Smt. Gudiya Vs State of U.P. Thru. Prin. Secy., Food and Civil Supplies, Lucknow and Others

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Neutral Citation No. - 2024:AHC-LKO:45499

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Court No. - 7

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Case :- WRIT - C No. - 5651 of 2024

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Petitioner :- Smt. Gudiya

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Respondent :- State Of U.P. Thru. Prin. Secy., Food And Civil Supplies, Lucknow And Others Counsel for Petitioner :- Satish Kumar Sharma Counsel for Respondent :- C.S.C.,Chhatrapal Rawat,Umesh Chandra Vishwakarma

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Hon'ble Alok Mathur,J.

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Counter affidavit filed by Shri Umesh Chandra Vishwakarma, learned counsel for the respondent no.6 and supplementary affidavit filed by Shri Shri Satish Kumar Sharma, are taken on record.

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Heard Shri Satish Kumar Sharma, learned counsel for the petitioner, learned Standing Counsel for the respondents no.1 to 5 and Shri Umesh Chandra Vishwakarma, learned counsel for the respondent no.6.

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It has been submitted that a fair price shop license for the Block Machharehata, District -Sitapur was allotted in favour of the respondent no.6, namely, Chikan Kadhai Audhyogik Sahkari Samiti Ltd. Subsequently, certain irregularities were committed by the respondent no.6 in running of the fair price shop and consequently, his fair price shop license suspended on 23.10.2015 and subsequently, after concluding inquiry the same was cancelled on 17.06.2016 by the SDM, Mishrikh, District - Sitapur. Aggrieved by the aforesaid cancellation, respondent no.6 had filed an appeal before Joint Commissioner (Food), Lucknow Division, Lucknow, where an interim order was passed in his favour on 22.08.2016.

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In pursuance of the interim order dated 22.08.2016, respondent no.6 again commenced operating the aforesaid fair price shop on 08.10.2016 till the society of the petitioner was cancelled and accordingly, his license was cancelled for the second time on 09.12.2022. Respondent no.6 against the fresh order of cancellation dated 09.12.2022 had preferred an appeal before the Joint Commissioner (Food), Lucknow Division, Lucknow being appeal No.972 of 2023, which has been allowed by means of order dated 17.08.2023. In the present writ petition, the petitioner has challenged the validity of the order dated 17.08.2023.

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It has been submitted by the counsel for the petitioner that the appeal filed by the respondent no.6 against the cancellation order dated 17.06.2016 numbered as Appeal No.D-175 of 2016 remain pending and has not been decided till date.

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It has further been submitted by the counsel for the petitioner that after cancellation of the fair price shop license of respondent no.6 on the first occasion on 17.06.2016 procedure for allotment of fair price shop license was initiated by the authorities and the petitioner being found to be suitable was allotted a fair price shop license by order dated 05.08.2016. There is no dispute that the petitioner continued to run the fair price shop license till an interim order was passed in favour of the respondent no.6 till 08.10.2016. It is in the aforesaid circumstances, the petitioner has submitted that he is subsequent allottee and while assailing the impugned appellate order dated 17.08.2023, has submitted that he was a necessary party in the appeal preferred by the respondent no.6 and he should have been made a respondent and as the petitioner was not made a party in the said appeal, The petitioner is certainly a necessary party and the present writ petition deserves to be succeeded only on this ground alone.

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Even the Supreme Court in the case of Ram Kumar versus State of Uttar Pradesh and others, passed in Civil Appeal No.4258 of 2022 , where the Hon'ble Apex Court has dealt into the said issue and returned a finding that the subsequent allottee is a necessary party in the appeal proceedings initiated by the license-holder whose license has been cancelled and has a right to be heard and make his submission defending the order of cancellation. There is no dispute with regard to the fact that the petitioner was a subsequent allottee having been allotted a fair price shop license on 05.08.2016 after cancellation of the fair price shop license of respondent no.6 on 17.06.2016 and he was not a party in the appeal before the appellate authority. And consequently, this Court is of the considered view that the judgement of the Supreme Court in the case of Ram Kumar versus State of U.P. squarely applies to the facts of the present case and the writ petition preferred by the petitioner is liable to be allowed on the said ground alone.

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The dispute in the present case has continued and escalated only on account of the fact that the appellate authority has failed to decide the appeal filed by the petitioner with regard to his first cancellation order dated 17.06.2016. A piquant situation would emerge in case the appeal is rejected. In case, it so happens, then the interim order on the strength of which the petitioner was allowed to subsequently continue, would no longer exits and a very basis of the respondent no.6 continued to the said fair price shop license would evaporate. Therefore, it was necessary that the appellate authority should have proceeded to consider and decide the appeal preferred at the first instance by respondent no.6, rather than deciding the appeal filed by the petitioner against the order of cancellation dated 09.12.2022.

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Accordingly, in light of the aforesaid discussion, the

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impugned order dated 17.08.2023 is set aside and the matter is remitted to the appellate authority to decide the appeal afresh after ensuring compliance of the judgement of the Supreme Court in the Case of Ram Kumar versus State of U.P. and others . The appellate authority is also directed to first consider and decide appeal No.D-175 of 2016 with expedition, say within a period of six weeks from the date a certified copy of the order is produced before him in accordance with law. He shall also decide the appeal as directed by this Court in the present judgement with expedition within the same time. The parties present before the Court have undertaken to cooperate in the appellate proceedings.

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Accordingly, the writ petition is allowed .

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Order Date :- 4.7.2024 KR

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(Alok Mathur,J.)

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Gudiya v. State of U.P. Thru. Prin. Secy., Food and Civil Supplies, Lucknow and Others

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Smt. Gudiya v. State of U.P. Thru. Prin. Secy., Food and Civil Supplies, Lucknow and Others

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