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A.F.R.

Court No. - 37

Case :- WRIT - C No. - 43188 of 2017

Petitioner :- Akhlaq

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Syed Mehdi Haider

Zaidi,U.C. Chaturvedi

Counsel for Respondent :- C.S.C.

Hon'ble Siddhartha Varma,J.

This writ petition has been filed by the

petitioner for quashing of the order dated

31.8.2017 which was passed by the Joint

Commissioner (Food) Saharanpur Division,

Saharanpur.

Initially when the respondent no. 4, who was

the fair price shop dealer in the area where the

petitioner was residing was not running the fair

price shop properly, then the petitioner, who was

a card holder, alongwith the other card holders,

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had filed various complaints. Upon an enquiry

being held the licence of the respondent no. 4

was cancelled on 10.3.2017. However, when the

appeal filed by the respondent no. 4 was allowed

on 21.8.2017, the petitioner filed the instant writ

petition.

Sri Brijesh Yadav has put in appearance on

behalf of the respondent no. 4 and has also filed

his written submissions. Though the counsel for

the respondent no. 4 had submitted that the

Appellate Order was correctly passed, he made

a preliminary objection to the filing of the writ

petition by saying that the petitioner who was a

card holder and only a complainant had no locus

standi to file the writ petition.

Learned counsel for the respondent no. 4

relied upon 2009 (108) RD 689 : Dharam Raj

vs. State of U.P. & Others and submitted that

the petitioner was only a complainant and had no

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locus standi to file the present writ petition.

Learned counsel for the respondent no. 4 relied

upon paragraph no. 13 and 17 of the judgement

and stated that the petitioner was not a person

aggrieved and was only someone who could be

called a person who was annoyed by the fact

that the fair price shop dealer was being allowed

to continue with the fair price shop. He submits

that a person is considered to be a person

aggrieved if an order operates directly and

injuriously upon his personal, pecuniary and

propriety rights. In this context, learned counsel

for the respondent relied upon AIR 2005 AP 45

(Kalva Sudhakar Reddy v. Mandala Sudhakar

Reddy).

Further, learned counsel submitted that

under the garb of being a “necessary party” the

complainant could not be permitted to espouse

the cause of the general public. A person having

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only a remote interest cannot be permitted to

become a party in the litigation. He submits that

one who approaches the Court will have to

establish he has propriety rights which have

been violated or are threatened to be violated. In

this regard the respondent no. 4 referred to AIR

1971 SC 385 (Adi Pherozshah Gandhi v. H.M.

Seervai, Advocate General of Maharashtra),

AIR 1976 SC 578 (Jasbhai Motibhai Desai v

Roshan Kumar, Hahi Bashir Ahmed & Ors),

AIR 1976 SC 2602 (Maharaj Singh v. State of

Uttar Pradesh & Ors), 2002 (1) SCC 33

(Ghulam Qadir v. Special Tribunal & Ors) and

2008 (10) SCC 766 (Kabushiki Kaisha Toshiba

v. Tosiba Appliances Company & Ors).

Further learned counsel for the respondent

no. 4 relied upon a judgement of this Court

reported in 2017 (5) ADJ 472 and submitted that

someone who was aggrieved by the

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malfunctioning of the distribution system had a

whole machinery of redressal of his or her

grievances. Learned counsel for the respondents

relied upon paragraphs no. 11 to 28 of the above

mentioned judgement and submitted that

anybody who was aggrieved by the

malfunctioning of the public distribution system

had a complete machinery for the redressal of

his or her grievance and, therefore, the learned

counsel for the respondents submitted that the

writ petition should be dismissed on the ground

of maintainability at the instance of the petitioner.

Learned counsel for the petitioner in reply to

the preliminary objection regarding the

maintainability however submitted as follows:-

I. Writ Court can always exercise its jurisdiction

under Article 226 of the Constitution of India to

see if there was any illegality committed. In fact,

he submitted that the writ court had ample

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powers to take suo motu cognizance of any

illegality which might appear from the record. In

this regard, learned counsel for the petitioner

referred to AIR 1958 All 154 ( S. Barrow v.

State of U.P. & Another), AIR 1962 SC 1044

(Calcutta Gas Company (Proprietary) Ltd. Vs

State of West Bengal & Ors.), AIR 2006 All 23

(P.R. Transport Agency v. Union of India &

Ors.), 2004 (55) ALR 807 (Dr. Ravindra Kumar

Goel & Ors. v. State of U.P.), AIR 1959 All 695

(City Board, Saharanpur v. Abdul Wahid,) and

2011 (2) ALJ 116.

Learned counsel submitted that a writ court

can be approached by just any person against

any authority or person. The writ court cannot

oust any petition by saying that the same was

not maintainable. However, he submitted that it

was a different matter that the court might

choose to interfere or refrain from interfering. He

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submitted that the degree of interference would,

however, differ from case to case. In this regard

learned counsel relied upon 1999 (1) SCC 741

(U.P. State Cooperative Land Development

Bank Ltd. vs. Chandra Bhan Dubey and

Others) and specifically read out paragraphs no.

22 and 27 and, therefore, they are being also

reproduced here as under:-

“22. The language of Article 226 does not admit of

any limitation on the powers of High Court for the

exercise of jurisdiction thereunder though by various

decisions of this Court with varying and divergent

views, it has been held that jurisdiction under Article

226 can be exercised only when a body or authority,

the decision of which is complained, was exercising

its power in the discharge of public duty and that writ

is a public law remedy. In Rohtas Industries Ltd. vs.

Rohtas Industries Staff Union (1976) 2 SCC 82 it was

submitted before the Constitution Bench that an

award under Section 10-A of the Industrial Disputes

Act, 1947 savours of a private arbitration and was not

amenable to correction under Article 226 of the

Constitution. The Court said as under :

"9.The expansive and extraordinary power of

the High Courts under Article 226 is as wide as

the amplitude of the language used indicates

and so can affect any person - even a private

individual - and be available for any (other)

purpose - even one for which another remedy

may exist. The amendment to Article 226 in

1963 inserting Article 226 (1-A) reiterates the

targets of the writ power as inclusive of any

person by the expressive reference to 'the

residence of such person'. But it is one thing to

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affirm the jurisdiction, another to authorise its

free exercise like a bull in a china shop". This

Court has spelt out wise and clear restraints on

the use of this extraordinary remedy and High

Courts will not go beyond those wholesome

inhibitions except where the monstrosity of the

situation or other exceptional circumstances cry

for timely judicial interdict or mandate. The

mentor of law is justice and a potent drug

should be judiciously administered. Speaking in

critical retrospect and portentous prospect, the

writ power has, by and large, been the people's

sentinel on the qui vive and to cut back on or

liquidate that power may cast a peril to human

rights. We hold that the award here is not

beyond the legal reach of Article 226, although

this power must be kept in severely judicious

leash.

10. Many rulings of the High Courts, pro and

con, were cited before us to show that an award

under Section 10-A of the Act is insulated from

interference under Article 226 but we

respectfully agree with the observations of

Gajendragadkar, J. (as he then was) in

Engineering Mazdoor Sabha vs. Hind Cycles

Ltd. AIR 1963 SC 874 which nail the argument

against the existence of jurisdiction. The learned

Judge clarified at p.640 :

"Article 226 under which a writ of certiorari

can be used in an appropriate case, is, in

a sense, wider than Article 136, because

the power conferred on the High Courts to

issue certain writs is not conditioned or

limited by the requirement that the said

writs can be issued only against the orders

of courts or tribunals. Under Article 226(1),

an appropriate writ can be issued to any

person or authority, including in

appropriate cases any Government, within

the territories prescribed. Therefore, even

if the arbitrator appointed under Section

10-A is not a tribunal under Article 136 in a

proper case,' a writ may lie against his

award' under Article 226".

27. In view of the fact that control of the State

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Government on the appellant is all - pervasive and

the employees had statutory protection and therefore

the appellant being an authority or even

instrumentality of the State, would be amenable to

writ jurisdiction of the High Court under Article 226 of

the Constitution, it may not be necessary to examine

any further the question if Article 226 makes a divide

between public law and private law. Prima facie from

the language of the Article 226, there does not

appear to exist such a divide. To understand the

explicit language of the Article, it is not necessary for

us to rely on the decision of the English courts as

rightly cautioned by the earlier Benches of this Court.

It does appear to us that Article 226 while

empowering the High Court for issue of orders or

directions to any authority or person, does not make

any such difference between public functions and

private functions. It is not necessary for us in this

case to go into this question as to what is the nature,

scope and amplitude of the writs of habeas corpus,

mandamus, prohibition, quo warranto and certiorari.

They are certainly founded on the English system of

jurisprudence. Article 226 of the Constitution also

speaks of directions and orders which can be issued

to any person or authority including, in appropriate

cases, any Government. Under clause (1) of Article

367, unless the context otherwise requires, the

General Clauses Act, 1897, shall, subject to any

adaptations and modifications that may be made

therein under Article 372, apply for the interpretation

of the Constitution as it applies for the interpretation

of an Act of the Legislature of the Dominion of India.

"Person" under Section 2(42) of the General Clauses

Act shall include any company, or association or body

of individuals, whether incorporation or not. The

Constitution is not a statute. It is a fountain head of all

the statutes. When the language of Article 226 is

clear, we cannot put shackles on the High Courts to

limit their jurisdiction by putting an interpretation on

the words which would limit their jurisdiction. When

any citizen or person is wronged, the High Court

will step in to protect him, be that wrong be done

by the State, an instrumentality of the State, a

company or a cooperative society or association

or body of individuals, whether incorporated or

not, or even an individual. Right that is infringed

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may be under Part III of the Constitution or any other

right which the law validly made might confer upon

him. But then the power conferred upon the High

Courts under Article 226 of the Constitution is so

vast, this court has laid down certain guidelines and

self-imposed limitations have been put there subject

to which High Courts would exercise jurisdiction, but

those guidelines cannot be mandatory in all

circumstances. High Court does not interfere when

an equally efficacious alternative remedy is available

or when there is established procedure to remedy a

wrong or enforce a right. A party may not be allowed

to by-pass the normal channel of civil and criminal

litigation. The High Court does not act like a

proverbial 'bull in china shop' in the exercise of its

jurisdiction under Article 226.

II. The writ court cannot oust any petitioner at the

very outset by saying that a writ petition at his or

her behest would not be maintainable and cited

1986 (2) SCC 594 (Chaitanya Kumar & Ors.

vs. State of Karnataka & Ors). Learned counsel

submitted that the Court cannot close its eye to

any illegally and uphold the mischievous acts of

any Government executive whatsoever. Learned

counsel submitted that if at the very first instance

it is apparent from the record that a mischievous

act was being upheld by the executive by their

omission or by their active assistance then

nobody should be stopped from coming to the

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writ court.

III. Learned counsel for the petitioner further

submitted that the meaning of "aggrieved

person" was very broad and submitted that in the

definition of an "aggrieved person", a personal

harm had not to be essentially given out. A

person, he submits, could be aggrieved by the

happenings around him. He can feel aggrieved

by the action or omission of the executive which

affects him as also his acquaintances. Learned

counsel submits that definitely a person who

makes a sweeping allegation of misdeeds or of

omissions would not be allowed to approach the

writ court but such a person who bonafidely

comes across a misdeed which was taking place

around him definitely can approach the writ

Court. Learned counsel submits that a fair price

shop dealer who might be very impolite or

brusque in the village can definitely be

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proceeded against on the complaint of a person,

even if he is only a relative of a card holder. He

submits that if an enquiry is wrongly held and if it

is found wrongly that the fair price shop dealer

was not impolite or brusque then that

complainant can always approach the High

Court to bring to the notice of the Court that the

case of the fair price shop dealer was not dealt

with properly at the lower rungs.

IV. Learned counsel for the petitioner relied upon

AIR 2013 SC 58 (Ayaaubkhan Noorkhan

Pathan vs. State of Maharashtra & Ors) and

specifically read out paragraph 22 and so the

same is being reproduced here as under :

"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

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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."

He submitted that writ court, therefore, can

always examine an issue which had not been

raised by the actual person aggrieved but had

been raised on his behalf.

V. Learned counsel for the petitioner further

submits that the case of Dharam Raj (supra) in

view of the ratio laid down in the Supreme Court

decision of Ayaaubkhan Noorkhan Pathan vs.

State of Maharashtra & Ors. reported in AIR

2013 SC 58 may not be relied upon while

dealing with a writ petition filed by a complainant.

He, therefore, submitted that in the back drop of

the submissions made by him a complainant

could not be ousted at the very first instance

without looking into his grievances.

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Having heard the learned counsel for the

petitioner and the respondents, I am of the view

that a writ petition at the behest of a complainant

could not be simply dismissed by saying that it

was not maintainable. Definitely, this Court feels

that the ratio as has been laid down in

Ayaaubkhan Noorkhan Pathan (supra), a

complainant definitely has a right to approach

this Court. It is another matter as to whether this

Court would interfere with the orders challenged

in his writ petition or not.

The writ petition therefore cannot be thrown

out at the very first instance in view of the law

laid down in Ayaaubkhan Noorkhan Pathan

(supra) by saying that it was not maintainable.

Whether interference is required would be

another matter.

Under such circumstances, the respondents

may file their counter affidavits within three

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weeks. The petitioner shall have two weeks time

to file a rejoinder affidavit thereafter.

List thereafter.

While parting, the Court would like to record

its appreciation to the assistance rendered by Sri

Vishal Tandon, Advocate, who was by an order

dated 21.11.2017 requested to assist the Court.

Order Date :- 5.2.2019

praveen.

(Siddhartha Varma,J.)