Allahabad High Court
Raghavendra Tiwari vs State Of U.P.Thru Secy.Food & Civil ... on 3 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 1954
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment reserved on : 20.01.2020 Judgment Delivered on : 03.02.2020 Case :- MISC. SINGLE No. - 1383 of 2020 Petitioner :- Raghavendra Tiwari Respondent :- State Of U.P.Thru Secy.Food & Civil Supply Lucknow & Ors. Counsel for Petitioner :- Dilip Kumar Pandey, Akhilesh Kumar Counsel for Respondent :- C.S.C., Dilip Kumar Pandey Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the parties and perused the record.
2. This petition has been filed by the petitioner challenging the order dated 29.11.2019 passed by the opposite party no.2-Dy. Commissioner (Food), Ayodhya Division, Ayodhya, in Appeal No.16 of 2019, under Section 13 (1) of U.P. Essential Commodities (Regulation of Sale and Distribution Control), Order, 2016, hereinafter referred to as the 2016 order.
3. It has been submitted by the learned counsel for the petitioner that he is a Resident of Village Dewai, Post Dayodhi, Block & Tehsil Sohawal, District Ayodhya, and he participated in the selection process for appointment of Fair Price Shop License for the said Gram Sabha. Agenda was circulated on 11.03.2018 for an open general meeting held on 04.04.2018. The meeting was held on 04.04.2018 in the presence of Observers appointed by the opposite party nos.5 & 6-i.e. the Assistant Development Officer, Panchayat and Assistant Development Officer (ST) and two Sub Inspectors of the concerned police station. The petitioner and one Ram Bhawan had putforward their candidature. Ram Bhawan raised an objection to the candidature of the petitioner on the ground that the petitioner is the brother of Village Pradhan and thus ineligible. The petitioner submitted that he was living separately and his family has been given a separate page in the Family Register/Parivar Register of the village concerned. The Candidature of the petitioner was accepted and he was recommended in the said meeting of the Gram Sabha by a Resolution dated 04.04.2018 The matter was sent to the S.D.M. who placed the same before Tehsil Level Committee where again the objection of Ram Bhawan was considered regarding ineligibility of the petitioner, the petitioner was thereafter allotted the Fair Price Shop of the village Dewai. The order of allotment dated 19.05.2018 clearly stated that the objections raised by Ram Bhawan was found to be inappropriate in view of legal advice given by the DGC (Civil), Faizabad, with regard to the applicability of Government Order dated 03.07.1990.
4. The opposite party no.7 one Prem Kumar being aggrieved by the order dated 19.05.2018 filed an Appeal before the Commissioner and it was registered as Appeal No.16 of 2019 under Section 13 of the 2016 order.
5. It has been submitted that after filing of the Appeal, although the petitioner was arrayed as Respondent, no notice was issued to him and he was not heard. The opposite party no.7 had raised two grounds in the Appeal one relating to the Coram of the open general meeting of the Gram Sabha held on 04.04.2018 and the second related to ineligibility of the petitioner under the Government Order dated 03.07.1990. It has been submitted that the opposite party no.7 had no locus to file the delayed Appeal, and Appellate Authority has arbitrarily allowed the Appeal by the order dated 29.11.2019.
6. It has been submitted by the learned counsel for the petitioner that the finding recorded by the Appellate Authority regarding the Government Order dated 03.07.1990 and Government Order dated 17.08.2002 are misconceived, as the opposite party no.2 has not considered the fact that the Parivar Register showed the petitioner to be living separately and the report of the concerned Revenue Officials also showed the petitioner to be living separately from his brother who was the sitting Gram Pradhan. Learned counsel for the petitioner has also stated vehemently that the petitioner was not heard by the Appellate Authority at all and the appellant Prem Kumar had no locus to file the Appeal.
7. Learned Standing Counsel appearing for the State-respondents has stated that under Paragraph 13 (1) of the 2016 Order, any person aggrieved against the allotment, suspension or cancellation of Fair Price Shop may file an Appeal. The opposite party no.7 was the resident of Gaon Sabha and a Card Holder entitled for receiving the benefits of essential commodities to be distributed from the Fair Price Shop of the village concerned. He had thus locus to file the Appeal.
8. It has also been submitted by the learned Standing Counsel that the order passed by the Appellate Authority is on the whole just, as it is based on the law as declared by this Court in its various judgments regarding the definition of "FAMILY" and "HOUSEHOLDS".
9. Having heard the learned counsel for the parties this Court has gone through the order impugned. It is evident therefrom that two grounds were taken with regard to the challenge of the allotment order dated 19.05.2018 by the appellant therein. Firstly, that the open general meeting held on 04.04.2018 of the Gram Sabha concerned had not been held in accordance with the Rules for holding such meeting. It was found from a perusal of record summoned by the Appellate Authority that no Agenda was circulated publicly as no copy of the Agenda Notice was present in the file. Moreover, the voting was allegedly done by raising of hands but in the recommendation/proposal of the Gaon Sabha there was no mention that who raised hand in favour of Ram Bhawan and who raised hand in favour of the petitioner-Raghvendra Tewari. The open general meeting was held against Rule 32 of the U.P. Panchayat Rules framed under the Act. The Appellate Authority relied upon the judgment rendered by this Court reported in 2016 (1) 33 RD 46 to make an observations with regard to the illegality of the procedure adopted in holding the open general meeting dated 04.04.2018.
10. The Appellate Authority has also gone through the copies of the two pages of the Parivar Register filed at Page nos. 58 and 60 of the lower court record, and found therefrom that Raghvendra Tewari was the real brother of the sitting Gram Pradhan Shri Malvendra Tewari. The report of the Revenue Officials stated that they both lived in the same house. The petitioner Raghvendra Tewari was found ineligible in terms of Paragraph 4.7 of the Government Order dated 03.07.1990 and in terms of the Provisions of Government Order No.2715/29-6-2002-162-SAA/ 2001 dated 17.08.2002. The appointment of the petitioner was found to have been made against the settled position in law as given in judgments of the High Court reported in 2019 (142) RD 553 and 2019 (37) LCD 757. The order dated 19.05.2018 was set aside and a direction was issued to the S.D.M. Sohawal, to get a meeting held of the Gram Sabha Dewai within a period of two months for appointment of a new Fair Price Shop Licensee.
11. Learned counsel for the petitioner has stated at the bar that after this order was issued by the Appellate Authority, order was passed by the S.D.M. Sohawal, Ayodhya on 18.12.2019, cancelling the Fair Price Shop License of the petitioner and attaching the Ration Cards to the link shop of one Bhawan Kumar of Gram Panchayat Theyuanga, Development Block Sohawal and a direction was issued to the Block Development Officer, Sohawal to get an open general meeting of the Gram Sabha concerned held and to ensure recommendation is made for allotment of Fair Price Shop to some other candidate in accordance with the provisions of the new Government Order dated 05.08.2019.
12. A copy of the order dated 18.12.2019 has been produced before this Court by the learned counsel for the petitioner which is kept on record. From a perusal thereof, it is evident that the same has been passed as a consequence to the order passed by the Appellate Authority allowing the Appeal of the opposite party no.7.
13. With regard to the locus of the opposite party no.7, who filed the Appeal, it has rightly been submitted by the learned Standing Counsel that any person aggrieved by an order of allotment can file an Appeal in this case. The opposite party no.7 was a resident of the village concerned and a Ration Card Holder. The objection of the petitioner regarding the maintainability of the Appeal on ground of locus is, therefore, misconceived.
14. With regard to ground taken by Appellate authority regarding ineligibility of the petitioner, this Court finds that the judgment rendered by full Bench of this Court in Indrapal Singh Vs. State of U.P. and Others reported in 2014 (123) RD 504, has clearly held that a brother, even though living separately, would still come within the definition of family, and would, therefore, be subject to the disqualification under Paragraph 4.7 of the Government Order dated 03.07.1990 as further explained in the Government Order dated 17.08.2002 and the Government Order dated 17.05.2010.
15. A Division Bench in the case of Ram Murat Vs. State of U.P. and others reported in 2006 (5) ADJ 396, had taken a different view that although came within the definition of family his license could be cancelled only in the event if it was found that he had been dining together and had been staying under the same roof.
16. The Full Bench did not appreciate the observations made by the Division Bench in Ram Murat, with regard to the definition of family members including a brother but the brother not being ineligible as he did not dine together nor stayed under the same roof as the sitting Pradhan. The Full Bench of this Court made the following observations in Paragraph Nos.49 to 53 of the report.
"49. The term 'family' and 'household' are capable of wide and varying meaning and same cannot be left to be assigned a meaning in its general terms and same has to be interpreted in reference to the context it has been used keeping in view the overall object and purpose sought to be achieved.
50. The question as to whether incumbents are living together and are dining together shall always essentially be question of fact always giving a room to an incumbent to handle the situation and manipulate the situation and in order to remove all the doubts to be more precise in the matter of appointment of an agent a clear cut categorical policy decision has been taken at the first instance that Pradhan/Up-pradhan and their relatives so specified cannot be appointed as agents and secondly when Pradhan/Up-pradhan or such category of relatives in case they are elected as Pradhan or Up-pradhan, then his/her agency in question has to be terminated. The State has deliberately and intentionally defined "family" in the said context so that there is no element of doubt left on the spot that such category of incumbents who happen to be the blood relations and relations on account of marriage and also on account of dining and messing together on being elected, then the near and dear one will have to lose his/her fair price shop as there would be conflict of interest. In the definition of family there are blood relations plus relations which has been developed on account of marriage having taken place due to social order plus members who are residing and dining together, whereas the definition of household keeps within its fold, the one who normally eat food prepared in the same kitchen. All the incumbents who fall within the definition of family may or may not be a member of household, in such a situation and in this background, the State having the absolute authority to formulate the policy for fixing the terms and conditions of appointment of agent as well as the terms and conditions for disqualification of agent the definition of family has to be seen in the said context and "household" has to be read in the context of issuance of ration card and in no other context under the scheme of things provided for. In the matter of according of agency and in the matter of incurring disqualification on relative being elected as Pradhan or Up-pradhan, there is no escape route and agency has to be cancelled.
51. Accordingly, this Court is of the view that there is no conflict whatsoever in between the provisions of Clause 2 (o) Clauses 30 and 31 of U.P. Scheduled Commodities Distribution Order, 2004 vis.a.vis with the definition of "family" as given in Government Order dated 3rd July, 1990 paragraph 4.7 and the Division Bench in Ram Murat's case 2006 (5) ADJ 396, defining the word "family" as given in Government Order dated 3rd July, 1990, Paragraph 4.7 lays down the correct law, even after enforcement of Control Order 2004, except to the extent of introducing concept of joint residence and joint kitchen in reference of Brother, whereas the definition of family is clearly inclusive of brother also and the definition of family as given in Clause 2 (o) of U.P. Scheduled Commodities Distribution Order, 2004 in no way would override the definition of family given in Paragraph 4.7 of the Government Order dated 3rd July, 1990 and the said definition has to be read in the context of issuance of ration cards and nothing beyond the same.
52. The Full Bench proceeds to clarify that in the case of Ram Murat (supra) the brother has been taken outside the scope of the defined family members as it has been mentioned therein that agency would be cancelled only in the event if brother is found that he has been dining together and has been staying under the same roof.
53. The Full Bench does not approve of the aforementioned portion of judgment in the case of Ram Murat (supra), inasmuch as, it is running contrary to the spirit of the Government Order dated 3rd July, 1990 and the purport and intention of Government Order when it proceeds to define the family members in the matter of engagement as well as disqualification of agent as himself, wife, son, unmarried daughter, mother, father, brother or any other member who stays together and who shares common kitchen, then by no stretch of imagination as per the spirit of aforementioned Government Order brother could have been disjuncted from the definition of family members and could have been clubbed with such category of members who were residing together and dining together. The definition of family members is specific i.e. inclusive of himself, wife, son, unmarried daughter, mother, father, brother or any other member who stays together and dines together in the common kitchen. "Or" word is normally disjunctive and same in its natural sense denotes an alternative, and intention of using such a word has to be gathered from its context. Here contextual situation clearly reflects that self, wife, son, unmarried daughter, mother, father, brother are identified class of family members, and on anyone of them being elected as Pradhan/Up-pradhan, the agency will have to be terminated/ cancelled. Not only this, other members who are residing and dining together, on their being also elected as Pradhan/Up-pradhan disqualification is to be incurred. Distinction drawn by the Division Bench, in the case of Ram Murat, by putting the brother along with other members who are residing and dining together, has no rational for it and merely on the assumption and presumption that brother don't have such close tie as compared to other family member defined, brother should be clubbed with other incumbents who are residing together and dining together cannot be approved of. On plain reading of the provision, i.e. definition of family, there are defined category of relatives such as self, wife, son, unmarried daughter, mother, father, brother and there are undefined category of relatives, who can be accepted at par with relatives defined, provided they are dining and residing together. The Courts have no authority to re-write the definition, and specially when same on its plain reading is clear and categorical, with no ambiguity worth name. Apex Court in the case of Phool Patti Vs. Ram Singh 2009 (13) SCC 22 has clearly ruled that Courts cannot add words to statute, or change its language, particularly when on plain reading meaning becomes clear. In view of this, the definition of family which includes brother cannot be read in a fashion to exclude brother from defined family members and throw him and club him in the category of any other member, who has been staying together and has been dining together, in view of this, the said portion of the Ram Murat's Case (supra) is not being approved of."
(emphasis supplied)
17. It is evident from the observations of the Full Bench that this Court has considered the disqualification for holding a Fair Price Shop. In case the Licensee himself or his wife, Son, Unmarried daughter, the Mother, Father, Brother is elected, or is the sitting Gram Pradhan, besides the such blood relatives, a Daughter-in-law who is related by marriage and who stayed together and who shared the common Kitchen has also been included in the definition of family, by a Division Bench of this Court in Shiv Kumar Vs. Up-Ziladhikari Chakiya, District Chandauli and four Others decided on 20.08.2014 in Writ C-No.40973 of 2014.
18. In the case of Shiv Kumar (Supra), the Division Bench held that where the Daughter-in-law had been elected as Gram Pradhan and the Fair Price Shop License had been given to the Mother-in-law on compassionate ground after the death of her husband, the erstwhile Licensee, but the Mother-in-law would still attract the disqualification as envisaged under Clause 4.7 of the Government Order dated 03.07.1990 as she was enjoying common Kitchen with Daughter-in-law after the death of her husband.
19. The observations made by the Hon'ble Division Bench with regard to the object sought to be achieved by mentioning this condition of ineligibility are relevant to be quoted hereinbelow:-
"Even otherwise a fair price shop licence is a measure of public distribution system which is now contemplated under the Constitution of India to be a function of the local body. It is not a mere right to run the business of a fair price shop by any individual. Apart from this, the prohibitions that have been mentioned in Clause 4.7 of the Government Order dated 3.7.1990 is to prevent any monopoly in the hands of the Gram Pradhan or the relatives of such office holder. It is in order to prevent any favouritism or nepotism that such prohibitions have been engrained by making the definition of the word household and family extensive as explained by the full bench in the case of Indrapal Singh (supra).".
20. Learned counsel for the petitioner during the course of arguments has referred to a judgment passed by a Co-ordinate Bench of this Court in Yogendra Singh Vs. State of U.P. through Principal Secretary and Others in Writ Petition No.23298 (M/S) of 2016 decided on 27.09.2016. This Court has carefully perused the said judgment and after referring to the answers given by the Full Bench, in Indrapal Singh (Supra) to the question referred to it as follows:-
"(i) The Division Bench judgment in Ram Murat's case (supra) defining the word 'family' as given in the Government order dated 3.7.1990 (Paragraph 4.7) lays down the correct law except that the word 'brother' shall also be included in self, wife, son, unmarried daughter, mother, father and the condition of having living together and taking food from common kitchen shall apply only to 'any other member (vU; dksbZ lnL;)' which has been separated by word in the definition.
(ii)The definition of word 'family' as given in Clause 2 (o) of U.P. Scheduled Commodities Distribution Order, 2004 shall not override the definition of word 'family' as given in Paragraph 4.7 of the Government order dated 3.7.1990.
Let our answer be placed before the appropriate Bench hearing the writ petition."
21. The Co-ordinate Bench of this Court has observed as under:-
"Thus, the Full Bench categorically held that Clause 4.7 of the government order dated 3.7.1990, as modified by the government order dated 18.7.2002, as far as a definition of 'family' is concerned, is divided into two parts - the first part consists of the 'blood relations such as son, father, daughter etc.' and this part is not dependent upon the condition that the members should be dining and residing together. The second part consists of other relatives who are included in the definition of 'family', if they are found to be dining and residing together. The full bench considered exclusion of the relationship of brother from the first part and held it to be contrary to the letter and spirit of the government order dated 3.7.1990. Accordingly it included the said relationship by judicial mandate in the first part of the definition of 'family' meaning thereby this relationship was held not to be dependent upon the condition of dining and residing together.
In view of the Full Bench decision there is hardly any doubt that a father could not have been allotted the fair-price-shop if the son was Gram Pradhan, as this would be covered by the first part of the definition based on blood relationship.
As far as the contention of learned counsel appearing for the opposite party no.4 that the father was allotted the shop prior to the election of the son as Gram Pradhan is concerned the said plea is also not available to him in view of the government order dated 18.7.2002 which says that if it had been allotted, even then, it shall be cancelled. The said government order was also considered by the Full Bench Decision. As far as reliance placed by learned Counsel appearing for opposite party no.4 upon the Single Bench Decision of this Court in Virendra Singh vs Commissioner, Allahabad Division, 2006(24) LCD 1132, wherein it was held that para 4.7 of the government order dated 3.7.1990 would not apply to existing licensee is concerned, this court finds firstly, that the said judgement does not take into consideration the modification of para 4.7 of the government order dated 3.7.1990 by the subsequent government order dated 18.7.2002 which leaves no doubt about the policy of the government which is applicable to existing licensees also. Furthermore, a similar fact situation existed in the case of Ram Murat and others vs Commissioner Azamgarh Division, 2006 (5) ADJ 396 where the brother had been allotted the fair-price-shop earlier and the family member had been elected as Gram Pradhan subsequently and it is in this case that a reference was made to the Full Bench which was considered in Indarpal Singh's case (supra) and it was held that the brother's licence was liable to be cancelled, therefore in view of the dictum of the Full Bench the reliance placed by the learned counsel for the opposite party no.4 upon the judgement in Virender Singh's case is misplaced and the aforesaid plea is rejected."
(emphasis supplied)
22. Rather than supporting the case of the petitioner the judgment in Yogendra Singh (Supra) goes against the petitioner's contention.
23. This Court has also considered the arguments raised by the learned counsel for the petitioner that the petitioner was never heard and the order has been passed in violation of the Principles of Natural Justice. This Court finds from the order impugned, no evidence that the petitioner was heard. However, the Principles of Natural Justice are not a straitjacket formula that have to be applied in all cases irrespective of the consequences. In this case, the petitioner was ineligible to have participated in the open general meeting and put-forward his candidature for allotment of Fair Price Shop of the village concerned. In accordance with law settled by the Full Bench of this Court in Indrapal Singh Vs. State of U.P. (Supra), an objection was raised by the contesting candidate which was over-ruled. The contesting candidate, thereafter, filed objection before the Tehsil Level Committee, the Tehsil Level Selection Committee sought advice of the DGC (Civil) in the matter who gave a misconceived advice, on the basis whereof the petitioner was allotted the Fair Price Shop License.
24. Writ jurisdiction is a discretionary jurisdiction and a writ of certiorari would not ordinarily be issued as a matter of course. It has been settled by the Hon'ble Supreme Court that an order impugned does substantial justice between the parties, even if it does not strictly follow niceties of law, may still not be set aside on mere showing of irregularity in procedure, or want of jurisdiction. Reference can be made to the judgment rendered by the Hon'ble Supreme Court in the case of J.P. Builders V. A. Ramadas Rao, Civil Appeal Nos.9821-9822 of 2010 decided on 22.11.2010.
25. The Hon'ble Supreme Court has also held in the case of Chandra Singh and Others Vs. State of Rajasthan and Another reported in 2003 (6) SCC 545, that an order which appears to be illegal, may not be set aside and writ of certiorari may not issue only to revive an illegal order as it would be opposed to public policy. In case, this Court grants the prayer made by the petitioner and quashes the order dated 29.11.2019, on the ground that the petitioner was not heard, it would only revive an illegal order of allotment of Fair Price Shop to the petitioner on 19.05.2018 as the petitioner has been found to be ineligible to even put forward his candidature so long as his brother Shri Malendra Tewari remained sitting Gram Pradhan of the village concerned.
26. The writ petition is, therefore, dismissed. No order as to costs.
Order Date :-3rd February, 2020
PAL (Justice Sangeeta Chandra)