JUDGMENT :

1. Heard, learned counsels for the parties and perused the material on records.

2. By means of present writ petition, petitioner is seeking for quashing of the order dated 26-09-2022 passed by the respondent No-2, Deputy Commissioner (Food) Basti Region, Basti in case No. 285 of 2022 under Rule 13 (1) of UP Essential Commodities (Regulation at Sale and Distribution) Rules 2013, allowing the appeal filed by respondent No. 5. Further prayer has been made by petitioner for mandamus directing the respondents not to interefere in peaceful functioning of the petitioner as Fair Price Shop Dealer in Gram Panchayat Bhotaha, Block Pauli, Tehsil Dhankata District Sant Kabir Nagar.

3. Learned counsel for the petitioner submits that after cancellation of fair price shop licence of respondent No. 5, by the respondent No.3- Sub Divisional Magistrate, Tehsil Dhankata District Sant Kabir Nagar on 9-6-1022, the due process as prescribed under the Guidelines and Government Orders issued in this regard, was followed and the proposal for selection of petitioner as fair price shop dealer at village in question has been recommended by the Block Development Officer before the respondent no.3. By order dated 6-8-2022 passed by the respondent No -3, the licence of fair price shop at village in question was granted in favour of the petitioner and at present the petitioner is functioning as fair price shop dealer without any complaint whatsoever.

4. Learned counsel for petitioner further submits that by the impugned order dated 26-9-2022, respondent no.2 has wholly illegally and in arbitrary manner, allowed the appeal filed by the respondent no.5 against the cancellation of his fair price shop licence. He further submits that before passing the order dated 26-9-2022, no opportunity of hearing has been given to the petitioner inspite of fact that petitioner was selected as fair price shop dealer after the due process. Counsel for the petitioner further submitted that the petitioner being a duly selected fair price shop dealer is the necessary party before the respondent No-2 in appellate proceedings, but without considering the same impugard order has been passed without hearing the petitioner. The counsel for the petitioner further submits that without impleading the petitioner as party before the appellate court, the decision in favour of respondent no.5 is wholly illegal and arbitrary.

5. Lastly it was contended by the counsel for petitioner that the impugned order dated 26-9-2022 was passed by violating the principles of natural justice. The respondent no.5 was very well aware regarding the allotment of fair price shop in favour of petitioner, during the pendency of the appeal, but the same has not been disclosed.

6. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgements passed by the Supreme Court in the cases of Ram kumar Vs. State of U.P. & others reported in 2022 (11) ADJ 229 (S.C.), decided on 28-9-2022; Pawan Choubey Vs. State of U.P. & others in Civil Appeal No 3668 of 2022 decided on 6-5-2022 and Sumitra Devi Vs State of UP & others in Special leave to Appeal (C) Nos. 37283-37284 of 2012 decided on 8-10-2014, and submitted that the subsequent allottee is the necessary party in the proceedings, as the orders passed in favour of original allottee adversly affects the interest of subsequent allottee.

7. Per contra, the learned counsel for respondents No.5 and learned Standing Counsel Submits that after restoration of fair price shop license in favour of respondents No.5 by the respondent No. 2, the petitioner being a subsequent allottee have no right to avail any remedy against the appellate order dated 26-9-2022 passed by the respondent no.2. Counsel for the respondent no. 5 further Submits that the petitioner being a subsequent allottee is not a necessary party and the respondent no.2 have not committed error while passing the order dated 26-9-2022.

8. In support of his submission learned coun