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2022 DIGILAW 1580 (ALL)

Devendra Singh v. State Of U. P.

2022-09-29

ATTAU RAHMAN MASOODI, OM PRAKASH SHUKLA

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JUDGMENT : Om Prakash Shukla J. 1. Heard learned counsel for the petitioner, Sri Rajendra Singh Chauhan, learned counsel for respondent no.4 and learned Standing Counsel for the State. 2. An interesting question arises in the present writ petition, wherein the petitioner claiming himself to be a member and former district president of Samajwadi Party, Mainpuri has sought to interdict an order dated 08.09.2022 passed by the Additional Chief Secretary, Panchayati Raj, State of U.P. The reason for such challenge is cancellation of a 90 years lease of a building, leased to Zila Panchayat, Mainpuri situated at Devi Road to Samajwadi Party on 10.06.2004 for office purposes. 3. It is the case of the petitioner that the impugned order dated 08.09.2022 has the effect of canceling a lease of 90 years by the State Government without any notice or opportunity of hearing to Samajwadi Party or any of its office bearers, although it has been alleged that the district president of Samajwadi Party, District Mainpuri was informed about the said cancellation vide a letter dated 09.09.2022 by the Apar Mukhya Adhikari, Zila Panchayat, Mainpuri. The petitioner also claims that there had been no violation of the terms of the lease and as such there was no occasion for the respondents to cancel the lease. 4. At the preliminary stage, when the case was called for hearing on 13.09.2022, this Court expressed its doubt on the locus of the petitioner in pursuing the present writ petition, wherein the petitioner sought some time and as such this Court permitted the petitioner to file supplementary affidavit to explain valid authorization so as to maintain the present writ petition. 5. The petitioner vide a supplementary affidavit dated 15.09.2021 filed an authorization in his name, repeating yet again, that he has been duly authorized by the national secretary of Samajwadi Party, and in support of the said contention, he has filed an office memorandum dated 14.09.2022 on the letter-head of Samajwadi Party issued by the national secretary of Samajwadi Party. It is noted that the petitioner while filing the present writ petition had filed an authorization dated 11.09.2022, which was also signed by the same national secretary. There is neither any affidavit from the national secretary nor any documents filed on record, which could satisfy this Court relating to a valid authorization. It is noted that the petitioner while filing the present writ petition had filed an authorization dated 11.09.2022, which was also signed by the same national secretary. There is neither any affidavit from the national secretary nor any documents filed on record, which could satisfy this Court relating to a valid authorization. The authorization dated 14.09.2022 merely mentions about the earlier authorization dated 11.09.2022 and nothing more. 6. Having heard counsel for both the parties, this Court has given its anxious thought to the present petition. However, since a challenge to the maintainability qua the locus of the petitioner to file present writ petition has been raised at the very preliminary stage, this Court finds it’s bounded duty to first deal with the locus of the petitioner in preferring the present petition. 7. Admittedly, the impugned order is directed towards the cancellation of lease deed executed in favour of Samajwadi Party, which is a registered political party under Section 29A of the Representatives of Peoples Act, 1951. So it is Samajwadi Party as a “person”, who ought to have been an aggrieved person. It is also an admitted position that Samajwadi Party is not the petitioner nor is a party before this Court. The present petition has not been filed by Samajwadi Party through its office bearers. The petition has sought to be filed by the petitioner claiming himself to be an aggrieved party, although the records reveal that it must be Samajwadi Party who should have been an aggrieved party. In any case, this Court cannot be oblivious of the fact that pursuant to the impugned order, the peaceful possession of two rooms of previous old district office of Samajwadi Party situated at Devi Road has been handed over by the Samajwadi Party to the Zila Panchayt, Mainpuri in presence of the magistrate appointed by the district administrator. Apparently, it does not seem to this Court that Samajwadi Party could be an aggrieved person as has been rightly submitted by the learned Additional Chief Standing Counsel. Apparently, it does not seem to this Court that Samajwadi Party could be an aggrieved person as has been rightly submitted by the learned Additional Chief Standing Counsel. This Court does not wish to dwell into the realm of contentious reasons argued by the learned Additional Chief Standing Counsel that Samajwadi Party had not been using the said premises for the purpose which was leased to them and which has enabled them to cancel the said lease; or that Samajwadi Party had already constructed new building for its district office at Mainpuri and has already shifted and as such the old place of district office was no longer in use by them; or that there was no reason for filing the present writ petition as Samajwadi Party has peacefully handed over the leased premises to the Zila Panchayat Mainpuri. 8. The concept of ‘locus standi’ is not alien to litigation as the basic concept under both the inquisitorial and adversarial system of litigation is that the person, who approaches the court of law must first plead as to how the said person is aggrieved or deprived of his or her legal rights. Thus, the concept of locus standi has been imported into the writ jurisdiction. 9. 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/she is adversely affected in a legal sense. It is a 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 of India is maintainable for enforcing a fundamental or legal right or when there is a complaint by the petitioner that there is a breach of a statutory duty on part of the authorities, therefore, there must be a justiciable right for the enforcement of which the writ jurisdiction can be resorted to. This 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 satisfies the Court that he has a legal right to insist on such performance. The existence of a said right is the condition precedent to invoke the writ jurisdiction. This 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 satisfies the Court that he has a legal right to insist on such performance. The existence of a said right is the condition precedent to invoke the writ jurisdiction. In “Jasbhai Motibhai Desai Vs. Roshan Kumar, Hazi Bashir Ahmad and Others” ; [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 “demnum 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 affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He 'has no legal peg for' a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No-objection Certificate…..” (Emphasis added) 10. In “M/s Northern Plastic Limited Vs. He has not been subjected to a legal wrong. He has suffered no legal grievance. He 'has no legal peg for' a justiciable claim to hang on. Therefore he is not a 'person aggrieved' and has no locus standi to challenge the grant of the No-objection Certificate…..” (Emphasis added) 10. In “M/s Northern Plastic Limited Vs. Hindustan Photofilm manufacturing Company Limited and Others; [ 1997 (4) SCC 452 ],” the Hon’ble Supreme Court again considered the meaning of “person aggrieved” and again “locus of a rival government undertaking” and held that a rival business man cannot maintain a writ petition on the ground that its business prospect would be adversely affected. 11. Now, therefore, the question arises as to whether the petitioner has a right to file a present writ petition? The petitioner claims to be a member and erstwhile district president of Samajwadi Party. There is no document on record to show his membership or that he was a former district president of Samajwadi Party. The only document relied upon by the petitioner is that the authorization dated 11.09.2022 and 14.09.2022, which according to the petitioner serves both the purposes of locus as well as the authority to file the present writ petition. According to this Court both the issues of locus and authorization are independent, however, in some cases they may overlap. In the present case, the petitioner has apparently failed to show and/or explain his membership as well as the authorization from Samajwadi Party. There is no pleading nor any document or any affidavit has been filed on record to show as to how and in what circumstances, the national secretary of Samajwadi Party has authorized or could authorize the petitioner to file the present petition for and on behalf of the Samajwadi Party. Thus, the petitioner has no right to maintain the present writ petition under Article 226 of the Constitution of India for and on behalf of the Samajwadi Party. Even the judgments quoted by the petitioner in his written submission do not come to his rescue. 12. Thus, the petitioner has no right to maintain the present writ petition under Article 226 of the Constitution of India for and on behalf of the Samajwadi Party. Even the judgments quoted by the petitioner in his written submission do not come to his rescue. 12. This Court is also conscious of the law that “ordinarily” a person who seeks to file a writ petition under Article 226 of the Constitution of India should be one who has a personal or individual right in the subject matter of the petition and a personal right need not be in respect of proprietary interest, as it can also relate to an interest of a trustee. It is thing to say that a person has an individual right to maintain a petition and its other thing to say that the petition has been filed for and on behalf of some other aggrieved persons. The present case is not a case filed by the petitioner in his individual capacity, but it has been filed for and on behalf of Samajwadi Party. This Court is of the view that there is no valid authorization in favour of the petitioner to prosecute this case for and on behalf of Samajwadi Party. There is no pleadings in the writ petition that the petition has been filed for and on behalf of Samajwadi Party, rather the petition is sought to be filed by the petitioner in his individual capacity, since lease deed stands in the name of Samajwadi Party. This Court finds rather absurd as to how the petitioner can be an aggrieved party or as to how his individual right has been adversely affected. Thus, the present writ petition fails. The petitioner under Article 226 of the Constitution of India at the instance of petitioner is, therefore, not maintainable. 13. Since, the petition is held to be not maintainable on behalf of the petitioner, this Court does not wish to express any opinion on the merits or otherwise of the present writ petition, least it would prejudice to the rights and contention of the parties. 14. Leaving all questions of fact and law open, the present writ petition is dismissed.