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THE MINI TRUCK UNION & ANOTHER versus STATE OF U.P. THRU' SECY. DEPTT. OF TRANSPORT & ORS.

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The Mini Truck Union & Another v. State Of U.P. Thru' Secy. Deptt. Of Transport & Ors. - WRIT - C No. 42427 of 2003 [2003] RD-AH 334 (19 September 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

CIVIL MISC. WRIT PETITION NO.42427 OF 2003

The Mini Truck Union, Fatehabad,

District Agra & anr. -----             Petitioners

Versus

The State of U.P. & ors. -----            Respondents    

    --------------

   Hon'ble Dr.B.S.Chauhan,J.

   Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. Justice B.S.Chauhan, J.)

This is a Public Interest Litigation filed by the Mini Truck Union - an unregistered body for issuing direction to the respondents not to permit plying the auto vehicles called "Jugar" on public road which are proving danger to life and property of the people moving on the  roads and further direction to seize such auto vehicles.

Learned counsel for the petitioner has submitted that allowing the said auto vehicles on the road is dangerous to the people, and therefore, the petition has been filed in public interest to save the lives of the innocent people who are being crushed every day on the roads mercilessly by the said vehicles.

On the contrary, learned Standing Counsel Shri C.K.Rai and Dr. H.N.Tripathi, Advocate, appearing for the respondents have opposed the petition contending that under the garb of public interest litigation the ulterior motive is to be served. Petitioners are rival businessmen and they are aggrieved because of the loss to their earnings because of the plying of these vehicles. A rival businessman cannot maintain a petition even in normal circumstances on the ground of loss of income etc., what to talk of the Public Interest Litigation. Thus, the petition is liable to be dismissed with exhorbitant cost.

We have considered the rival submissions made by the learned counsel for the parties and perused the record of the case.

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 the 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 respondents. Therefore, there must be judicially enforceable right for the enforcement on 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. (State of Kerala Vs. K.G. Madhavan Pillai, AIR 1989 Supreme Court 49; State of Kerala Vs. Smt A. Lakshmikutty, AIR 1987 Supreme Court 331; Mani Subrat Jain & ors. Vs. State of Haryana, AIR 1977 Supreme Court 276; Calcutta Gas Company (Propriety Ltd.) Vs. State of West Bengal & ors., AIR 1962 Supreme Court 1044; Rajendra Singh Vs. State of M.P., AIR 1996 Supreme Court 2736; Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & ors.,(1988) 7 SCC 469; Utkal University Vs. DR Nrusingha Charan Sarangi & ors., (1999)2 SCC 193).  

In Jasbhai Motibhai Desai Vs. Roshan Kumar Hazi Bashir Ahmad, 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  more particular or peculiar interest on his own beyond that of 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. Juridically, harm of this description is called damnum sine injuria. The term injuria being hear used in its true sense of an Act contrary to law. The 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 affect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiceable claim to hand on. Therefore, he is not a "person aggrieved" and has no locus standi to challenge the ground of the no objection of certificate."

Similarly, in K. Ramdas Shenoy Vs. Chief Officers Town Municipal Council, Udipi Municipality, AIR  1974 SC 2177, the Hon'ble Supreme Court examined a case of a resident in a locality where a cinema building was to be constructed contrary to the Building Town Planning Scheme. He was held to be entitled to maintain writ on the ground that the residential area would stand spoiled by unauthorized construction in violation of the statutory provisions and the municipal authorities owed a public duty and an obligation under the Statute not to allow the construction of a cinema hall in a residential area.

In The Nagar Rice and Flour Mills & Ors. Vs. M. Teekappa Gowda and Bros. & Ors., AIR 1971 SC 246, the Hon'ble Supreme Court rejected the claim of an existing Mill owner that in case any other Mill is shifted to the locality wherein his Mill stood situated, he would be adversely affected, therefore, has a locus standi to maintain the suit/writ. The Hon'ble Supreme Court held that the right to carry on business being fundamental right guaranteed under Article 19 (1)(g) of the Constitution, its exercise is subject to only to the restrictions imposed by the law in the interest of general public under Article 19 (6) (i) of the Constitution.

Similar view has been reiterated by the Hon'ble Supreme Court in Saghir Ahmad & Anr. Vs. State of U.P., AIR  1954 SC 728; Hans Raj Kehar & Ors. Vs. State of U.P. & Ors., AIR  1975 SC 389; and Mithilesh Garg Vs. Union of India & Ors., AIR  1992 SC 443, while examining the locus of the existing operators to have objection for grant of permits under the provisions of the Motor Vehicles Act.

In Northern Plastics Ltd. Vs. Hindustan Photo Films Mfg. Co. Ltd. & Ors., 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. However, in the said case, the Union of India's writ petition was held to be maintainable in a larger public interest.

In Thammanna Vs. K. Veera Reddy, (1980) 4 SCC 62, the Hon'ble Supreme 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. However, in Dr. Duryodhan Sahu & Ors. Vs. Jitendra Kumar Mishra & Ors., (1998) 7 SCC 273, the Hon'ble Supreme Court rejected the claim of a stranger to maintain a writ petition even in public interest litigation before the Hon'ble Administrative Tribunal. It was further held that the Administrative Tribunal constituted under the Act is meant for resolving the personal dispute of an employee, does not have a right to entertain public interest litigation at the instance of a total stranger.

In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, the Hon'ble Supreme Court considered the matter at length and placed reliance upon a large number of its earlier judgments including the Chairman, Railway Board Vs. Chandrimadas, 2000 (7) SCC 465; and held 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. (Vide K.N. Lakshminarasimaiah Vs. Secretary, Mysore  S.T.A.T., (1966) 2 Mys. L.J. 199).

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 Thiruvengadam Vs.  Muthu Chatiar, AIR 1970 Mad. 34, it has been held that a person can be said to be aggrieved if apart from the general interest,  such a person, as a member of the public, has particular or special interest in the subject matter supposed to be wrongly decided.

In S.M. Transport Ltd. Vs. Raman  & Raman, AIR 1961 Mad. 180, the Full  Bench  of Madras High Court, while considering the provisions of Madras Motor  Vehicles Act, considered  the  issue and approved the law  laid   down in Rex  Vs.  Richmond Confirming Authority, Ex-parte Hobbit, 1921 (1) KB 248; and Rex Vs.   Groom, ex-parte, Cobbold, 1901 (2) KB 157, and laid down the principle as under:-

"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered."

In Gram Sabha Vs. Ramraj Singh, 1968 All.WR 844, this Court held that the expression "person aggrieved" does not include a person who suffers from psychological or imaginary injury; the person aggrieved  must   necessarily be one whose right or interest is adversely affected or jeopardised."

Thus, it is evident from the aforesaid that "person aggrieved" is to be considered in context of the Act involved and is to be restricted to the person, which has wrongfully been deprived of something or wrongfully refused something or his interest/ title is adversely affected, but the same does not require a very liberal and wide interpretation.

In Ashok Auto Service of Betin Vs. Union of India &  ors.,  AIR 1968  Goa  67, while considering the issue of locus standi of a person to file a  writ  petition  in the High Court in respect of the provisions of the Motor Vehicles Act, 1939  placing reliance  on the judgment of the Hon'ble  Supreme Court in  State of Orissa Vs. Madhan Gopal, AIR 1952 SC 12, the Court held that the existence of a right in favour of the writ petitioners is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. Reliance was also placed upon the judgment of the Supreme Court in Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183, wherein the Hon'ble Apex Court enunciated the  proposition that the  right  to maintain  a writ postulates a subsisting personal  right in the claim which the petitioner makes and in the protection  of  which  he is personally interested. The existence of a legal right is a condition precedent  to   approach  the  Court/ Tribunal.

The term  "person aggrieved" was also considered and defined in Re" Sidebotham, 1880  (14) Ch.D. 458, wherein it has been observed as under:-

"The words  'person  aggrieved'  do  not  really  mean a man who is disappointed of a benefit which he might have received if some  other order had   been  made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

In Ghulam Qadir Vs. Special Tribunal & Ors., (2002) 1 SCC 33, the Hon'ble Supreme 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 our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected ion the ground of his not having the locus standi. 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."

The party has to satisfy as what is the legal injury caused by that violation of law. More so, a rival businessman does have a right to maintain writ petition only on the ground that by granting another licence in the neighbouring area, may break his monopoly and adversely affect his financial interest, as the same does not fall within the ambit of legal injury.

However, need was felt to relax the rule of locus standi wherever person aggrieved could not have the resources to approach the Court. The Hon'ble Apex Court entertained the petition even of unregistered Association espousing the cause of over down-trodden or its members observing that the cause of "little Indians" can be espoused by any person having no interest in the matter. However, the said person should be bona fide, not a intermeddler or busy-body. (Vide Bandhwa Mukti Morcha Vs. Union of India & ors., AIR 1984 SC 802).

In Akhil Bharatiya Soshit Karamchari Sangh (Railway) Vs. Union of India & ors., AIR 1981 SC 298, the Hon'ble Supreme Court while dealing with the issue of locus standi observed as under:-

"Our current processual jurisprudence is not an individualistic Anglo-Indian mould. It is broad based and people-oriented, and envisions access to justice through ''class actions', ''public interest litigation', and representative proceedings'. Indeed, little Indians in larger numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of ''cause of action' and ''person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions."

In Fertilizer Corporation Kamagar Union, Sindri & ors. Vs. Union of India & ors., AIR 1981 SC 344, the Hon'ble Supreme Court held as under:-

"Public interest litigation is part of the  process of participate justice and ''standing' in civil litigation of that pattern must have liberal reception at the judicial doorsteps."

Public interest litigation is not in the nature of adversary litigation. The purpose of P.I.L. is to promote the public interest which mandates that violation of legal or constitutional rights of a large number of persons, poor, down-trodden, ignorant, socially or economically disadvantaged should not go unredressed. The Court can take cognizance in P.I.L. when there are complaints which shocks the judicial conscience. P.I.L. is pro bono publico and should not smack of any ulterior motive and no person has a right to achieve any ulterior purpose through such litigations.

In S.P.Gupta & ors. Vs. Union of India, AIR 1982 SC 149, the Hon'ble Apex Court has warned by saying that the Court must be careful that the members of the public who approach the court are acting bona fide and not in personal garb of private profit or political motivation or other oblique considerations. "The Court must not allow its process to be abused". Similar view has been taken in Kazi Landup Dorji Vs. Central Bureau of Investigation & ors, 1994 (Supp) 2 SCC 116.

In Veena Sethi Vs. State of Bihar, AIR 1983 SC 339, the Apex Court has observed that the role of law requires to be played for the poor and ignorant who constitute a large bulk of humanity in this country and the Court must uphold the basic human rights of weaker sections of the society.

In the case of State of Himachal Pradesh Vs. Parent of Student, AIR 1985 SC 910, the Hon'ble Supreme Court held as under:

"Where the Court finds, on being moved by an aggrieved party or by any public spirited individual or social action group, that the executive is remiss in discharging its obligation under the Constitution or the law, so that the poor and the under-privileged continued to be subjected to exploitation and injustice or are deprived of their social and economic entitlements or that social and economic entitlements or that social legislation enacted for their benefit is not being implemented thus depriving of their rights and benefits conferred upon them, the Courts certainly can be must intervene and compel the executive to carry out its constitutional and legal obligations and ensure that the deprived and vulnerable sections of the community are no longer subjected to exploitation or injustice and they are able to realise their social and economical rights."

In Sachidanand Pandey Vs. State of West Bengal, (1987) 2 SCC 295, the Apex Court observed that the Court should not take cognizance in such matters merely because of its attractive name. The petitioner must inspire the confidence of the Court and must be above suspicion.

In Ram Saran Ayotan Parasi Vs. Union of India, JT (1988) 4 SC 557, the Hon'ble Supreme Court observed that the P.I.L. Is for making basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice.

In Gyani Devender Singh Sant Sepoy Sikh Vs. Union of India & ors., AIR 1995 SC 1847, the Hon'ble Supreme Court has held that the High Court, while entertaining a P.I.L must indicate how the public interest was involved in the case.

In R.K.Jain Vs. Union of India & ors., AIR 1993 SC 1769, the Apex Court observed that it was for the aggrieved person to assail the illegality of the offending action and no third party has a locus standi to canvass the legality or correctness of the action. Similarly, in Mohmmad Anis Vs. Union of India & ors., 1994 (Supp) 1 SCC 145, the Apex Court has held that a case should not be entertained unless the petitioner points out that his legal rights have been infringed.

A Constitution Bench of the Supreme Court in Jasbhai Motibhai Desai Vs. Roshan Kumar Haji Bashir Ahmad & ors., AIR 1976 SC 578, the Hon'ble Supreme Court has observed as under:

"If a person wants a relief in a Court independent of a statutory remedy, he must show that he is injured or subjected to or threatened with a legal wrong. The Courts can interfere only wehre legal rights are involved. In fact legal wrong requires judicially enforceable right and ''the touchstone to justiciability is injury to a legally protected right'. A nominal or a highly speculative adverse effect on the interest of a person or right of a person is sufficient to give him the ''standing to sue'. Again, the ''adverse effect' and the requisite for ''standing to sue' must be an illegal effect.....

Such persons are merely busy body of middlesome interloper...They masquerade as crusaders for justice. They pretend to act in the name of probono publico, though they have no interest of the public or even of their own to protect. They indulge in the .............judicial process.............from improper motives..........The High Court should do well to reject the application of all such busybodies at the threshold."

In S.P.Anand Vs. S.D.Devegowda & ors., (1996) 6 SCC 734, the Hon'ble Supreme Court has observed that, "no person has a right to waiver of the locus standi rule and court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person, who is genuinely concerned in public interest and is not moved by other extraneous considerations, so also the Court must be careful to ensure that the process of the court is not sought to be abused......"

P.I.L. can also be filed by any person challenging the misuse or improper use of any public property, including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest. But such a petition can be entertained for the protection of the society. (Vide J. Jayalalitha Vs. Govt. of Tamil Nadu & ors., (1999) 1 SCC 53; L. Muthukumar & anr. Vs. State of Tamil Nadu & ors., (2000) 7 SCC 618; and M.C.Mehta Vs. Union of India & ors., AIR 2001 SC 1544),

In Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & ors., (1999) 1 SCC 492, the Apex Court observed as under:-

"The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The Court can examine the previous record of public service  rendered by the organisation bringing the public interest litigation. Even when a public interest litigation is entertained, the court must be careful to weigh conflicting public interests before intervening."

Thus, in view of the above, the ratio of all these judgments is as under:

There must be a public injury and public wrong caused by wrongful or ultra vires acts or omission of the state or a public authority.

It is for the enforcement of basic human rights of weaker sections of the community who are poor, down-trodden, ignorant, illiterates and whose fundamental rights and statutory rights have been violated. In fact, it is for compelling the executive to carry out its constitutional and legal obligations.

It must not be frivolous litigation by persons having vested interests.

Though allegations in the petition may have some substance, but this is the solemn duty of the court to protect the society from the so called protectors of the society and, thus, while entertaining P.I.L., the court should be conscious and try to ascertain the bona fides of the petitioner and further, find out whether he is really a public spirited person or he has approached the court to settle his ulterior score through the legal process.

The instant case requires to be examined in the light of the aforesaid settled legal propositions. Petitioner is an Association of Mini Truck owners. Thus, certainly, members of this unregistered Association are having the business of transportation, and thus, have personal interest in the matter. Needless to say that they suffer and incur financial losses because of the plying of Jugar on the roads. Thus, it is clear that this petition is by the members having rival business. There is nothing on record to show that earlier this Association has rendered any service to the society or had been interested in protecting the society by any means from any in-action or over-action of the State or its instrumentalities. Petition has been filed for personal gain of the members of the Association. There can be no hesitation in holding and recording the finding of fact that under the garb of public interest litigation the members of the so called Association have filed a personal interest litigation. Adopting such an attitude without any sense of responsibility deserves deprecation. Filing this kind of petition not only amounts to dis-service to the society, but also amounts to abuse of the process of the court which is already over-burdened and not able to carry out its regular work. Conduct of the members of the Association filing this petition is reprehensible and cannot be approved.

Petition is, accordingly, dismissed.

19.9.2003

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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