Court No. - 45
Case :- WRIT - C No. - 19910 of 2018 Petitioner :- Triloki Nath And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sanjai Singh Counsel for Respondent :- C.S.C.,Diwakar Singh
Hon'ble Ajay Bhanot,J.
The petitioners are existing fair price shop dealers of village panchayat Karma, District Allahabad. The petitioners have challenged the appointment of third fair price shop dealer in the aforesaid village panchayat.
The locus standi of existing fair price shop dealer to assail the appointment of the additional fair price shop dealer was considered by Division Bench of this Court in the case of Suman Yadav Vs. State of U.P. and others reported at 2017 (5) ADJ 344. The relevant extracts of the judgment as paras no. 3 and 4 are reproduced herein under:-
3. The answer to this question in our view, has to be in the negative based on the age old principle of damnum sine injuria. A person engaged in a particular trade or business fundamentally does not have a right to oppose the establishment of a competing business unless it fall foul of some statutory prohibition. This essentially because what the law protects is a legal wrong. Article 19(1)(g) of the Constitution does not confer a right on a person to carry on a trade or business without competition. The coming into existence of a competitor in business may result in the trade or business of the existing person being adversely affected. This however, does not result in creation of a locus standi in favour of the existing trader to challenge such establishment in view of the fact that no legal right vested in him stands infringed. This issue was dealt with by the Supreme Court as far back as in Nagar Rice and Flour Mills v. N. Teekappa Gowda & Bros, MANU/SC/0453/1970 : (1970) 1 SCC 575. A challenge of a similar nature as raised before the Supreme Court was answered thus: "Section is merely regulatory, if it is not complied with the appellants may probably be exposed to a penalty, but a competitor in the business cannot seek to prevent the appellants from exercising their right to carry on business, because of the default, nor can the rice mill of the appellants be regard as a new rice mill. Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interests of the general public under Art. 19 (6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely. The appellants complied with the statutory requirements for carrying on rice milling operations in the building on the new site. Even assuming that no previous permission was obtained, the respondents would have no locus standi for challenging the grant of the permission, because no right vested in the respondents was infringed."
(emphasis supplied)
4. In Hans Raj Kehar v. State of U.P., MANU/SC/0386/1974 : (1975) 1 SCC 40, the right of existing bus operators to seek exclusion of additional permit holders was negatived with the following observations: "The contention that the impugned notification is violative of the rights of the appellants under article 19(1)(f) or (g) of the Constitution is equally devoid of force. There is nothing in the notification which prevents the appellants from acquiring, holding and disposing of their property or prevents them from practising any profession or from carrying on any occupation. trade or business. The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants, rights under the above two clauses of article 19 of the Constitution. The above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons. No right is guaranteed to any private party by article 19 of the Constitution of carrying on trade and business without competition from other eligible persons. Clause (g) of article 19(1) gives a right to all citizens subject to article 19(6) to practise any profession or to carry on any occupation, trade or business. It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business. The said provision is not intended to make any profession, business or trade the exclusive preserve of a few persons. We, therefore, find no valid basis for holding that the impugned provisions are violative of article 19."
(emphasis supplied) The same view was reiterated by the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, MANU/SC/0011/1975: (1976) 1 SCC 671, where it held as under: "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.
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."
(emphasis supplied).
The law laid down by this court in the case of Suman Yadav (supra) squarely applies to the facts of the case. In view of the established facts and settled law, the petitioners do not have any locus standi to contest the opening of the additional fair price shop in the village.
In view of the aforesaid writ petition stands dismissed.
Order Date :- 29.5.2018 Pratima