# Manoj Kumar Verma v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Misc. Single No. 13416 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-verma-v-state-of-u-p-ors-47243
- **Pages:** 5

## Headnote

to continue upon setting aside of the order
of cancellation of fair price shop of the
original allottee - Original allottee having
continued till his death, the erstwhile
subsequent allottee would have no right
to claim to run the fair price shop of the
original allottee merely on account of
death of the original allottee - however,
when the process of allotment of the fair
price shop due to death of the original
allottee takes place, it is open to the
subsequent allottee to participate in such
process as per law (Para 14)

Dismissed. (E-4)

List of Cases cited :

## Text

638 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) is, therefore, not attracted to the
present case.

25. The judgment in the case of Om
Prakash Verma (supra) cited by Shri
Mohan Singh is not on the point as to
whether remedy of appeal is or is not
available to a person aggrieved under
Section 67(5) against the orders passed
under sub section (3) and (4) of Section 67
of the Revenue Code, 2006, if such person
is not party.

26. In view of the above, the petition
succeeds and is partly allowed. The
impugned order dated 27.01.2021 is hereby
quashed. The matter is remanded to the
opposite party No. 2, District Magistrate/
Collector, District Ambedkar Nagar, for
deciding the petitioners' appeal afresh in
accordance
with
law
after
affording
opportunity of hearing to the parties
concerned. The opposite party No. 2 shall
issue notice to the opposite party No.
5(respondent No. 1 in appeal) to afford him
opportunity of hearing. The appeal shall be
decided expeditiously, say within a period
of four months from the date of production
of the copy of this order before the
appellate authority. If the appeal is beyond
limitation the matter of condonation of
delay shall be considered first.

27. It is clarified that this Court has
not entered into the merits of the
controversy either way. If any observation
is made on the merits the same is only to
determine the maintainability of appeal
under Section 67(5) and shall have no
effect on the merits of the appeal.
----------
(2021)07ILR A638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.07.2021
BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Misc. Single No. 13416 of 2021

Manoj Kumar Verma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Avnish Kumar Singh

Counsel for the Respondents:
C.S.C., Mohan Singh

Fair Price Shop - Allotment - allotment of
fair price shop licence on death of original
allottee - Subsequent allottee has no right
to continue upon setting aside of the order
of cancellation of fair price shop of the
original allottee - Original allottee having
continued till his death, the erstwhile
subsequent allottee would have no right
to claim to run the fair price shop of the
original allottee merely on account of
death of the original allottee - however,
when the process of allotment of the fair
price shop due to death of the original
allottee takes place, it is open to the
subsequent allottee to participate in such
process as per law (Para 14)

Dismissed. (E-4)

List of Cases cited :

1. Poonam Vs St.of U.P. & ors. 2016 (2) SCC
799

2. Mithilesh Kumari Vs St. of U.P. & ors.. W.P.
No. 30422 (MS) of 2019, dt 05.11.2019

3. Alok Kumar Vs St. of U.P. & ors.. W.P. No.
4098 (MS), dt 12.07.2018

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Avnish Kumar Singh,
the learned counsel for the petitioner, Shri
7 All. Manoj Kumar Verma Vs. State of U.P. & Ors.
639
Hemant Pandey, the learned Standing
Counsel for the opposite party Nos. 1 to 4
and Shri Mohan Singh, the learned counsel
appearing for the opposite party No. 5Gaon Sabha, Village Panchayat Songaon,
Tehsil Akbarpur, District Ambedkar Nagar.

2. This petition has been filed by the
petitioner for the following reliefs:

"(i) To issue a Writ in the nature
of certiorari quashing the impugned order
dated 12-02-2021 (which is annexed
herewith as Annexure No.1) passed by the
Opposite Party No. 4.

(ii) Any other alternate remedy
which this Hon'ble court deems fit and
proper to the circumstances of the case may
kindly be awarded in the favour of the
petitioners against the Opposite parties."

3. Briefly stated the facts of the case
are that the fair price shop in Village
Panchayat
Songaon,
Tehsil
Akbarpur,
Police Station Akbarpur, District Ambedkar
Nagar was originally allotted to one Ram
Bahal Verma. His license was cancelled by
the order dated 19.07.2016 and the
petitioner
Manoj
Kumar Verma
was
allotted the shop, with specific stipulation
by the order dated 11.11.2016 that such
allotment was subject to the orders to be
passed in pending appeals/ writ petitions.
The appeal filed by the original allottee
against the order of cancellation was
allowed by the Deputy Commissioner,
Faizabad
Region,
Faizabad
by
the
judgment dated 31.10.2017, setting aside
the order of cancellation dated 19.07.2016
and directing to restore his license to run
the fair price shop. In pursuance thereof,
the Sub Divisional Magistrate, Akbarpur,
vide order dated 18.11.2017, restored the
fair price shop license of Ram Bahal
Verma and cancelled the license of the
petitioner
and
one
Rajesh
Kumar.
Challenging the orders dated 31.10.2017
and 18.11.2017 the petitioner filed Writ
Petition No. 817 (MS) of 2018, which was
dismissed in default on 28.03.2019. It has
been submitted that the petitioner has filed
an application for recall of the order dated
28.03.2019, which is pending in the said
writ petition.

4. It appears that Ram Bahal Verma
died on 10.01.2021 and for allotment of
that fair price shop, his son Vijay Bahadur
Verma filed a representation. The petitioner
also filed a representation for allotment in
his favour. By the order under challenge
dated 12.02.2021 the representation of the
petitioner
has
been
rejected.
The
representation of the Vijay Bahadur Verma
was also rejected, but in this case the Court
is
concerned
with
the
rejection
of
representation of the petitioner.

5. A preliminary objection has been
raised by Shri Hemant Pandey, the learned
Standing Counsel that the petitioner being
subsequent allottee, has no locus to
maintain this writ petition, and he cannot
challenge the order dated 12.02.2021 as the
petitioner has no right, nor by the order
under challenge any of his right or interest
is adversely affected. He has placed
reliance on the judgment in the case of
Poonam Vs. State of U.P. and others,
reported in 2016 (2) SCC 799, as also in
the case of Mithilesh Kumari Vs. State of
U.P. and others (Writ Petition No. 30422
(MS) of 2019, decided on 05.11.2019),
and Alok Kumar Vs. State of U.P. and
others (Writ Petition No. 4098 (MS),
decided on 12.07.2018), in support of his
640 INDIAN LAW REPORTS ALLAHABAD SERIES
contention that subsequent allottee has no
right to challenge his disengagement
consequent upon the revival of license of
fair price shop in favour of the original
allottee in pursuance of the order passed in
appeal or petition.

6. Submission of the petitioner's
counsel is that the petitioner is not a
subsequent allottee, as according to him, in
the village the units being more than four
thousand, one additional shop was created.
Two
shop
keepers
were
given
the
allotment. One the petitioner and the other
Rajesh Kumar. His submission is that the
allotment in favour of the petitioner was
with respect to the additional shop and not
with respect to the shop of the original
allottee Ram Bahal Verma and as such the
petitioner is not the subsequent allottee.

7. I have considered the submissions
advanced and perused the material placed
on record.

8. To deal with the preliminary
objection as also the rights of the petitioner
to run the fair price shop on the death of the
original allottee it is necessary to consider
if the petitioner is subsequent aloottee, i.e.,
allotment in place of the original allottee
consequent
upon
cancellation
of
his
allotment, and the petitioner's allotment
being subject to the proceedings pending
against cancellation.

9. From the submissions advanced as
also the perusal of Annexure No. 3 it is
clear that the petitioner was allotted the fair
price shop, Gram Panchayat Songaon, for
the first time, vide order dated 11.11.2016
passed by the Sub Divisional Magistrate,
Akbarpur, Ambedkar Nagar, which clearly
mentioned that the petitioner's allotment
was subject to the orders passed in appeal/
petition instituted in Court. In the writ
petition also the petitioner has himself
stated in para-24 that he was earlier given
the license during cancellation of license of
late Ram Bahal Verma. Paragraph-24 reads
as under:

"24. That if the new appointments
will made then both writ petitioners will
become
infructuous.
It
is
absolutely
suprising that when the claim of Mr. Vijai
Bahadur Verma has been rejected then the
petitioner become entitled to get the license
of fair price shop as he was earlier given
the license during cancellation of license of
Late Ram Bahal Verma. But in absolute
illegal
manner
&
for
extraneous
consideration the claim of petitioner was
rejected by the Opp. Party No. 4, which
deserves to be given out rightly otherwise
once the new license will be appointed then
this petition and earlier petition filed by the
petitioner will become infructuous."

10. Learned counsel for the petitioner
has tried to emphasize that even as per the
impugned order dated 12.02.2021, the
number of units in the Gram Sabha
exceeding 4000, two fair price shop
keepers, the petitioner and Rajesh Kumar
were appointed, but the Court finds from
reading of the order dated 12.02.2021 that
it mentions that on account of cancellation
of the allotment of the original allottee Ram
Bahal Verma against the vacancy caused,
considering the number of units being more
than 4000 two fair price shop keepers were
appointed, therefore, even if two fair price
shop keepers were appointed consequent
upon cancellation of license of the original
allotee, once the appeal of the original
allottee was allowed with direction to
restore his allotment, he had to be restored
his allotment as it was prior to its
cancellation
and
consequently
the
7 All. Manoj Kumar Verma Vs. State of U.P. & Ors.
641
allotments made in favour of the petitioner
as also Rajesh Kumar were cancelled vide
order dated 18.11.2017, Annexure No. 5.

11. In Poonam (supra), the Hon'ble
Supreme Court in the following paragraph
has held that it is the first allottee who
could have continued in law, if his license
would not have been cancelled. He was
entitled in law to persecute 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.
Paragraph-53 of the case of Poonam
(supra) reads as under:

"53. We have referred to the said
decision in Ramesh Hirachand case
[Ramesh
Hirachand
Kundanmal
v.
Municipal Corpn. of Greater Bombay,
(1992) 2 SCC 524] 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."

12. In view of the aforesaid, the
petitioner's status is that of a subsequent
allottee which also came to an end on
revival of the allotment of the original
allottee.

13. After the death of the original
allottee on 10.01.2021 the petitioner moved
a representation to allow him to run the fair
price shop again which has been rejected
vide impugned order dated 12.02.2021. The
petitioner's counsel could not show any
right of the petitioner to run the fair price
shop on the death of the original allottee.
Merely because, the application of son of
the deceased, original allottee, has been
rejected, the petitioner would not become
entitled to run the fair price shop of the
deceased, original allottee of his own. If
any vacancy is caused due to the death of
the original allottee, the allotment will have
to be made afresh, subject to the right of
the legal heirs of the deceased to get
allotment or to run the same fair price shop,
under the statutory provisions or the
government orders. The authorities may
appoint two fair price shop keepers
considering the number of units, in their
decision, for which the direction has also
been given in the order dated 12.02.2021
but on that count the petitioner cannot have
any right to claim to run the fair price shop
unless appointed with due process of law
following the procedure as laid down in the
relevant government orders.

14. In Mithilesh Kumari (supra) and
Alok Kumar (supra) as also in the case of
Smt. Jasoda Vs. State of U.P. and others
(Writ-C No. 30085 of 2018, decided on
28.05.2020), it has been held that the right of
the subsequent allottee is subject to the
decision in appeal filed by the original
642 INDIAN LAW REPORTS ALLAHABAD SERIES
licensee. It is thus settled in law that a
subsequent allottee has no right to continue
upon setting aside of the order of cancellation
of fair price shop of the original allottee. This
Court is further of the considered view that
the original allottee having continued till his
death, the erstwhile subsequent allottee
would have no right to claim to run the fair
price shop of the original allottee merely on
account of death of the original allottee.

15. As and when the process of
allotment of the fair price shop due to death
of the original allottee or/ and for an
additional fair price shop, if any, takes place,
it is open to the petitioner to participate in
such process as per law.

16. The present writ petition is devoid
of any merit and is hereby dismissed with the
observations made hereinabove.

17. Learned counsel for the petitioner at
this stage submits that the Writ Petition No.
817 (MS) of 2018 would be rendered
infructuous in view of this judgment. The
Writ Petition No. 817(MS) of 2018 has
already been dismised in non prosecution on
28.03.2019. It is open to the petitioner to
pursue his application for recall of the order
dated 28.03.2019 and if that is allowed and
that writ petition is restored the law will take
its own course.
----------
(2021)07ILR A642
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 13776 of 2021

Shiv Sagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satish Kumar Sharma

Counsel for the Respondents:
C.S.C.

Fair Price Shop License - Cancellation -
Interim Relief during pendency of appeal
-
irreparable
loss
-
Petitioner's
application for interim relief & stay of the
operation of the order cancelling the Fair
Price Shop License rejected by appellate
authority - Held - if during pendency of
the
Appeal
filed
by
the
petitioner
(original
allottee)
any
subsequent
allotment is made on account of nongrant of interim relief by the Appellate
Authority
&
the
cancellation
order
remains in operation, no perpetual right
would be created in subsequent allottee -
on the Appeal of the original allottee
being eventually allowed, he shall be
entitled to get restoration of his fair price
shop - original allottee shall not suffer
any irreparable loss and his Appeal would
not be rendered infructuous.

Dismissed. (E-4)

List of Cases cited:

1. Mool Chand Yadav & anr. Vs Raza Buland
Sugar Company (1982) 3 SCC 484

2. Sukhpal Singh Vs St. of U.P. & ors. Special
Appeal No.669/2018

3. Poonam Vs St. of U.P. & ors. 2016 (2) SCC
799

4. Ram Swarup & ors. Vs S.N. Maira & ors. 1999
1 SCC 738

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1) Heard the learned counsel for the
petitioner.