# Zakir v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-17
- **Case number:** Writ-C No. 45899 of 2017
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zakir-v-state-of-u-p-ors-46593
- **Pages:** 6

## Headnote

Order, 2016 - Section 13(1) - Fair price shop
license - Allotment - Filing of appeal by a
person not participated in the
allotment
proceeding - Locus challenged - Held, 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. (Para 12)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)12ILR A508
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-C No. 45899 of 2017

Zakir ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Parvez Alam, Sri Devesh Vikram

Counsel for the Respondents:
C.S.C.

A. UP Scheduled Commodities Distribution
Order, 2016 - Section 13(1) - Fair price shop
license - Allotment - Filing of appeal by a
person not participated in the
allotment
proceeding - Locus challenged - Held, 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. (Para 12)
Writ petition allowed. (E-1)
Cases relied on :-
1. Babu Ram Singh Vs St. of U.P. & ors.; [2009 (10)
ADJ 24]
2. Neeraj Kumar Mishra Vs Dy. Commissioner (Food)
Region Allahabad & ors.; 2017 (3) AdJ 834
3. Writ-C No. 49975 of 2015; Kailash Singh Vs St. of
U.P. & ors. decided on 03.09.2015.
(Delivered by Hon'ble Neeraj Tiwari, J.)

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

2. 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.

3. 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.

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
11 All. Zakir Vs. State of U.P. & Ors.
509
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.

5. 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.

6. 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.

7.

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

8. 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.

9. 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.
510 INDIAN LAW REPORTS ALLAHABAD SERIES

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. "

10. 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."

11. 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
11 All. Zakir Vs. State of U.P. & Ors.
511
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
512 INDIAN LAW REPORTS ALLAHABAD SERIES
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
11 All. Pratap Singh Vs. State of U.P. & Ors.
513
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."

12. 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.

13. 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.

14. 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.

15. 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.
----------
(2021)12ILR A513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2021

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 53843 of 2010

Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Sections 47-A & 56 - Deficiency of stamp - Exparte order passed relying upon ex-parte
inspection report - Though three exemplar
instruments relied upon to ascertain the
market value, the report also proceeded to
assess the value of the land, in question, on the
basis of the minimum rates prescribed by the
Collector
-
Validity
challenged
-
Held,
assessment of the value of the land in question