Allahabad High Court
Neeraj Kumar Mishra vs Dy. Commissioner (Food) Region ... on 7 March, 2017
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - C No. - 10253 of 2017 Petitioner :- Neeraj Kumar Mishra Respondent :- Dy. Commissioner (Food) Region Allahabad & 3 Others Counsel for Petitioner :- Suresh Chandra Pandey,Sushil Kumar Mishra Counsel for Respondent :- C.S.C.,Diwakar Singh,Raj Kumar Tiwari Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri S.C. Pandey, learned counsel for the petitioner, Sri Vishal Tandon, learned Standing Counsel for the State-respondents and Sri Diwakar Singh, learned counsel for the respondent no.3.
2. Briefly stated the facts of the present case are that on complaint of respondent no.4, action was initiated by the respondent no.2 against the petitioner's fair price shop agency. By order dated 29.12.2015, fair price shop agreement of the petitioner was suspended and charge sheet dated 8.1.2016 was issued requiring the petitioner to submit explanation. The petitioner submitted detailed explanation. However, by a brief order dated 10.3.2016, respondent no.2 restored the fair price shop agreement of the petitioner as under:
"vkns'k & Jh uhjt dqekj feJ mfpr nj fodzsrk xzke iapk;r cjh fodkl [k.M m:ok rglhy estk ds forj.k dh izkIr f'kdk;r dh tkap {ks=h; [kk| vf/kdkjh estk ls djkbZ x;hA {ks=h; [kk| vf/kdkjh estk dh tkap vk[;k fnukad 29-12-15 }kjk ;g ik;k x;k fd mDr fodzsrk vko';d oLrqvksa ds forj.k esa vfu;ferrk cjrus dk nks"kh gSA vr,o bl dk;kZy; ds i=kad 299 fnukad 29-12-15 }kjk mDr fodzsrk dh nqdku dk vuqcU/k i= fuyfEcr dj fn;k x;k rFkk bl dk;kZy; ds i=kad 404 fnukad 08-01-16 }kjk mDr fodzsrk dks mlds }kjk vko';d oLrqvksa ds forj.k esa cjrh xbZ vfu;ferrk ds lEcU/k esa vkjksi i= tkjh fd;k x;kA mDr fodzsrk us viuk Li"Vhdj.k izzLrqr fd;k] ftldk ijh{k.k dj {ks=h; [kk| vf/kdkjh estk us viuh ijh{k.k vk[;k fnukad 12-02-16 o vU; vk[;k fnukad 29-02-16 dks izLrqr fd;k] ftlesa ;g ik;k x;k fd fodzsrk Jh uhjt dqekj feJ mijksDr ij yxk, x, lHkh vkjksi fl) gSaA ysfdu fodzsrk Jh uhjt dqekj feJ mijksDr ds izfr ekuoh; n`f"Vdks.k viukrs gq, Hkfo"; esa lq/kjus dk ,d ekSdk nsrs gq, dM+h psrkouh ds lkFk tek tekur dh leLr izfrHkwfr :i;k 5000@& ¼ikap gtkj :i;k½ ek= tCr djrs gq, vkSj :i;k 10]000@& ¼nl gtkj :i;k½ ek= vFkZ n.M vkjksfir djrs gq, fodzsrk dh nqdku dk vuqcU/k i= cgky fd;k tkrk gSA miftykf/kdkjh estk bykgkckn"
3. Against the aforesaid order, the complainant, i.e. respondent no.4, filed an Appeal No. C 2016020000348 of 2016 before Commissioner, Allahabad, Division Allahabad, which has been allowed by the respondent no.1 by the impugned order dated 28.1.2017 by setting aside the order of the respondent no.2 dated 10.3.2016.
4. Aggrieved with the aforesaid order, the petitioner has filed the present writ petition.
5. Learned counsel for the petitioner submitted detailed explanation but the respondent no.2 without recording any reason in the order dated 10.3.2016 observed that the charges levelled against the petitioner are proved. Since the respondent no.2 has restored his fair price shop agreement after imposing penalty of Rs.10000/- and also to buy peace the petitioner accepted this order and did not challenge it to expunge the observation of the respondent no.2 that the charges have been found proved.
6. The appeal filed by the respondent no.4 was not maintainable in view of the law laid down by the Hon'ble Supreme Court in the case of Poonam v. State of U.P. and others 2016 (7) ADJ (SC) 530 and the law laid down by Division Bench of this Court in the case of Dharmraj Vs. State of U.P. and others, 2009 (108) RD 689 in which it has been held that complainant has no locus standi to maintain appeal in writ petition.
7. He further submits that the order of the appellate authority is thus without jurisdiction. The appeal is a statutory remedy and it can be filed only by an aggrieved person. In the case of Dharmraj (supra), Division Bench of this Hon'ble Court held that the complainant is not an aggrieved person and as such appeal at the instance of the respondent no.4 was not maintainable and, therefore, the respondent no.1 was having no jurisdiction to entertain the appeal under Clause 13(3) of the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016.
8. He further submits that the impugned appellate order dated 28.1.2017 is not based on consideration of the relevant evidences on record and even the explanation submitted by the petitioner before the respondent no.2 has neither been considered nor any reason has been recorded for non acceptance of the explanation. He, therefore, submits that the appellate order dated 28.1.2017 as well as the original order dated 10.3.2016 both may be quashed and the matter may be remitted back to the respondent no.2 to pass an order afresh in accordance with law after affording opportunity of hearing to the petitioner.
9. Learned standing counsel as well as learned counsel for the gram panchayat have no objection to the aforesaid last submission of the petitioner.
10. I have carefully considered submissions of learned counsel for the parties.
11. In the case of Dharmraj (supra) Division Bench of this Court considered in the matter of fair price shop agency the question as to whether a complainant is an aggrieved person to challenge the order of restoration of licence by the Sub Divisional Magistrate and held as under:
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 inconvenience. "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 resorted 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. Nrusingha Charan Sarangi and Ors. AIR 1999 SC 943 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. (2003) 5 SCC 413].
14. Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law, [Shanti Kumar R. Canji v. Home Insurance Co. of New York MANU/SC/0017/1974 : AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. AIR 1977 SC 1361).
15. In Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Ahmad and Ors. AIR 1976 SC 578, 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 a 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 damnum 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. In fact, 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 hang 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 Ors. (1997) 4 SCC 452, 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 Singh Pur, District Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner Moradabad Division 1993 (1) AWC 601, 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.
12. In view of the law laid down by the Division Bench of this Hon'ble Court in the case of Dharmraj (supra) as aforequoted the respondent no.4 was neither an aggrieved person nor was having locus standi to challenge the order dated 10.3.2016, passed by the respondent no.2. That apart in the appellate order, the appellate authority has not considered at all the explanation of the petitioner so as to test the correctness of the observation made by the respondent no.2 in its order dated 10.3.2016. Under the circumstances, the impugned appellate order dated 28.1.2017 can not be sustained and deserves to be quashed.
13. As a consequence of quashing the impugned appellate order dated 28.1.2017, the order of the respondent no.2 dated 10.3.2016 would revive but revival of this order would amount to revival of an illegal order passed by respondent no.2 inasmuch as this order completely lacks reasons for conclusion reached and if the conclusion reached is correct then the question would be as to whether the fair price shop agreement of the petitioner could be restored.
14. It is settled law that setting aside of an illegal order so as to result in revival of another illegal order, is not permissible. Reference in this regard may be had to the judgments of Hon'ble Supreme Court and this Court in the case of Gadde Venkateswara Rao Vs Government of Andhra Pradesh & Ors. AIR 1966 SC 828, Champalal Binani Vs. CIT, West Bengal AIR 1970 SC 645, Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar & Ors. AIR 1999 SC 3609, Mallikarjuna Mudhagal Nagappa & Ors. Vs. State of Karnataka & Ors. AIR 2000 SC 2976, Chandra Singh V State of Rajasthan, AIR 2003 SC 2889, S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. & Ors. 2003 (4) Supreme 44, State of Uttaranchal & Anr. Vs. Ajit Singh Bhola & Anr. (2004) 6 SCC 800 and State of Orissa & Anr. Vs Mamata Mohanty, (2011) 3 SCC 436 as well as this Court in Smt. Shanti And Another Vs. Board of Revenue Lko. And 3 Others, 2013 (8) ADJ 424 as well as Wasim Raza Khan Vs. Board of Revenue and others 2014 (4) ADJ 148 and judgment dated 19.10.2016 in Writ C No.26045 of 2016, Pawan Kumar Vs. State of U.P. and 4 others.
15. In these judgments, it has been held that if quashing of an illegal order results in revival of another illegal order then in that eventuality, the Court shall not interfere with such order under the writ jurisdiction.
16. Since learned counsel for the petitioner as well as the learned standing counsel and learned counsel for the respondent No.3 have agreed that even the order dated 10.3.2016 passed by the respondent no.2 may also be quashed to meet the ends of justice and for correct adjudication of the controversy with respect to cancellation of fair price shop agreement of the petitioner and as such I find no difficulty to accept the last submission of learned counsels for the parties to quash the order dated 10.3.2016 passed by the respondent no.2.
17. In view of the above discussion, the writ petition is allowed, the impugned appellate order dated 28.1.2017 and the order no.345, dated 10.3.2016, passed by respondent nos.1 and 2, respectively, are quashed. Matter is remitted back to the respondent no.2 to decide it afresh in accordance with law by a speaking and reasoned order, after due consideration to the reply of the petitioner and the evidences as have been led or may be led by him, expeditiously, preferably within eight weeks from the date of presentation of certified copy of this order. Till final decision as aforesaid is taken by the respondent no.2, the attachment of ration cards for distribution of essential commodities as earlier made by the respondent no.2, shall continue.
18. It is further made clear that the respondent no.2 shall pass a final order as directed above, without being influenced by any of the observations made in this order or in the appellate order.
Order Date :- 7.3.2017/vkg