# Rajesh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-21
- **Case number:** Writ-C No. 4483 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-v-state-of-u-p-ors-51988
- **Pages:** 7

## Headnote

Civil Law -appeal challenging the order of
cancellation of fair price shop allowedpetitioner is the subsequent allottee of the
fair price shop-subject to the final outcome
of any case pending in any court of law-no
impleadment application was filed by the
petitioner-validity of the cancellation order
can very well be decided even if in absence
of a person who was allotted the shop
subsequent cancellation of the fair price
shop agreement of another subsequent
allottee-petitioner was not a necessary
party- petition dismissed. (Paras 17 to 19)

HELD:
It is relevant to note that in the present case,
after cancellation of the fair price shop license of
the respondent no. 4, the shop was not allotted
to the petitioner, rather it was allotted to one
Dharamraj. After cancellation of the Fair Price
Shop Agreement of Dharamraj, the shop in
question was allotted to the petitioner wherein it
was specifically mentioned that the appointment
of the petitioner will be subject to the final orders
to be passed in any case pending before the
Competent Court. (Para 18)

The appeal was filed challenging the legality
of the cancellation of the order dated
13.04.2016 and the validity of the cancellation
order dated 13.04.2016 can very well be
decided even if in absence of a person who
was allotted the shop subsequent cancellation
of the fair price shop agreement of another
subsequent allottee. It was open to the
petitioner to have appeared in the appeal and
sought a right of hearing, but he did not do
so. In such circumstances the impugned order
dated 16.04.2024 passed by the Additional
Commissioner
(Food),
Ayodhya
Division,
Ayodhya cannot be held to be bad in law for
want of impleadment of the petitioner as a
necessary party to the appeal. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

## Text

5 All. Rajesh Vs. State of U.P. & Ors.
1571
hereinabove, it is found that there is no
illegality in the impugned orders dated
28.03.2024 passed by the respondent no. 1,
impugned order dated 18.12.2014 passed by
the respondent no. 2, impugned order dated
13.10.2014 passed by the respondent no. 5,
impugned order dated 11.03.2014 passed by
the respondent no. 3 and judgment and order
dated 21.01.2013 passed by the respondent
no. 5, thus, no interference is called for.

35. Writ petition is devoid of merits
hence, dismissed with a cost of Rs. 50,000/-
(Rs. Fifty Thousand), in view of their
conduct which resulted in misuse of process
of law. The amount of cost is to be deposited
before the Senior Registrar of this Court
within a period of three months from today.
Failing which, the Senior Registrar is
directed to require the authorities to recover
the same as arrears of land revenue.
----------
(2024) 5 ILRA 1571
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 4483 of 2024

Rajesh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Veerendra Kumar Tiwari, Rakesh Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Mithila Bakhsh Tiwari

Civil Law -appeal challenging the order of
cancellation of fair price shop allowedpetitioner is the subsequent allottee of the
fair price shop-subject to the final outcome
of any case pending in any court of law-no
impleadment application was filed by the
petitioner-validity of the cancellation order
can very well be decided even if in absence
of a person who was allotted the shop
subsequent cancellation of the fair price
shop agreement of another subsequent
allottee-petitioner was not a necessary
party- petition dismissed. (Paras 17 to 19)

HELD:
It is relevant to note that in the present case,
after cancellation of the fair price shop license of
the respondent no. 4, the shop was not allotted
to the petitioner, rather it was allotted to one
Dharamraj. After cancellation of the Fair Price
Shop Agreement of Dharamraj, the shop in
question was allotted to the petitioner wherein it
was specifically mentioned that the appointment
of the petitioner will be subject to the final orders
to be passed in any case pending before the
Competent Court. (Para 18)

The appeal was filed challenging the legality
of the cancellation of the order dated
13.04.2016 and the validity of the cancellation
order dated 13.04.2016 can very well be
decided even if in absence of a person who
was allotted the shop subsequent cancellation
of the fair price shop agreement of another
subsequent allottee. It was open to the
petitioner to have appeared in the appeal and
sought a right of hearing, but he did not do
so. In such circumstances the impugned order
dated 16.04.2024 passed by the Additional
Commissioner
(Food),
Ayodhya
Division,
Ayodhya cannot be held to be bad in law for
want of impleadment of the petitioner as a
necessary party to the appeal. (Para 19)

Petition dismissed. (E-14)

List of Cases cited:

1. Ram Kumar Vs St. of U.P. & ors.: 2022 SCC
OnLine SC 1312 = AIR 2022 SC 4705

2. Mumbai International Airport (P) Ltd. v.
Regency Convention Centre & Hotels (P) Ltd.,
(2010) 7 SCC 417

3. Urmila Devi Vs St. of U.P., 2015 SCC OnLine All
3910
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Poonam Vs St. of U.P.: (2016) 2 SCC 779

5. Sumitra Devi Vs St. of U.P. & ors. (Civil Appeal
Nos. 9363-9364 of 2014) decided on 08.10.2014

6. Pawan Chaubey Vs The St. of U. P. & ors.., Civil
Appeal No. 3668 of 2022 (Arising out of SLP (C)
No. 15501 of 2021) decided On: 06.05.2022

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri R.K. Srivastava,
learned counsel for the petitioner, Shri
Pratyush Tripathi, learned Additional Chief
Standing Counsel and Shri M.B. Tiwari,
learned counsel for the respondent No.4.

2. By means of the present writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
challenged validity of an order dated
16.04.2024
passed
by
Additional
Commissioner (Food), Ayodhya Division,
Ayodhya, whereby Appeal No.2400 of 2017
filed by the respondent No.4 under Clause
13(3) of U.P. Essential Commodities
(Regulation of Sale and Distribution
Control) Order 2016 has been allowed and
an order dated 13.04.2013 passed by the
SDM, Haidergarh, Barabanki cancelling the
Fair
Price
Shop
Agreement
of
the
respondent No.4 has been set-aside.

3. The order dated 16.04.2024 has
been challenged on the ground that after
cancellation of the Fair Price Shop Agreement
of the respondent No.4 on 13.04.2016, the Fair
Price Shop in question was allotted to the
petitioner by means of an order dated
03.09.2022 passed by the SDM, Haidergarh,
Barabanki, yet the appeal was allowed without
impleading the petitioner and without giving
him an opportunity of hearing.

4. After cancellation of the Fair
Price Shop Agreement of the respondent
No.4 by means of an order dated
13.04.2016, the Fair Price Shop was allotted
to one Dharamraj. The Fair Price Shop
Agreement of Dharamraj was cancelled by
means of an order dated 30.05.2022 passed
by
SDM,
Haidergarh,
Barabanki.
Thereafter, the Fair Price Shop in question
was allotted to the petitioner by means of an
order dated 03.09.2022 wherein it was
specifically mentioned that the appointment
of the petitioner will be subject to the final
orders to be passed in any case pending
before the Competent Court.

5. Appeal No.2400 of 2017 filed by
the respondent No.4 under Clause 13(3) of
the Control Order was pending on the date
of allotment of Fair Price Shop in question
to the petitioner i.e. 03.09.2022.

6. The petitioner did not file any
application for impleadment in pending
Appeal No.2400 of 2017. After the appeal
was allowed on 16.04.2024, the petitioner
has come forward to challenge the aforesaid
order passed by the Appellate Authority on
the ground that the appeal has been decided
without giving an opportunity of hearing to
the petitioner.

7. Placing reliance on the decision
of Supreme Court in Ram Kumar Vs. State
of U.P. and others: 2022 SCC OnLine SC
1312 = AIR 2022 SC 4705, the learned
Counsel for the petitioner has submitted that
the petitioner was a necessary party to the
appeal filed against the cancellation order
and the order passed without hearing the
petitioner is unsustainable in law.

8. Per contra, Shri M.B. Tiwari,
learned counsel for the respondent No.4 has
submitted that the Fair Price Shop License
of respondent No.4 was cancelled way back
on 13.04.2016. He had filed an appeal
5 All. Rajesh Vs. State of U.P. & Ors.
1573
against cancellation of the order in the year
2017 when the Fair Price Shop in question
had not been allotted to the petitioner and,
therefore, he was neither a necessary nor a
proper party to the appeal and accordingly,
the appeal was filed without impleading the
petitioner. After cancellation of the license
of the respondent No.4, the Fair Price Shop
in question was allotted to one Dharamraj,
who continued to run the shop till his license
was cancelled by means of an order dated
30.05.2022. After cancellation of Fair Price
Shop license of Dharamraj, the Fair Price
Shop in question was allotted to the
petitioner by means of an order dated
03.09.2022, while the appeal of the
respondent No.4 was already pending for the
past
about
five
years.
In
these
circumstances, the petitioner was not a
necessary party to the appeal.

9. In Ram Kumar (Supra) the fair
price shop granted to Respondent No. 9 was
cancelled. While dismissing the appeal, the
Appellate Authority observed in its order
dated 20.07.2018 that "At present, new dealer
Sh. Ram Kumar Singh s/o Chhote Singh has
been approved as Fair Price Dealer, village
Anta Tehsil Rasoolabad, Kanpur Dehat vide
District Magistrate's order dated 15.05.2018.",
which shows that the respondent No. 9 was
very well aware that during the pendency of
the proceedings, the appellant was appointed
as a Fair Price Dealer. Yet the respondent No.
9 pleaded in the writ petition that: -

"33.
That
it
is
also
noteworthy to mention here that during the
pendency of the Fair Price Shop, no third
party allotment was made and as per the
direction of this Hon'ble Court, the shop of
the petitioner was attached to another Fair
Price Shop Holder."
The same was reiterated in the Grounds also.
The Hon'ble Supreme Court held that: -
27. It is thus clear that
respondent No. 9 has not only suppressed
the fact about the subsequent allotment of
the fair price shop to the appellant herein
but has also tried to mislead the High Court
that the fair price shop of respondent No. 9
(the writ petitioner before the High Court)
was attached to another fair price shop
holder.
28. This Court, in the case
of S.P. Chengalvaraya Naidu (Dead) By
LRs. v. Jagannath (Dead) by LRs (1994) 1
SCC 1 has held that non-disclosure of the
relevant and material documents with a
view to obtain an undue advantage would
amount to fraud. It has been held that the
judgment or decree obtained by fraud is to
be treated as a nullity. We find that
respondent No. 9 has not only suppressed a
material fact but has also tried to mislead
the High Court. On this ground also, the
present appeal deserves to be allowed."

11. In Ram Kumar (Supra), the
Hon'ble Supreme Court referred to an
earlier decision in the case of Mumbai
International Airport (P) Ltd. v. Regency
Convention Centre & Hotels (P) Ltd.,
(2010) 7 SCC 417, in which it was held that:
-

"13. The general rule in
regard to impleadment of parties is that the
plaintiff in a suit, being dominus litis, may
choose the persons against whom he wishes
to litigate and cannot be compelled to sue a
person against whom he does not seek any
relief. Consequently, a person who is not a
party has no right to be impleaded against
the wishes of the plaintiff. But this general
rule is subject to the provisions of Order 1
Rule 10(2) of the Code of Civil Procedure
("the Code", for short), which provides for
impleadment of proper or necessary parties.
The said sub-rule is extracted below:
1574 INDIAN LAW REPORTS ALLAHABAD SERIES

"10. (2) Court may strike out or
add parties.-The court may at any stage of
the proceedings, either upon or without the
application of either party, and on such
terms as may appear to the court to be just,
order that the name of any party improperly
joined, whether as plaintiff or defendant, be
struck out, and that the name of any person
who ought to have been joined, whether as
plaintiff or defendant, or whose presence
before the court may be necessary in order
to enable the court effectually and
completely to adjudicate upon and settle all
the questions involved in the suit, be added."
* * *

15. A "necessary party" is a
person who ought to have been joined as a
party and in whose absence no effective
decree could be passed at all by the court. If
a "necessary party" is not impleaded, the
suit itself is liable to be dismissed. A "proper
party" is a party who, though not a
necessary party, is a person whose presence
would enable the court to completely,
effectively and adequately adjudicate upon
all matters in dispute in the suit, though he
need not be a person in favour of or against
whom the decree is to be made. If a person
is not found to be a proper or necessary
party, the court has no jurisdiction to
implead him, against the wishes of the
plaintiff. The fact that a person is likely to
secure a right/interest in a suit property,
after the suit is decided against the plaintiff,
will not make such person a necessary party
or a proper party to the suit for specific
performance."

12. The Hon'ble Supreme Court also
referred to a Full Bench decision of this Court
in Urmila Devi v. State of U.P., 2015 SCC
OnLine All 3910, in which it was held that: -

"24.
...
the
authorization
granted to a person to conduct a fair price
shop only constitutes such a person as an
agent of the State Government under
Clause 4(2) of the Control Order. If the
authorization is suspended or cancelled, a
remedy of an appeal is provided in Clause
28(3). During the pendency of an appeal,
a provision has been made in Clause
28(5), for seeking a direction that the
order under appeal shall not take effect
until the appeal is disposed of. If the order
of suspension or cancellation has not been
stayed pending the disposal of the appeal,
the cancellation or suspension, as the case
may be, shall continue to remain in effect.
The mere filing or pendency of an appeal
or an application for stay does not result
in a deemed or automatic stay of the order
of suspension or cancellation. There is no
such deeming provision. In such a
situation, the State is at liberty to make
necessary administrative arrangements to
ensure
the
proper
distribution
of
scheduled commodities based on the
public interest in the proper functioning of
the Public Distribution Scheme and on an
assessment
of
local
needs
and
requirements that would sub-serve the
interest of the beneficiaries.

13. The Hon'ble Supreme Court also
referred to an earlier decision in Poonam
versus State of U.P.: (2016) 2 SCC 779,
wherein the fair price shop license of
respondent no. 5 was cancelled and it was
allotted to the appellant. The respondent no.
5 filed an appeal, in which the appellant had
got herself impleaded on the ground that she
had been allotted the shop after cancellation
of the license granted in favour of the
original allottee. After hearing the appellant
and the impleaded party, the appeal was
allowed. The subsequent allottee filed a Writ
Petition challenging the order passed in
appeal. The High Court dismissed the Writ
Petition holding that the subsequent allottee
5 All. Rajesh Vs. State of U.P. & Ors.
1575
had no right to continue the litigation for she
had no independent right. The Hon'ble
Supreme Court held that: -

"9. Be it noted, before the
appellate authority, the appellant had got
herself impleaded after coming to know that
the fifth respondent had preferred an appeal
challenging the order of cancellation, and
the appellate authority had considered the
submissions of the original allottee as well
as the present appellant. The thrust of the
matter is whether the appellant can be
regarded as a person who is a necessary
party to the lis in such a situation and is
entitled under law to advance the argument
that the order passed by the appellate forum
being legally unsustainable, the writ court
was obliged to adjudicate the controversy
on merits.
* * *

13. Though the narration of facts
is reflective of a different contour of
controversy i.e. allotment and grant of
licence for a fair price shop, the seminal
issue, as noted hereinabove, would hinge on
the answer to the question pertaining to
right to assail the order passed in appeal.
The appellant was not impleaded as a party
in the appeal but she herself got impleaded.
Assuming the appellate authority would
have decided the appeal in favour of the
original allottee in her absence, could the
present appellant, a subsequent allottee in
respect of the same shop, have been allowed
in law to make a grievance by invoking the
jurisdiction of any statutory forum or for
that matter the High Court under Article 227
of the Constitution. In essence, whether she
is a necessary party to the litigation and
entitled to contest the legal vulnerability of
the order of cancellation or in any manner
advance the plea that her allotment would
not be affected despite the factum that the
order of cancellation of the earlier allottee
has been quashed. To appreciate the said
issue we will dwell upon certain authorities
though they may pertain to different
jurisprudence.
* * *

49. 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."

(Emphasis added)

14. The Hon'ble Supreme Court also
referred to the decision in the case of
Sumitra Devi versus State of U.P. and
Ors. (Civil Appeal Nos. 9363-9364 of 2014)
decided
on
08.10.2014,
wherein
the
Appellant being the subsequent allottee filed
an application for impleadment in the writ
petition on 17.10.2008. That application was
neither entertained nor allowed. The
Hon'ble Supreme Court held that the High
Court should have heard the Appellant
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
before restoring the licence of Respondent
No. 6 as the Appellant was the subsequent
allottee and his rights were affected by the
restoration of licence of Respondent No. 6.

15. Another decision relied in Ram
Kumar (Supra) was of Pawan Chaubey
Vs. The State of Uttar Pradesh and Ors.,
Civil Appeal No. 3668 of 2022 (Arising out
of SLP (C) No. 15501 of 2021) decided On:
06.05.2022, wherein it was held that: -

"9. Even if a subsequent allottee
does not have an independent right, he/she
still has a right to be heard and to make
submissions
defending
the
order
of
cancellation.

10. It is true that the order of
appointment of the Appellant reads that the
order is subject to the outcome of the
proceedings pending in court. This does not
disqualify the Appellant from appearing and
contesting the proceedings by trying to show
that the order of cancellation had correctly
been passed against the Respondent No. 4."

16. It is settled law that a judgment is
to be read as a whole, in light of the factual
background and the issues involved in the
case and merely a portion of the judgment
cannot be taken out and relied upon as a
binding precedent, without looking into the
entire judgment. In para 22 of the judgment
in Ram Kumar(supra), the Hon'ble
Supreme Court has held that in the
background mentioned in the aforesaid
judgment, the appellant was a necessary
party to the proceedings before the Court but
the background leading to the aforesaid
conclusion, as apparent from the earlier
parts of the judgment, indicates that the
Court has merely held that even if a
subsequent allottee does not have an
independent right, he/she still has a right to
be heard and to make submissions defending
the order of cancellation.

17. The legal position which can be
culled out from a cumulative reading of the
aforesaid judgments is as follows: -

17.1 As per the Full Bench
decision in Urmila Devi (Supra), the
appointment of a subsequent Fair Price Shop
allottee made during pendency of an appeal
filed by the previous allottee against
cancellation of his agreement, is merely an
administrative arrangement to ensure proper
distribution of scheduled commodities
based on the public interest in the proper
functioning of the Public Distribution
Scheme and on an assessment of local needs
and requirements that would sub-serve the
interest of the beneficiaries. It does not
defeat the rights of the previous allottee,
whose appeal is pending.

17.2 As per Poonam (Supra) 2
SCC 779, although the subsequent alotttee
got herself impleaded in an appeal filed
against cancellation of previous allotted, she
was neither a necessary nor a proper party.
The mere fact that the appellate authority
permitted her to participate, does not change
the situation and it does not confer any legal
status on her. She cannot assail the appellate
order by filing a writ petition because she is
not a necessary party. She is a third party to
the lis in this context.

17.3 As per Sumitra Devi (Supra)
if a subsequent allottee filed an application
for impleadment he should have been heard
before restoring the licence of as his rights
were affected by the restoration of licence.

17.4 As per Pawan Chaubey
(Supra) a subsequent allottee does not have
an independent right, but he is not
disqualified from appearing and contesting
the proceedings by trying to show that the
5 All. Dinesh Verma & Anr. Vs. State of U.P. & Anr.
1577
order of cancellation had correctly been
passed against the Respondent No. 4."

18. It is relevant to note that in the
present case, after cancellation of the fair
price shop license of the respondent no. 4,
the shop was not allotted to the petitioner,
rather it was allotted to one Dharamraj.
After cancellation of the Fair Price Shop
Agreement of Dharamraj, the shop in
question was allotted to the petitioner
wherein it was specifically mentioned that
the appointment of the petitioner will be
subject to the final orders to be passed in any
case pending before the Competent Court.

19. The appeal was filed challenging
the legality of the cancellation of the order
dated 13.04.2016 and the validity of the
cancellation order dated 13.04.2016 can
very well be decided even if in absence of a
person
who
was
allotted
the
shop
subsequent cancellation of the fair price
shop agreement of another subsequent
allottee. It was open to the petitioner to have
appeared in the appeal and sought a right of
hearing, but he did not do so. In such
circumstances the impugned order dated
16.04.2024 passed by the Additional
Commissioner (Food), Ayodhya Division,
Ayodhya cannot be held to be bad in law for
want of impleadment of the petitioner as a
necessary party to the appeal.

20. In view of the above discussion, I
do not find any illegality in the order dated
16.04.2024 passed by the Additional
Commissioner (Food), Ayodhya Division,
Ayodhya and hence, the writ petition is
hereby dismissed.
----------
(2024) 5 ILRA 1577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-C No. 3000053 of 2005

Dinesh Verma & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Mohd. Arif Khan, Mohammad Aslam Khan

Counsel for the Respondents:
C.S.C.

Civil Law -validity of notice- Section 10(2)
of the U.P. Imposition of Ceiling on Land
Holdings Act, 1960- redetermination of
surplus land-challenged-Sections 4, 5, 12
and 13 of the Act, 1960- U. P. Imposition of
Ceiling (Amendment) Act of 1972, being
U.P. Act 18 of 1973-Sections 5 and 19-U.P.
Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974 (U.P. Act 2 of
1975)- U. P. Imposition of Ceiling on Land
Holdings (Amendment) Act, 1976 (U.P. Act
20 of 1976)-Sections 31 and 38-B-The Act
permits redetermination of surplus land-
only after a trial of an issue within two
years from the date of a Notification under
Section 14(4) for rectifying any mistake, as
provided in 13-A, or in circumstances
mentioned in Section 29 (a) and (b)-
redetermination of surplus land only within
a period of two years from the date of
enforcement of U.P. Act No. 20 of 1976,
i.e.10.10.1975-no
circumstances
exist
justifying the redetermination of surplus
land
of
the
petitioners-
impugned
proceedings
quashed-Petition
allowed.
(Paras 27 to 33 and 35)

HELD:
Since Section 38-B of the Act carves out an
exception to the general principle of Res Judicata,
the provisions of Section 38-B have to be
interpreted strictly, keeping in view the other
provisions contained in the Principal Act as also
U.P. Act No. 20 of 1976, through which Section
38-B was inserted. (Para 27)