Case: Poonam Vs. State Of U.P

2. The facts that formed the bedrock of the writ petition are that a fair price shop being shop no. 2 was run by the 5th respondent in Gram Sabha Ardauna, Tehsil Sadar, Block Ratanpura, District Mau, which was allotted to him by allotment order dated 11.5.2001 and while he was continuing, on various complaints being made against him pertaining to non-distribution of essential commodities, Sub-Divisional Magistrate, Sadar, District Mau ordered an enquiry and after obtaining the report, suspended his licence and called for an explanation from him vide order dated 30.5.2008. As the factual matrix would depict vide order dated 3.6.2008 the shop of respondent no.5 was attached to another shop being run by one Bhupendra Singh and the respondent no.5 handed over the charge of shop on 19.7.2008. On the said date the final enquiry report was placed before the Deputy District Magistrate, Sadar, District Mau and the report reflected that there was improper distribution of essential commodities in violation of instructions and accordingly the competent authority by its order dated 23.7.2008 cancelled the allotment of the respondent no.53. Being dissatisfied with the order of cancellation, the 5th Respondent preferred an appeal before the Commissioner, Azamgarh assailing the order dated 23.7.2008, along with an application for stay of the cancellation of allotment, but the appellate authority declined to pass any interim protective order. Eventually, the appeal preferred by the appellant was allowed. May it be stated that the appellant herein had got herself impleaded in the appeal on the ground that she had been allotted the shop no.2 after cancellation of the allotment along with the licence granted in favour of the original allottee, the appellant therein4. The appellate authority after hearing the appellant and the impleaded party and upon perusal of the file, opined that the entire proceeding against the original allottee was initiated on the basis of the oral statements pertaining to the allegations made by some BPL card holders that the shopkeeper had told them that their cards had been cancelled; and there was no enquiry and investigation by the Deputy District Magistrate from the official documents as regards the cancellation of original ration cards of the BPL card holders; that the allottee was not provided the copy of the investigation report and hence, he was deprived of opportunity to submit his clarification and on the whole, there were serious procedural lapses; and that on a careful scrutiny of number of aspects, it was perceptible that the investigation carried out by the Block Development Officer was absolutely faulty. Being of this view, the appellate authority by order dated 2.3.2012, allowed the appeal of the appellant, restored the allotment and cancelled the allotment of the subsequent allottee

Reasoning: 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 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 (supra) makes it absolutely clear. We have explained the authority in J.S. Yadavs case (supra) 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 law49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 )would be fruitful. The two-Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the lawfully married wife of the third respondent who had entered context and admitted the claim. An application for impleadment was sought by the respondent nos.1 and 2 on the ground that they were respectively the wife and son of the third respondent and they were interested in denying the appellants status as wife and the children as the legitimate children of the third respondent. The trial court had allowed the application and the said order was confirmed by the High Court in its revisional jurisdiction. This Court referred to the authority in Razia Begum vs. Anwar Begum (AIR 1958 SC 886 )and came to hold that there is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held :-The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rightsIt is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered inAmon v. Raphael Tuck & Sons Ltd. (1954) 1 All ER 273),S.A. v. Bank of England (1950) 2 All ER 605,, that their true test lies not so much in an analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rightsEventually, the Court unsettled the order passed by the trial court as well as by the High Court