1: Heard Sri Akhilesh Kumar Singh, learned counsel for the petitioners, learned Standing counsel for the respondent Nos.1 to 5, Sri Azad Khan, learned counsel for the respondent No.6 and Sri Pt. Vijay Kumar, learned counsel for the respondent No.7.
2: Factual matrix of the case is that the petitioners lodged a complaint against the respondent No.7 in regard to certain irregularities committed in distribution of the essential commodities to the card holders. Their complaint was entertained by the Sub Divisional Magistrate and the license of the shop was cancelled vide order dated 17.1.2019.
3: The respondent No.7 filed an appeal before the Commissioner under Section 13 (3) of the Essential Commodities (Regulation of Sell and Distribution Control) Order, 2016. The Commissioner vide order dated 14.6.2019 has allowed the appeal and set aside the order passed by the Sub Divisional Magistrate.
4: Assailing the order of the Commissioner dated 14.6.2019, the petitioners filed this petition before this Court on the ground that there were serious complaints lodged against the respondent No.7 by the petitioners who are complainant and card holders of that village, thus, submission of learned counsel for the petitioners is that the writ petition is maintainable.
5: Sri Pt. Vijay Kumar, learned counsel for the respondent No.7 raised preliminary objection in regard to the maintainability of the writ petition that the petitioners are not aggrieved persons, therefore, this writ petition is not maintainable on their behalf. He placed reliance upon a judgment passed by the Division Bench of this Court in the case of Dharam Raj Vs. State of U.P. and others; 2009 (108) RD 689.
6: He further placed reliance upon a judgment of learned Single Judge in the case of Upendra Singh Vs. State of U.P. and others passed in Writ-C No.12753 of 2017, wherein the ratio of judgment of the Division Bench was followed and the writ petition was dismissed holding the same, being not maintainable filed by the complainant.
7: Sri Pt. Vijay Kumar, learned Advocate further submitted that most of the petitioners were not signatory of the complaint lodged against the respondent No.7, therefore, the writ petition on their behalf is not maintainable.
8: Rebutting the argument advanced in regard to maintainability of the writ petition, submission of learned counsel for the petitioners is that although the petitioners were complainants but on the other hand, they are card holders of the village concerned, therefore, due to passing of the order of the Commissioner, they are aggrieved persons and writ petition on their behalf is maintainable.
9: Learned counsel for the petitioners placed reliance upon a judgment of the Division Bench of this Court in the case of Mahangi Ram Vs. State of U.P. and others passed in Writ-C No.13721 of 2011.
10: Learned counsel for the respondent No.7 pointed out that the petitioners were not party to the appeal filed before the Commissioner, thus, his submission is that the ratio of the judgment relied upon by the learned counsel for the petitioners in the case of Mahangi Ram (Supra) is not applicable.
11: After having heard the rival contention of learned counsel for the parties, I perused the material on record.
12: In regard to the maintainability of writ petition filed by the complainant, the controversy has been resolved by the Division Bench of this Court in the case of Dharam Raj (Supra), wherein this Court after considering that who are the aggrieved persons, has proceeded to hold that the writ petition on behalf of the complainant is not maintainable. The similar view was taken by learned Single Judge of this Court in the case of Upendra Singh (Supra).
13: In the case relied upon by the learned counsel for the petitioners, the writ petition was entertained only on the ground that the complainant was impeaded as party in appeal before the Commissioner and in view of the two judgments relied upon, this Court held that the complainant was provided opportunity of oral hearing and he was heard in appeal, therefore, he has right to challenge the order passed in appeal and the judgment passed in the case of Dharam Raj (Supra) was distinguished to that extent.
14: It is well established that the petitioners are complainants against the fair price shop of the respondent No.7. On their complaint, the Sub Divisional Magistrate cancelled the license to run the fair price shop of the respondent No.7, against which, an appeal was filed. In the appeal, the petitioners were not party, nor were heard by the Commissioner.
15: The relevant paragraphs 12, 13, 15, 17 and 18 of the judgment in the case of Dharam Raj (Supra) are quoted as under :-
"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. Nursingha Charan Sarangi and others, and Laxaminarayan R. Bhattad and others v. State of Maharashtra and another.)
15. In Jasbhai Motibhai Desai v. Roshan Kumar Hazi Bashir Ahmad and others, 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 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 damnium 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. Infact, 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 hand on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."
17. 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, Jai Singhpur, District Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner, Moradabad Division, 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.
18. 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."
16: The relevant paragraphs of the judgment in the case of Upendra Singh (Supra) are quoted below :-
"In the circumstances that appeal of a fair price shop agent is allowed and his fair price shop agreement is restored by order of an appellate authority, it is only the village Panchayat that can challenge the appellate order. A complainant has no locus standi to challenge the appellate order in view of the law laid down by the Division Bench of this Court in the case of Dharam Raj Vs. State of U.P. & Ors (2009) 108 RD 689.
In view of the aforesaid, since the petitioner is merely a card holder, this writ petition is not maintainable and therefore, deserves to be dismissed.
In view of the aforesaid, the writ petition is dismissed. "
17: In the case of Mahangi Ram (Supra) distinction has been carved out by the Division Bench of this Court that in an appeal filed before the Commissioner, the petitioners of that petition were heard by the Commissioner, therefore, the writ petition on their behalf is maintainable.
18: I am with the full agreement with the ratio decided by the Division Bench of this Court in the case of Dharam Raj (Supra) and Upendra Singh (Supra).
19: Here in the present case, the petitioners were not party to the appeal, nor were heard while passing the impugned order, therefore, the ratio of the judgment in the case of Mahangi Ram (Supra) is not applicable.
20: In view of the above, the writ petition filed by the complainants is not maintainable and is hereby dismissed.
21: No order as to costs.
Order Date :- 30.7.2019 Gautam