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2017 DIGILAW 317 (ALL)

Rajkumar @ Munnu v. State of U. P.

2017-01-23

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Surya Prakash Kesarwani,J. Heard learned counsel for the parties. 2. The petitioner is a complainant on whose complaint the fair price shop agreement of respondent no.4 of village Sayar, Tehsil Maudaha, district Hamirpur, was cancelled. The respondent no.4 filed an Appeal No.24 of 2016 before the respondent no.3, which has been allowed by the impugned order dated 5.10.2016 and the fair price shop agreement of respondent no.4 has been restored. The petitioner was not even a party in the appeal before the respondent no.3. 3. 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. "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. 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. 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." 4. 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.3 and as such the writ petition at his instance is not maintainable. That apart, even on merit, the petitioner has no case at all. The appellate authority has recorded findings of fact and found that neither there was difference in stock nor there was any intention of respondent no.4 for black marketing. He discussed the facts in detail and came to the conclusion that the entire stock was available in the godown of respondent no.4. 5. In view of the aforementioned facts, the writ petition is dismissed.