Jharkhand High Court
Pankaj Kumar Jha vs The State Of Jharkhand on 30 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 862, (2019) 4 JCR 148 (JHA)
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 1784 of 2019
Pankaj Kumar Jha, Aged about 44 years, S/o Vishwanath Jha, Resident of
Adarsh Bhawaan, near Shiv Mandir,Tungri, P.O. & P.S-Sadar, Chaibasa,
West Singhbhum, Jharkhand. ....... Petitioner
Versus
1. The State of Jharkhand.
2.The Commissioner, Excise & Prohibition, Government of Jharkhand,
Ranchi.
3.The Deputy Commissioner, Excise & Prohibition, Government of
Jharkhand, Ranchi.
4. The Deputy Commissioner, West Singhbhum at Chaibasa.
5.The Excise Superintendent, West Singhbhum at Chaibasa.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Anjani Kumar, Adv.
For the Respondents : None
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th
2/Dated: 30 April, 2019
This writ petition is for quashing the decision as contained in Memo no.693 dated 29.03.2019 (Annexure-5) issued by the Deputy Commissioner, Ranchi, whereby and whereunder his application for allotment of liquor shop has mechanically been cancelled which is contrary to the rule as contained in order dated 25.12.2018.
2. The brief facts of the case of the petitioner, as has been pleaded in the writ petition is that the State Government has notified a rule for settlement of liquor shop on 25.12.2018 by which on-line application was called for, the petitioner has applied for the same on 28.02.2019 with his co-applicant one Manvendra Nath Jha and submitted all such documents fulfilling the eligibility criteria. He has also submitted Permanent Account Number in the name of Narmada Construction, the petitioner's firm. The petitioner has been declared successful through lottery being Group No.31 on 05.03.2019, a sum of Rs.8,51,600/- which was 5% deducted from the petitioner's account through electronic process, prior to that he has also deposited a sum of Rs.8,42,000/- as per the order of the Superintendent of Excise, Chaibasa but instead of the fact that he is fulfilling all the criteria and in the process of selection, has been declared to be successful but he has been communicated with the impugned order passed on 29.03.2019 that since the application has been submitted in the name of firm and therefore, the said application is 2 decided to be cancelled which is challenged in this writ petition mainly on the ground that there is no bar in making application through the firm. Even if there is bar, the co-applicant is one Pankaj Kumar Jha, and therefore, the criteria as laid down under the rule as notified in the notification dated 25.12.2018 pertaining to the definition of applicant, the petitioner is qualified to be considered.
The further ground has been urged that after being found to be successful in the lottery, cancellation of candidature of the petitioner is absolutely illegal and improper since there is no defect in the said application which ought to have been rejected at the threshold.
3. None appears for the State of Jharkhand.
4. Having heard learned counsel for the petitioner and going across the pleading made in the writ petition, it needs to refer herein that the State of Jharkhand has promulgated and notified Rules for settlement and grant of license in the State of Jharkhand, known, as Jharkhand Utpad (Madira Ki Khudra Bikri Hetu Dukanon Ki Bandobasti Awam Sanchalan) Nimayawali, 2018" (hereinafter referred to as "Rule, 2018" in short) vide Notification dated 24.12.2018, wherein, it has been primarily provided that settlement of Retail Excise Shops shall be undertaken through the process of Lottery and the shops would be notified for such lottery after determining the annual minimum revenue to be paid in respect of the said shop. As per the said Rule, it has been provided that an applicant who is a person can participate in the auction process.
Further, term 'person' has been defined in the said Rule, 2018 which means a "person", who is citizen of India and who has attained the age of 21 years at the time of participating in the lottery process.
The competent authority has issued an advertisement on 22.02.2019 in pursuance to the provision of Rule, 2018 notifying the process for settlement of Retail Excise Shops through lottery and the date of lottery was fixed on 05.03.2019 and it was provided, inter alia, that an applicant would be entitled to participate in the lottery process conducted district wise in the entire State of Jharkhand in respect of shops and/or group of shops, as may be notified, on deposit of earnest money deposit, application fee and agency charges, including G.S.T.
5. The consideration of this Court pertains to the definition of a "person" "Vyakti" and the applicant, which has been referred in Rule 2 3 (XXXI) and (XXXII). For convenience, Rule (XXXI) is being first referred. Since the Rule is in Hindi, for better appreciation, 'Hindi' part is being referred hereunder, alongwith its English version.
"Vyakti" se abhipret hai, aisa vyakti, jo awedan karne ke samay 21 varsh ki ayu se anyun ho evam bharat ka nagrik ho"
The synonyms of the Hindi word 'Abhipret' in Hindi is 'Abhipray' and, as such, the English meaning would be 'means' and therefore, the English version of the Hindi script of the "applicant" means, for making settlement of Retail Excise Shops, an application would be submitted by chief/main 'person' or his co-applicant (person). The application can be given by the person in individual capacity or alongwith the co-applicant.
"Awedak se abhipret hai, khudra utpad dukano ki bandobasti hetu avedan karne wala mukhya vyakti athwa uska sah awedak (vyakti). Awedan vyakti dwara ekal rup me athwa sah awedak ke sath bhi diya ja sakta hai."
The English translated version of the 'person' means, such person, who is not below the age of 21 years at the time of making an application and will be citizen of India.
In view of the definition of 'applicant', application can be made by the 'main person' or 'his co-applicant' or 'by both'.
While, the person has been defined, which means such person, who is not below the age of 21 years and the citizen of India, therefore, there is specific definition of person, which denotes the definition, as has been defined, under the Citizenship Act, 1955, the definition, as contained in Section 2 (f), a person does not include any company or association or body of individuals, whether incorporated or not?
6. It is not in dispute that the applicability of the General Clauses Act could be there, where there is no specific provision under the Statute, which is applicable and holding the field of consideration and in the light of that aspect, the argument of the learned counsel for the petitioners has been scrutinized.
7. There is difference of the definition of the 'person' as under the General Clauses Act, vis-à-vis the definition of 'person' in the Rule, 2018, which is applicable herein.
4The definition of "person", as stipulated under Section 2 (42) speaks that person shall 'include' any company or association or body of individuals, whether incorporated or not, meaning thereby the scope of the definition of person is exhaustive by inserting the word 'include' but the said definition is to be tested from the applicable Rule of such Rule, 2018, wherein, the definition of "person" has specifically 8 been defined, which means, such person, who is not below the age of 21 years and citizen of India, meaning thereby the definition of 'person' under the provision of Rules, 2018, is not under inclusion of any Company or association or body of individuals, rather, it talks about the person in individual capacity.
The reference with respect to the applicability of the General Clauses Act, vis-à-vis the applicable Rule in the present context, was the subject matter before the Hon'ble Apex Court in the judgment rendered in the case of Ramanlal Bhailal Patel & Ors.-Vs.-State of Gujarat passed in Civil Appeal No. 4420 of 2004, wherein, the Hon'ble Apex Court while dealing with the applicability of the definition of 'person' as per the definition, stipulated under the General Clauses Act, 1897 and the subject matter of the Ceiling Act, it has been laid down therein, at paragraph 14, 15, 16 and 17, which reads hereunder as :-
"14. The appellants replied that even if the partition was ignored under Section 8 of the Ceiling Act, it would not affect the calculation of surplus land, as each co-owner was a "person"
and each family (husband and wife) will be entitled to one unit. In regard to contention based on Section 63 of the Tenancy Act, it was submitted that while determining the surplus land under the provisions of the Ceiling Act, there was no question of holding any inquiry under Section 63 of the Tenancy Act. And at all events, even if the question as to whether the purchasers were agriculturists or not has to be gone into, the same being a question of fact that will have to be decided by a separate inquiry under the Tenancy Act and not in the proceedings under the Ceiling Act.
15. On the contentions raised, the following questions arise for our consideration:
5(i) Whether the definition of "person" in the Gujarat Agricultural Lands Ceiling Act, 1960, includes a body of individuals/association of persons?
(ii) Whether co-ownership, per se, is an "association of persons/body of individuals" and therefore constitutes a "person"?
(iii) Whether the ten purchasers, who became co-
owners of the land, together constitute a "body of individuals/association of persons" and therefore a "person" within the meaning of that expression in the Ceiling Act?
(iv) Whether the partition dated 30-12-1971 among the co-owners is "deemed to have been made in anticipation to defeat the object of Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972" under Section 8(1) of the Ceiling Act; and if so what is the effect of failure to make an application under sub-section (2) of Section 8 of the Ceiling Act?
(v) What would be the position if some of the co-
owners were non-agriculturists at the time of purchase of the lands? Whether the Mamlatdar can examine this issue when considering the question of surplus land under the Ceiling Act?
Statutory provisions
16. The Ceiling Act was enacted to fix a ceiling on holding of agricultural lands and to provide for the acquisition and disposal of surplus agricultural land. Section 4 relates to delimitation of local areas and provides that there shall be different classes of local areas in the State as specified in Schedule I and the local areas falling in each such class shall be as respectively specified in Schedule II. Section 5 deals with ceiling areas. Sub-section (1) thereof provides that subject to the provisions of sub-sections (2) and (3), in relation to each class of local area as specified in Schedule I, the ceiling area with reference to each class of land shall be as specified in the said Schedule against the respective class of local area. Madheli Village, Waghodia Taluk (Baroda District) is specified as Class 'C' area under Schedule II. It is not in dispute that the lands in question were found to be dry crop lands, and therefore the unit ceiling area was 36 acres under Schedule I to the Ceiling Act.
17. Section 6 deals with ceiling on holding of land. Sub- sections (1), (2), 3-B, 3-C, and 3-D which are relevant are extracted below:
"6. Ceiling on holding land.--(1) Notwithstanding anything contained in any law for the time being in force or in any 6 agreement, usage or decree or order of a Court, with effect from the appointed day, no person shall, subject to the provisions of sub-sections (2), (3), (3-B) and 4 be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area.
(2) Where an individual, who holds land, is a member of a family, not being a joint family which consists of the individual and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, irrespective of whether the family also includes any major son, land is also separately held by such individual's spouse or minor children, then the lands held by the individual and the said members of the individual's family excluding major sons, if any, shall be grouped together for the purposes of this Act and the provisions of this Act shall apply to the total land so grouped together as if such land had been held by one person.
* * * (3-B) Where a family or a joint family consist of more than five members comprising a person and other members belonging to all or any of the following categories, namely:
(i) minor son,
(ii) widow of a predeceased son,
(iii) minor son or unmarried daughter of a predeceased son, where his or her mother is dead, such family shall be entitled to hold land in excess of the ceiling area to the extent of one-fifth of the ceiling area for each member in excess of five, so however that the total holding of the family does not exceed twice the ceiling area; and in such a case, in relation to the holding of such family, such area shall be deemed to be the ceiling area:
* * * (3-C) Where a family or a joint family irrespective of the number of members includes a major son, then such major son shall be deemed to be a separate person for the purposes of sub-
section (1)."
8. It is evident from the aforesaid paragraph, wherein, the Hon'ble Apex Court has been pleased to consider the definition of the General Clauses Act, 1897 and has given emphasis on the inclusive definition, vis-à-vis the definition of 'person' in the Ceiling Act, which also contains the inclusive definition of 'person'.
79. But, herein, since the Rule, 2018 itself prescribes the definition of 'person' without any inclusive definition of 'person', therefore, the 'person' will be treated to be an applicant in the individual capacity and as per the definition stipulated under Section 2 (f) of the Citizenship Act, 1955, the body or corporation or firm will be excluded from the definition of 'person'.
The definition of 'person' is to be tested, depending upon the enactment if that is in the case of the Income Tax Act, the definition of person would be entirely different, wherein, as per the provision of Section 2 (XXXI) (V), the definition of 'person' will include the association of 'person' and body of individuals, likewise in the Gifts Act, 1958, the definition of 'person' is by way of inclusion of body of individuals and therefore, the definition of 'person' is to be seen, depending upon the applicable Rule.
10. The definition of the word "means" has been considered by the Hon'ble Apex Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) And Another v. Sri Seetaram Rice Mill reported in (2012) 2 SCC 108 wherein, the Hon'ble Apex Court at paragraphs 44 to 54 hold as follows:-
"44. The unauthorised use of electricity in the manner as is undisputed on record clearly brings the respondent "under liability and in blame" within the ambit and scope of Section 126 of the 2003 Act. The blame is in relation to excess load while the liability is to pay on a different tariff for the period prescribed in law and in terms of an order of assessment passed by the assessing officer by the powers vested in him under the provisions of Section 126 of the 2003 Act.
45. The expression "means" used in the definition clause of Section 126 of the 2003 Act can have different connotations depending on the context in which such expression is used. In terms of Black's Law Dictionary (8th Edn.) p. 1001, "mean" is-- "of or relating to an intermediate point between two points or extremes" and "meaning" would be "the sense of anything, but esp. of words; that which is conveyed". The word ordinarily includes a mistaken but reasonable understanding of a communication. "Means" by itself is a restrictive term and when used with the word "includes", it is construed as exhaustive. In those circumstances, a definition using the term "means" is a statement of literal connotation of a term and the courts have interpreted "means and includes" as an expression defining the 8 section exhaustively. It is to be kept in mind that while determining whether a provision is exhaustive or merely illustrative, this will have to depend upon the language of the section, scheme of the Act, the object of the legislature and its intent.
46. "Purposive construction" is certainly a cardinal principle of interpretation. Equally true is that no rule of interpretation should either be overstated or overextended. Without being overextended or overstated, this rule of interpretation can be applied to the present case. It points to the conclusion that an interpretation which would attain the object and purpose of the Act has to be given precedence over any other interpretation which may not further the cause of the statute. The development of law is particularly liberated both from literal and blinkered interpretation, though to a limited extent.
47. The precepts of interpretation of contractual documents have also undergone a wide-ranged variation in the recent times. The result has been subject to one important exception to assimilate the way in which such documents are interpreted by Judges on the common sense principle by which any serious utterance would be interpreted by ordinary life. In other words, the common sense view relating to the implication and impact of provisions is the relevant consideration for interpreting a term of document so as to achieve temporal proximity of the end result.
48. Another similar rule is the rule of practical interpretation. This test can be effectually applied to the provisions of a statute of the present kind. It must be understood that an interpretation which upon application of the provisions at the ground reality, would frustrate the very law should not be accepted against the common sense view which will further such application.
49. Once the court decides that it has to take a purposive construction as opposed to textual construction, then the legislative purpose sought to be achieved by such an interpretation has to be kept in mind. We have already indicated that keeping in view the legislative scheme and the provisions of the 2003 Act, it will be appropriate to adopt the approach of purposive construction on the facts of this case. We have also indicated above that the provisions of Section 126 of the 2003 Act are intended to cover the cases over and above the cases which would be specifically covered under the provisions of Section 135 of the 2003 Act.
50. In other words, the purpose sought to be achieved is to ensure stoppage of misuse/unauthorised use of the electricity as well as to ensure prevention of revenue loss. It is in this 9 background that the scope of the expression "means" has to be construed. If we hold that the expression "means" is exhaustive and cases of unauthorised use of electricity are restricted to the ones stated under Explanation (b) of Section 126 alone, then it shall defeat the very purpose of the 2003 Act, inasmuch as the different cases of breach of the terms and conditions of the contract of supply, Regulations and the provisions of the 2003 Act would escape the liability sought to be imposed upon them by the legislature under the provisions of Section 126 of the 2003 Act. Thus, it will not be appropriate for the courts to adopt such an approach.
51. The primary object of the expression "means" is intended to explain the term "unauthorised use of electricity" which, even from the plain reading of the provisions of the 2003 Act or on a common sense view cannot be restricted to the examples given in the Explanation. The legislature has intentionally omitted to use the word "includes" and has only used the word "means" with an intention to explain inter alia what an unauthorised use of electricity would be. It must be noticed that clause (iv) of Explanation (b) and sub-section (5) of Section 126 of the 2003 Act were both amended/substituted by the same amending Act 26 of 2007, with a purpose and object of preventing unauthorised use of electricity not amounting to theft of electricity within the meaning of Section 135 of the 2003 Act. This amendment, therefore, has to be given its due meaning which will fit into the scheme of the 2003 Act and would achieve its object and purpose.
52. The expression "means" would not always be open to such a strict construction that the terms mentioned in a definition clause under such expression would have to be inevitably treated as being exhaustive. There can be a large number of cases and examples where even the expression "means" can be construed liberally and treated to be inclusive but not completely exhaustive of the scope of the definition, of course, depending upon the facts of a given case and the provisions governing that law.
53. In K.V. Muthu v. Angamuthu Ammal this Court was dealing with a case under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the expression "member of his family" as defined under Section 2(6-A) of that Act. Section 2(6-A) provides that:
"2. (6-A) 'member of his family' in relation to a landlord means his spouse, son, daughter, grandchild or dependent parents."10
If the principle of construction advanced by the learned counsel appearing for the respondent is to be accepted, then even in that case, the Court could not have expanded the expression "member of his family" to include any other person than those specifically mentioned under that definition. The definition and the expression "means", if construed as exhaustive would necessarily imply exclusion of all other terms except those stated in that section but this Court, while adopting the principle of purposive construction, came to the conclusion that even a foster son, who is obviously not the real son or direct descendant of a person, would be included.
54. This Court, observing that there was consensus in precedent that the word "family" is a word of great flexibility and is capable of different meanings, held as under: (K.V. Muthu case, SCC p. 58, paras 11-12) "11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted.
12. Where the definition or expression, as in the instant case, is preceded by the words 'unless the context otherwise requires', the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied."
11. The above judgment delivered by the Hon'ble Apex Court wherein the definition of the word 'means' has been considered, although delivered in the context of the Electricity Act, 2003, while dealing with the provision of Section 126, wherein, the definition of unauthorized use of electricity has been provided, wherein, the unauthorized use of electricity means the uses of electricity by the means and for the reasons stated in the sub-clauses (i) to
(v) of Clause (b) of Explanation of Section 126 of the 2003 Act has been discussed and while dealing with the expression 'means', used in the definition clause of Section 126 of the 2003 Act.
It has been held that the expression 'means' is relating to intermediate point between the two points or extreme, but, especially of words, that, which is conveyed.
11The expression 'means' by itself is a restrictive term and when used with the word includes, it is construed, as exhaustive. In this circumstance, the definition, using the term 'means' is a statement of literal connotation of a term and the Courts have interpreted 'means' and includes an expression, defining the section exhaustively.
12. Therefore, if in the statute, the word 'means' is there, it will be treated to be in the restrictive sense, but when 'means' and 'include' words is put, it will be treated to be in the exhaustive term and in the context of this underlying interpretation, the case in hand with the facts and the statutory provision, as contained in the Rule, 2018 has been scrutinized by this Court and it has been found that the definition of 'person' is not with the word 'includes' and therefore, this word means could be treated to be in the restrictive sense and hence, the argument, as has been advanced by the learned counsel for the petitioner with the word 'means' be treated in exhaustive term as per the definition stipulated in the General Clauses Act, is not fit to be acceptable and accordingly, rejected.
13. Admittedly in this case application has been made by the firm and therefore, firm would not come under the meaning of applicant as per the definition of applicant stipulated under Rule 2(XXXII) and as such it has been and rightly done so in view of the fact that when the specific condition has been stipulated in the rule applicable the applicant needs to be abide by the same.
The contention which has been urged by the learned counsel for the petitioner that the reference of Pankaj Kumar Jha is there and as such it ought to have been treated to be an application in the personal capacity in view of the definition of applicant since he should have been treated as co- applicant but that contention is not fit to be acceptable for the reason that the Permanent Account Number has been submitted of the firma namely Narmada Construction which suggests that the application has been made by the Narmada Construction and not by the Pankaj Kumar Jha in individual capacity, as would be evident from Annexure-2 series annexed to the writ petition wherein in the column of liquor name, the reference of Narmada Construction is there with the name of M/s Narmada Construction a partnership firm and therefore, the capacity of the said Pankaj Kumar Jha would be of an authorized person as would be evident from page 31 of the 12 brief even, and therefore, it will be said to be an application made by the said Pankaj Kumar Jha rather it is in the name of construction namely Narmada Construction (Proprietor) Pankaj Kumar Jha and as such he cannot be treated to be a co-applicant within the meaning of definition of co-applicant as provided under Rule 2 (XXXII) since the definition of co-applicant would be associated with the main person and not with the firm otherwise if the definition of applicant as provided under Rule 2 (XXXII) read with 2(XXXI) which contains the definition of person would be diluted and it will be in violation to the provision of rule since the rule requires of filling up of an application by a person either the "main person" or "the co-applicant"
(person) and therefore, the argument, as advanced by the learned counsel for the petitioner, in this regard is hereby rejected.
The other argument that the petitioner-firm has already declared to be successful and as such it ought not to have been rejected after completion of entire process of selection but the aforesaid contention of the learned counsel for the petitioner is also not worth to be considered for the reason that after being declared to be successful he has no accrued right of settlement in his favour if his candidature is itself under question and if such could have been allowed by the respondent authorities or any positive interference would be made by this Court against the decision taken by the authority (impugned) it will lead to allowing illegality to be perpetuated and it is settled position of law that the illegality, if committed and if came to be known to the authority, the same has to be rectified, the moment it came to the notice on the position of law that the illegality cannot be allowed to be perpetuated, as has been settled in paragraph 13 of the judgment rendered in the case of Union of India and another v. International Trading Co. and another reported in (2003) 5 SCC 437 as also in paragraph 16 of the judgment rendered in the case of Kulwinder Pal Singh and another v. State of Punjab and others, reported in (2016) 6 SCC 532, wherein the Hon'ble Apex Court hold as follows:-
"13. ... ... ... ... The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been 13 committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."
16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma it was held as under: (SCC p. 337, para 15) "15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. (See Sneh Prabha v. State of U.P.; Jaipur Development Authority v. Daulat Mal Jain; State of Haryana v. Ram Kumar Mann;
Faridabad CT Scan Centre v. DG, Health Services; Jalandhar Improvement Trust v. Sampuran Singh; State of Punjab v. Rajeev Sarwal; Yogesh Kumar v. Govt. (NCT of Delhi); Union of India v. International Trading Co. and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority.)"
Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality."
14. In view of the facts and circumstances and considering the legal position as also the rule applicable, the impugned order needs no interference by this Court stating under Article 226 of the Constitution of India in view of the fact that there is no error in the decision making process.
15. Accordingly, the writ petition fails and it is dismissed.
(Sujit Narayan Prasad, J.) Saket/-