Dismissed

Tahir v. State of U.P. and 3 Others

Allahabad HC23 Apr 2018WRIC/14171/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a ration card holder challenging the reinstatement of a fair price shop dealer's licence. The Court held that as a consumer entitled only to specified commodities, the petitioner was not an aggrieved person and lacked locus standi to challenge the dealer's licence. The petition was dismissed as the rights of a mere raqon card holder cannot be eleva

What did the court decide?

The writ petition stands dismissed.

Tahir Vs State of U.P. and 3 Others — Consumer Protection | Allahabad HC (2018)

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Court No. - 27

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Case :- WRIT - C No. - 14171 of 2018

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Petitioner :- Tahir Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Mohd. Aslam Khan Counsel for Respondent :- C.S.C.,Arun Kumar Srivastava

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Hon'ble Ajay Bhanot,J.

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Heard Shri Mohd. Aslam Khan, learned counsel for the petitioner and Shri Siddharth Singh, learned Additional Chief Standing Counsel for the respondent-State.

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The petitioner in the instant writ petition is aggrieved by the order of reinstatement of the fair price shop licence of the respondent No.4. The petitioner is a card holder of village panchayat Mewanawada, TehsilDhampur, District-Bijnor. The petitioner made a complaint against irregularities committed by the respondent No.4 in the distribution of essential commodities. The respondent No.4 is the fair price shop dealer of village panchayat Mewanawada, TehsilDhampur, District Bijnor. The complaint made by the petitioner and others set in motion an enquiry into the alleged irregularities committed by the respondent No.4. Pursuant to the aforesaid complaint, the licence of the respondent No.4 was suspended to facilitate the enquiry. After the completion of the enquiry, the fair price shop licence of the respondent No.4 restored by order dated 22.3.2018. The order dated 22.3.2018, passed by the Sub-Divisional Magistrate, also imposed Rs.5,000/- as fine

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and appropriated the security deposit of Rs.5,000/-.

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The petitioner is aggrieved by the order dated 22.3.2018 and has assailed the same in this writ petition.

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The contention of the petitioner is that an order was passed by the SDM directed the supply inspector to conduct an enquiry within one week. However, without waiting for the enquiry the Sub-Divisional Magistrate passed an impugned order on 22.3.2018. Hence, the order is vitiated.

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The order dated 22.3.2018 found that the complaints against the respondent No.4 were actuated by malice and false. Some of the complaints were exaggerated and a result of the factionalism in the village panchayat. A perusal of the order reveals that the conduct of the petitioner is not that of a bonafide whistle blower. He has a personal feud running against the respondent No.4. These are findings of fact returned in the order dated 22.3.2018 by respondent No.2. These findings have not been traversed. Nothing has been brought in the record to warrant reversal of the said findings. The aforesaid findings are a product of flawless reasoning.

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The petitioner does not have the right to decide or have assail in the quantum of punishment which is awarded to the fair price shop dealer by the respondent No.2.

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In the facts of the case, on the complaint of the petitioner, an enquiry was caused to be

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conducted. The complainants of the petitioner were duly considered and rejected on merit. No further right accrues to him. The rights of the complainant-card holder were considered by this Court in the case of Ashfaq Vs. State of U.P. and others , reported at 2008 (4) ADJ 416 . The relevant paragraphs which will guide the fate of this case are extracted below as paras 7 and 8:

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"7. The scheme of the U.P. Scheduled Commodities (Distribution) Order 2004 makes a person living below poverty line entitled to specified quantities of the scheduled commodities in respect of each category of the card on a price to be fixed by the State Government. Any person, aggrieved by the order of the food officer or the designated authority refusing to issue or renewal of the ration card, may appeal to the appellate authority. This right cannot be extended to challenge the order passed by the Sub-Divisional Magistrate or the appellate authority in the matter of suspension or cancellation of the agreement of fair price shop.

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8. A person, holding a ration card, is a consumer of the scheduled commodities under the Public Distribution Scheme. If he is not distributed the scheduled commodities according to his entitlement at a fair price, he may make a complaint to the food officer. The food officer is required to take an action on such complaint in accordance with the agreement with the authorised agent under clause 25 of the control order. The ration card holder is not an adversary or the controller of the scheme of distribution of scheduled commodities to the poor persons. He does not have right to either appeal against the order of suspension or cancellation of an authorisation or to file a writ petition challenging the order by which the Commissioner or the Food Commissioner, as the case may be, has allowed the appeal or has remanded the same for fresh consideration in accordance with the law. As a consumer, his rights cannot be raised to the status of choosing a dealer or to seek the cancellation of the licence of the dealer. His right is confined, to his entitlement of the scheduled commodities at specified price."

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Further, the Division Bench of this Court has taken a similar view in the case of Dharam Raj Vs. State of U.P. and others , reported at 2010(2) AWC 1878. This Court in the case of Dharam Raj (supra) held thus as paras 6, 7, 9 and 10:

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"6. We have heard Sri Jitendra Kumar Pandey learned Counsel for

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the petitioner, and the learned standing counsel appearing for the respondent Nos. 1, 2 and 3 and Sri Raghvendra Kumar Singh, learned Counsel for the respondent No. 4, and perused the record.

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7. 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.

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9. 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. MANU/SC/0018/1999 : AIR 1999 SC 943 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. MANU/SC/0287/2003 : (2003) 5 SCC 413].

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10. 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 MANU/SC/0017/1974 : AIR 1974 SC 1719 and State of Rajasthan v. Union of India and Ors. MANU/SC/0370/1977 : AIR 1977 SC 1361).

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15. In Jasbhai Motibhai Desat v. Roshan Kumar Hazi Bashir Ahmad and Ors. MANU/SC/0011/1975 : 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:

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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

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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."

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In Northern Plastics Ltd. v. Hindustan Photo Films Mfg Co. Ltd. and Ors. MANU/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."

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In the light of the aforesaid, the writ petition stands dismissed.

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Order Date :- 23.4.2018 Ashish Tripathi

Tahir v. State of U.P. and 3 Others

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Tahir v. State of U.P. and 3 Others

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