1. The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, by making the following prayers:
“(a) To direct the respondent authorities to take legal action/steps against the illegal construction being put up by the respondent nos.3 and 45 in Plot No.B-69 B-70 and C-24 respectively as per the representations made by the present petitioner which are at Annexure-C Colly.
OR IN THE ALTERNATIVE
(b) Direct the respondent Corporation to immediately and forthwith decide the representations made by the present petitioner and thereafter take appropriate legal steps against the respondent nos.3 and 4;
(c) Pending the hearing and final disposal of this writ petition, be pleased to direct the respondent Corporation to restrain the respondent nos.4 and 5 from putting up any illegal construction on the plots being B-69 B-70 and C-
24 respectively;
(d) To grant any other appropriate and just relief/s.”
2. The petitioner is a resident of Satguru Co- operative Housing Society Ltd., having purchased Plot No.C-6 in the said Society. According to the petitioner, respondents Nos.3 and 4 (wrongly mentioned as respondent No.45 in the prayer clause) have put up illegal constructions in Plot No.B-69, B-70 and C-24.
The grievance of the petitioner is that the Surat Municipal Corporation (respondent No.1) as well as the Surat Urban Development Authority (Respondent No.5- “SUDA” for short), are not taking any action regarding demolition of the alleged illegal constructions put up by respondents Nos.3 and 4. Hence, the petition.
3. Mr.Jal S.Unwala, learned advocate for the petitioner has submitted that:
Satguru Co-operative Housing Society, where the petitioner resides, is divided into three Blocks. Block A is a commercial shopping complex, and Blocks B and C consist of residential Plots, known as Nilam Row Houses. The petitioner purchased Plot No.C-6 in Nilam Row Houses, by a Registered Sale Deed, in the year 2010. That the petitioner has made several representations to the concerned authorities regarding the illegal construction put up by respondents Nos.3 and 4 and has sent several reminders, drawing the attention of the Corporation as well as SUDA, to the illegal constructions being put up in breach of the revised plan and the N A permission granted by the authorities, as well as the statutory provisions of the Bombay Provincial Municipal Corporations Act. It is further contended that the petitioner has, by making applications under the Right to Information Act, received a reply from the Corporation on 9-11- 2010, that no information is available regarding the illegal constructions in Satguru Co-operative Housing Society. It is contended that this is a clear case where the respondent Corporation and SUDA are not taking appropriate legal action in the matter. It is argued that the petitioner has brought the issue of illegal construction to the knowledge of the concerned authorities, but the authorities are not fulfilling their statutory obligations, and appear to be hand in glove with respondents Nos.3 and 4, therefore, the petitioner is constrained to approach this Court.
4. Looking to the submissions made by the learned counsel for the petitioner, and the material on record, a question arises whether the petitioner, who is a resident of Satguru Co-operative Housing Society, as are respondents Nos.3 and 4, is a 'person aggrieved' so as to maintain the petition. It is not the case of the petitioner that the alleged illegal construction by respondents Nos.3 and 4 is being put up nearby, or adjacent to, the house of the petitioner. It has also not been averred in the petition, or submitted on behalf of the petitioner, that he is facing hardship or inconvenience due to the same.
5. Mr. Jal S.Unwala, learned advocate for the petitioner, has submitted that the petitioner has a right to maintain the petition, in view of the following judgments of the Supreme Court and other High Courts:
(1) Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578
(2) Dr.Jayantilal M.Desai v. State of Gujarat, 1997(1) GLR 617
(3) M.S. Jayaraj v. Commissioner of Excise, AIR 2000 SC 3266
(4) K.R.Shenoy v. Udipi Municipality, AIR 1974 SC 2177
(5) Ms.Dutta and Associates v. State of W.B., AIR 1982 Calcutta 225
(6) Onkar Nath v. Ram Nath, AIR 1985 Delhi 293
6. Before examining the principles of law laid down in the above-mentioned judgments, it is relevant to note that the petitioner has not filed the petition in the public interest and is seeking the issuance of a writ of mandamus, or any other appropriate writ, directing the respondent authorities to take 'legal action' against the alleged illegal construction being put up by respondents Nos.3 and 4. When a writ of mandamus is being sought by the petitioner, the first question to be determined by this Court would be whether the petitioner is a 'person aggrieved', so as to entitle him to maintain the petition, or not.
7. At this juncture it may be instructive to advert to the judgments cited by the learned counsel for the petitioner.
7.1 In Jasbhai Motibhai Desai v. Roshan Kumar (Supra) the Supreme Court has held as below:
“12.According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person" and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfill that character, and is a "stranger", the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances.
qualifications requisite for such a status? The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad, tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or ’standing’ to invoke certiorari jurisdiction.”
7.2 This paragraph has been relied upon by the “46.Thus, in substance, 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. 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. 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.
47. In the light of the above discussion, it is demonstrably 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.
48. **********
49. While a Procrustean approach should be avoided, as a rule the Court should not interfere at the instance of a ’stranger’ unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a ’stranger’, and not a busybody, then also, there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant’s monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 and 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to ’reasonable restrictions imposed by law'.”
(emphasis supplied)
8. It may be noted that the appellant before the Supreme Court was a Proprietor of a Cinema theatre, holding a licence for exhibiting Cinemotograph films.
The Supreme Court held that the appellant had no locus standi to invoke the certiorari jurisdiction of the High Court under Article 226 of the Constitution of India ex debito justitiae to quash a No Objection Certificate granted under Rule 6 of the Bombay Cinema Rules, 1954 by the District Magistrate in favour of a rival trader, on the ground that it suffers from a defect of jurisdiction.
9. In the present case, the petitioner is a resident of the same Co-operative Housing Society as respondents Nos.3 and 4. It is not the case of the petitioner that the alleged illegal constructions being put up by respondents Nos.3 and 4 impinge upon any legal right of the petitioner, or that the petitioner has been deprived of a legal right or has sustained injury to any legally protected interest. In short, there is no material on record to show that the petitioner is being subjected to a legal wrong. A person such as the petitioner, has not been found to be a 'person aggrieved' by the Supreme Court in the above-quoted decision.
10. In Dr.Jayantilal M.Desai v. State of Gujarat (Supra) this Court has held that if an administrative act or any order to be passed in any proceedings is likely to affect the local set up or a system of life or likely to run counter to the uniformity for comforts,convenience and adequate living, notice to the concerned parties is necessary. Though the principles of law enunciated in this judgment are not disputed in the facts and circumstances of that particular case, they are not at all applicable to the issue that arises for consideration in the present case; therefore, the reliance placed by the learned advocate for the petitioner upon this judgment appears to be misplaced.
11. In M.S. Jayaraj v. Commissioner of Excise (Supra) the Supreme Court has held thus:
“13. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.”
12. In that case, the Division Bench of the High Court of Kerala quashed the order of the Excise Commissioner that permitted the appellant, who was a bidder in the auction for vending foreign liquor, to have his domain shifted to another range, in an appeal filed by a hotelier who was doing business in the said range. It is in this factual context that the observations of the Supreme Court have been made. It was found that the Excise Commissioner has no authority to permit the liquor shop owner to move out of the range for which auction was held, and to have a business in another range. The Supreme Court, therefore, held that it would be improper for such an order to remain alive and operative on the sole ground that the person who filed the writ petition has, strictly, no locus standi. In the present case, no order of any authority has been impugned nor it is the case of the petitioner that the authorities have passed an order that is not in accordance with law.
The above judgment of the Supreme Court turns upon its own facts, therefore, it would not be helpful to the petitioner in the factual matrix of the present case.
13. Reliance has been placed upon the observations made by the Supreme Court in K.R.Shenoy v. Udipi Municipality (Supra), particularly paragraphs 27 and 28, which are reproduced hereinbelow:
“27.Counsel for the respondents contended that a mere grant of licence to construct a cinema causes no injury and the appellant would have no cause of action until the building would be actually used as a cinema. The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land.Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative [See Yabbicom V. King [1899] 1 Q. B. 444].
28. An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”
14. In that case, certain Resolutions of the concerned Municipal Council, had been impeached. Three of the Resolutions had been quashed by the High Court and the fourth Resolution, which approved the plan for conversion of a Kalyan Mantap-cum-Lecture Hall into a cinema theatre, remained undisturbed by the High Court. This resolution became the subject matter of appeal before the Supreme Court. It is in this factual background, that the Supreme Court made the observations that have been reproduced hereinabove. There can be no dispute regarding the principles of law laid down by the Apex Court regarding the duties and obligations of the Municipal authorities. However, the issue that arises in the present petition is whether the petitioner is entitled to maintain the petition as a 'person aggrieved' and whether the Court can grant the prayers made by the petitioner.
15. The learned advocate for the petitioner has placed reliance upon a judgment of the Delhi High Court in Onkar Nath v. Ram Nath (Supra) wherein it is held that, where A, neighbour of B, filed a suit for permanent injunction restraining B from raising construction, A would be entitled to get an ad- interim injunction restraining B from proceeding with the unauthorized construction, without obtaining sanction for the same from the concerned authority, because illegal, unauthorized construction, would materially affect the right and enjoyment of A's property and if the construction is allowed to be completed, it would be difficult to get the said structures demolished, later on. The observations of the Delhi High Court are made in the context of the facts before it.
16. In the present case, the petitioner and respondents Nos.3 and 4 are residents of the same Co- operative Housing Society, but it is not the case of the petitioner that respondents Nos.3 and 4 are his immediate neighbours, or that the construction being put up by them is materially affecting the rights of the petitioner to enjoy his property or causing him hardship in any manner. The petitioner has purchased Plot No.C-6 whereas respondents Nos.3 and 4 are owners and occupants of Plot No.B-69, B-70 and C-24, respectively. The judgment of the Delhi High Court would, therefore, not be relevant in the factual context of the present case.
17. The learned advocate for the petitioner has also relied upon a judgment of the High Court of Calcutta in Ms.Dutta and Associates v. State of W.B. (Supra), wherein the said High Court has held that:
“13.*************** In this case undoubtedly the impugned notice issued under S.106 of the T.P.Act terminating the tenancy of the respondents Nos.6 and 7 now transposed to the category of petitioners has undoubtedly affected the petitioners inasmuch as on the basis of the agreement of sale they have been inducted into the management of the said Tea Estate by the lessors i.e. the Agarwalla,the transposed petitioners. The petitioners in such a case are aggrieved persons and this application at their instance is therefore, maintainable though their proprietary interest has not been affected by the impugned notice and order of the Collector taking possession of the Tea Estate.*******”
18. In the above case, the petitioners were affected parties on the basis of an agreement of sale, whereas such is not the case in the present petition. This judgment, as well, would not be helpful to the case of the petitioner.
19. The principal question which falls for determination by this Court is, who can said to be a 'person aggrieved'?
20. A Division Bench of this Court in Lalbhai Trading Company v.Union of India, reported in 2006(1) GLR 497 has examined several judicial pronouncements of the Supreme Court, including Jasbhai Motibhai Desai v. Roshan Kumar (Supra); and certain English decisions, at length. After having done so, it has been held as below:
“14 On a conspectus of the aforesaid case-law, it becomes clear that the words 'person aggrieved' are required to be ascertained with reference to the purpose of the provisions of the statute in which they occur. The meaning may vary according to the context of the statute. However, one thing is certain, a person can be said to be aggrieved if a legal burden is imposed on him which may be in the form of being denied or deprived of something to which such person is legally entitled.
[a] The meaning of the words 'aggrieved person' cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors.
[b] The duty of the Court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury, in the sense, that his interest is prejudicially and directly affected by the act or omission of the authority.
[c] The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the public. The test is: can the person be said to be entitled to object and be heard by the authority before the authority takes the impugned action.
[d] The person has to be directly and immediately affected. An aggrieved party is one whose personal, pecuniary or property rights are adversely affected by another person's action or by a decree or judgment by a Court.
[e] An appeal can be preferred from every original decree or from every decree passed in appeal. The appellant must be a person aggrieved by a decree not merely by a finding. The person must be prejudicially or adversely affected by the decree. In other words, when a person is fastened with liability whereunder his property, of every type, is directly affected. To put it differently,is the person, by virtue of the decree, called upon to discharge a pecuniary liability so as to deprive him of his property. If the answer is yes, he is an 'aggrieved person'.”
(emphasis supplied)
21. The principles of law enunciated by the Division Bench have been relied upon by this Court in Ganpat Mohanbhai Vasava v. Addl. Development Commissioner, AIR 2008 Gujarat 88.
22. Examining the case of the petitioner in light of the principles of law culled out by the Division Bench, and even if the words “person aggrieved” are not read in a narrow or rigid manner, then also, there should be some prejudice or injury or wrong suffered by a person. 'A person aggrieved' must have suffered a legal wrong or injury by some act of omission or commission of an authority, which is prejudicial to
him. The petitioner has no personal interest in the alleged illegal construction being put up by respondents Nos.3 and 4. No pecuniary or property right of his is stated to be adversely affected. It is not the case of the petitioner that the alleged illegal constructions are causing him hindrance, hardship or inconvenience in any manner. It should be noted that the petition has not been filed in the public interest. The petitioner has already apprised the concerned authorities regarding the alleged illegal construction being carried on by respondents Nos.3 and 4 and has specifically prayed for the issuance of a writ of mandamus or any other appropriate writ or order, directing the respondents authorities to take legal action/step against the alleged illegal construction “as per the representations made by the petitioner”. In short, the petitioner is seeking a writ of mandamus,directing the respondents to act as per the representations made by him.
23. At this juncture, it would be appropriate to consider the circumstances in which a writ of mandamus can be issued by the High Court. This issue has been addressed by Supreme Court in Union of India
v. Arulmozhi Iniarasu, (2011) 7 SCC 397, in the following terms :
“26.Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that
corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref.: Sushanta Tagore v. Union of India, U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh, State v Sashi Balasubramanian and State of Orissa v. Prasana Kumar Sahoo)”
(emphasis supplied)
24. As stated by the Supreme Court, a writ of mandamus can be issued only when there exists a legal right in the writ petitioner and a corresponding legal obligation on the State. As a citizen, the petitioner may well be within his rights to petition the respondents authorities regarding his grievances. That aspect is entirely different from invoking the writ jurisdiction of this Court. However, when he seeks a writ of mandamus, the petitioner would have to assert a legal right, for which a corresponding legal obligation rests upon the State. In the present case,the petitioner does not fall within the category of persons who have a legal right to invoke a corresponding legal obligation,therefore, a writ of mandamus cannot be issued at his behest on the facts and circumstances of the present case.
25. In Jasbhai Motibhai Desai v. Roshan Kumar (Supra) the Supreme Court has held, in paragraph 36, that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of the three categories (i) 'person aggrieved', (ii) 'stranger' and (iii) 'busybody of meddlesome interloper'. It has been observed in paragraph 37 that the distinction between the first and second categories, though real, is not always well- demarcated. These observations have been made where a writ of certiorari is sought. In light of the prayer made by the petitioner for issuance of a writ of mandamus, and without joining issue whether the petitioner is a 'stranger', 'busybody' or 'meddlesome interloper' (in the words of the Supreme Court),on the facts of the present case, as tested upon the anvil of the judicial pronouncements, referred to hereinabove, certainly lead to the conclusion that the petitioner is not a 'person aggrieved, so as to maintain the petition and seek the issuance of a writ of mandamus.
26. As already stated hereinabove, the petitioner is not personally affected by the alleged illegal construction being put up by respondents Nos.3 and 4. Neither is the petitioner the immediate neighbour of the said respondents. There is no material on record to the effect that any legal right of the petitioner has been infringed or violated, by the alleged illegal acts of respondents Nos.3 and 4. It is true that the petitioner has made representations to the concerned authorities. However, once the Court arrives at a conclusion that the petition is not maintainable on the ground that the petitioner is not a 'person aggrieved', then a mandamus cannot be issued to the concerned authorities to act in accordance with the representations made by the petitioner. Insofar as the duties and obligations of the statutory authorities are concerned, this Court would have nothing further to say than, the said authorities are bound to fulfill the statutory duties and obligations entrusted upon them by law. The concerned respondents are not estopped form taking note of the representations made by the petitioner. However, a writ of mandamus cannot be issued to them at the behest of the petitioner, for this purpose. Nor can it be held that the respondent authorities are lacking in the performance of their statutory duties and obligations. As a citizen, it is open to the petitioner to take up the representations made by him with the respondent authorities and it is open to the said authorities to take note of the representations, and if necessary, take appropriate action. However, a writ of mandamus, as prayed for by the petitioner, cannot be issued. It would not be appropriate to permit the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, to exert pressure upon the respondents, in a case where the petitioner is not a 'person aggrieved', so as to maintain the petition.
27. Before parting with this judgment, the observations made by the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar (Supra) may be noticed, which apply to the facts of the present case.
“48. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guide lines indicated by us, coupled with other well established self- devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.” (emphasis supplied)
28. As a result of the above discussion and the reasons stated hereinabove, the petition is rejected.
(Smt.Abhilasha Kumari,J) arg