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2017 DIGILAW 711 (ALL)

MANJU DEVI v. STATE OF U. P.

2017-03-07

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : Hon'ble Surya Prakash Kesarwani, J. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and learned counsel for Gram Sabha. Briefly stated facts of the present case are that one Smt. Sandhya Devi was fair price shop agent of village Panchayat Thakurahi (1/2 part), Block and Tehsil Deoria Sadar, District Deoria. Her fair price shop agreement was suspended on certain allegations by order dated 28.01.2016 passed by the competent authority. Subsequently, her fair price shop agreement was cancelled by the respondent no. 3 vide order dated 06.05.2016. Aggrieved with this order, the aforesaid Smt. Sandhya Devi filed an Appeal No. 227/C-2016050000896 which was allowed by the Joint Commissioner (Food and Civil Supply), Gorakhpur Division, Gorakhpur vide order dated 04.02.2017. Consequently, the fair price shop agreement of the aforesaid Smt. Sandhya Devi stood restored. Further during pendency of the appeal of the aforesaid Smt. Sandhya Devi, the fair price shop in question was allotted to the petitioner by the respondent no. 3 vide order dated 30.11.2016 subject to the condition that this order shall be subject to decision of the competent court. Since the appeal of the aforesaid Smt. Sandhya Devi has been allowed by the appellate authority and therefore, as a necessary consequence thereof the fair price shop agreement of the aforesaid Smt. Sandhya Devi stood restored. Aggrieved with this situation, the petitioner, who is a subsequent allottee, has not even impleaded the original allottee namely Smt. Sandhya Devi while she has filed the present writ petition praying for a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the peaceful functioning of the fair price shop being run by her and to provide essential commodities month to month for distribution. Learned counsel for the petitioner submits that the fair price shop in question was originally reserved for female (schedule caste) when it was allotted to the aforesaid Smt. Sandhya Devi, but presently the aforesaid fair price shop is reserved only for a female candidate and as such the petitioner is entitled to continue with the allotment of fair price shop in question. He further submits that even if the appeal of aforesaid Smt. Sandhya Devi has been allowed, yet the allotment of the petitioner cannot be disturbed. Learned Standing Counsel as well as learned counsel for Gram Sabha supports the action of respondent authorities. He further submits that even if the appeal of aforesaid Smt. Sandhya Devi has been allowed, yet the allotment of the petitioner cannot be disturbed. Learned Standing Counsel as well as learned counsel for Gram Sabha supports the action of respondent authorities. I have carefully considered the submissions of learned counsels for the parties. It is undisputed that the aforesaid Smt. Sandhya Devi was a fair price shop agent of the village Panchayat in question as aforesaid. In the event that her fair price shop agreement was cancelled on certain allegations by the respondent no. 3, the allotment of fair price shop in question was made in favour of the petitioner subject to the decision of the higher court. Aforesaid Smt. Sandhya Devi challenged the order of cancellation of her fair price shop agreement in appeal and her appeal was allowed by the appellate authority by order dated 04.02.2017 and thus the fair price shop agreement of Smt. Sandhya Devi stood restored. The petitioner is undisputedly a subsequent allottee and therefore, has no right to hold the license in the event the appeal of original allottee has been allowed and order of cancellation of her fair price shop agreement has been set aside by the appellate authority. This view is supported by 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. In the case of Poonam (supra) Hon'ble Supreme Court also noted the facts and held as under: "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. In the case of Poonam (supra) Hon'ble Supreme Court also noted the facts and held as under: "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." 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 her continuation as a fair price shop agent of the village Panchayat in question in the event the appeal of the original allottee has been allowed and her fair price shop agreement stood restored. In view of the aforesaid, the writ petition is dismissed.