The proceeding of opening of second fair price shop in Gram Panchayat Barauli Ahir, Tehsil Sadar, District Agra has been challenged by present writ petition, in which following prayer was made:
"1. Issue, a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 12.09.2016 passed by the respondent no. 2 in the interest of justice.
2. Issue, a writ, order or direction in the nature of mandamus commanding to the respondent no. 2 not to create a new fair price shop in the Gram Panchayat: Barauli Ahir, Tehsil Sadar, District Agra
3. Issue any other writ, order or direction which this Court may deem fit and proper in the facts and circumstances of the case."
From perusal of the record, it is found that earlier a writ petition no. 47609 of 2016 (Raj Pal Singh Vs. State of U.P. And others) was filed for same relief by allottee of fair price shop already present within the said Gram Panchayat. That was dismissed as not maintainable by order dated 30.09.2016 by this Court as under:
"Heard Sri Atul Sharma, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri A.K. Rai, holding brief of Sri Ashish Kumar Srivastava, learned counsel for the gaon sabha.
Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 12.9.2016 passed by the Sub Divisional Officer, Sadar, Agra by which the Sub Divisional Officer has required the Block Development Officer to get a fresh resolution passed for opening additional fair price shop in Village Barauli Aheer, Tehsil - Sadar, District - Agra.
The petitioner is the existing fair price shop agent. In his submission, there are less than 4,000 units in the village, therefore new fair price shop cannot be opened in view of the Government Orders dated 3.7.1990 and 17.8.2002.
Learned standing counsel as well as counsel for the gaon sabha placing reliance upon the Division Bench decision of this Court in Suman Yadav vs. State of U.P. and others (Special Appeal No. 516 of 2016 decided on 23.8.2016), have submitted that the writ petition, on the instance of existing fair price shop agent restraining the creation of additional fair price shop in the same Gram Panchayat, is not maintainable.
In view of the aforesaid legal position, the writ petition is dismissed as not maintainable."
Learned counsel for the petitioners submits that petitioners are villagers of same Gram Panchayat. He further submits that as per directions contained in Government Order in this regard, no second fair price shop can be opened in same Gram Panchayat unless there are more than 4000 unit card-holders but in this Gram Sabha there is only 3962 unit card-holders are there, so the of opening of second fair price shop would against directions of the Government Order in this regard, due to which petitioners feel aggrieved and have filed present writ petition for restraining the respondent to open another fair price shop. Learned counsel for the petitioner has cited judgments of Ashfaq Vs. State of U.P. And others 2008(4) ADJ 416 and Writ-C No. 5407 of 2009 (Tek Ram and others Vs. State of U.P. And others). He further submitted that the Division Bench has of "Suman Yadav Vs. State of U.P and others" cited by learned Standing Counsel had not considered the Ashfaq's case.
These contentions were refuted by learned Standing Counsel with observation that petitioners have no locus standi to file present writ petition. He also submits that no fundamental right of the petitioners will be infringed if another fair price shop is opened within same Gram Panchayat. Therefore, this writ petition is dismissed. Learned Standing Counsel has cited judgments of this Court in Special Appeal No. 516 of 2016 Suman Yadav Vs. State of U.P and others.
Once the dispute involved inpresent writ petition had already been decided finally ju judgment dated 30.09.2016 of writ petition no. 47609 of 2016 (Raj Pal Singh Vs. State of U.P. And others). If the writ petition for restraining the creation of additional fair price shop in the same Gram Panchayat is not maintainable on the instance of existing fair price shop agent, who is indirectly concerned with the matter by probable loss of prospective profit, then how the writ would be maintainable on instance of villagers who have no concern with the matter except the convenience. It appears to be a matter of damnum sine injuria for the existing fair price shop agent, a loss suffered by him for which there is no legal cause of action. But it is case of no loss or legal injury to petitioners or anyone else.
Apart from it, after considering the aforementioned facts and contentions, it is found that no fundamental right of any petitioner /villager would be infringed if additional fair price shop is opened within same Gram Panchayat during continuation of already running fair price shop. Such fair price shops are opened for convenience of the public. Another fair price shop within same area would not infringe any legal or constitutional right to any person, rather it would be convenient for villagers.
Finding in agreement with above mentioned judgment of writ petition no. 47609 of 2016, and finding that no constitutional or legal right of the petitioners is involved or infringed in this matter by proposed proceedings of opening of additional fair price shop, the relief sought by them in this writ petition is declined.
Accordingly, this writ petition is dismissed.
Order Date :- 23.11.2016 Sanjeev