 (5) 233, Mr Asraf Ali v. State of U.P., Writ-C No.6870 of 2016, decided on 25.2.2016 (Paragraph Nos. 15 and 16 ), Nasaruddin v. State of U.P. and others, 2015 (11) ADJ 557, Smt. Javitri Devi v. State of U.P. and others Writ-C No.63117 of 2015, decided on 18.11.2015, Shyam Singh v. State of U.P. and four others, Writ -C No.63882 of 2015, decided on 4.12.2015 and Roop Kishor v. State of U.P. and four others Writ-C No.68087 of 2015, decided on 18.12.2015, the writ petition deserves to be dismissed, inasmuch as the petitioner being a subsequent allottee has no right to hold the license when the appeal of the original allottee has been allowed.
In view of the aforesaid, the writ petition is dismissed."
The Court has proceeded to examine the record in question and finds that the petitioner is the subsequent allottee, who was accorded fair price shop licence as a stopgap arrangement. By the order impugned the fair price shop of original allottee has been restored.
It is well settled that the subsequent allottee has no right over and above the original allottee. 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."
The law laid down by the Hon'ble Supreme Court in the case of Poonam (supra) as quoted above, is applicable on the facts of the present case also and thus, the petitioner has even no locus standi either to challenge the appellate order passed in the case of original allottee or to pray for his continuation as a fair price shop agent of the village Panchayat in question in the event the fair price shop agreement of the original allottee stood restored.
In view of the aforesaid, the writ petition is dismissed.
Order Date :- 30.11.2018 SP/