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2019 DIGILAW 884 (ALL)

BABBAN v. STATE OF U. P.

2019-04-09

SARAL SRIVASTAVA

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JUDGMENT : Saral Srivastava, J. Heard Sri D.K. Srivastava, learned counsel for the petitioner, Sri Ram Mani Upadhyay, learned counsel for the respondent no.4 and Sri Sanjay Ram Tripathi, learned Standing Counsel. 2. It has been submitted that fair price shop of village Bhagautapur, Tehsil Bansi, District Siddharth Nagar has been allotted to respondent no.4. It appears that respondent no.4 committed certain irregularities in distribution of essential commodities and consequently, an inquiry was instituted against him and respondent no.3, i.e., Sub Divisional Magistrate by order dated 15.03.2018 cancelled the licence of respondent no.4. 3. Feeling aggrieved by the order of cancellation dated 15.03.2018, respondent no.4 preferred statutory appeal no.C-201817000000333. The appellate authority, i.e., Deputy Commissioner (Food) Basti Division, Basti by order dated 26.02.2019 allowed the appeal of respondent no.4 and restored his licence. The order of the appellate authority is impugned in the present writ petition. 4. Challenging the order, learned counsel for the petitioner has contended that the appellate authority without appreciating the facts and evidence on record, which clearly established that respondent no.4 has committed certain irregularities in distribution of essential commodities, has allowed the appeal of the respondent no.4. Thus, he contends that the order impugned in the writ petition on the face of record is illegal and not sustainable and has been passed by the appellate authority without application of mind. 5. Per contra, learned Standing Counsel Sri Sanjay R. Tripathi, submits that petitioner is a complainant and has no locus standi to file writ petition. In this regard he has placed reliance upon the Division Bench Judgement of this Court in the case of Dharam Raj Vs. State of U.P. and Others, (2010) 2 AWC 1878 and another judgement of this Court in the case of Sriram Prasad and Another Vs. State of U.P. and Others, (2016) 6 ADJ 122 wherein this Court has held that complainant has no locus standi to challenge the order of appellate authority as none of his personal statutory rights are affected. Thus, he submits that writ petition on behalf of complainant is not maintainable. He further contends that appellate authority after considering the facts and evidence on record has found that the order of cancellation of licence is not sustainable in law and accordingly, it had set aside the said order. 6. The arguments of learned Standing Counsel has been adopted by respondent no.4. 7. He further contends that appellate authority after considering the facts and evidence on record has found that the order of cancellation of licence is not sustainable in law and accordingly, it had set aside the said order. 6. The arguments of learned Standing Counsel has been adopted by respondent no.4. 7. I have considered the rival submissions of the parties and perused the record. 8. To the objection of the Standing Counsel with regard to maintainability of writ petition, the leaned counsel for the petitioner contends that this Court in the case of Ajay Pal Singh Vs. State of U.P., (2018) 7 ADJ 301 has held that authorities being discharging quasi judicial function has to function judicially and thus, in view of the paragraph 13 of the aforesaid judgement of this Court, the petitioner has right to file objection and also has right to file writ petition. Paragraph 13 of the said judgement is extracted herein below:- "13. The Authority which is performing a qausi judicial functioning has to function judicially. Simply by saying that the petitioner i.e. Fair Price Shop dealer had not submitted his reply and therefore the licence should be cancelled was wrong on the part of the Sub Divisional Magistrate. It was his bounden duty:- I. To direct the complaints to lead their evidence; II. He should have given an opportunity to the Fair Price Shop Dealer (the petitioner) to cross examine the witnesses of the complaints. III. The petitioner should have also been allowed to lead his evidence. IV. The complainants should have been allowed to cross examine the witnesses of the defence. V. If any documentary evidence was produced then the same should have been proved as per law. VI. For doing the above, the Sub Divisional Magistrate should have fixed a date and a place. VII. And only thereafter the Sub Divisional Magistrate should have come to a conclusion as to what had to be done with the licence/agreement of the petitioner to run the Fair Price Shop." 9. At this juncture, it is relevant to point out that two Division Bench judgements of this Court directly dealing with the issue as involved in the present petition and has held that complainant has no locus standi to file the writ petition against the order of state authority as none of the statutory right of the petitioner is affected. 10. At this juncture, it is relevant to point out that two Division Bench judgements of this Court directly dealing with the issue as involved in the present petition and has held that complainant has no locus standi to file the writ petition against the order of state authority as none of the statutory right of the petitioner is affected. 10. The judgement relied upon by the learned counsel for the petitioner of this Court in the case of Ajay Pal Singh (supra) has not noticed the judgements of this Court in the case of Dharam Raj (supra) and Sriram Prasad (supra). 11. This Court in the case of Dharam Raj (supra) has held that complainant is not an aggrieved person and as such, he has no locus standi to file the writ petition. Paragraph 16 and 17 of aforesaid judgement is extracted herein below:- "16. 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 16.03.2009 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. 17. 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. 12. In the case of Sriram Prasad (supra) this Court again reiterated that complainant has no locus standi to challenge the restoration of fair price shop license of a person. Paragraph 12 to 15 of the aforesaid judgement is extracted herein below:- "12. 12. In the case of Sriram Prasad (supra) this Court again reiterated that complainant has no locus standi to challenge the restoration of fair price shop license of a person. Paragraph 12 to 15 of the aforesaid judgement is extracted herein below:- "12. This Court in Ram Baran Versus State of U.P. and others, (2010) 2 AWC 1947 (LB), again reiterated the principle that a complainant would have no locus to maintain the petition against the final order passed by the District Magistrate pursuant to direction in a petition under Article 226 of the Constitution against the Pradhan. 13. In the case of R. v. London Country Keepers of the peace of Justice, 1890 25 Qbd 357, the Court 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." 14. The petitioner complainant shall have an opportunity during the course of regular enquiry to lead oral and documentary evidence if provided under the rules, but would have no locus to assail the final order passed by the authority on the complaint". 15. Having due regard to the facts and circumstances of the case, I am not inclined to interfere. The petition filed at the behest of a complainant being not maintainable is, accordingly, dismissed. 13. Since the controversy is concluded by the two judgements of this Court in the cases of Dharam Raj (supra) and Sriram Prasad (supra) therefore, following the aforesaid two judgements, this Court is of the opinion that the writ petition on behalf of the petitioner is not maintainable and consequently the same is liable to be dismissed. 14. Since petitioner has no locus standi to file the petition, therefore, this Court is not entering into the merits of this case. Consequently, the writ petition lacks merit and is accordingly, dismissed.