Shyam Bahadur Singh And 2 Others vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 9786 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 5253 of 2022
 

 
Petitioner :- Shyam Bahadur Singh And 2 Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Lko. And 6 Others
 
Counsel for Petitioner :- Sandeep Tewari,Rashmi Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

Heard learned counsel for the petitioners as well as learned Standing Counsel appearing on behalf of the State.

The instant writ petition has been filed challenging the impugned order dated 4.4.2022, copy of which is annexed as Annexure No.6 to the writ petition, whereby the competent authority in proceedings initiated by the private respondents under Section 67 of U.P. Revenue Code, 2006 has rejected the proceedings on the ground of maintainability.

Learned counsel for the petitioners contents that the petitioner nos.2 and 3 had submitted complaints vide the complaints dated 3.12.2021 and 24.6.2022, copies of which are annexed as Annexure Nos. 2 & 11 respectively to the writ petition alleging that the respondent nos.6 and 7 have encroached the pasture land belonging to the Gaon Sabha. The proceedings were initiated by the competent authority under Section 67 of the U.P. Revenue Code, 2006 and initially a recovery certificate has been issued but subsequently by means of the impugned order the proceedings have been closed on the ground of maintainability and hence the petition.

Upon a specific query being put to learned counsel for the petitioners as to how the petitioners in the capacity of being complainants would have the locus to file the present petition inasmuch as none of their rights have been violated which is a sine qua non to entertaining a petition under Article 226 of the Constitution of India, learned counsel for the petitioners contends that as the petitioners are villagers as such their legal rights have been infringed and accordingly they have preferred the instant writ petition.

The question of a complainant filing a writ petition is no longer res interga having been considered by various judgments of this Court, the recent judgment being in the case of Sanker Verma Vs. State of U.P. and others; Writ Petition No.14329 (SS) of 2019 decided on 23.05.2019, wherein this Court after examining the Division Bench Judgement in the case of Dharam Raj Vs. State of U.P. and others; (2010) 2 AWC 1878 (All) as well as the judgment of the Apex Court in the case of Auaaubkhan Noorkhan Pathan Vs. State of Maharashtra and others; AIR 2013 SC 58 as well as the Apex Court judgment in the case of Ravi Yashwant Bhoir Vs. Collector; (2012) 4 SCC 407 has held that a complainant has no locus to file a writ petition under Article 226 of the Constitution of India.

For the sake of convenience the relevant paragraphs of the judgment in the case of Sanker Verma (supra) are reproduced below:

"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 locus 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."

Considering the aforesaid judgments and keeping in view of the discussions as well as the admitted fact that the petitioners are only complainants, the writ petition is dismissed leaving it open to the petitioners to pursue other remedies as may be available to them.

.

(Abdul Moin, J.)

Order Date :- 10.8.2022

Ram.