High Court
Case Details
Court No. - 18 Case :- WRIT - C No. - 20928 of 2022 Petitioner :- Neelam Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bal Krishna Pandey Counsel for Respondent :- C.S.C.,Shiv Raj Singh Hon'ble Ajit Kumar,J.
Legal Reasoning
Heard learned counsel for the parties. By means of this petition filed under Article 226 of the Constitution, petitioner has challenged the order of appellate authority, whereby, the appeal of the original fair price shop licensee namely the respondent no. 4 has been allowed and the fair price shop license has been restored.
Legal Reasoning
Sri Shiv Raj Singh, learned counsel for the respondent has argued that the petitioner has no locus to challenge the order of the appellate authority as he was not the party to the appeal, inasmuch as, the argument is that every cancellation of license is subject to the order to be passed in appeal and in the meanwhile during the pendency of appeal, if any fresh allotment has been made that shall always be subject to the final order to be passed in appeal. Petitioner being a subsequent allottee, therefore, has no locus to challenge the order passed by appellate authority restoring the fair price shop license of the petitioner and thereby the agreement entered between the parties. Learned counsel for the respondents have also relied upon the judgment of Supreme Court in the case of Poonam v. State of U.P. and others, (2016) 2 SCC 779, wherein vide paragraph nos. 14, 15, 16, 17 & 42 the Court has held thus: 14. First, it is necessary to understand about the concept of necessary and proper party. A Four-judge Bench in Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 has observed thus:- "7. ....it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in this proceeding. " 15. In Vijay Kumar Kaul and others v. Union of India and others, (2012) 7 SCC 610 the court referred to the said decision and has opined thus:- "36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant. 37. In this context we may refer with profit to the decision in Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 wherein it has been held thus: (SCC p. 151, para 56) "56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority." 38. In Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204 this Court while dealing with the concept of necessary parties and the effect of non-impleadment of such a party in the matter when the selection process is assailed observed thus: (SCC pp. 207-08, paras 9-10) "9. … in Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1965 SC 786 wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'CPC') provides that non-joinder of necessary party be fatal.