Allahabad High Court
M/S Prince Filling Station vs Union Government Of India And 5 Others on 17 December, 2020
Bench: Surya Prakash Kesarwani, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 5 Case :- WRIT - C No. - 22409 of 2020 Petitioner :- M/S Prince Filling Station Respondent :- Union Government Of India And 5 Others Counsel for Petitioner :- Awadhesh Kumar Singh,Abhai Kumar Singh Counsel for Respondent :- A.S.G.I.,Anand Tiwari,Anand Tiwari,C.S.C.,Vikas Budhwar Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent no. 4 and Sri Yash Padia holding brief of Sri Anand Tiwari, learned counsel for the respondent nos. 1, 2 and 3.
2. The petitioner having a retail outlet dealership of MS/HSD, awarded by the Bharat Petroleum Corporation Limited, has filed the present writ petition principally seeking to raise a grievance with regard to issuance of a letter of intent (LOI) dated 15.06.2019 and Addendum to LOI dated 26.8.2020 whereunder it is proposed to offer to the respondent no. 6 a retail outlet dealership of Bharat Petroleum Corporation Ltd. pursuant to an advertisement dated 25.11.2018, issued for the purpose.
3. In paragraph eight of the writ petition, the petitioner has stated as under :-
"8. That the petitioner has also been awarded outlet dealership of MS/HSD by Bharat Petroleum Limited under CC category and the proposed outlet is only 800 meter away from the side of the petitioner's outlet and in this way, sale of Bharat Petroleum Limited shall be badly effected and petitioner shall be sufferer on account of the aforesaid outlet and as such the petitioner is an aggrieved person."
4. Learned counsel appearing for the respondents have objected to the maintainability of the writ petition on the ground that the petitioner being a rival business man, has no locus standi to maintain the writ petition as he cannot be said to be a person aggrieved, and in this regard reliance is placed on a recent judgment of this Court in Rinki Gupta Vs. State of U.P. and others1.
5. The question as to whether a competitor in business can seek to prevent a rival party from exercising its right to carry on business came up for consideration in Nagar Rice and Flour Mills Vs. N.T. Gowda2. It was a case of a rice mill seeking to oppose the setting up of another rice mill in its vicinity on the ground that its business was likely to be adversely affected, and in that context it was held that a competitor in business cannot seek to prevent a rival from exercising its right to carry on business. The observations made in the judgment in this regard are as follows :-
"8.The Parliament has by the Rice Milling Industry (Regulation) Act, 1958, prescribed limitations that an existing rice mill shall carry on business only after obtaining a licence and if the rice mill is to be shifted from its existing location, previous permission of the Central Government shall be obtained. Permission for shifting their rice mill was obtained by the appellants from the Director of Food and Civil Supplies. The appellants had not started rice milling operations before the sanction of the Director of Food and Civil Supplies was obtained. Even if it be assumed that the previous sanction has to be obtained from the authorities before the machinery is moved from its existing site, we fail to appreciate what grievance the respondents may raise against the grant of permission by the authority permitting the installation of machinery on a new site. The right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under Article 19(6)(i).
9. Section 8(3)(c) is merely regulatory, if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regarded as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Article 19(6) but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed."
6. The requirement of a person being "an aggrieved person" in order to maintain a writ of certiorari fell for consideration in Jas Bhai Moti Bhai Desai Vs. Roshan Kumar3, and after discussing various authorities, it was held that in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be "an aggrieved person", and if he does not fulfil that character, the Court will, in its discretion, deny him this extraordinary remedy. The stand taken by the appellant therein that the setting up of a rival cinema house in the town would adversely affect his commercial interest, causing pecuniary harm and loss of business from competition was held to be not affecting his legally protected interest so as to give him justiciable claim and it was held that issuance of a writ of certiorari at his instance would eliminate healthy competition in business.
7. A similar view was taken in Mithilesh Garg and others Vs. Union of India and others4, wherein a challenge to grant of permit under the Motor Vehicles Act, 1988 by existing permit holders, was repelled on the ground that the right under Article 19 (1) (g) does not extend to shutting out competition and that more operators would mean a healthy competition and an efficient transport system.
8. Having regard to the foregoing discussion, we may reiterate the position that in normal course it would not be open to a competitor in business to seek to prevent a rival from exercising a right to carry on business. Competition in a trade or business may be subject to restrictions as are permissible and as may be imposed by a law enacted in the interests of general public. However, independent of any such restriction, a person cannot claim that no other person shall carry on business or trade so as to adversely affect his trade or business.
9. In order to have the locus standi to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution, the petitioner should be "an aggrieved person". We are of the view that where the claim of the petitioner is solely to prevent a rival from exercising a right to carry on business, he would not have the locus standi to maintain a writ petition as the same would essentially be aimed at eliminating healthy competition in business.
10. For the aforestated reasons, the writ petition is liable to be dismissed and it is accordingly dismissed.
Order Date :- 17.12.2020 Pratima (Dr.Y.K.Srivastava,J.) (Surya Prakash Kesarwani,J.)