Zakir vs State Of U.P. And 4 Others
2021 Latest Caselaw 11328 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 4
 
Case :- WRIT - C No. - 45899 of 2017
 
Petitioner :- Zakir
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Parvez Alam,Devesh Vikram
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Neeraj Tiwari,J.

Heard learned counsel for the petitioner and learned Standing Counsel for State- respondents.

Present petition has been filed for writ of certiorari quashing the impugned order dated 22.08.2017 passed by Joint Commissioner (Food), Saharanpur Region, Saharanpur- respondent no. 2.

Learned counsel for the petitioner submitted that he is resident of Village Parasauli, Block Kandla, Tehsil Budhana, District Muzaffarnagar and there are four fair price shop established in the said village having total number of 9230 beneficiaries. To meet out the interest of local residents, Gaon Sabha decided for establishment for 5th fair price shop in the same village. Accordingly, vide resolution dated 26.08.2016, decision was taken for allotment of fair price shop under the reserve category i.e. reservation of Gram Pradhan. Under the aforesaid resolution, three applicants, namely, Zakir (petitioner), Raees and Abdul Hasan applied for allotment of fair price shop and unanimously, it was allotted in favour of petitioner. After aforesaid resolution, an agreement was executed and now after completion of all legal formalities, he was issued allotment letter dated 21.10.2016 by respondent no. 4.

He next submitted that to utter surprise, Ex-Pradhan, namely, Satyendra Saini (respondent no. 5), on the very next date of allotment order i.e. 21.10.2016, filed an application before Block Development Officer, Block- Budhana, Muzaffarnagar alleging irregularities of process of allotment of fair price shop such as allotment was made without calling open meeting of Gaon Sabha. After receiving the aforesaid complaint, respondent no. 4 directed the Block Development Officer to hold enquiry vide order dated 25.10.2016. Pursuant to order dated 25.10.2016, Block Development Officer constituted enquiry committee of two members vide order dated 27.10.2016. Enquiry committee investigated the matter and vide its letter dated 04.11.2016 submitted enquiry report categorically stating that allotment of fair price shop in favour of petitioner was done in accordance with law. Respondent no. 4 on the basis of enquiry report, passed the order dated 22.02.2017 directing the Regional Supply Officer, Supply Center, Budhana for allotment of essential commodities in favour of petitioner.

Learned counsel for the petitioner submitted that against the very said order, complainant-respondent no. 5 filed an Appeal No. 21 of 2016-17 under Section 13(1) of U.P. Scheduled Commodities Distribution Order, 2016 before Commissioner, Saharanpur Region, Saharanpur, which was transferred before Joint Commissioner (Food), Saharanpur Region, Saharanpur- respondent no. 2 and respondent no. 2 vide its order dated 22.08.2017 contrary to settled provision of law and most mechanical manner, partly allowed the appeal filed by the complainant.

Learned counsel for petitioner is assailing the impugned order on two grounds, first of all, respondent no. 5 was not an applicant for allotment of fair price shop, therefore, he is not a person aggrieved. He is having no locus standi to file appeal and in support of that, he has placed reliance upon the judgments of this Court in the matter of Babu Ram Singh Vs. State of U.P. and others; [2009 (10) ADJ 24], Neeraj Kumar Mishra Vs. Dy. Commissioner (Food) Region Allahabad and others, 2017 (3) AdJ 834 and Kailash Singh Vs. State of U.P. and others; (Writ-C No. 49975 of 2015) decided on 03.09.2015. Secondly, he submitted that in the impugned order, no finding is recorded either against the petitioner or violation of any procedure in allotment of fair price shop by the authorities, but partly allowed the appeal rejecting the order dated 21.10.2016 and remanded the matter back to Sub Divisional Magistrate-Respondent no. 4 to pass fresh order. He next submitted that under such legal and factual position, respondent no. 5 is not the person aggrieved and further there is no adverse finding against the petitioner in the impugned order, therefore, impugned order dated 22.08.2017 passed by respondent no. 2 is bad and liable to be set aside.

Learned Standing Counsel has vehemently opposed, but could not dispute the factual as well as legal submissions made by learned counsel for the petitioner.

I have considered the rival submissions made by learned counsel for the parties and perused the record as well as impugned order dated 22.08.2017 passed by respondent no. 2. At no point of time, it is stated that respondent no. 5 was also an applicant and it is admitted factual position that respondent no. 5 has never participated in the process of allotment of fair price shop.

Further, this Court has considered the very same issue in the judgement of Babu Ram Singh (supra) and held that only aggrieved person can file appeal. Relevant paragraphs of aforesaid judgements are being quoted herein below;

"Having heard learned counsel for the parties, the position in law is more than clear, inasmuch as, sub-clause 3 of Clause 28 clearly prescribes that an appeal shall be maintainable on behalf of an aggrieved agent. The word "agent" has also been defined under Clause 2 (c). In such a situation the Gaon Sabha cannot be said to have been conferred with a right to prefer an appeal under Clause 28.

It is by now well settled that an appeal is a creation of a statute and the right therein can neither be enhanced or reduced on the strength of any interpretation as suggested on behalf of the Gaon Sabha. Had the rule making authority intended to provide for an appeal on behalf of the Gaon Sabha then the words prescribing the right of appeal in sub-clause 3 of Clause 28 would have been any person instead of any aggrieved agent.

An appeal is provided under a statute for the correction of an error which might have crept in on account of incorrect application of law and such right of appeal has been explained by the Apex Court in the case of Sita Ram and others Vs. State of Uttar Pradesh reported in (1979) 2 SCC 656 (see paragraphs 25, 41 and 45).

Accordingly this Court is of the opinion that where the statute is explicit and clear, and does not suffer from any ambiguity there is no scope for the Courts to read a provision which does not exist. The Gaon Sabha ought to have either filed a writ petition before this Court or could have approached a forum which may be otherwise available in law.

In the facts and circumstances of this case, the Gaon Sabha filed an appeal under the said provision which obviously was not maintainable before the Commissioner at the instance of the Gaon Sabha. In view of this, the interim order passed by the Commissioner on an incompetent appeal cannot be sustained. "

Again in the matter of Neeraj Kumar Mishra (supra), Court has taken the same view and after considering the judgement of Division Bench, has held that only aggrieved person can file appeal. Relevant paragraphs of the said judgement are being quoted herein below;

"11. In the case of Dharmraj (supra) Division Bench of this Court considered in the matter of fair price shop agency the question as to whether a complainant is an aggrieved person to challenge the order of restoration of licence by the Sub Divisional Magistrate and 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 inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense."

This matter was also before this Court in the matter of Kailash Singh (supra) where writ petition was filed by the complainant and Court has in detailed dealt, who is person aggrieved and finally held that only aggrieved person can file petition in the matter of allotment of fair price shop. Relevant paragraphs of the said judgement are being quoted herein below;

"A preliminary objection has been raised by the learned Standing Counsel regarding the maintainability of the writ petition at the behest of the complainant against the final order passed in appeal. 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 an aggrieved person.

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 cancellation of fair price shop license do not affect him in any manner.

The 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'.

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 whosuffers 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)."

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.

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 if provided under the rules, but would have no locus to assail the final order passed by the authority on the complaint.

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."

In all the three cases referred herein above, Court has taken constant view that only aggrieved person, who has participated in the process of allotment of fair price shop can file appeal. Any appeal filed by stranger/ outsider is not maintainable. In present case too, undisputedly respondent no. 5 was never participant in the process of allotment of fair price shop, therefore, this Court is also of the same view that he is not the person aggrieved and cannot file appeal against the order of Sub Divisional Magistrate. It is required on the part of respondent no. 2 to first consider about the maintainability of appeal and return findings upon the ground taken by the petitioner in reply of appeal. In case, it was found that appellant is not the aggrieved person, appeal has to be rejected on the this ground alone, but here while partly allowing the appeal, respondent no. 2 has committed error of law as undisputedly appellant was not the "person aggrieved". Therefore, impugned order dated 22.08.2017 passed by respondent no. 2 is bad and liable to be set aside.

Further, so far as second argument of the petitioner is concerned, about the absence of adverse finding, is also having substance. Respondent no. 2 has not recorded any adverse finding or about violation of any procedure. Even in case, appeal was maintainable, it is required on the part of respondent no. 2 to return finding about the procedural lapses and illegality in the order, if any, but nothing has been recorded in the impugned order. Therefore, on this ground too, the impugned order is bad and liable to be set aside.

Accordingly, under such facts of the case as well as law laid down by this Court referred as above, impugned order dated 22.08.2017 passed by Joint Commissioner (Food), Saharanpur Region, Saharanpur- respondent no. 2 is hereby quashed and writ petition is allowed.

This Court vide order dated 3.10.2017 has stayed the effect and operation of the order dated 22.8.2017 passed by respondent no. 2 and petitioner is running the fair price shop as on date, therefore, no further order is required.

Order Date :- 17.11.2021

Arvind