Smt. Sonam Kumari v. State of U.P. and 6 Others

Court No. - 6 Case :- WRIT - C No. - 30744 of 2023 Petitioner :- Smt. Sonam Kumari Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Samar Bahadur Harijan,Vijay Kumar Counsel for Respondent :- C.S.C.,Abhishek Singh,Arun Kumar Pandey,Shailendra Singh Hon'ble Mrs. Manju Rani Chauhan,J. Learned counsel for the petitioner filed supplementary affidavit in the Court today, is taken on record. Heard Mr. Samar Bahadur, learned counsel for the petitionr, Mr. Abhishek Singh, learned counsel for respondent no.7 and Mr. Shyam Singh, learned Standing Counsel for the State-respondents. The petition has been filed by the petitioner with the prayer to quash the impugned order dated 26.05.2023 passed by respondent no.2 vide which the fair price shop license of respondent no.7 has been restored and a further prayer to direct the respondents to allot the fair price shop dealership license in favour of petitioner. Brief facts of the case are that initially the respondent no.7 was running a fair price shop in Village Amannagar, Post Guniapur, P.S. Kiratpur, Tehsil Najibabad, District Bijnor. On some complaint made by the card holders, the fair price shop license of respondent no.7 was suspended by order dated 29.08.2021. After due inquiry, the fair price shop license of respondent no.7 was cancelled by order dated 23.11.2021, against which he filed an appeal which has been allowed by order dated 26.05.2023, hence this writ petition has been filed by the petitioner who is subsequent allottee. Learned counsel for the petitioner submits that the shop in question was allotted to the petitioner by order dated

31.10.2022, therefore, she is an aggrieved person and she ought to have been informed as she has right to be heard, being subsequently allottee, thus the order impugned is bad in the eye of law, therefore, the impugned order is liable to be set aside. On the other hand, learned Standing Counsel as well as counsel for the respondent no.7 submits that the petitioner is a subsequent allottee and the allotment order in favour of the petitioner was subject to specific condition mentioned in the allotment letter that the same is subject to final orders passed by the competent court. They further submit that the case is not of concealment by the original allottee (respondent no.7) as he was not aware of the allotment made in favor of the petitioner and no such plea has been made by the petitioner even in the writ petition. Therefore, there is no illegality in the impugned order. I have heard learned counsel for the petitioner, learned Standing Counsel, learned counsel for the respondent no.7 and perused the record. The order, whereby the petitioner was allotted the shop in question, clearly states that the petitioner has been allotted the shop in question subject to the final orders passed by the Hon'ble Court. Thus, the order of allotment was not an absolute, but was contingent upon the outcome of the litigation and the orders passed by the competent authority. The issue of right of subsequent allottee has been dealt with by the Supreme Court in a number of case. In the case of Ram Kumar v. State of U.P. and others, 2023 (158) RD 625 : 2022 SCC OnLine SC 1312, subsequent allottee has been given right of being heard, however, it is not applicable in the facts of present case, as in the said case, the Court considered rival submissions as well as the judgment of the Supreme Court in the case of Pawan Chaubey v. State of U.P. & Ors., Civil Appeal No. 3668 of 2022, decided on 06.05.2022 and the judgment in the case of Poonam v. State of U.P. & Ors.; (2016) 2 SCC 779. The Apex Court, after considering the rival submissions, in Paragraph-18 of the judgement in Ram Kumar (supra), recorded that the appellant was a regular allottee. The Court also considered the earlier judgment in Poonam (supra) and did not agree with the same on the ground that the appointment in Poonam (supra) could not establish any independent legal right. The aforesaid issue has also been dealt with by this Court in the case of Jyoti vs. Secretary Food And Civil Supplies U.P. And 3 Others reported in Neutral Citation No. - 2023:AHC:162567. Thus, admittedly, the petitioner is not a regular allottee and his allotment is subject to the outcome of the litigation. In fact, the allotment order clearly specifies that the allotment shall be subject to final orders passed by the competent court. The present case is clearly covered by the judgment of this Court in the case of Jyoti (supra) as the allotment of the petitioner is not an absolute allotment but is a contingent allotment. In view of the above, the petitioner has not made out a case for interference. The writ petition is, accordingly, dismissed. No order as to costs. Order Date :- 28.11.2023 Kalp Nath Singh High Court of Judicature at Allahabad