Heard learned counsel for the petitioner and learned Standing Counsel appearing for respondents.
By means of the present petition, the petition has prayed for a mandamus commanding respondent no.4 to conduct disciplinary inquiry against respondent no.5.
A specific averment has been made in paragraph 4 of the petition that the petitioner is a complainant.
It is settled proposition of law that the complainant has got no locus to file a petition. In this regard, this Court vide judgment and order dated 23.05.2019 passed in Writ Petition No.14329 (SS) of 2019 has clearly held that the complainant would have no locus to file a petition. For the sake of convenience, relevant paragraph of the aforesaid judgment is reproduced as under:-
"7. The Division Bench of this Court in the case of Dharam Raj Vs. State of U.P and Ors reported in (2010) 2 AWC 1878 (All) with respect to the locus of complainant has held has 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, (1890) 25 QBD 357, 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 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 AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. AIR 1977 SC 1361).
15. In Jasbhai Motibhai Desat 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."
In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. MANU/SC/1151/1997MANU/SC/1151/1997 : (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.
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 16.3.2009 passed by Sub-Divisional Magistrate, Jaisinghpur, 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."
Accordingly, taking into consideration the aforesaid, the writ petition is dismissed on the ground of locus.
Order Date :- 26.8.2019 A. Katiyar