Allahabad High Court
Mohd. Akbar vs State Of U.P. And 4 Others on 14 December, 2016
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No.--28
Case :- WRIT - C No.-- 58684 of 2016
Petitioner :- Mohd. Akbar
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Haya Rizvi
Counsel for Respondent :- C.S.C., Arun Kumar Srivastava
Hon'ble Pramod Kumar Srivastava, J.
1. Respondent no.-5 Sajid was fair price shop dealer of village Khanpur Lakhhi. Respondent no.-3 Sub Divisional Officer has passed order dated 24.2.2016 cancelling the agreement of fair price shop of respondent no.-5. After cancellation of said agreement, present petitioner Mohd. Akbar was allotted said fair price shop. Earlier allottee respondent no.-5 had preferred Appeal No.-C2016130000264 (Sajid Vs. State of U.P.) challenging the order dated 24.2.2016 passed for cancellation of his dealership. In said appeal, he had impleaded present petitioner as respondent. After affording opportunity of hearing, respondent no.-2 Deputy Commissioner had allowed said appeal by judgment dated 14.10.2016, quashed the order dated 24.2.2016 regarding cancellation of agreement of respondent no.-5, and remanded the matter before respondent no.-3 to decide it again on merits within 15 days. This impugned order dated 14.10.2016 has been challenged by petitioner.
2. Learned counsel for the petitioner submitted that impugned order dated 14.10.2016 of respondent no.-2 is erroneous on merits and had been passed without proper appreciation of facts and law, as well as the evidence available on record; therefore it should be quashed.
3. These submissions were opposed by standing counsel and counsel for respondent no.-5, who submitted that petitioner has no locus standi in this matter.
4. Admittedly, the agreement of fair price shop of earlier allottee respondent no.-5 was cancelled, then present petitioner was appointed as new fair price shop dealer. The true copy of his appointment order is Annexure-1 to the writ petition, in which it is specifically mentioned that if any order is received from any competent court regarding earlier allottee petitioner not accepted said condition, he would not have been the fair price shop dealer. On his admission of the conditions mentioned in his appointment order dated 14.10.2016, respondent no.-3 had permitted him to act as dealer of said shop believing that he would honour his own admittance. Therefore, doctrine of estoppel and acquiescence is applicable in this matter. In view of the provisions of section 115 of Indian Evidence Act (respondent no.-5), then said order would be binding on appointment order of the allottee (petitioner Mohd. Akbar). After accepting this conditions mentioned in appointment letter dated 14.10.2016, the petitioner had entered into agreement of fair price shop in question and had started work accordingly. Thus it was pre-condition for his appointment that any order passed by any competent court regarding matter of cancellation of agreement of respondent no.-5 shall be binding on petitioner. Since the petitioner had accepted this condition before entering into agreement, therefore he is estopped from denying such admission. Had the, the petitioner is estopped to challenge the said pre condition of impugned order dated 14.10.2016.
5. Apart from it, the appointment of petitioner was subject to decision of matter sub judice before the competent court, regarding rights of respondent no.-5 to continue as fair price shop dealer. Petitioner being subsequent allottee has no legal right to challenge the status of earlier allottee respondent no.-5 when his allotment order is restored.
6. In (2016) 2 SCC 779, Poonam Vs. State of Uttar Pradesh and others Hon'ble Apex Court had 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."
7. Thus, for the reasons discussed above, this petition is not maintainable as petitioner being subsequent allottee has no locus standi to challenge the impugned order. Therefore the relief sought by petitioner in this writ petition is declined.
8. It has been observed that in impugned order dated 14.10.2016 respondent no.-2 had directed the respondent no.-3 to conclude the hearing of the matter and pass appropriate order within 15 days. It has been informed that in spite of passing of said period, no order on merit has been passed by respondent no.-3. This is apparently disobedience of order of appellate court, which is not appreciable. Therefore the respondent no.-3 is directed to expedite the said hearing and pass appropriate order in compliance of impugned order dated 14.10.2016 passed by respondent no.-2 in aforesaid appeal within 15 days from presentation of certified copy of this order.
9. In view of the above, this writ petition stands disposed of.
Order Date :- 14.12.2016
SR
