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Judgment
V.K. Shukla, J.—Present writ petition has been filed by the petitioner questioning the validity of the decision dated 28.10.2010 passed by the Commissioner, Gorakhpur Division, Gorakhpur in appeal preferred by Adalat, respondent No. 5. against the order of cancellation of his fair price shop agency dated 11.8.2006 passed by the Licensing Authority proceeding to allow the said appeal by restoring back his fair price shop agency.
Brief background of the case is that at village Ahirauli Kusumhi, Gram Sabha Adrauna Vikas Khand Ramkola, Tehsil Hata, District Kushinagar, Adalat son of Noor Mohd, respondent No. 5 has been fair price shop licensee. Petitioner claims that he is card holder of village Ahirauli Kusumhi, Gram Sabha Adrauna Vikas Khand Ramkola, Tehsil Hata, District Kushinagar and further contention has been that Adalat in the matter of the distribution of essential commodities has been indulging himself in various serious irregularities and in such a situation on complaint being made, fair price shop of Adalat, respondent No. 5 was suspended on 13.4.2006. While passing order of suspension, Adalat was also asked to submit his reply to the irregularities mentioned. Adalat submitted his reply and Licensing authority on 11.8.2006 cancelling agreement of fair price shop agency of Adalat. Aggrieved against the same, Adalat preferred appeal and said appeal was dismissed on 8.1.2007. Against the said order, Adalat preferred Civil Misc. Writ Petition No. 3644 of 2007 before this court and said writ petition was allowed on 20.8.2009 and appeal was directed to be re decided. Thereafter, appeal has been taken up and decided and order of cancellation passed by the Licensing Authority has been set aside. At this juncture present writ petition has been filed.
Supplementary affidavit has also been filed and thereafter matter has been taken up for hearing/disposal with the consent of the parties on the question of maintainability of writ petition , at the behest of petitioner, as preliminary objection has been raised on the said score.
Sri. Kamal Kumar Singh, Advocate, representing respondent No. 5 Adalat raised preliminary objection in regard to the maintainability of the writ petition at the behest of the petitioner by contending that none of the legal right of the petitioner has been infringed and petitioner is not person aggrieved and in such a situation, writ petition is liable to be dismissed on this score.
Sri A.P. Tiwari, Advocate,learned Counsel for the petitioner contended with vehemence that in the present case petitioner is complainant and card holder and as such his legal right has been infringed and is person aggrieved, in this regard writ petition is liable to be entertained.
In the State of U.P. in order to maintain supply of the food grains and other essential commodities and for seeking its normal distribution and availability at fair price shop, in exercise of power conferred u/s 3 of the Essential Commodities Act, 1955, the Governor has been pleased to make order known as U.P. Scheduled Commodities Distribution Order, 2004. In the aforementioned order, in Clause 2(c) �Agent� means a person or a Cooperative Society or a Corporation of the State Government authorized to run a fair price shop under the provision of this order. In the aforementioned definition clause, Clause 2(d) �Antyodaya families� means those poor families from amongst below the poverty line (BPL) families identified by a ''Food Officer� and entitled to receive food grains under the Antyodaya Anna Yojana. Clause 2(e) defined �APL� means those families who have been issued above poverty line ration cards under this order. Clause 2(g) BPL has been defined as those families who have, under the guidelines issued by the State Government been identified by a food officer for issue a food grains at specially subsidized rates. In Clause 2(l) fair price shop has been defined a shop set up under these orders of the State Government for the distribution of Scheduled Commodities. In Clause 2(m) Food Officer has been defined in Clause 2(n) �holder� in in reference to ration card has been defined as a person whose names or designation appears as such on that ration card� Clause 2(O) deals with Household�, as collection of individuals who normally eat food prepared in the same kitchen; Clause 2(p) defines �Ration Card� issued under clause 5 of this order and Clause 2(l) defines scheduled commodities. Clause 3 of the said Government Order deals with setting up of fair price shop. Clause 4 deals with running of fair price and person appointed to run fair price shop as agent of Government. Clause 5 deals with identification of families living below the poverty line, Clause 6 deals with Ration Card. Clause 8 deals with quantity per unit to be prescribed. Clause 9 deals with quantities that may be purchased/lifted on ration card. Clause 21 deals with monitoring in accordance with the order issued by the State Government. Clause 22 deals with power of entry, search, seizure, etc. Paragraph 23 deals with power of State of Government to authorize any person to inspect etc. Clause 25 provides for conditions which are to be observed by agent. Clause 28 deals with appeal. Clause 28 is being extracted below:
Appeal:- (1) All appeals shall lie before the Concerned Divisional Commissioner who shall hear and dispose of the same may by order delegate his/her powers to the Assistant Commissioner Food for hearing and disposing of the appeal.
(2) Any person aggrieved by an order of the Food Officer or the designated authority refusing the issue or renewal of a ration card or cancellation of the ration card may appeal to the Appellate Authority within thirty days from the date of receipt of the order.
(3) Any agent aggrieved by an order of the competent authority suspending or cancelling agreement of the fair price shop may appeal to the Appellate Authority within thirty days from the date of receipt of the order.
(4) No such appeal shall be disposed of unless the aggrieved person or agent has been given a reasonable opportunity of being heard.
(5) Pending the disposal of an appeal the Appellate Authority may direct that the order under appeal shall not take effect until the appeal is disposed of.
Right of the card holder under U.P. Scheduled Commodities Distribution Order, 2004 is to receive scheduled commodities on the specified rate from the specified agent and entire distribution of the schedule commodities is to be monitored in accordance with the order issued by the State Government. In the event of there being contravention of provision of the order and directives issued by the State Government, inspection can be carried out and the action can also been taken accordingly, same would fulfil the object of this Order, i.e. for maintaining the supplies of essential commodities, and for securing their equitable distribution at fair prices. In case distribution has not been properly carried out and more than fixed price has been charged, then card holder has every right to make complaint qua illegality committed by the agent.
This is also clear that under the scheme of things provided for in the matter of inquiry against the agent, as far as card holder is concerned, his status is that of complainant, complaining therein that scheduled commodities has not at all been distributed in the manner prescribed and the scheduled commodities for which he or his family was entitled, has not been given to him and in case has been given, same has been given at higher price. On such complaint being moved, Licensing Authority is fully enjoined to pass order of suspension, to make inquiry and thereafter from opinion as to whether in the facts of case, order of cancellation be passed. Both under suspension as well as cancellation of such fair price shop, agent has been given a statutory right to prefer an appeal under Clause 28(3) of U.P. Commodity Control Orders, 2004. Card holder under Clause 28(2) has been conferred right to prefer appeal in the contingency of renewal being refused of the ration card or its cancellation. Framers of law deliberately and intentionally have not provided any remedy of appeal to the complainant, card holder in the matter where agency of agent has not been suspended/terminated and said remedy has been provided for only to agent against the order of competent authority suspending/cancelling fair price shop agreement.
Question is that once framers of law have deliberately chosen not to provide remedy of appeal, can in such a situation there being no remedy of appeal, complainant can straight away approach this court under Article 226 of the Constitution of India. Judicial review is part of basic structure of Constitution, and same can not be taken away. See L. Chandra Kumar Vs. Union of India and others, Power of judicial review is there, and said authority of judicial review is to be exercised on the parameters provided for. See AIR SCW 1244 Government of Andhra Pradesh v. Mohd. N. Khan. For invoking writ jurisdiction under Article 226 of the Constitution, the pre requisite terms and conditions are, incumbent should be person aggrieved in context of the act involved and has to be satisfy as to what is the legal injury caused, redressal of which has been asked for by this court.
It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. 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 satisfies 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. 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. In M.S. Jayaraj Vs. Commissioner of Excise, Kerala and Others, Apex Court considered the matter at length and after placing reliance upon a large number of its earlier judgments including the Chairman, Railway Board and Ors. v. Chandrima Das (Mrs.) and Ors. AIR 2000 SC 998; took the view that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him. The "person aggrieved" means a person who is wrongfully 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. Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons. In Ghulam Qadir Vs. Special Tribunal and Others, Apex Court considered the similar issue and observed as under. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.
In Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, , the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. In Thammanna Vs. K. Veera Reddy and Others, Apex Court held that although the meaning of expression "person aggrieved" may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone.
Division Bench of this court in the case of Dharam Raj v. State of U.P. 2009 (77) ALR 564 qua agent of fair price shop wherein his licence has been restored after imposition of fine took a view that same does not include any kind of disappointment or personal in convenience and complainant is not at all aggrieved person. Relevant para Nos. 9, 10, 11, 12, 14 are being extracted below:
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 Ors. against the respondent Nos. 4, and fine of Rs. 5000/-has been imposed.
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.
In the case of R.V. London Country Keepers of the Peace of Justice, 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 though to be 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.
According to our opinion a " person aggrieved, , means a person who is wrongly deprived of his entitlement which he is legally entitled to received 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.
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 v. Canji V. Home Insurance Co. of New York and State of Rajasthan v. Union of India and Ors..
Hon''ble Apex Court, in the case of Raju Ram Singh Vasave v. Mahesh Deorao Bhivapurkar 2008 AIR SCW 6184, has affirmed the above mentioned view noted on earlier occasion, by mentioning that ordinarily on the question of locus same would not have been entertained, however, when the question raised is of such grave importance, same can be entertained as public law litigation, wherein party to lis is guilty of commission of fraud on the constitution, in such a situation locus standi is of no consequence, where good to be done is in regard to societal/public interest, authority under Article 141/142 of Constitution can be exercised.
On the parameter as set out, claim of the petitioner has been adverted to. Petitioner has tried to contend that there is boarder aspect of the matter and public interest is involved. In the present case, there is no public interest involved whatsoever and even status of the petitioner as complainant, is very very vague and evasive and of general nature. Right of the petitioner reflected from the entire fact, which has come forward, that petitioner has managed resolution in his favour to get fair price shop agency, in case fair prices shop agency was cancelled. Thus interest of the petitioner is purely private interest, and during pendency of the appeal in question, third party right in his favour has been sought to be created, by passing of resolution and till to-day no contract has been entered and as such in the facts of the case, none of the legal rights of petitioner has been infringed nor in any manner he can be dubbed to be person aggrieved, as such writ petition is not at all being entertained.
Consequently, present writ petition is dismissed as not maintainable.
No order as to cost.