Shiv Sagar vs State Of U.P. Thru. Secy. Food & ...
2021 Latest Caselaw 7071 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 6
 
Case :- MISC. SINGLE No. - 13776 of 2021
 
Petitioner :- Shiv Sagar
 
Respondent :- State Of U.P. Thru. Secy. Food & Civil Supplies & Ors.
 
Counsel for Petitioner :- Satish Kumar Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) Heard the learned counsel for the petitioner.

(2) The petitioner is aggrieved by the order dated 01.07.2021 passed by the Joint Commissioner (Food), Lucknow Division, Lucknow, in so far as he has rejected the application for interim relief and staying the operation of the order passed by the S.D.M. cancelling the Fair Price Shop License of the petitioner.

(3) It has been submitted by the learned counsel for the petitioner that in the case of Mool Chand Yadav and Another Vs. Raza Buland Sugar Company (1982) 3 SCC 484, the Supreme Court observed that if the Appeal is admitted then interim order should ordinarily be granted staying the order impugned. In the said case the Supreme Court considering the right of a licensee/allottee/tenant aggrieved by the order of eviction passed by the Authorities. It observed that in case the Appeal is eventually allowed the appellant would be entitled to continue in possession. If the order impugned in the Appeal is not suspended the appellant would have to vacate the premises and hand over the possession to the respondents in obedience to the order passed by the lower court. Hence, judicial approach required that during the pendency of the Appeal, the operation of the order having serious civil consequence must be suspended. In case, the Appeal is admitted and eventually allowed but possession has been already handed over in pursuance of the order passed by the lower court then the Appeal itself would be rendered infructuous. To prevent irreparable loss to the appellant and rendering of the Appeal as infructuous at the time of final decision, interim orders should ordinarily be passed by the Appellate Court staying the operation of the order under challenge.

(4) The arguments raised by the learned counsel for the petitioner although substantiated by a judgment of the Hon'ble Supreme Court in the case of Mool Chand Yadav and Another (Supra) is misconceived in view of the fact that the legal possession with regard to the subsequent allottee or of one whose fair price shop card holders may be temporary attached is no longer res-integra. In Special Appeal No.669/2018 (Sukhpal Singh Vs. State of U.P. and 3 Others) the Division Bench of this Court in its judgment and order dated 03.08.2018 has observed that once the license of the original allottee stands restored, no legal right exists in the licensee to whom card holders may have been temporary attached.

"The legal position with regard to a subsequent allottee or of one to whose fair price shop card holders may be temporarily attached is no longer res integra. It has been authoritatively held that once the licence of the original allottee stands restored, no legal rights exist in the allottee to whom card holders may have been temporarily attached. The consistent view taken by this Court as well as the Supreme Court on the subject is that the original allottee alone is entitled to continue and that the interim arrangement made by the State-respondents during the period when his licence stood cancelled stands effaced. One may in this connection only refer to the following pertinent observations as entered by the Supreme Court in Poonam Vs. State of U.P. And Others; 2016 (2) SCC 799 to the following effect:

"48. 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 decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan makes it absolutely clear. We have explained the authority in J.S. Yadav's case and opined that it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner whose licence is cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. 1999 1 SCC 738. The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation" an anarchy in law.

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."

(5) Even if during pendency of the Appeal filed by the petitioner before the Joint Commissioner (Food), Lucknow Division, Lucknow, any subsequent allotment is made on account of non-grant of interim relief by the Appellate Authority, and the cancellation order passed by the S.D.M. remains in operation, no perpetual right would be created in such subsequent allottee. On the Appeal of the petitioner being eventually allowed, he shall be entitled to get restoration of his fair price shop. He shall not suffer any irreparable loss and his Appeal would not be rendered infructuous as was the case being considered by the Hon'ble Supreme Court in Mool Chand Yadav Vs. Raja Buland Shahar Company Limited (Supra).

(6) The writ petition is devoid of merits, it is dismissed.

Order Date :- 6.7.2021

PAL