PETITIONER:
JASBHAI MOTIBHAI DESAI
Vs.
RESPONDENT:
ROSHAN KUMAR, HAJI BASHIR AHMED & ORS.
DATE OF JUDGMENT19/12/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1976 AIR 578 1976 SCR (3) 58
1976 SCC (1) 671
CITATOR INFO :
R 1977 SC 276 (9)
R 1978 SC 327 (11)
F 1980 SC 517 (10,11)
RF 1981 SC 116 (20)
R 1982 SC 149 (15,965)
R 1992 SC 443 (7)
ACT:
Constitution of India-Art. 226-Scope of the power of
writ of “certiorari”.
Rule of practice-Usefulness of English decisions and
when can be considered.
“Aggrieved persons”-Tests for deciding.
HEADNOTE:
“Locus standi”-Whether a rival in trade and an owner of
an existing cinema theatre is an “aggrieved person” within
the meaning of s. 8A of the Bombay Cinema Rules. 1954
entitling him to invoke the certiorari jurisdiction ”ex-
debito justitiae ‘ of the High Court for quashing the order
granting a “no objection certificate” under rule 6 of the
Bombay Cinema Rules, 1954.
Damnum sine injuria-Principle of.
Under the Bombay Cinema Rules, 1954, the District
Magistrate, after inviting the objections under r. 4 from
the public and also the opinions of the District
Superintendent of Police, Chairman Nagar Panchayat and the
Executive Engineer (Roads & Buildings), and after
considering them. may grant under rule 5 a “no objection
certificate” to the appellants for the location of a cinema
theatre under his jurisdiction, or in case of his not
granting the certificate, he must refer under s. 6 of the
Rules, the matter to the State Government with his reasons
therefor.
In respect of the application of the respondents, not
being satisfied of the opinions of the District
Superintendent of Police, Nagar Panchayat Chairman,
Executive Engineer (Roads & Buildings) favouring the grant
of certificate to the appellants herein, the District
Magistrate personally visited the site and submitted a
report to the State Government to the effect that the
proposed site was not fit for the location of a cinema
house. On the directions of the State Government, which did
not agree with the report submitted by him, the District
Magistrate granted the certificate to the respondents.
The appellant being a rival in the cinema trade, though
he did not prefer any objections at the time when they were
called for, filed a writ petition in the Bombay High Court
alleging that (i) the impugned certificate issued by the
District Magistrate was not in the exercise of his own
discretion and with due regard to the principles in the
Bombay Cinematographic Act, 1918 and the Rules and (ii)
Since as a Licensing Authority, the power has not be
objectively exercised in a quasi judicial manner, the grant
of the certificate suffered from lack of jurisdiction.
The High Court, dismissed the writ petition on the
ground that no right vested in the appellant, had been
infringed or prejudiced or adversely affected as direct
consequence of the order impugned by him, and as such, he
was not an “aggrieved person” having a locus standi in the
matter.
On appeal by special leave to this Court, the appellant
contended that (i) apart from a right in common with the
general public to object to the grant before the District
Magistrate, the appellant being a rival in the same trade
had a particular commercial interest to see that the
permission was not granted to another in contravention of
law to start the same business, entitling him to a writ of
certiorari ex-debito justitiae; and (ii) The concept of
“aggrieved person’s being wide, any one who is personally
interested and genuinely grieved by an act of usurpation of
jurisdiction or lack of jurisdiction on the part of an
administrative tribunal or body would fall within the
category of an “aggrieved
59
person” even if such usurpation or lack of jurisdiction had
not resulted in infringement of a legal right or legal
interest vested in him; nor would such a person be denied
“locus standi”‘ for me purpose of ”certiorari” merely
because he had not lodged any objection or joined the
proceedings before the tribunal.
Dismissing the appeal, the Court,
^
HELD: (1) The founding fathers of the Constitution have
designedly couched Article 226 in comprehensive Phraseology
to enable the High Court to reach injustice, wherever it is
found. In a sense, the scope and nature of the power
conferred by the Article is wider than that exercised by the
writ courts in England.
Dwarka Nath v. Income Tax Officer, Kanpur [1965] 3 SCR
563, referred to.
(2) The adoption of the nomenclature of English writs
with the prefix “nature of” superadded, indicates that the
general principles grown over the years in the English
courts, can shorn of unnecessary technical procedural
restrictions, and adapted to the special conditions of this
vast country, in so far as they do met conflict with any
provision of the Constitution, or the law declared by this
court be usefully considered in directing the exercise of
this discretionary jurisdiction in accordance with well
recognised rules of practice. [64 D-F]
(3) According to most English decisions, in order to
have the locus standi to invoke certiorari jurisdiction the
petitioner should be an “aggrieved person”, and in a case of
defect of jurisdiction, such a petitioner shall be entitled
to a writ of certiorari as a matter of course,, but if he
does not fulfil that character and is a “stranger” the court
will, in its discretion, deny him this extraordinary remedy,
save in exceptional circumstances. [64 F-G]
(4) The expression “aggrieved person” denotes an
elastic and to an extent an elusive concept. It cannot be
confined within the bounds of a rigid, exact and
comprehensive definition. At best, its features can be
described in a broad tentative manner. Its scope and meaning
depends on diverse, variable factors such as the content and
intent` of the statute of which contravention is alleged the
specific circumstances of the case, the nature and extent of
the prejudice or injury suffered by him. English courts have
sometimes put a restricted and sometimes a wide construction
on the expression, “aggrieved person”. [64 H. 65 Al
(5) In order to have the 'locus standi' to invoke the
extraordinary jurisdiction under Art. 226 an applicant
should ordinarily be one who has a personal or individual
right in the subject matter of the application, though in
the case of some of the writs like habeas corpus or quo
warranto, this rule is relaxed or modified. The expression
"ordinarily" indicates that this is not a cast-iron rule. It
is flexible enough to take in those cases where the
applicant has been prejudicially affected by an act or
omission of an authority, even though he has no propriety or
even a fiduciary interest in the subject matter. That apart
in exceptional cases even a stranger or a person who was not
a party to the proceedings before the authority, but has a
substantial and genuine interest in the subject matter of
the proceedings will be covered by this rule. [10 A, C-D]
(6) In the context of locus standi to apply for a writ
of certiorari, an applicant may ordinarily fall in any of
these categories: (i) person aggrieved. (ii) stranger. (iii)
busybody or meddlesome interloper Persons in the last
category are easily distinguishable from those coming under
the first two categories inasmuch as they interfere in
things which do not concern them, masquerading as crusaders
for justice in the name of pro bono publico, though they
have no interest of the public or even of their own to
protect The distinction between the first and second
categories though real, is not always well demarcated. The
first category has, as it were, two concentric zones; a
solid central zone of certainty and a grey outer circle of
lessening certainty in a sliding centrifugal scale with an
outermost nebulous fringe of uncertainty. Applicants falling
within the central zone are those whose legal rights have
been infringed. Such applicants undoubtedly stand in the
category of “persons aggrieved’. In the grey outer-circle
the bounds which separate the first category
60
from the second, intermix, interfuse and overlap
increasingly in a centrifugal direction. All persons in this
outerzone may not be “persons aggrieved”. [71 A-C, D-E]
(7) To distinguish such applicants from “strangers”
among them, some broad tests may be deduced from case law,
the efficacy of which varies according to the circumstances
of the case, including the statutory context in which the
matter falls to be considered. These are: (1) Whether the
applicant is a person whose legal right has been infringed ?
(2) Has he suffered a legal wrong or injury, in the sense
that his interest recognised by law has been prejudicially
and directly affected by the act or omission of the
authority complained of ? (3) Is he a person who has
suffered a legal grievance, a person 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 ? (4) Has he a special and
substantial grievance of his own beyond some grievance or
inconvenience suffered by him in common with the rest of the
public ? (5) Was he entitled to object and be heard by the
authority before it took the impugned action ? If so, was he
prejudicially affected in the exercise of that right by the
act of usurpation of jurisdiction on the part of the
authority ? (6) Is the statute, in the context of which the
scope of the words “person aggrieved” is being considered, a
special welfare measure designed to lay down ethical or
professional standards of conduct for the community? (7) or
is it a statute dealing with private rights of particular
individuals ? [71 E-H, 72 A]
Rex v. Taunton St. Mary (1815) 3 M & S 465, King v:
Groom & Others Ex parte [1901] 2 K.B. 157, King v. Richmond
Confirming Authority Ex parte Howitt [1921] 1 K.B. 157. R.
Thomas Magistrates Court Ex Parte Green Baum (1957) 55 LCR.
129, 135, 135-136 in Yardley’s Book of English
Administrative Law 2nd Edition p. 228; Rex v. Manchester
Legal Aid Committee [1952] 2 QBD 413. Attorney General of
Gambia v. N’s Jie [1961] A.C. 617. Maurice v. London County
Council [1964] QB 362, 378. Regina v. Liverpool Corporation
Ex Parte Liverpool Taxi Fleet Operator’s Association [1972]
(2) QB 299; Regina v. Paddington Valuation Officer Ex parte
Peachy Property Corporation Ltd. [1966] 1 QB 860; Bar
Council of Maharashtra v. M. V. Dabholkar [1976] 1 SCR p.
306 Rex v. Butt I Another Ex parte Brooke vol. xxxviii
(1921-22) Times Law Reports 537; Regina v. Brighton Borough
Justices Ex parte Jarvia (1954) 1 Weekly Law Reports 203.
Burton & others v. Minister of Housing & Local Government
[1961] 1 QBD 278. In re Side bottom (1880) 14 ChD. 458 @
465; Ex parte Scott [1916] 1 KB 7; King v. Middllesex
Justices (1832) 37 FR 594-(1832) 3 B & AD 938; R. Bradford
an Avan Urban Dt. Council Ex parte Balton [1964] 2 All ER
492; Gregorrey v. Comden London Borough Council (1966) WLR
899; R. v. London O.B. Ex parte West Minister Corporation
[1951] 2 K.B. 508; Regina v. Cardiff Justices Ex parte
Cardiff Corporation [1962] 2 Q.B. 436; State of Orissa v.
Madan Gopal Bangta [1952] SCR 28. Calcutta Gas co. v. The
State of West Bengal [1962] Supp. 3 SCR l; Rameshwar Suthoo
v. Member, Board of Revenue Orissa [1967] 2 SCR 172; State
of Orissa v. Rajashah Chandamall AIR 1972 S.C. 2114. Dr.
Satyanarayana Sinha v. M/s. Lal & Co. [1974] 1 SCR 615;
Colamen v. Miller [1939] 307 Q.B. 433. Chapman v. Sheriden
Wyoming Coal Co. 338 U.S. 621, American Jurisprudence Vol. 2
Ld. at 575 p. 334 Joint Anti Fascist Refugee Committee v.
Melarth 341 U.S. 123; United States Cane Sugar Refiners’
Asson. v. McNutt 138 F 2nd 116: 158 ALR 849; United States
v. Storer Broadcasting Co. 351 U.S. 192 and Kansas City
Power & Light Co. v. McKay 350 U.S. 884, considered.
(8) The Bombay Cinematographic Act and the Rules are
not designed to set norms of moral or professional conduct
for the community at large or even a section thereof and
hence, the expression “person aggrieved” must receive a
strict construction. The Act and the Rules do not confer any
substantive justiciable right on a rival in cinema trade,
apart from the option in common with the rest of the public
to lodge an objection in response to the notice published
under Rule 4. Section 8A of the Act confers a right of
appeal to the State Government, only on any person aggrieved
by an order of a licensing authority refusing to grant a
licence or revoking or suspending any licence under s 8.
[72B,C-E]
61
Section 8B of the Act provides that the State
Government may either of its A own motion or upon an
application made by “an aggrieved person” call for and
examine the record of any order made by a licensing
authority under this Act and passes such order thereon as it
thinks just and proper. [72 F-G]
(9) Such harm or loss in business arising out of
setting up of a rival cinema house adversely affecting the
monopolistic, commercial’ interest of the applicant 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 typed is called “damnum sine
injuria” the term injuria being here used in its true sense
of an act contrary to law. The reason why the law suffers a
person knowingly to inflict harm of this description on
mother without holding him accountable for it is that such
harm done to an individual is a gain to society at large.
[73 E-F]
Salmondon jurisprudence referred to.
(10) In the instant case, none of the appellant’s
rights orinterests recognised by the general law has been
infringed as a result of the grant of ‘No Objection
certificate’. He 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 a,
legal wrong. He has suffered no legal grievance. He has no
legal peg for a justicable claim to hang on. Therefore, he
is not a “person aggrieved” within the meaning of s. 8A or
8B of the Bombay Cinema Rules, 1954 and has no locus standi
to challenge the grant of the ‘No objection certificate’.
[73 C, F-G] D
Rice & Flour Mills case [1970] 3 S.C.R. 846 applied.
(11) Assuming that the appellant is a stranger, and not
a busybody, then also there are no exceptional circumstances
in the present case which would justify the issue of a writ
of certiorari at his instance. On the contrary, the result
of the exercise of these discretionary powers, in his
favour, will, on balance, be against public policy. It will
eliminate healthy competition in business which is so
essential to raise commercial morality. it will tend to
perpetuate the appellant’s monopoly of cinema business in
the town. and above all, it will seriously injure the
fundamental rights of respondents 1 and 2 which they have
under Article 19(1)(g) of the Constitution to carry on trade
or business subject to “reasonable restrictions imposed by
law”. [74 C-D]
(12) It is true that in the ultimate analysis, the
jurisdiction under Art. 226 is discretionary. But in a
country like India where writ petitions are instituted in
the High Courts by the thousand many of them frivolous, a
strict ascertainment, at the outset, of the standing of the
petitioner to invoke this extraordinary jurisdiction must be
insisted upon. The broad guidelines indicated coupled with
other well established, self-devised rules of practice, such
as the availability of an alternative remedy, the conduct of
the petitioner etc., can go a long way to help the Courts in
weeding out a large number of writ petitions at the initial
stage with consequent saving of public time and money. While
a Procrustean approach should be avoided, as a rule, the
court should not interfere at the instance of a “stranger”
unless there are exceptional circumstance involving a grave
miscarriage of justice having an adverse impact on public
interests.
[73H, 74 A-B]
JUDGMENT:
CIVIL APPELLATE Jurisdiction: Civil Appeal No. 2035 of
1971.
Appeal by Special Leave from the Judgment and order
dated the 11th November, 1971 of the Gujarat High Court in
S.F.A. No. 158484 of 1 970.
V. N. Tarkunde and Mrs. S. Gopalakrishnan for the
Appellant.
Vimal Dave and Miss Kailash Mehta for Respondents 1-2.
G. A. Shah and M. N. Shroff and Girish Chandra for
Respondent Nos. 3-4.
62
The Judgment of the Court was delivered by
SARKARIA, J.-Whether the proprietor of a cinema theatre
holding a licence for exhibiting cinematograph films, is
entitled to invoke the certiorari jurisdiction ex debito
justitiae to get a ‘No-objection Certificate’, granted under
Rule 6 of the Bombay Cinema Rules, 1954 (for short, the
Rules) by the District Magistrate in favour of a rival in
the trade, brought up and quashed on the ground that it
suffers from a defect of jurisdiction, is the principal
question that falls to be determined in this appeal by
special leave.
The circumstances giving rise to this appeal are as
follows:
Respondents 1 and 2 are owners of a site, bearing
Survey No. 98 in the town of Mehmadabad. They made an
application under Rule 3 of the Rules to the District
Magistrate, Kaira, for the grant of a Certificate that there
was no objection to the location of a cinema theatre at this
site. The District Magistrate then notified in the
prescribed Form, the substance of the application by
publication in newspapers, inviting objections to the grant
of a No-objection Certificate. In response thereto, several
persons lodged objections, but the appellants, who are the
proprietors of a cinema house, situated on Station Road,
Mehmadabad, were not among those objectors. Some of the
objections were that a Muslim graveyard, a Durgah, a compost
depot, a school and public latrines were situated in the
vicinity of the proposed site.
The District Magistrate (Res. 3 herein) invited the
opinions of the Chairman of Nagar Panchayat, Executive
Engineer Roads and
F, Buildings, and the District Superintendent of Police.
These three authorities opined that they had no objection to
the grant of the Certificate applied for. The District
Magistrate visited the site on 27-7-1970 Thereafter he
submitted a report to the State Government (Res. 4) ‘that
the proposed site was not fit for ‘the location of a cinema
house. He recommended that the ‘No-objection Certificate’
should be refused. The State Government did not agree with
the recommendation of the District Magistrate and directed
the latter to grant the Certificate. Accordingly, the
District Magistrate granted the ‘No-objection Certificate’
on 27-11-1970 to Res. 1 and 2.
On 16-12-1970, the appellants filed a writ petition in
the High Court under Articles 226/227 of the Constitution
praying for the issuance of a writ of certiorari, mandamus,
or any other appropriate writ or order directing the
Respondents to treat the No-objection Certificate granted to
Respondents 1 and 2 as illegal, void and ineffectual They
further asked for an injunction restraining Respondents 1
and 2 from utilising the certificate for the purpose of
building a cinema theatre.
The main grounds of challenge were: that the impugned
Certificate had been issued by the District Magistrate, not
in the exercise of his own discretion with due regard to the
principles indicated in the Bombay Cinematograph Act, 1918
(for short, the Act) and the Rules, but mechanically at the
dictates of the State Government; that Rules S and 6,
according to an earlier judgment of the High Court being
63
ultra vires and void, the Government had no power to grant
or refuse A the No-Objection Certificate; that such power
belonged to the District Magistrate who was the Licensing
Authority, and had to be exercised by him objectively, in a
quasi judicial manner in accordance with the statutory
principles; since it was not so exercised, the grant of the
Certificate in question suffers from lack of jurisdiction.
In the affidavit filed in reply, by the District
Magistrate (on behalf of Respondents 3 and 4) a preliminary
objection was taken that the appellants had no locus standi
to file the writ petition because their ,. rights were not
in any manner affected by the grant of the ‘No-objection
Certificate’. It was stated that the deponent had reported
the case and submitted the records to the State Government
under Rule S, recommending that on account of the location
of a graveyard, a church, a temple, a mosque and a school
near the proposed site, the no-objection certificate be
refused. It was admitted that on receipt of the order of the
State Government he granted the No-Objection Certificate to
Respondents 1 and 2 in compliance with the Government’s
directive. .
The High Court, purporting to rely on this Court’s
decision in State of Gujarat v. Krishna Cinema(1) and an
earlier decision of its own in Kishore Chander Ratilal v.
State of Gujarat(“), held that Rule 5(2) in its entirety,
and the words “the previous permission of the Government
obtained under Rule S” in Rule 6 being ultra vires and
invalid, have to be ignored as non est, with the result that
the District Magistrate had to come to his own conclusion on
relevant considerations and objective norms whether a No
objection Certificate should be granted or refused; that
under the Act the District Magistrate and not the
Government-is the Licencing Authority, and he was bound to
exercise this power, which is an integral part of the
process of licensing, in a quasi judicial manner, that since
the District Magistrate exercised this power not on his own
in accordance with objective principles, but solely at the
dictates of the Government, his act in granting the No-
Objection Certificate suffers from a patent lack of
jurisdiction.
The High Court, however, dismissed the writ petition on
the ground that no right vested in the appellant had been
infringed, or prejudiced or adversely affected as a direct
consequence of the order impugned by him, and as such, he
was not an aggrieved person’ having a locus standi in the
matter.
Mr. Tarkunde appearing for the appellant, assails the
finding of the High Court in regard to the locus standi of
the appellant to maintain the writ petition. The burden of
his arguments is that apart from a right in common with the
general public to object to the grant before the District
Magistrate, the appellant was a rival in the same trade and,
as such, had a particular interest to see that permission
was not granted to another, in contravention of law, to
start the same business; consequently, the illegal grant of
the No-objection Certificate had prejudicially affected the
commercial interest of the appellant who stood in the ll
(1) [1971] 2 S.C.R. 110.
(2)Special Civil Application No. 912 of 1970, decided
by Gujarat High Court on 25/27th Nov. 1 970.
64
category of an “aggrieved person’ entitled to a writ of
certiorari ex debito justitiae. It is submitted that so far
as certiorari is concerned, the concept of ‘aggrieved
person’ is very wide and is not confined to a person who is
grieved by an invasion of a legal right vested in him.
Anyone-says Mr. Tarkunde-who is personally interested and
genuinely grieved by an act of usurpation of jurisdiction or
lack of jurisdiction on the part of an administrative
tribunal or body, would fall within the category of an
‘aggrieved person’, even if such usurpation or lack of
jurisdiction had not resulted in infringement of a illegal
right or legal interest vested in him; nor would such a
person be denied locus standi for the purpose of certiorari
merely because he had not lodged any objection or joined the
proceedings before the tribunal (District Magistrate, in the
present case). In these premises, it is maintained, the High
Court was not justified in denying the remedy of certiorari
to the appellant. Counsel has cited a number of decisions,
mostly of the English Courts, in support of his contentions.
Article 226 of the Constitution empowers the High Court
to issue to any person or authority, including the
Government, within its territorial jurisdiction, directions,
orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari
for the enforcement of fundamental rights and for any other
purpose.
As explained by this Court in Dwarka Nath v. Income-tax
officer, Kanpur(1) the founding fathers of the Constitution
have designedly couched the Article in comprehensive
phraseology to enable the High Court to reach injustice
wherever it is found. In a sense, the scope and nature of
the power conferred by the Article is wider than that
exercised by the writ courts in England. However, the
adoption of the nomenclature of English writs, with the
prefix “nature of” superadded, indicates that the general
principles grown over the years in the English Courts, can,
shorn of unnecessary technical procedural restrictions, and
adapted to the special conditions of this vast country, in
so far as they do not conflict with any provision of the
Constitution, or the law declared by this Court, be usefully
considered in directing the exercise of this discretionary
jurisdiction in accordance with well-recognised rules of
practice.
According to most English decisions, in order to have
the locus standi to invoke certiorari jurisdiction, the
petitioner should be an “aggrieved person” and, in a case of
defect of jurisdiction, such a petitioner will be entitled
to a writ of certiorari as a matter of course, but if he
does not fulfil that character, and is a “stranger”, the
Court will, in its discretion, deny him this extraordinary
remedy, save in very special circumstances.
This takes us to the further question: Who is an
“aggrieved per son” and what are the qualifications
requisite for such a status ? The expression “aggrieved
person” denotes an elastic, and, to an extent, an elusive
concept. It cannot be confined within the bounds of rigid,
exact and comprehensive definition. At best, its features
can be described in a broad, tentative manner. Its scope and
meaning
(1) [19965] 3 S.C.R. 536.
65
depends on diverse, variable factors such as the content and
intent of the statute of which contravention is alleged, the
specific circumstances of the case, the nature and extent of
the petitioner’s interest, and the nature and extent of the
prejudice or injury suffered by him. English Courts have
sometimes put a restricted and sometimes a wide construction
on the expression “aggrieved person”. However, some general
tests have been devised to ascertain whether an applicant is
eligible for this category so as to have the necessary locus
standi or ‘standing’ to invoke certiorari jurisdiction. ,,
We will first take up that line of cases in which an
“aggrieved person” has been held to be one who has a more
particular or peculiar interest of his own beyond that of
the general public, in seeing that the law is properly
administered. The leading case in this line in Queen v.
Justices of Surrey(1) decided as far back as 1870. There, on
the application by the highway board the Justices made
certificates that certain portions of three roads were
unnecessary. As a result, it was ordered that the roads
should cease to be repaired by the parishes.
E, an inhabitant of one of the parishes, and living in
the neighbourhood of the roads, obtained a rule for a
certiorari to bring up the orders and certificates for the
purpose of quashing them on the ground that they were void
by reason of the notices not having been affixed at the
places required by law. On the point of locus standi
(following an earlier decision Hex v. Taunton St. Mary(2),
the Court held that though a certiorari is not a writ of
course, yet as the applicant had by reason of his local
situation a peculiar grievance of his own, and was not
merely applying as one of the public, he was entitled to the
writ ex debito justitiae.
It is to be noted that in this case was living in the
neighbourhood of the roads were to be abandoned as a result
of the certificates issued by the Justices. He would have
suffered special inconvenience by the abandonment. Thus had
shown a particular grievance of his own beyond some
inconvenience suffered by the general public. He had a right
to object to the grant of the Certificate. Non-publication
of the notice at all the places in accordance with law, had
seriously prejudiced him in the exercise of that legal
right.
The ratio of the decision in Queen v. Justices of
Surrey (supra) was followed in King v. Groom and ors. Ex
Parte(3). There, the parties were rivals in the liquor
trade. The applicants (brewers) had persistently objected to
the jurisdiction of the justices to grant the ` license to
one J. K. White in a particular month. It was held that the
applicants had a sufficient interest in the matter to enable
them to invoke certiorari jurisdiction.
A distinguishing feature of this case was that unlike
the appellants in the present case who did not, despite
public notice, raise any objection before the District
Magistrate to the grant of the No-objection Certificate, the
brewers were persistently raising objections in proceedings
before the Justices at every stage. The law gave them a
right to
(1) [1870] S B. 466. (2) [1815] 3 M & S 465.
(3) [1901] 2 K. B. 157.
66
object and to see that the licensing was done in accordance
with law. They were seriously prejudiced in the exercise of
that right by the act of usurpation of the jurisdiction on
the part of the Justices.
The rule in Groom’s case was followed in The King v.
Richmond Confirming Authority, Ex parte Howitt(1). There,
also, the applicant for a certiorari was a rival in the
liquor trade. It is significant that in coming to the
conclusion that the applicant was a ‘person aggrieved’, Earl
of Reading C.J. laid stress on the fact that he had appeared
and objected before the Justices and joined issue with them,
though unsuccessfully, “in the sense that they said they had
jurisdiction when he said they had not”.
In R. Toames Magistrate Court Ex parte Greenbaum(2)
there were two traders in Goulston St., Stepney. One of them
was Gritzman who held a license to trade on pitch No. 4 for
S days in the week an pitch No. 8 for the other two days.
The other was Greenbaum, who held a licence to sell on Pitch
No. 8 for two days of the week, and pitch No. 10 for the
other days of the week. A much better pitch, pitch No. 2, in
Gulston St. became vacant. Thereupon, both Gritzman and
Greenbaum applied for the grant of a licence, each wanted o
to give up his own existing licence and get a new licence
for pitch No. 2. The Borough Council considered and decided
in favour of Greenbaum and refused Gritzman who was left
with his pitches 4 and 8.
Gritzman appealed to the magistrate. He could not
appeal against the grant of a licence to Greenbaum, but only
against the refusal to grant a licence to himself. Before
the magistrate, the Borough Council opposed him. The
magistrate held that the Council were wrong to refuse the
licence of pitch No. 2 to Gritzman. The Council thereupon
made out a licence for Gritzman for pitch No. 2 and wrote to
Greenbaum saying that his licence had been wrongly issued.
Greenbaum made an application for certiorari to court . The
court held that the magistrate had no jurisdiction to hear
the appeal. An objection was taken that Greenbaum had no
locus standi. Rejecting the contention, Lord Denning
observed:
“I should have thought that in this case Greenbaum
was certainly a person aggrieved, and not a stranger.
He was affected by the magistrate’s orders because the
magistrate ordered another person to be put on his
pitch. It is a proper case for the intervention of the
court by means of certiorari.”
It is to be noted that the Council had duly allotted
pitch No. 2 to J” Greenbaum in the exercise of their
administrative power. The Magistrate’s order pursuant to
which the Council cancelled the allotment. and re-allotted
that pitch to Gritzman, was without jurisdiction By this
illegal cancellation and reallotment Greenbaum’s interest to
trade on pitch No. 2, which had been duly licensed out to
him was directly and prejudically affected by the impugned
action.
(1) [1921] I K.B. 248.
(2)[1957] 55 L.G.R. 129-135, 135-136 extracted in
Yardley’s book of English Administrative Law. 2nd Edn.
at p. 228.
67
R. v. Manchester Legal Aid Committee(1), is another
case belonging to this group. lt was held that the
applicants therein were “persons aggrieved” because they
were grieved by the failure of the Legal Aid Committee to
give them prior notice and hearing to which they were
entitled under Regulation 15(2). Thus it could be said that
they had suffered a legal wrong.
In Regina v. Liverpool Corporation, Ex parte Liverpool
Taxi Fleet operators’ Association(“), the City Council in
exercise of its powers under the Town Police Clauses Act,
1847, limited the number of licences to be issued for
hackney carriages to 300. The Council gave an undertaking to
the associations representing the 300 existing licence
holders not to increase the number of such licence holders
above 300 for a certain period. The Council, disregarding
this undertaking, resolved to increase the number. An
Association representing the existing licence-holders moved
the Queens’ Bench for leave to apply for orders of
Prohibition, Mandamus and Certiorari. The Division Bench
refused. In the Court of Appeal, allowing the Association’s
appeal, Lord Denning M. R. Observed ar pp. 308, 309:
“The taxicab owners’ association come to this
Court for relief and I think we should give it to them.
The writs of prohibition and certiorari lie on behalf
of any person who is a “person aggrieved” and that
includes any person whose interests may be pre
judicially affected by what is taking place. It does
not include a mere busybody who is interfering in
things which do not concern him; but it includes any
person who has a genuine grievance because something
has been done or may be done which affects him: See
Attorney-General of the Gambia v. N’Jie [1961] A.C. 617
and Maurice v. London County Council [1964] 2 Q.B. 362,
378. The taxicab owners’ association here have
certainly a locus standi to apply for relief.”
It may be noted that in this case, the whole question
turned on the effect in law of the undertaking, and whether
the applicants had been treated fairly.
Emphasising the “very special circumstances” of the
case, the court read into the statute, a duty to act fairly
in accordance with the principles of natural justice. Thus,
a corresponding right to be treated fairly was also
imported, by implication, in favour of the’ applicants.
Viewed from this standpoint, the applicants had an interest
recognised in law, which was adversely affected by the
impugned action. They had suffered a wrong as a result of
the unfair treatment on the part of the corporation.
In Regina v. Paddington Valuation Officer, Ex Parte
Peachy Property Corporation Ltd.,(3), ratepayers were held
to have the locus standi to apply for certiorari,
notwithstanding the fact that it could not be said that the
actual burdens to be borne by the applicants fell more
heavily on them than on other members of the local
community. Hl
(1) (1952) 2 W.B.D. 413. (2) [1972] 2 Q.B.299.
(3)[1966]1 Q.B. 880.
68
In Bar Council of Maharashtra v. M. V. Dabholkar(1),
Bench of seven learned Judges of this Court considered the
question whether the Bar Council of a State was a ‘person
aggrieved’ to maintain an appeal under s. 38 of the
Advocates’ Act, 1961. Answering the question in the
affirmative, this Court, speaking through Ray C.J.,
indicated how the expression “person aggrieved” is to be
interpreted in the context of a statute, thus:
“The meaning of the words “a person aggrieved” may
vary according to the context of the statute. One of
the meanings is that a person will be held to be
aggrieved by a decision if that decision is materially
adverse to him. Normally, one is required to establish
that one has been denied or deprived of something to
which one is legally entitled in order to make one “a
person aggrieved”. Again a person is aggrieved if a
legal burden is imposed on him. The meaning of the
words “a person aggrieved” is sometimes given a
restricted meaning in certain statutes which provide
remedies for the protection of private legal rights.
The restricted meaning requires denial or deprivation
of legal rights. A more liberal approach is required in
the back ground of statutes which do not deal with
property rights but deal with professional conduct and
morality. The role of the Bar Council under the
Advocates’ Act is comparable to the role of a guardian
in professional ethics. The words “person aggrieved” in
sections 37 and 38 of the Act are of wide import and
should not be subjected to a restricted inter pretation
of possession or denial of legal rights or burdens or
financial interests.
In Rex v. Butt and anr. Ex Parte Brooke(2), a person
who was merely a resident of the town, was held entitled to
apply for certiorari. Similar is the decision in Regina v.
Brighton Borough Just ices Ex Parte Jarvis(3).
Typical of the cases in which a strict construction was
put on the expression “person aggrieved”, is Buxton and ors.
v. Minister of Housing and Local Government(4). There, an
appeal by a Company against the refusal of the Local
Planning Authority of permission to develop land owned by
the Company by digging chalk, was allowed by the Minister.
Owners of adjacent property applied to the High Court under
s. 31(1) of the Town and Country Planning Act, 1959 to quash
the decision of the Minister on the ground that the proposed
operations by the company would injure their land, and that
they were ‘persons aggrieved’ by the action of the Minister.
It was held that the expression ‘person aggrieved’ in a
statute meant a person who had suffered a legal grievance;
anyone given the right under s. 37 of the Act of 1959 to
have his representation considered by the Minister was a
person aggrieved, thus section 31 applied, if those rights
were infringed; but the applicants had no right under the
statute, and
(1) [1976]1 S.C.R. 306.
(2) Vol. XXXVIII(1921-22) Times Law Reports 537.
(3) (1954)1,Weekly Law Reports 203.
(4) [1961] 1 Q.B.D. 278.
69
no legal rights had been infringed and therefore they were
not entitled to challenge the Minister’s decision. Salmon
J. quoted with approval these observations of James T. J. in
In Re Sidebothem(1).
“The words ‘person aggrieved’ do not really means
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 wrong fully refused him something, or
wrongfully affected his title to something.”
Ex Parte Stott(2), is another illustration of a person
who had no legal grievance, nor had he sufficient interest
in the matter. A licensing authority under the
Cinematography Act, 1901, granted to a theatre proprietor a
licence for the exhibition of cinematograph films at his
theatre. The licence was subject to the condition that the
licensee should not exhibit any film if, he had notice that
the licensing authority objected to it. A firm who had
acquired the sole right of 1 exhibition of a certain film in
the district in which the theatre was situated entered into
an agreement with the licensee for the exhibition of the
film at his theatre. The licensing authority having given
notice to the licensee that it objected to the exhibition of
the film, the film applied for a writ of certiorari to bring
up the notice to be quash ed on the ground that the
condition attached to the licence was unreasonable and void,
and that they were aggrieved by the notice as ‘being
destructive of their property. It was held that whether the
condition was unreasonable or not, the applicants were not
persons who were aggrieved by the notice and had no locus
standi to maintain the application.
Similarly, King v. Middlesex Justices(3), it was held
that the words “person who shall think himself aggrieved”
appearing in the statute governing the grant of licences to
innkeepers mean a person immediately aggrieved as by refusal
of a licence to himself, and not one who is consequently
aggrieved, and that though the Justices had granted a
licence to a party to open a public house, not before
licensed, within a very short distance of a licensed public
house, the occupier of the latter house could not appeal
against such grant.
Other instances of a restricted interpretation of the
expression “person aggrieved” are furnished by R. v.
Bradford on-Avon Urban District Council Ex Parte Boulton(4);
Gregory v. Camden London
(1) [1880] 14Ch.D.458,at p.465. (2) [1916] 1K B.7
(3) (1832) 37 R. R. 594-(1832) 3 & Ad. 938.
(4) (1964) 2 All. E. R. 492.
70
Borough Council(1); R. v. London O.E. Ex parte West-Minister
Corporation(2); Regina v. Cardiff Justices Ex parte Cardiff
Corporation(3).
This Court has laid down in a number of decisions that
in order to have the locus standi to invoke the
extraordinary jurisdiction under Article 226, an applicant
should ordinarily be one who has a personal or individual
right in the subject matter of the application, though (1)
the case of some of the writs like habeas corpus or quo
warranto this rule is relaxed or modified. In other words,
as a general rule, in fringement of some legal right or
prejudice to some legal interest in hearing the petitioner
is necessary to give him a locus standi in the matter see
The State of orissa v. Madan Gopal Rungta(4); Calcutta . Gas
Co. v. The State of West Bengal(5); Ram Umeshwari Suthoo v.
Member, Board of Revenue, orissa(6); Gadda Venkateshwara Rao
v. Government of Andhra Pradesh(7); State of orissa v.
Rajasaheb Chandanmall(8); Dr. Satyanarayana Sinha v. M/s. S.
Lal & Co.(9)].
The expression “ordinarily” indicates that this is not
a cast-iron rule. It is flexible enough to take in those
cases where the applicant has been prejudicially affected by
an act or omission of an authority, r even though he has no
proprietary or even a fiduciary interest in the subject-
matter. That apart, in exceptional cases even a stranger or
a person who was not a party to the proceedings before the
authority, but has a substantial and genuine interest in the
subject matter of the proceedings will be covered by this
rule. The principles enunciated in the English cases noticed
above, are not inconsistent with it.
In the United States of America, also, the law on the
point is substantially the same. “No matter how seriously
infringement of the Constitution may be called into
question, “said Justice Frankfurter in Coleman v. Miller(10)
“this is not the tribunal for its challenge except by those
who have some specialized interest of their own to vindicate
apart from a political concern which belongs to all”. To
have a ”standing to sue”, which means locus standi to ask
for relief in a court independently of a statutory remedy,
the plaintiff must show that he is injured, that is,
subjected to or threatened with a legal wrong. Courts can
intervene only where legal rights are invaded(11). “Legal
wrong” requires a judicially enforceable right and the touch
stone to justiciability is injury to a legally protected
right. A nominal or a highly speculative adverse affect(12)
on the interest or right of a person has been held to be
insufficient to give him the “standing to sue” for judicial
review of administrative action(18). Again the
(1) (1966) 1 W. L. R.899 (2) [1951] 2K.B. 508.
(3) [1962] 2 QB 436.
(4) [1952] S.C.R.28.
(5) [1962] Supp.3 S.C.R. 1.
(6) [1967] 1, S.C. Appeals 413.
(7) A.I.R. 1966 S.C.828-[1966] 2 S.C.R.172.
(8) A.T.R.1972 S.C.2112.
(9) A.I.R.1973 S.C.2720-(1974) I S.C.R 615.
(10)(1939) 307 U.S. 433.
(11)Chapman v. Sheridan-Wyoming Coal Co. 338 U. S.621.
(12)American Jurisprudence Vol. 2 d ss. 575. p. 334
Joint Anti Fascist Refugee. Committee v. MeGarth
341 U.S.123.
(13)United States Cane Sugar Refiners. Assoen. v.
MeNutt 138 2nd 116: 1518 A.L.R.849.
71
“adverse affect” requisite for “standing to sue” must be an
“illegal effect”(l). Thus, in the undermentioned cases, it
was held that injury resulting from lawful competition, not
being a legal wrong, cannot furnish a “standing to sue” for
judicial relief(2).
It will be seen that in the context of locus standi to
apply for a writ of certiorari, an applicant may ordinarily
fall in any of these categories: (i) ‘person aggrieved’;
(ii) ‘stranger’; (iii) busybody or meddlesome interloper.
Persons in the last category are easily distinguishable from
those coming under the first two categories. Such persons
interfere in things which do not concern them. They
masquerade as crusaders for justice. They pretend to act in
the name of Pro Bono Publico, though they have no interest
of the public or even of their own to protect. They indulge
in the pastime of meddling with the judicial process either
by force of habit or from improper motives. Often, they are
actuated by a desire to win notoriety or cheap popularity;
while the ulterior intent of some applicants in this
category, may be no more than spoking the wheels of
administration. The High Court should do well to reject the
applications of such busybodies at the threshold.
The distinction between the first and second categories
of applicants, though real, is not always well-demarcated.
The first category has, as it were, two concentric zones; a
solid central zone of certainty, and a grey outer circle of
lessening certainty in a sliding centrifugal scale, with an
outermost nebulous fringe of uncertainty. Applicants falling
within the central zone are those whose legal rights have
been infringed. Such applicants undoubtedly stand in the
category of ‘persons aggrieved’. In the grey outer-circle
the. bounds which separate the first category from the
second, intermix, interfuse and overlap increasingly in a
centrifugal direction. All persons in this outerzone may not
be “persons aggrieved.
To distinguish such applicants from ‘strangers’, among
them, some broad tests may be deduced from the conspectus
made above. These tests are not absolute and ultimate. Their
efficacy varies according to the circumstances of the case,
including the statutory context in which the matter falls to
be considered. These are: Whether the applicant is a person
whose legal right has been infringed ? Has he suffered a
legal wrong or injury, in the sense that his interest,
recognised by law. has been prejudicially and directly
affected by the act or omission of the authority, complained
of ? Is he a person who has suffered a legal grievance, a
person “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” ? Has he a special and substantial grievance of
his own beyond some grievance or inconvenience suffered by
him in common with the rest of the public ? Was he entitled
to object and be heard by the authority before it took the
impugned action? If so, was he prejudicially affected in the
exercise of that right by the act of usurpation of
jurisdiction on
(1) United States v.Storer Broadcasting Co.351 U.S.192.
(2) Kansas City Power & light Co. v. McKay 350 U. S.
884.
6-390SCr/76
72
the part of the authority ? Is the statute, in the context
of which the scope of-the words “person aggrieved” is being
considered. a social welfare measure designed to lay down
ethical or professional standards of conduct for the
community ? or is it a statute dealing with private rights
of particular individuals ?
Now let us apply these tests to the case in hand. The
Act and the Rules with which we are concerned, are not
designed to set norms of moral or professional conduct for
the community at large or even a section thereof. They only
regulate the exercise of private rights of an individual to
carry on a particular busness on his property. In this
context, the expression “person aggrieved” must receive a
strict construction.
Did the appellant have a Legal right under the
statutory provisions or under the general law, which has
been subjected to or threatened with injury. ? The answer in
the circumstances of the case must necessarily be in the
negative.
The Act and the Rules do not confer any substantive
justiciable right on a rival in cinema trade, apart from the
option in common with the rest of the public, to lodge an
objection in response to the notice published under Rule 4.
The appellant did not avail of this option. He did not lodge
any objection in response to the notice, the due publication
of which was not denied. No explanation has been given as to
why he did not prefer any objection to the grant of the
Objection Certificate before the District Magistrate or the
Government. Even if he had objected before the District
Magistrate and failed, the Act would not give him a right of
appeal. Section 8A of the Act confers a right of appeal to
the State Government, only on any person aggrieved by an
order of a licensing authority refusing to grant a license,
or revoking or suspending any licence under section 8.
Obviously, the appellant was not a “person aggrieved” within
the contemplation of Section 8A
Section 8B of the Act provides that the State
Government may either of its own motion, or upon an
application made by “an aggrieved person”, call for and
examine the record of any order made by a licensing
authority under this Act, and pass such order thereon as it
thinks just and proper. Assuming that the scope of the words
“aggrieved person” in Section 8B is wider than the ambit of
the same words as used in Sec. 8A, then also, the appellant
cannot, in the circumstances of this case, be regarded as a
“person aggrieved’ having. the requisite legal capacity to
invoke certiorari jurisdiction.
The Act and the Rules recognise a special interest of
persons residing, or concerned with any institution such as
a school, temple, mosque etc. located within a distance of
200 yards of the site on which a cinema house is proposed to
be constructed. The appellant does not fall within the
category of such persons having a special interest in the
locality. It is not his case that his cinema house is
situated anywhere near the site in question, or that he has
any peculiar interest in his personal, fiduciary or
representative capacity in any school,
73
temple etc. situated in the vicinity of the said site. It
cannot therefore be said that the appellant is “a person
aggrieved” on account of his having a particular and
substantial interest of his own in the subject matter of the
litigation, beyond the general interest of the public.
Moreover the appellant could not be said to have been, in
fact, aggrieved. As already noticed, he, despite adequate
opportunity, never lodged any objection with the District
Magistrate, nor went in revision before the State
Government. Thus the present case is not in line with the
decisions which are within the ratio of Queen v, Justices of
Surrey (supra).
Having seen that the appellant has no standing to
complain of injury, actual or potential, to any statutory
right or interest, we pass on to consider whether any of his
rights or interests, recognised by the general law, has been
infringed as a result of the grant of No-objection
Certificate to the respondents ? Here, again, the answer
must be in the negative.
In Paragraph 7 of the writ petition, he has stated his
cause of action, thus:
“The petitioner submits that .. he owns a cinema
theatre in Mehmadabad which has about a small
population of 15000 persons as stated above and there
is no scope for more than one cinema theatre in the
town. He has, there fore, a commercial interest in
seeing to it that other persons are not granted a no-
objection certificate in violation of law.”
Thus, in substance, the appellant’s stand is that the
setting up of a rival cinema house in the town will
adversely affect his monopolistic commercial interest,
causing pecuniary harm and loss of business from
competition. 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 demnum sine injuria, the term
injuria being here used in its true sense of an act contrary
to law(1). The reason why the 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
demonstrably 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 a legal wrong. He has suffered no legal
grievance. He ‘has no legal peg for’ a justiciable claim to
hang on. Therefore he is not a ‘person aggrieved’ and has no
locus standi to challenge the grant of the No-objection
Certificate.
lt is true that, in the ultimate analysis, the
jurisdiction under Article 226 in general, and certiorari in
particular, is discretionary. But
(1) Salmond on Jurisprudence by Fitz-Gerald. p. 357
para 85.
74
in a country like India where writ petitions are instituted
in the High Courts by the thousand, many of them frivolous,
a strict ascertainment, at the outset, of the standing of
the petitioner to invoke this extraordinary jurisdiction,
must be insisted upon. The broad guide lines indicated by
us, coupled with other well established self-devised rules
of practice, such as the availability of an alternative
remedy, the conduct of the petitioner etc., can go a long
way to help the courts in weeding out a large number of writ
petitions at the initial stage with consequent saving of
public time and money.
While a Procrustean approach should be avoided, as a
rule the Court should not interfere at the instance of a
‘stranger’ unless there are exceptional circumstances
involving a grave miscarriage of justice having an adverse
impact on public interests. Assuming that the appellant is a
‘stranger’, and not a busybody, then also, there are no
exceptional circumstances in the present case which would
justify the issue of a writ of certiorari at his instance.
On the contrary, the result of the exercise of these
discretionary powers, in his favour, will, on balance, be
against public policy. It will eliminate healthy competition
in this business which is so essential to raise commercial
morality; it will tend to perpetuate the appellant’s
monopoly of cinema business in the town; and above all, it
will, in effect, seriously injure the fundamental rights of
respondents 1 and 2, which they have under article 19(1) (g)
of the Constitution, to carry on trade or business subject
to ‘reasonable restrictions’ imposed by law.
The instant case falls well-nigh within the ratio of
this Court’s decision in Rice and Flour Mills v. N. T.
Gowda(1), wherein it was held that a rice mill-owner has no
locus standi to challenge under Article 226, the setting up
of a new rice-mill by another even if such setting up be in
contravention of s. 8(3)(c) of the Rice Milling Industry
(Regulation) Act, 1958 because no right vested in such an
applicant is infringed.
For all the foregoing reasons, we are of opinion that
the appellant had no locus standi to invoke this special
jurisdiction under article 226 of the Constitution.
Accordingly, we answer the question posed at the
commencement of this judgment, in the negative, and on that
ground, without entering upon the merits of the case,
dismiss this appeal with costs.
S.R. Appeal dismissed.
(1) [1970] S.C.R. 846.
75