The subsequent allottee has the right to hold the shop only if the original licensee's license is cancelled. Procedural compliance and consideration of documentary evidence over oral statements are crucial in such cases.

JUDGMENT :

1. Heard Mr. Abhishek Singh, Advocate holding brief of Mr. Birendra Pratap Singh, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 to 5 and Mr. Sudhir Kumar Singh, learned counsel for respondent no.6.

2. The petitioner, who is a fair price shop licensee, has approached this Court challenging the order dated 03.10.2019 passed by respondent no.3, whereby her appeal is rejected, and order dated 31.01.2017 passed by respondent no.4 by which license of her fair price shop was cancelled.

3. Learned counsel for respondent no.6 claims that respondent no.6 was granted license after the license of petitioner was cancelled. He submits that he has a right to oppose the present writ petition as now he is holding a license for the area concerned. He further submits that petitioner could not have been granted the license as she is not competent to hold license and, thus, raised a preliminary objection.

4. Opposing the same, learned counsel for petitioner submits that respondent no.6 was granted permission only as an alternative arrangement, till the dispute with regard to license of the petitioner is decided. Reference is made to the letter dated 02.06.2016 of the Sub-Divisional Magistrate, Tehsil Mahsi whereby permission was granted to respondent No.6. Perusal of the said letter shows that the permission to respondent No.6 was granted in reference to Government Order dated 26.11.2016 in the public interest as an alternative arrangement which would be subject to decision of the appeal and in case the appellate authority decides the matter in favour of the petitioner, no claim of respondent No.6 would be accepted.

5. A bare perusal of the letter dated 02.06.2016 clearly demonstrates that respondent No.6 was granted permission to distribute the ration in the area concerned only as an alternative arrangement to petitioner whose license was in dispute at that time. The said letter itself clarifies that in case the claim of petitioner is accepted, the new allottee, respondent No.6, would not have any claim whatsoever. Therefore, from the reading of the said letter itself it is clear that respondent No.6 was granted permission to distribute ration only till the matter with regard to petitioner is decided. Learned counsel for respondent No.6 has referred to following judgments in support of his case:-

(i) Writ Petition No.24684 (M/S) of 2021; ‘Smt. Gudiya Devi Vs. State of U.P. Thru. Principal Secretary Food and Civil Supplies Lko. & Ors, dated 27.10.2021;

(ii) Civil Appeal No.9363-9364 of 2014 Sumitra Devi Vs. State of U.P.; dated 08.10.2014

6. In the judgment passed in case of Sumitra Devi (supra), it is noted that, appellant in the case was a subsequent allottee as he was granted license on 20.02.2008. From the said judgment it is not clear as to whether the said license was a temporary license or an absolute. From the reading of the judgment it appears that the license was an absolute license granted in favour of the subsequent allottee and the license was not subject to the decision of the earlier allottee. Therefore, the facts of the said case, being different from the facts of the present case, are of no help to respondent No.6. Further, the Supreme Court was moved by the fact that subsequent allottee has filed an application for impleadment and without deciding the said impleadment application the High Court had finally decided the writ petition. In the said background the matter was remanded back. The Supreme Court while remanding the matter also stated “we make it clear that on merits of the case, we have expressed no opinion.” Thus, the facts of the said case are of no help to respondent No.6.

7. So far as the judgment passed in case of Smt. Gudiya Devi (supra) is concerned, the same is absolutely silent with regard to rights of subsequent allottee. The said issue was not even raised before the Court. Since, no law is settled in case of Smt. Gudiya Devi (supra), the same is no help to respondent No.6.

8.