Rajesh Kumar vs State Of U.P. Thru Secy. Food & ...
2017 Latest Caselaw 2800 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. - 6
 
Case :- MISC. SINGLE No. - 14740 of 2017
 
Petitioner :- Rajesh Kumar
 
Respondent :- State Of U.P. Thru Secy. Food & Civil Supplies Lucknow & Ors
 
Counsel for Petitioner :- Balram Yadava
 
Counsel for Respondent :- C.S.C.,Pramod Kumar
 

 
Hon'ble Anil Kumar,J.

Heard Shri Balram Yadav, learned counsel for the petitioner, Shri Daya Shankar Tewari, learned Standing Counsel for the opposite party nos.1 to 4, Shri Pramod Kumar, learned counsel for the opposite party no.5 and perused the record.

By means of the present writ petition, the petitioner has challenged the order dated 20.04.2017 (Annexure No.1) passed by opposite party no.2/Commissioner, Faizabad Mandal, Faizabad by which an Appeal No.20/Ambedkar Nagar filed by opposite party no.5/Sanjay Singh under Section 28 (3) of U. P. Scheduled Commodities Distribution Order, 2004 has been allowed.

Facts in brief of the present case are that opposite party no.5 has granted license by way of agreement to run the fair price shop for village- Machhligaon (Jalalpur), Tehsil-Jalalpur, District-Ambedkar Nagar. On 31.5.2011 petitioner as well as other card holders made a complaint that scheduled commodities supplied to the opposite party no.5 were not distributed to the card holders, less quantity of food grains were distributed and higher price from the fixed rate were being realized by the opposite party no.5.

On the basis of the complaint, opposite party no.3/Deputy Collector, Jalalpur, District-Ambedkar Nagar constituted an inquiry Committee consisting of Naib Tehsildar, Jalapur, Assistant Development Officer (Cooperative Jalalpur) and Supply Inspector Jalalpur and directed to enquire the allegations of complaints made by the card holders. The said Committee, after recording the statement of Antodaya card holders and BPL card holders, found that the said allegations were correct and on the basis of the same, charge sheet dated 21.06.2012 has been served upon opposite party no.5 by the opposite party no.3 and further directed to the opposite party no.5 to submit his explanation before him within a week. On 28.06.2012 license of fair price shop of opposite party no.5 was suspended.

Aggrieved by the order dated 28.06.2012, opposite party no.5 filed an Appeal bearing Appeal No.208 of 2012. In the said appeal, vide order dated 14.08.2012, an application for stay has been rejected. Thereafter, opposite party no.5, for redressal of his grievances, approached this Court by filing Writ Petition No.4687 (MS) of 2012, disposed of with a direction to the opposite party no.2 to decide the appeal filed by the opposite party no.5, in accordance with law, after affording opportunity of hearing to the parties concerned, expeditiously, say, within a period of three months from the date of receipt a certified copy of this order and further directed that till disposal of the appeal, the order dated 28.06.2012 passed by the opposite party No.3 shall be kept in abeyance.

Thereafter, vide order dated 28.03.2013, appeal filed by the opposite party no.5 was dismissed. Against the order dated 28.06.2012 as well as order dated 28.03.2013, he again preferred Writ Petition No.2534 (MS) of 2013, allowed by order dated 03.03.2014 with the following direction :-

"I have considered the submissions of the learned counsel for parties and gone through the record. From the perusal of the record and the findings on record, it is evident that the charge sheet dated 21.06.2012 was served upon the petitioner on 27.06.2012, whereby the petitioner was required to submit his reply within a week but the Sub Divisional Officer without confirming the service of the charge sheet passed the impugned order dated 28.06.2012, suspending the license of the petitioner and the appellate authority without appreciating the submissions of the petitioner, rejected the appeal preferred by the petitioner, this Court finds that the orders dated 28.06.2012 and 28.03.2013 are result of non appreciation of facts and records as well as non-application of mind.

In view of the above, the writ petition is allowed. The order impugned in the writ petition, dated 28.06.2012 and 28.03.2013 passed by opposite party nos. 3 and 2 respectively, are hereby quashed. However, it will be open for the opposite parties to proceed against the petitioner, in accordance with law."

In compliance of the order dated 03.03.2014, license of opposite party no.5 to run the fair price shop has been restored and vide order dated 13.06.2014, opposite party no.4 had directed to the opposite party no.5 to participate in the enquiry proceeding and submit his written explanation. Vide order dated 29.06.2014, opposite party no.3 cancelled the license of the opposite party no.5 to run the fair price shop, challenged by him by filing Writ Petition No.6955 (MB) of 2014 before this Court, disposed of vide order dated 15.12.2016 on the ground that petitioner has alternative remedy to file an appeal against the impugned order.

In view of the above said facts, opposite party no.5 filed an appeal against the order dated 29.06.2014 passed by opposite party no.3 registered as Appeal No.22/Ambedkar Nagar under Section 28 (3) of U. P. Scheduled Commodities Distribution Order, 2004, allowed by order dated 20.04.2017 passed by opposite party no.2/Commissioner, Faizabad Mandal, Faizabad, challenged by the petitioner by filing the present writ petition before this Court.

Shri Pramod Kumar, learned counsel appearing for the opposite party no.5 has raised a preliminary objection to the effect that Rajesh Kumar/petitioner being a card holder/complainant has got no right to challenge the order dated 20.04.2017 passed by opposite party no.2 by which appeal filed by the opposite party no.5 has been allowed and license/agreement of fair price shop of opposite party no.5 to run the fair price shop has been restored.

Shri Balram Yadav, learned counsel for the petitioner while rebutting the said contention submits that opposite party no.2 has allowed the appeal without given an opportunity of hearing and cross examine the card holders as well as by taking a view that the opposite party no.5 was not submitted the preliminary enquiry report with the charge sheet and as such it was incumbent upon him to remand the matter to the opposite party no.3 to decide the matter.

He further submits that prima facie, the guilty of charges levelled against the opposite party no.5 has been given scot free from the said charges and has been permitted to commit serious irregularities in distribution of scheduled commodities to the needy card holders. Opposite party no.2 was under obligation to remand the matter to the opposite party no.3 to take decision by following procedure of inquiry etc. but the opposite party no.2 failed to pass the order of remand.

Accordingly, it is submitted by learned counsel for the petitioner that petitioner being a card holder/complainant has got a right to challenge the order dated 20.04.2017 passed by opposite party no.2 thereby allowing the appeal filed by opposite party no.5.

In support of his argument, he has placed reliance on the judgment given by this Court in the case of Madan Mohan Sharma vs. S. D. M. Jasrana and others 2011 (29) LCD 693.

After hearing learned counsel for the parties and going through the records, the first and foremost question which is to be considered and decided in the present case is that whether the petitioner, who is card holder/complainant has got any right to challenge the order dated 20.04.2017 passed by opposite party no.2 thereby restoring the license of opposite party no.5 to run the fair price shop.

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. (See Shanti Kumar R. Chanji v. Home Insurance Co. of New York AIR 1974 SC 1719 and State of Rajasthan and ors. v. Union of India and ors. AIR 1977 SC 1361).

In the case of Anand Sharadchandra Oka v. University of Mumbai AIR 2008 SC 1289, Hon'ble the Apex Court held that if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons.

The Division Bench of this court in the case of Dharam Raj Vs. State of U.P. and others , 2009 (108) RD 689 has held 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 in convenience. "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 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 restored 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..................."

Another Division Bench of this Court in the case of Amin Khan Vs. State of U.P. and others, 2008 (4) ADJ 559 held that "in case he was a complainant , he could be, at the most, examined as a witness in the enquiry but he cannot be permitted to become a party in the lis."

The same view was reiterated in the case of Munna Lal vs. State of U. P. and others 2012 Legal Eagle (ALD) 1757 wherein it has been held that the petitioner, who is card holder/complainant has got any right to challenge the order passed under Section 28 (3) of U. P. Scheduled Commodities Distribution Order, 2004.

Hon'ble the Apex Court in the case of Poonam vs. State of U. P. and others 2015 (33) LCD 2888 regarding the necessary and proper party while considering the case that if the cancellation of license of earlier allottee has been restored, then rival person, who has been granted a license in the intervening period has right to challenge the order passed in an appeal under Section 28 (3) of U. P. Scheduled Commodities Distribution Order, 2004, has held as under :-

"First, it is necessary to understand about the concept of necessary and proper party. A Four-judge Bench in Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar and another AIR 1963 SC 786 has observed thus:-

"7. ....it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in this proceeding. "

In the case of Vijay Kumar Kaul and others v. Union of India and others (2012)7 SCC 610 the court referred to the said decision and has opined thus:-

"36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.

37. In this context we may refer with profit to the decision in Indu Shekhar Singh v. State of U.P. (2006) 8 SCC 129 wherein it has been held thus:

"56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."

38. In Public Service Commission v. Mamta Bisht, (2010) 12 SCC 204 this Court while dealing with the concept of necessary parties and the effect of nonimpleadment of such a party in the matter when the selection process is assailed observed thus:

"9. ... in Udit Narain Singh Malpaharia v. Board of Revenue AIR 1965 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called ''CPC') provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot (1974) 2 SCC 706 and Sarguja Transport Service v. STAT (1987) 1 SCC 5.)

10. In Prabodh Verma v. State of U.P. (1984) 4 SCC 251 and Tridip Kumar Dingal v. State of W.B. (2009) 1 SCC 768, it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties."

16. At this juncture, it is necessary to state that in Udit Narain (Supra) question arose whether a tribunal is a necessary party. Recently a two-Judge Bench in Asstt. G.M State Bank of India v. Radhey Shyam Pandey 2015 (3) SCALE 39 referred to Hari Vishnu Kamath v. Ahmad Ishaque and Ors. AIR 1955 SC 233 and adverted to the concept of a tribunal being a necessary party and in that context ruled that:-

"In Hari Vishnu Kamath (supra), the larger Bench was dealing with a case that arose from Election Tribunal which had ceased to exist and expressed the view how it is a proper party. In Udit Narain Singh (supra), the Court was really dwelling upon the controversy with regard to the impleadment of parties in whose favour orders had been passed and in that context observed that tribunal is a necessary party. In Savitri Devi (supra), the Court took exception to courts and tribunals being made parties. It is apposite to note here that propositions laid down in each case has to be understood in proper perspective. Civil courts, which decide matters, are courts in the strictest sense of the term. Neither the court nor the Presiding Officer defends the order before the superior court it does not contest. If the High Court, in exercise of its writ jurisdiction or revisional jurisdiction, as the case may be, calls for the records, the same can always be called for by the High court without the Court or the Presiding Officer being impleaded as a party. Similarly, with the passage of time there have been many a tribunal which only adjudicate and they have nothing to do with the lis. We may cite few examples; the tribunals constituted under the Administrative Tribunals Act, 1985, the Custom, Excise & Service Tax Appellate Tribunal, the Income Tax Appellate Tribunals, the Sales Tax Tribunal and such others. Every adjudicating authority may be nomenclatured as a tribunal but the said authority (ies) are different that pure and simple adjudicating authorities and that is why they are called the authorities. An Income Tax Commissioner, whatever rank he may be holding, when he adjudicates, he has to be made a party, for he can defend his order. He is entitled to contest. There are many authorities under many a statute. Therefore, the proposition that can safely be culled out is that the authorities or the tribunals, who in law are entitled to defend the orders passed by them, are necessary parties and if they are not arrayed as parties, the writ petition can be treated to be not maintainable or the court may grant liberty to implead them as parties in exercise of its

discretion. There are tribunals which are not at all required to defend their own order, and in that case such tribunals need not be arrayed as parties."

The principle that has been culled out in the said case is that a tribunal or authority would only become a necessary party which is entitled in law to defend the order.

17. The term "entitled to defend" confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for there would be violation of natural justice. The principle of audi alteram partem has its own sanctity but the said principle of natural justice is not always put in strait jacket formula. That apart, a person or an authority must have a legal right or right in law to defend or assail."

Thus, in view of the above said position of law on the point in issue, the petitioner, who is card holder/complainant has got no right to challenge the order dated 20.04.2017 passed by the opposite party no.2/Commissioner, Faizabad Mandal, Faizabad thereby allowing the appeal filed by the opposite party no.5 under Section 28 (3) of U. P. Scheduled Commodities Distribution Order, 2004.

For the foregoing reasons, the writ petition lacks merit and is dismissed.

Order Date :- 31/07/2017

Mahesh