Allahabad High Court
Praveen Kumar vs State Of U.P. And 6 Others on 11 January, 2018
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 26 Case :- WRIT - C No. - 36181 of 2017 Petitioner :- Praveen Kumar Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Santosh Kumar Upadhyay, Vinod Kumar Upadhyay Counsel for Respondent :- C.S.C., Nipun Singh, Rajesh Yadav Hon'ble Mrs. Sangeeta Chandra,J.
(ORAL)
1. This writ petition has been filed by the petitioner challenging the order dated 03.01.2017 passed by the Sub Divisional Magistrate, Muzaffar Nagar allotting the second fair price shop for village Rohana Khurd to respondent No. 7, Pradeep Kumar and the order passed by the Appellate Authority in Appeal No. 06 of 2016-17 (Praveen Kumar vs Sub Divisional Magistrate, Muzaffar Nagar and others) rejecting the appeal on 17.07.2017.
2. It is the case of the petitioner that the Gram Pradhan of village Rohana Khurd sent a letter dated 26.08.2016 to respondent No. 3 with a request for bifurcation of existing fair price shop and creation of second fair price shop in the village on the ground that there are 4400 units, which is above the prescribed units of 4000 for consideration of establishment of second fair price shop. The said letter was forwarded to the Supply Inspector by the Sub Divisional Magistrate to submit his report. Respondent No. 4 submitted a report to the effect that there are 1254 Card-holders and 5531 units in the village. In furtherance to the said report, the Sub Divisional Magistrate passed an order on 05.09.2016 directing verification of units again, but without waiting for report of the Supply Inspector verifying the units, respondent No. 3 by order dated 07.09.2016 directed the Block Development Officer to get an Open General Meeting of the villagers concerned for proposal recommending a candidate for allotment of second fair price shop in the village. This Open General Meeting was held on 26.09.2016 in pursuance of which the proposal for allotment of second fair price shop was passed in favour of respondent No. 7. The Tehsil Level Committee approved the proposal on 03.01.2017 and respondent No. 7 was allotted the second fair price shop for village Rohana Khurd, Muzaffar Nagar.
3. Aggrieved by the allotment of second fair price shop, the petitioner filed an appeal before respondent No. 2 on the ground that the number of units in the village is only 2267, which is below 4000 units as required under the Government Order and no allotment of second fair price shop could have been made in the said village. The consideration for establishment of a second fair price shop in a village can be done only if units in the village exceed 4000. The Appellate Authority however, without looking into the facts mentioned in the appeal has passed the order dated 17.07.2017 rejecting the appeal of the petitioner on the ground that in the report of the Block Development Officer dated 03.09.2016, it has been recorded that the village concerned has 5531 units, which were more than the required minimum of 4000 units for consideration of establishment of second fair price shop in a particular village. The contention of the petitioner that there are only 2267 units in the village was rejected without any reason.
4. Learned counsel for the petitioner while arguing the matter has referred to an order passed by this Court on 03.11.2017 directing respondent Nos. 3 and 4, the Sub Divisional Magistrate, Muzaffar Nagar and Block Development Officer, Charthawal, Tehsil & District Muzaffar Nagar to give definite report as to number of actual units in the village concerned.
5. It has been argued by the learned counsel for the petitioner that in compliance of the order passed by this Court, a report has been submitted through affidavit filed by the Area Rationing Officer, District Muzaffar Nagar. The report of the Block Development Officer shows that in the survey conducted in the village and on examination of Pariwar Register, it has been found that 1190 families lived in the village and there are total of 4537 units/population in the village concerned.
6. Learned counsel for the petitioner says that this report is fabricated document only to buttress the finding recorded by the Sub Divisional Magistrate and the Commissioner of the Division. It is his case that the said report cannot be relied upon as in the order of the allotment of food grains, etc., which has been brought on record for the month of November, 2017 in the rejoinder affidavit filed by the petitioner, it is evident that for Rohana Khurd, the petitioner and respondent No. 7 have been given 302 Cards each and 1148 units and 1149 units respectively. From the said allotment order of November, 2017, it is evident that there are only 2257 units in the village concerned.
7. It is the case of the petitioner that there is difference between number of families in the village and the number of people residing in the village and the number of eligible Card-holders or eligible families or eligible units entitled for distribution of essential commodities at prescribed rates under the Public Distribution System.
8. Learned Standing Counsel on the basis of different affidavit submitted by the Area Rationing Officer in compliance of the order dated 03.11.2017 has pointed out that now it has come from the survey that there are more than 4000 units in the village concerned and even otherwise the petitioner can have no grievance with regard to second fair price shop being opened in the village concerned in view of the law settled by this Court in judgment rendered in Special Appeal No. 516 of 2016 Suman Yadav vs State of U.P. and others, and the judgment rendered by coordinate Bench of this Court in the case of Smt. Indu Solanki and others vs State of U.P. and others, reported in 2017 (1) AWC 837, and judgment rendered in Arun Kumar Verma vs State of U.P. and others, 2017 (1) AWC 832.
9. Mr Nipun Singh, learned counsel for respondent No. 7 on the basis of judgment rendered by another coordinate Bench of this Court in Man Singh vs State of U.P. and others, reported in 2017 (4) AWC 820, has similarly argued that the petitioner has no legal right to oppose the opening of another fair price shop in the village in question, which shall only facilitate the better distribution of essential commodities. An existing fair price shop agent has no right to object establishment of additional fair price shop, inasmuch as a person engaged in a particular trade or business fundamentally does not have right to oppose the establishment of competitive business unless it falls within some statutory provisions.
10. I have perused the judgment passed by the Division Bench of this Court as well as the order passed by the Coordinate Bench of this Court.
11. The Division Bench in Special Appeal No. 516 of 2016 (Suman Yadav vs State of UP and others) in its judgment rendered on 23.08.2016 has considered the law as laid down by the Hon'ble Supreme Court in Nagar Rice and Flour Mills vs N. Teekappa Gowda & Bros., 1970 (1) SCC 575 and Hans Raj Kehar vs State of U.P., 1975 (1) SCC 40, and Jasbhai Motibhai Desai vs Roshan Kumar, Haji Bashir Ahmed, 1976 (1) SCC 671, and also a judgment rendered in Mithilesh Garg vs Union of India, 1992 (1) SCC 168, to hold that affecting of pecuniary or commercial interest or loss of business from competition cannot be said to be a loss which is cognizable 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. It has referred to the observations made by the Hon'ble Supreme Court thus:
"Juridically, harm of this description is called demnum sine injuria, the term injuria being here used in its true sense of an act contrary to law. The reason why the 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."
12. The Hon'ble Supreme Court had held that the appellant's stand is that the setting up of a rival cinema house in the town will adversely affect his monopolistic commercial interest, causing pecuniary harm and loss of business from competition to the appellant to be not a legal injury and such decision could not be said to cause any legal wrong for such a person is a person annoyed and not a person aggrieved.
13. Learned counsel for the petitioner on the other hand has relied upn two Division Bench decision rendered in Hamid Ali vs State of U.P. and others, 2013 (3) ADJ 733 decided on 28.01.2013 and judgment rendered in Ram Dulare Prajapati vs State of U.P. and others, 2012 (4) ADJ 11 decided on 07.02.2012, wherein the Division Bench of this Court had held that since the Government Order in question i.e. Government Order dated 10.08.1999 mentions that establishment of second fair price shop could be considered if there are more than 4000 units in the Gram Panchayat in question, there was no determination by the Competent Authority with regard to Gram Panchayat and no order was passed that the units were 4650 or above 4000 units as required under the Government Order. Moreover, the order impugned in Ram Dulare Prajapati (supra) was also set aside taking into account the fact that as per the Government Order dated 10.08.1999, respondent No. 5, who was allotted the second fair price shop was real brother of the Gram Pradhan. In Hamid Ali (supra) the Division Bench observed that paragraph 7 of the Government Order dated 17.08.2002 provides the establishment of a fair price shop, where more than 4000 units are attached to a fair price shop dealer. However, it is not mandatory that a second dealer should be appointed immediately when there are more than 4000 units attached to a fair price shop, but the same would be the relevant factor for decision for establishing a second fair price shop.
14. From a perusal of the judgment in Hamid Ali (supra), it is evident that this Court has not held that if a village has more than 4000 units, then it will still prevent the Authorities from passing a fresh order for appointment of fair price shop dealership, if the same is so required and found necessary in the facts of the case. The aforesaid two decisions rendered by the coordinate Bench of this Court can only be said to be rendered in the peculiar facts of the case that was being considered by this Court.
15. Learned counsel for the petitioner has lastly relied upon the U.P. Essential Commodities (Regulations of Sale and Distribution) Control Order, 2016, paragraph 7 thereof provides that with a view to affecting fair distribution of food grain and scheduled commodities the State Government shall issue directions under section 3 of the Act for such number of fair price shop in an area and in the manner as it deems fit.
16. Learned counsel for the petitioner has relied upon sub para (3) and (4) of the paragraph 7 to argue that it is the duty of the Food Commissioner to ensure that the number of ration card-holders attached to a fair price shop are reasonable, the fair price shop is so located that the consumer or ration card-holder does not have to face difficulty to reach fair price shop and that proper coverage is ensured in hilly, tribal and such other areas difficult to access. The State Government shall fix an amount as the fair price shop owner's margin, which shall be periodically reviewed for ensuring sustained viability of the fair price shop operations.
17. It is the case of the petitioner that duty is cast upon the Food Commissioner and the State Government to see that in the establishment of the fair price shop for a particular area, the number of cards are reasonable and the running of the fair price shop is economical and financially viable for the fair price shop licensee as well.
18. In this case the second fair price shop has been established and allotted to respondent No. 7 without effecting financial viability or economic running of already established fair price shop run by the petitioner.
19. I have considered the submissions of the learned counsel for the petitioner and the rival submissions made by Mr Nipun Singh, learned counsel for respondent No. 7 and Smt. Archana Tyagi, learned Standing Counsel for the State respondents. It is evident that the petitioner is aggrieved mainly because his business shall be affected due to increased competition. Public Distribution System is established and is being operated and maintained by the Government from the Tax payers' money to ensure distribution of essential commodities at fair price to eligible families and the benefit derived by the eligible families by establishment of second fair price shop in the area far outweights the harm that will be caused or is apprehended to be caused to the already established fair price shop dealer of the area in question.
20. I find no good reason to interfere in the orders impugned.
21. The writ petition is dismissed.
22. No order as to costs.
Order Date :- 11.1.2018 Sazia