Allahabad High Court
Abhishek Verma vs State Of U.P. And 4 Others on 16 September, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- WRIT - C No. - 13870 of 2020 Petitioner :- Abhishek Verma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arun Kumar Srivastava Counsel for Respondent :- C.S.C.,Sunil Kumar Singh,Vivek Kumar Srivastava Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Arun Kumar Srivastava, learned counsel for the petitioner; Shri Sanjay Ram Tripathi, learned Standing Counsel for the State respondents and Shri Sunil Kumar Singh, learned counsel for the Gao Sabha.
The petitioner is aggrieved by the reinstatement of respondent no.5, original fair price shop dealer by order impugned dated 10.7.2020 passed by the second respondent, Deputy Commissioner (Food), Varanasi Division, Varanasi in Appeal No.26 of 2018 (Parmendra Kumar vs. State of UP and others).
Learned Standing Counsel has raised preliminary objection as to the maintainability of this writ petition on the ground that the petitioner has no locus standi to challenge the impugned appellate order and therefore, writ petition deserves to be dismissed.
Confronted with this situation, learned counsel for the petitioner states that the appeal has been allowed on the basis of forged and fictitious affidavits.
In the facts and circumstances, the Court has occasion to peruse the impugned order and found that the petitioner is a complainant on whose complaint the fair price shop agreement of respondent no.5 was cancelled. The respondent no.5 filed an appeal before the second respondent, which has been allowed by the impugned order dated 10.7.2020 taking into account each and every aspect of the matter and the fair price shop agreement of respondent no.5 has been restored.
In the case of Dharam Raj v. State of U.P., 2009 (108) RD 689 (Paragraph Nos. 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18) a Division Bench of this Court has considered the locus standi of a complainant to challenge the order of cancellation of fair price shop agreement or the appellate order and held as under :
"9. As evident from narration of the facts given above, it is evident that the petitioner was one of the complainants in the complaint against the respondent no.4 on 12.3.2008. The action has since been taken on the complaint so made by the petitioner and others against the respondent No.4, and fine of Rs.5,000/- has been imposed.
10. In the circumstances, the petitioner cannot have any grievance in the matter, and he is not an aggrieved person, rather he is a person annoyed.
11. In the case of R.V. London Country Keepers of the Peace of Justice, the Court has held :
"A person who cannot succeed in getting a conviction against another may be annoyed by the said findings. He may also feel that what he thought to be a breach of law was wrongly held to be not a breach of law by the Magistrate.
He thus may be said to be a person annoyed but not a person aggrieved, entitle to prefer an appeal against such order."
12. According to our opinion a "person aggrieved", means a person who is wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal in convenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense.
13. It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. by filing a writ petition. Writ Petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be restored to. The court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfied the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction (Utkal University etc. v. Dr. Nursingha Charan Sarangi and others, and Laxaminarayan R. Bhattad and others v. State of Maharashtra and another).
14. Legal right is an averment of entitlement arising out of law. It is, infact, an advantage or benefit conferred upo a person by a rule of law Shanti Kumar R. Canji v. Home Insurance Co. of New York, and State of Rajasthan v. Union of India and others.
15. In Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Ahmad and others, the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression " aggrieved person" has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon'ble Apex Court observed as under :
"Such harm or loss is not wrongful in the eye of law because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Judicially, harm of this description is called damnium sine injuria. The term injuria being here used in its true sense reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. Infact, the impugned order does not operate as a decision against him, much less does it wrongfully effect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hand on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."
16. In Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. and others, the Hon'ble Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival Government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected.
17. The view taken by us that the petitioner is not a person aggrieved, thus he has no locus standi to file the present writ petition thereby challenging the order dated 16.3.2009 passed by Sub-Divisional Magistrate, Jai Singhpur, District Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner, Moradabad Division, where it was held that in an inquiry under section 95(g) of the U.P. Panchayat Raj Act, 1947, the complainant who was Up-Pradhan could be a witness in an inquiry but had no locus standi to approach this Court against the order of the State authorities, for the reasons that none of his personal statutory right are affected.
18. As such the petitioner has no locus standi to file the present writ petition under Article 226 of the Constitution of India. Even otherwise having regard to the facts and circumstances of the case, we are not inclined to exercise our discretionary jurisdiction under Article 226 of the Constitution of India."
In view of the law laid down in the aforesaid case of Dharam Raj (supra ), since the petitioner is a complainant and was not even a party in the appeal or before the respondent no.2 and as such the writ petition at his instance is not maintainable.
In view of the aforementioned facts, the writ petition is dismissed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 16.9.2020 RKP