Sanker Verma vs State Of U.P. Thru ...
2019 Latest Caselaw 4926 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 20
 
Case :- SERVICE SINGLE No. - 14329 of 2019
 
Petitioner :- Sanker Verma
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu. Lucknow And Ors.
 
Counsel for Petitioner :- Dharm Raj Misra
 
Counsel for Respondent :- C.S.C.,Shobhit Mohan Shukla
 

 
Hon'ble Abdul Moin,J.

1. Case called out. None appears on behalf of the petitioner.

2. Sri A.K. Pandey, Advocate holding brief of Sri Shobhit Mohan Shukla, learned counsel appearing for the respondent no. 5 as well as learned Standing counsel appearing for the respondents no. 1 to 4 and 6 are present.

3. The instant case being a fresh case was taken up in the morning session. The petitioner has indicated in paragraph 3 that he is a whistle blower and social person. The reliefs sought for in the present petition are for a Mandamus commanding the respondent no. 2 to direct the competent authority to inquire into the matter. The inquiry which is sought for is that the respondent no. 9 who is working as Assistant Teacher is alleged to be holding duel citizenship. Upon a specific query being made to the learned counsel for the petitioner Shri Dharam Raj Misra as to how the present petition would be maintainable as the petitioner has no locus to file the petition, he prayed for time to argue the matter on maintainability and had prayed that matter may come up on the next day. However, as the 'Spin System' has been introduced in the High Court for fresh matters and learned counsel for the petitioner was expected to be prepared with the matter, as such, the Court was of the view that the matter will not be adjourned for the next date so as to take it out of the 'Spin System' . Upon this, learned counsel for the petitioner gave an undertaking to argue the matter in the post lunch session which undertaking was given in the presence of the learned State counsel as well as Sri A.K. Pandey, Advocate holding brief of Sri Shobhit Mohan Shukla, learned counsel appearing for the respondent no. 5. Upon it being pointed out to the learned counsel for the petitioner that the Bar has requested that no adverse order be passed and as such, he should be present in the post lunch session at 1415 Hrs, learned counsel for the petitioner again gave a solemn undertaking of appearing before this Court along with the relevant case laws for arguing the matter in the post lunch session i.e 1415 Hrs.

4. However, when the case has been taken up in the post lunch session, learned counsel for the petitioner, as already indicated above, is not present neither there is any request for adjournment of the matter. The Court does not appreciate such conduct of the learned counsel for the petitioner in trying to avoid the Court and in trying to frustrate the 'Spin System' . Consequently, the Court proceeds to hear the matter with the assistance of Sri A.K. Pandey, Advocate holding brief of Sri Shobhit Mohan Shukla, learned counsel appearing for the respondent no. 5 and learned Standing counsel.

5. As already indicated above, the petitioner has disclosed in paragraph 3 of the petition that he is a whistle blower and social person involved in the benefit of public and that he wants an inquiry against the respondent no. 9. It has also been stated in the petition that the petitioner has submitted a representation before the respondent no. 2 for making suitable inquiry against the respondent no. 9 and thus the petitioner at the most is a complainant and consequently in a service matter would not have any locus to file the present petition.

6. In this regard, Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir Vs Collector reported in (2012) 4 SCC 407 with regard to locus of a complainant has held as under:-

"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 lies. 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 lies. A fanciful or sentimental grievance may not be sufficient to confer a locus stand to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro rationed valuntas 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 lies, 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."

7. The Division Bench of this Court in the case of Dharam Raj Vs. State of U.P and Ors reported in (2010) 2 AWC 1878 (All) with respect to the locus of complainant has held has under:-

"9. As evident from narration of the facts given above, it is evident that the petitioner was one of the complainants in the complaint against the respondent No. 4 on 12.3.2008. The action has since been taken on the complaint so made by the petitioner and others against the respondent No. 4, and fine of Rs. 5,000 has been imposed.

10. In the circumstances, the petitioner cannot have any grievance in the matter, and he is not an aggrieved person rather he is a person annoyed,

11. In the case of R. v. London Country Keepers of the Peace of Justice, (1890) 25 QBD 357, the Court has 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.

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. Nrusingha Charan Sarangi and Ors. AIR 1999 SC 943 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. (2003) 5 SCC 413].

14. Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law, [Shanti Kumar R. Canji v. Home Insurance Co. of New York AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. AIR 1977 SC 1361).

15. In Jasbhai Motibhai Desat v. Roshan Kumar Hazi Bashir Ahmad and Ors.: AIR 1976 SC 578, 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 a 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 damnum 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. In fact, 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 hang on. Therefore, he is not a "person aggrieved" to challenge the ground of the no objection certificate."

In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. MANU/SC/1151/1997MANU/SC/1151/1997 : (1997) 4 SCC 452, the Hon'ble Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival Government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected.

16. 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, Jaisinghpur, district Sultanpur is also supported by the decision of this Court in the case of Suresh Singh v. Commissioner Moradabad Division 1993 (1) AWC 601, 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.

17. As such the petitioner has no focus 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.

8. From a perusal of the law laid down by the Apex Court in the case of Ravi Yashwant Bhoir (supra) as well as the Division Bench judgment in the case of Dharam Raj (supra) it clearly comes out that for a person to prefer the petition, he 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. Thus in order to prefer a writ, the person entitled would be one who has either been wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. It is settled proposition of law that the person who suffers from legal injury only can challenge the act or action or order by filing a writ petition inasmuch as the writ petition under Article 226 of Constitution of India is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is breach of statutory duty on the part of authorities. Thus, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to and not for the purpose of settlement of a personal grievance.

9. When the fact of the instant case are tested on the touch stone of the law laid down in the aforesaid two judgments it clearly comes out that the petitioner has no legal right of his own and neither has suffered from any legal injury rather is only a complainant and thus would not have any locus to prefer the present petition.

10. The Court has also come across a detailed interim order passed at Allahabad in the case of Akhlaq Vs. State of U.P and 3 Ors passed in Writ C No. 43188 of 2017 dated 05.02.2019 in which this Court after considering the Division Bench judgment of Dharam Raj (supra) as well as the judgment of the Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and Ors reported in AIR 2013 SC 58 has observed that the writ petition cannot be thrown out at the very first instance in view of the law laid down in the case of Ayaaubkhan Noorkhan Pathan (supra) by saying that it is not maintainable. Consequently, this Court also proceeds to consider the judgment of the Apex Court in the case of Ayaaubkhan Noorkhan Pathan (supra).

11. In the case of Ayaaubkhan Noorkhan Pathan (supra), the Hon'ble Supreme Court has held in paragraph 22 that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever but in the exceptional circumstances, the Court may examine the issue and in exceptional circumstances the Court may proceed suo-motu. For the sake of convenience, the relevant observations in the case of Ayaaubkhan Noorkhan Pathan (supra) are reproduced as under:-

"22. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, in articulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect."

12. From a perusal of the aforesaid, it clearly comes out that the exceptional circumstances as have been culled out by the Apex Court are where the actual person aggrieved because of ignorance, illiteracy, in articulation or poverty are unable to approach the Court and a person who has no personal agenda approaches the Court then the Court may examine the issue even suo-mutto.

13. This Court has gone through the entire petition and no such averment has been made anywhere in the entire petition that the actual aggrieved persons because of ignorance, illiteracy, in articulation or poverty are unable to approach the Court and in those circumstances the petitioner, admittedly a whistle blower has approached this Court. Thus, the present case would not stand the exceptional circumstances as have been spelt out by the Apex Court in the case of Ayaaubkhan Noorkhan Pathan (supra). Consequently, the interim order in the case of Akhlaq (supra) would also not persuade this Court to entertain the present petition.

14. Accordingly, keeping in view the aforesaid discussion, the writ petition is dismissed on the ground of locus.

15. Before parting with the case, the Court may also observe that a wrong averment has been made in the present petition inasmuch as a specific averment has been made in paragraph 2 of the petition that the petition being filed by the petitioner is the first writ petition. However, in paragraph 1 of the petition, a specific averment has been made that earlier too the petitioner had approached this Court by filing Writ Petition No. 8143 (SS) of 2019 which was dismissed as withdrawn on 26.03.2019 with the liberty to file a fresh. Thus the specific averment as made in paragraph 2 of the Writ petition clearly make out a case of mis-statement. However, as the petition is being dismissed, as such, the Court refrains for making any further observation in this regard.

Order Date :- 23.5.2019

Pachhere/-

(Abdul Moin, J)