Brij Lal @ Brij Bahadur vs State Of U.P. And 3 Ors.
2015 Latest Caselaw 1463 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 

 
Case :- WRIT - C No. - 39658 of 2015
 

 
Petitioner :- Brij Lal @ Brij Bahadur
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Namit Kumar Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Suneet Kumar,J.

The petitioner is resident of village Sirsee Kala, P.S Khanna, District Mahoba, the petitioner is seeking a direction to the respondents for appropriate action against the persons responsible for the irregularities as per enquiry report dated 28 February 2015.

Admittedly, the petitioner is seeking a direction against the siting Pradhan pursuant to a complaint lodged by him. On a specific query as to whether the complaint has been filed under the provisions of the U.P. Panchayat Raj Act 1947 or under MANREGA Act, learned counsel for the petitioner would submit that the complaint has not been filed under either of the provisions

A preliminary objection has been raised by the learned Standing Counsel regarding the maintainability of the writ petition at the behest of the petitioner.

Learned Standing Counsel appearing for the State-respondents would submit that the petition at the behest of the complainant is not maintainable against the final order. Reliance has been placed on Dharam Raj Versus State of U.P. and others, 2010 (2) AWC 1878 (LB), Ram Baran Versus State of U.P. and others, 2010(2) AWC 1947 (LB) and Amin Khan Versus State of U.P. and others, [2008(4) ADJ 559 (DB)].

The petitioner admittedly is a complainant in the present case, hence would not be a person aggrieved.

The meaning of the expression 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. One of the meanings is that person will be held to be aggrieved by a decision if that decision is materially adverse to him. The restricted meaning of the expression requires denial or deprivation of legal rights. A more legal approach is required in the background of statutes which do not deal with the property rights but deal with professional misconduct and morality. (Refer:-Bar Council of Maharashtra v. M.V.Dabholkar, (1975) 2 SCC 702, 710-11, paras 27 & 28).

Broadly, speaking a party or a person is aggrieved by a decision when, it only operates directly and injuriously upon his personal, pecuniary and proprietary rights (Corpus Juris Seundem. Edn. 1, Vol.IV, p.356, as referred in Kalva Sudhakar Reddy v.Mandala Sudhakar Reddy, AIR 2005 AP 45,49 para 10)

The expression 'person aggrieved' means a person who has suffered a legal grievance i.e a person against whom a decision has been pronounced which has lawfully deprived him of something or wrongfully refused him something. The petitioner is not an aggrieved person by merely filing a complaint. The order of revocation of cessation of financial and administrative powers do not affect him in any manner.

Recently Supreme Court in Ravi Yashwant Bhoir versus District Collector, Raigad and others (2012) 4 SCC 407 was dealing with the removal of the President of Uran Municipal Council under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The ex-President was the complainant, the Court was of the opinion that the complainant cannot be party to the lis as he could not claim the status of an adversarial litigant. The relevant extract is as follows:

"58. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.

59.The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons.

60. Under the garb of being necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party. (Vide: Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General ofMaharashtra, AIR 1971 SC 385; Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Ors., AIR 1976 SC 578; Maharaj Singh v. State of Uttar Pradesh & Ors., AIR 1976 SC 2602; Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC 33; and Kabushiki Kaisha Toshiba v. Tosiba Appliances Company & Ors., (2008) 10 SCC 766). The High Court failed to appreciate that it was a case of political rivalry. The case of the appellant has not been considered in correct perspective at all."

Similarly, the Supreme Court in Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and others (2013) 4 SCC 465, 466 was dealing with the issue of caste certificate being challenged by a person who did not belong to the reserved category. The Apex Court imposed exemplary cost of one lakh upon the stranger to the lis as he abused the process of the Court to harass the appellant.

The Court held as follows:-

" 9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. Infact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).

10.A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of India & Ors., AIR 1977 SC 1361)."

After 73 & 74 Constitutional Amendment, the local bodies have been conferred various powers under Part IX and IX A of the Constitution. Paragraph 22, 23 & 24 of Ravi Yashwant Bhoir's case (Supra) is relevant:

"22. Amendment in the Constitution by adding Parts IX and IXA confers upon the local self Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the Constitutional Institution besides being outrageous is dangerous to the democratic set-up of this country. Therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State by adopting a casual approach and resorting to manipulations to achieve ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the Institution.

23. The democratic set-up of the country has always been recognized as a basic feature of the Constitution, like other features e.g. Supremacy of the Constitution, Rule of law, Principle of separation of powers, Power of judicial review under Articles 32, 226 and 227 of the Constitution etc. (Vide: His Holiness Keshwananda Bharti Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461; Minerva Mills Ltd. & Ors. v. Union of India & Ors., AIR 1980 SC 1789; Union of India v. Association for Democratic Reforms & Anr., AIR 2002 SC 2112; Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), AIR 2003 SC 87; and Kuldip Nayar v. Union of India & Ors., AIR 2006 SC 3127)

24. It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State."

The concept of master and servant relationship as applicable in service jurisprudence is not applicable in case of elected heads of local bodies enjoying constitutional status. Full Bench decision in Hafiz Ataullah Ansari versus State of U.P & Others 2011(3) ADJ 502 (FB), upon considering the historical background of the institution of the Local Self Government was of the view that they are no longer statutory bodies, but after 73 and 74 Constitutional amendments, have acquired a Constitutional status.

In Suresh Singh versus Commissioner, Moradabad Division, Moradabad and others (1993) 1 UPLBEC 414: 1993(1) AWC 601, in similar circumstances the Court was of the view that the Up-Pradhan of the Gaon Sabha, who was appointed to function as Pradhan during the intervening period of such cessation of administrative and financial powers had no right to be heard.

A Division Bench in Amin Khan versus State of U.P and others 2008(2) AWC 2002: (2008) 2 UPLBEC 1256 was of the opinion that a complainant had no locus to challenge the order of the District Magistrate withdrawing the administrative and financial powers of the Pradhan. The Court placed reliance upon Suresh Singh's case (Supra) as well as Smt. Kesari Devi versus State of U.P & others 2005(4) AWC 3563.

This Court in Ram Baran Versus State of U.P. and others, 2010(2) AWC 1947 (LB), again reiterated the principle that a complainant would have no locus to maintain the petition against the final order passed by the District Magistrate pursuant to direction in a petition under Article 226 of the Constitution against the Pradhan.

Division Bench in Dharam Raj Versus State of U.P. and others, 2010 (2) AWC 1878 (LB), held that the petition on behalf of the complainant against the licensee of fair price shop is not maintainable against the final order passed by the competent authority as the complainant cannot be said to have any grievance in the matter being not an aggrieved person rather is a 'person annoyed'.

In the case of R. v. London Country Keepers of the peace of Justice, (1890) 25 Qbd 357, the Court 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.?

The petitioner complainant shall have an opportunity during the course of regular enquiry to lead oral and documentary evidence as is provided for in sub section (11) of Section 6 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, further will also have an opportunity of hearing as contemplated under sub section (16) of Rule 6. Sub section (11) and sub section (16) of Rule 6 reads as follows:

"(11).On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed shall be produced and the witness shall be examined, by the Enquiry Officer by or on behalf of the complainant, if there is one, and may be cross-examined by or on behalf of the person against whom the Enquiry Officer is being held. The witnesses may be re-examined by the Enquiry Officer or the complainant, as the case may be, on any point on which they have been cross- examined, but no on any new matter, without the leave of the Enquiry Officer."

(16) The Enquiry Officer may, after the completion of the production of evidence, hear the complainant, if any and the the person against whom the enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases."

Thus, it is evident from the scheme of the Act and the Rules framed there under, the complainant only has a right to participate in the regular enquiry to the extent the rules provide but would have no locus to seek direction to the respondents to take appropriate action against the responsible person as per enquiry report.

Having due regard to the facts and circumstances of the case, I am not inclined to interfere. The petition filed at the behest of a complainant being not maintainable is, accordingly, dismissed.

No order as to costs.

Order Date :- 27.7.2015

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