# Shiv Sagar v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-28
- **Case number:** Misc. Single No. 13776 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sagar-v-state-of-u-p-ors-47244
- **Pages:** 4

## Headnote

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:

## Text

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.
7 All. Shiv Sagar Vs. State of U.P. & Ors.
643

(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
644 INDIAN LAW REPORTS ALLAHABAD SERIES
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
7 All. Matsya Jeevi Sahkari Samiti Ltd. Vs. State of U.P. & Ors.
645
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.
----------
(2021)07ILR A645
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Misc. Bench No. 13838 of 2021

Matsya Jeevi Sahkari Samiti Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ramesh Kumar Srivastava, Gufran Siddiqui

Counsel for the Respondents:
C.S.C.

U.P. Revenue Code Rules, 2016 - Lease of
Tanks, Rule 57 - Appeal, Rule 59 - appeal
prescribed is only against the grant of
lease - "person aggrieved thereby" in Rule
59 refers to a person aggrieved by grant
of lease - Cancellation of fishery lease
under Rule 57 (14) - No appeal lies
against an order of cancellation of
lease (Para 5)

Dismissed. (E-4)

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

1.

Heard
Sri
Ramesh
Kumar
Srivastava,
learned
counsel
for
the
petitioner and Sri Manjeev Shukla, learned
Additional Chief Standing Counsel for the
State.

2. By means of this writ petition
under Article 226 of the Constitution of
India, the petitioner is challenging an order
of Sub Divisional Magistrate, Sandila,
District Hardoi dated 25.01.2021, by which
the lease granted to the petitioner for
exercising fishery rights over a pond on
Gata No. 614ka, 611Ka and 619Gha on
14.06.2016 for five years has been
cancelled on the ground inter alia that the
petitioner has sublet the pond to villagers.
Secondly, it had been given possession of
the pond earlier, thirdly the agreement was
not got executed by the petitioner, fourthly,
the lease consideration had not been
deposited by the petitioner for the past
three years.

3. The petitioner's counsel says that
he was never given possession of the pond,
whereas the impugned order as also the
report at page 66 says that it was given,
therefore, this is a disputed question of fact.

4. Considering the fact that it is a
dispute arising out of a contract between
the petitioner and opposite parties and it is
not possible for the writ court under Article