Ramjas vs State Of U.P Thru Prin Secy Food & ...
2017 Latest Caselaw 6646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 23							A.F.R.
 
Case :- MISC. SINGLE No. - 27056 of 2017		
 
Petitioner :- Ramjas
 
Respondent :- State Of U.P Thru Prin Secy Food & Civil Supply Lko & Ors
 
Counsel for Petitioner :- Rakesh Kumar Srivastava
 
Counsel for Respondent :- C.S.C,Manish Mani Sharma
 

 
Hon'ble Anant Kumar,J.

(1) This writ petition under Article 226 of Constitution of India has been filed with the following prayers:

(i) issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 13.10.2017 passed by Deputy Commissioner (Food) Faizabad Division, Faiabad (O.P. No.2) in Appeal No.70/2017/Ambedkar Nagar (Ramu Lal Vs State of U.P.) as contained in Annexure No.1 t this writ petition.

(ii) issue a writ, order or direction in the nature of Mandamus directing the O.P. No.3 for stopping the supply of Essential Commodities to O.P. No.4 in pursuance to the impugned order dated 14.10.2017 passed by Deputy Commissioner (Food) Faizabad Division, Faiazabad.

(iii) any other writ, order or direction which this Hon'ble Court deem fit in the circumstances of the case.

(vi) to allow the writ petition with cost.

(2) Heard learned counsel for the petitioner, Mr. Manish Mani Sharma, learned counsel for caviator and learned Standing Counsel for the State and perused the record. The parties are agreeable that the matter may be disposed of finally at the admission stage.

(3) At the very outset, learned counsel for caviator has raised an objection to the effect that the petitioner was a complainant before the licensing authority, so he cannot maintain this writ petition and in this regard a case law 2009(27) LCD 1373; Dharamraj vs State of U.P. and others, has been cited, wherein it has been held that a person, who is not aggrieved, has no locus standi to file the writ petition. Learned Standing Counsel has also supported the version of learned counsel for caviator and has cited a case law reported in 2017 (35) LCD 2448; Rajesh Kumar V. State of U.P. and others, wherein also similar principle of law has been taken. On the basis of these cases laws, it is stated that since the petitioner was simply a complainant before the authority concerned, he cannot be held to be a person aggrieved and he cannot maintain this writ petition.

(4) Refuting the arguments, learned counsel for the petitioner states that this matter is slitly different and the judgment of the appellate court has been passed in utter violation of Government Order dated 3rd July, 1990, which has subsequently been amended by Government Order dated 18th July, 2002, wherein, in para 4.7 it is mentioned that in favour of Village Pradhan, Up Pradhan or their family members and relatives, fair price shop shall not be allotted, which includes wife, son, unmarried daughter, mother, father, brother and other family members, who are living and denning with him/her. In Government Order dated 18th July, 2002, it is mentioned that even if a shop is already running in favour of any license holder and later on any of his/her family member is elected as Pradhan or Up Pradhan, fair price shop shall be cancelled. It is further pointed out that as per facts of the present case, Opposite Party No.4 Ramu Lal was running a fair price shop in village Panchayat Rampur Benipur, Block - Baskhari, Tehsil - Tanda, District - Ambedkar Nagar and his mother Prabhu Devi was elected a Gram Pradhan, accordingly, the petitioner made a complaint before the Competent Authority that his fair price shop license should be cancelled and when no action was taken in pursuance of Government order dated 3.7.1990, the petitioner filed a writ petition being Misc. Single No.9341 of 2017, wherein an order was passed on 10.05.2017, which reads as follows:

"Learned Standing Counsel, on the basis of instructions received from the Sub Divisional Magistrate, Tanda, Ambedkar Nagar, states that Shri Ramu Lal-the respondent no. 4, Fair Price Shop licensee of the village, is son of Smt. Prabhu, who is Gram Pradhan of the village. He has further stated that the Fair Price Shop License of the respondent no. 4 has been suspended on the ground of alleged irregularities committed by him in distribution of essential commodities. However, no action has been taken in pursuance of the Government Order dated 03.07.1990.

Clause 4.7 A of the Government Order dated 03.07.1990 as amended by Government Order dated 18.07.2002 specifically provides that in case, a family member of a Fair Price Shop Licensee is elected as Pradhan or Up-Pradhan, his Fair Price Shop license shall be cancelled.

The Sub Divisional Magistrate, dealing with the matter is expected to know the provisions in this regard.

It appears that on extraneous consideration necessary action has not been taken against the Fair Price Shop Licensee in the light of the Government Order dated 03.07.1990.

In the circumstances, the Sub Divisional Magistrate, Tanda, Ambedkar Nagar, is directed to file his personal affidavit explaining therein as to why appropriate action has not been taken by him against Ramu Lal, the Fair Price Shop Licensee, in the light of the Government Order dated 03.07.1990.

List this case on 23.05.2017. On that date Sub Divisional Magistrate, Tanda, Ambedkar Nagar, shall appear in person alongwith relevant record to assist the Court."

(5) In compliance of this Court's order dated 10.05.2017, the Sub-Divisional Magistrate appeared before the Court on the next dated i.e. on 23.05.2017 and on the said date the petition was dismissed with following orders:

"In pursuance of the order passed by this Court Sri Narendra Singh, Sub Divisional Magistrate, Tanda, Ambedkar Nagar has appeared in person. Personal affidavit filed on his behalf is taken on record.

Sri Manish Mani Sharma, Advocate has filed his power on behalf of respondent no. 4. The same is taken on record.

Heard Sri Shyam Kinkar Pandey, learned counsel for the petitioner, learned Standing Counsel and Sri Manish Mani Sharma, Advocate who has put in appearance on behalf of respondent no. 4.

According to the petitioner respondent no. 4 is the fair price shop licensee of the village in question. Complaints were made by the petitioner along with others against respondent no. 4 on the ground that the respondent no. 4 being the son of Gram Pradhan of the village, in view of the G.O. dated 03.07.1990, his license could not continue. On the said complaint admittedly an order was passed on 26.04.2017 by the Sub Divisional Magistrate, Tanda, Ambedkar Nagar by means of which the fair price shop license of the respondent no. 4 was suspended in view of the irregularities mentioned therein. However, no action was taken by the authority concerned in pursuance of the Government Order mentioned above.

In the personal affidavit filed by Sub Divisional Magistrate, Tanda, Ambedkar Nagar-respondent no. 3, it has been mentioned that the respondent no. 3 has passed an order on 16.05.2017 by means of which the fair price shop license of respondent no. 4 has been cancelled on the ground that her mother being Gram Pradhan his fair price shop license could not continue.

In view of the fact that fair price shop license of the respondent no. 4 has been cancelled nothing remains to be adjudicated.

The writ petition has become infructuous.

Dismissed accordingly."

(6) The license of fair price shop of Opposite Party No.4 was cancelled vide order dated 16.05.2017, against which, Opposite party No.4 filed an appeal being Appeal No.70/2017 under Clause 13(3) of the Uttar Pradesh Essential Commodities ( Regulation of Sale and Distribution Control) Order, 2016, which was allowed and while allowing the appeal, learned Appellate Court has taken a view that since the appellant (Opposite Party No.4 to the writ petition) is living separately in the village concerned and in the village record separate Pariwar Registered has been maintained regarding him, so he would not be treated as family members of the said Gram Pradhan. Therefore, the said appeal was allowed and order dated 16.05.2017 passed by Sub-Divisional Magistrate was set aside vide order dated 13.10.2017. Aggrieved by the said order, the present writ petition has been filed.

(7) So far as the maintainability of writ petition is concerned, learned counsel for the petitioner has cited a judgment of this Court passed by co-ordinate Bench of this Court on 27.09.2016 in Misc. Single No.23298 of 2016 (Yogendra Singh v. State of U.P.), wherein a similar facts has been considered and it is held as under :

A preliminary objection has been raised by Shri Deo Prakash Srivastava, learned Advocate who has put in appearance on behalf of opposite party no. 4 as regards locus of the complainant, who is the petitioner herein, to maintain this writ petition in view of the Division Bench judgement of this court in the case of Dharamraj vs State of U.P. and others, 2009 (27) LCD 1373, and the judgement dated 2.4.2015 passed in Writ Petition No. 2657 (MB) of 2015, Shri Ram and ors. v. State of U.P. & ors.

While it is true that in the aforesaid judgements it has been held that a complainant does not have the locus standi to maintain a writ petition under Article 226 of the Constitution of India as he cannot be said to be a person aggrieved once the appellate authority has decided the appeal, this Court in exercise of its powers under Article 226 of the Constitution of India can not shut its eyes to the apparent illegality in the appellate order and the violation of the dictum of the Full Bench of this court in Indarpal Singh's case (Supra), therefore, it is of the view that the aforesaid judgements would not come in the way of this court in interfering in such matters at the behest of the petitioner as it will lead to grave miscarriage of justice and the court itself would become a party to the perpetuation of an illegality wherein the appellate authority unmindful of the dictum of the Full Bench of this court has passed the impugned order which is certainly not the intent of the Division Bench judgements as aforesaid, especially as the factual scenario therein was quite different. Even otherwise this Court has ample power to take suo motto cognizance of the illegality which is apparent from record. Reference may be made in this regard to the decisions of this court in the case of S. Barrow v. State of U.P. & Anr, AIR 1958 All. 154; P.R. Transport Agency v. Union of India & ors, AIR 2006 All 23; Dr. Ravindra Kumar Goel & ors. v. State of U.P., 2004(55) ALR 807; City Board, Saharanpur v. Abdul Wahid, AIR 1959 All. 695; (2011) 2 All.L.J. 116.

(8) Considering the rival submissions regarding the maintainability of the writ petition, to my view, in special circumstance when it is brought to the notice of the Court that glaring irregularities has been committed by any court under the supervisory jurisdiction of this Court, the complainant cannot be thrown out from the Court without giving proper opportunity of hearing, so to my view, in special circumstance, the writ petition is maintainable.

(9) From perusal of order passed by Appellate Court, it is evident that Appellate Court has not taken into account the case laws as reported in 2006(4) AWC 3419 Ram Murat v. Commissioner, Azamgarh Division, Azamgarh and others, which has been affirmed with small modification by Full Bench of this Court in the matter of Indrapal Singh v. State of U.P. reported in 2014(1) UPLBEC 379, wherein, para 4.7 of Government Order dated 3rd July, 1990 has been elaborately considered and definition of family members has been properly scrutinized. In case of Ram Murti (supra), it is held as under:

"19. Thus according to the law of interpretation the phrase "tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gks" shall qualify the words "HkkbZ ;k vzU; dksbZ lnL;" only written in one continuation without any comma.

20. The contention of the petitioners that the phrase "tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gks" applies to all the members referred to in the para could have some force if no comma had been used after any word in the sentence or if commas had been used after the words "HkkbZ ;k vzU; dksbZ lnL;" also, but when commas have been used upto the word firk only and when thereafter no comma has been used, the phrase "tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gks" shall qualify "HkkbZ ;k vzU; dksbZ lnL;" only appearing after the last comm in the sentence.

21. In other words the break up of the above definition of ifjokj will be as under:

"ifjokj dh ifjHkk"kk fuEufyf[kr ekuh tk;sxh :

Lo;a

L=h

iq=

vfookfgr iq=h

ekrk

firk

HkkbZ ;k vzU; dksbZ lnL; tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gkA

The above distinction is not unreasonable. There is sufficient rationale for it. Husband, wife, son unmarried daughter, father and mother have got very close tie as family members, but that is not so in case of brothers and other persons. That is why the condition of joint residence and of joint kitchen has been provided for applicability of the G.O. to them, but this condition is not applicable in case of husband, wife, son, unmarried daughter, father and mother.

22. The effect of the above finding is that the disqualification for grant of fair price shop licence as well as the provisions for cancellation of the licence shall per se apply where the licence holder himself or his wife, son, unmarried daughter, mother and father have been elected as Pradhan or Uip-Pradhan, this disqualification shall apply only in that case when they are residing together in the same house and their food is being cooked in one kitchen."

(10) This case law has further been considered in the Full Bench judgment of of Indrapal Singh (Supra) with slit modification the view taken in Ram Murat's case (Supra) was approved, which reads as under:

"56 In view of the above our answer to the referred question is 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 words ''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 ''or ( ;k)' 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."

(11) In view of the fact, to my view, since the Appellate Court has not properly considered the definition of family members, to my view, the order cannot be sustained.

(12) Accordingly, the writ petition is allowed. The order impugned dated 13.10.2017 passed by Deputy Commissioner (Food), Faizabad Division, Faizabad, in Appeal No. 70/2017/Ambedkar nagar (Ramu Lal v. State of U.P.) is set aside and the matter is relegated back to the Appellate Authority to decide the appeal afresh in the light of observation made above and taking into account the definition of family members as elaborately held by Full Bench Judgement of this Court in Indrapal Singh (Supra) after giving opportunity of hearing to the parties. Since the matter is urgent one, the Appellate Authority shall taken every endeavor to decide the matter expeditiously, preferably within a period of three months from the date certified copy of this order is received.

Order Date :- 10.11.2017

S. Kumar