Amarjeet Gupta vs State Of U.P. And 5 Others
2018 Latest Caselaw 2575 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Court No. - 28
 

 
Case :- WRIT - C No. - 17669 of 2018
 

 
Petitioner :- Amarjeet Gupta
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Sanjay Pathak
 
Counsel for Respondent :- C.S.C.,Manvendra Kumar Yadav,Tariq Maqbool Khan
 

 
Hon'ble Ajay Bhanot,J.

1. There is a village panchayat of Shivpur Mathiya, District-Kushinagar. The respondent No.6 was appointed as the fair price shop dealer of the aforesaid village panchayat. The petitioner initially challenged the appointment of the respondent No.6, Mukesh Vishwakarma, as the fair price shop dealer of the said village panchayat by instituting, a writ petition before this Court. The writ petition was registered as Writ-C No.6050 of 2018. The writ petition was finally decided by judgement and order dated 15.2.2018 rendered by this Court. The operative portion of the judgement reads thus:

"Accordingly, this writ petition is disposed of with a direction to the Licensing Authority to place the objections made by the petitioner before Tehsil Level Selection Committee at the time of consideration of such proposal made in favour of the respondent no. 6 and appropriate order be passed thereon within a period of six weeks from the date a certified copy of this order is produced before him."

2. In pursuance of the orders passed by this Court, the petitioner submitted the objection before the competent authority. The competent authority rejected the objection and upheld the appointment of the said respondent No.6, Mukesh Vishwakarma by order dated 27.3.2018.

3. The petitioner has assailed the aforesaid order dated 27.3.2018 passed by the respondent No.2, Sub-Divisional Magistrate, Tehsil-Kaptanganj, District-Kushinagar in the instant writ petition.

4. The submission of Shri Sanjay Pathak, learned counsel for the petitioner is that the respondent No.6 is the real brother of the sitting village pradhan. He is not eligible to be appointed as the fair price shop dealer of the aforesaid village pradhan. The appointment of the petitioner is in the teeth of the Government Order dated 3.7.1990. He relies on a full bench judgement of this Court entered in the case of Indra Pal Singh Vs. State of U.P., reported at 2013 (10) ADJ 612.

5. Shri Manvendra Kumar Yadav, learned counsel has appeared for the respondent No.6. He submits that the respondent No.6 is admittedly the brother of the sitting village pradhan of the aforesaid village panchayat. However, the respondent No.6 resides in a separate house. He does not share the kitchen with the sitting village pradhan. The respondent No.6 is eligible to be appointed the fair price shop dealer.

6. Sri Sanjay Ram Tripathi, learned Standing Counsel has appeared for the State.

7. Heard learned counsel for the parties. With consent of parties the matter is being disposed of finally.

8. Certain facts relevant for judgment in the controversy are established beyond the pale of dispute. An open meeting of the village panchayat, Shivpur Mathiya, District-Kushinagar held on 15.12.2017 recommended the name of respondent No.6, Mukesh Vishwakarma for appointment as the fair price shop dealer of the said village panchayat. The petitioner made a complaint against the appointment of the said respondent No.6 as the fair price shop dealer. An enquiry was caused to be conducted into the said complaint. The enquiry found that the brother of the respondent No.6 is the sitting gram pradhan of village panchayat, Shivpur Mathiya, District-Kushinagar. However, the respondent No.6 and his brother, who is the sitting gram pradhan, live separately. It is recorded that they eat out of different kitchens maintained by them separately. The objections to the appointment of the respondent No.6 were rejected by the order dated 27.3.2018 passed by the respondent no.2, Sub-Divisional Magistrate, Tehsil-Kaptanganj, District-Kushinagar. The order dated 27.3.2018 also directed the completion of all formalities for appointment of the respondent No.6 as the fair price shop dealer of the said village panchayat on the foot of the resolution passed by the village panchayat on 15.12.2017.

9. The appointment of the fair price shop dealer of the village panchayat is governed and regulated by the Government Order dated 3.7.1990 and the Government Order dated 18.7.2002. The aforesaid Government Orders disqualify certain members of the family of the village pradhan from being appointed as the fair price shop dealer of the concerned village panchayat. The relevant extracts of the aforesaid Government Order are reproduced hereunder for ease of reference:

Þ4-7- xzke iz/kku ;k mi iz/kku ds ifjokj ds lnL;[email protected]/k;ksa ds i{k es mfpr nj dh nqdku ds vkoaVu dk izLrko ugh fd;k tk;sxkA ifjokj dh ifjHkk"kk fuEufyf[kr ekuh tk;sxh & & & Lo;a L=h] iq=] vfookfgr iq=h] ekrk] firk] HkkbZ ;k vU; dksbZ lnL; tks lkFk es jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gksß

10. The Government Order dated 18.7.2002 is extracted below for felicity of reference:

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m0 iz0 'kkluA

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leLr ftykf/kdkjh]

m0 iz0 A

[kk| jln vuqHkkx&6 y[kuÅ fnukad 18 tqykbZ] 2002

fo"k;& lkoZtfud forj.k iz.kkyh ds varZxr xzkeh.k {ks= essa mfpr nj ds nqdkunkjksa dk p;uA

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mi;qZDr fo"k;d 'kklukns'k la[;k&,Q [email protected]&[k&6&fnukad 03 tqykbZ] 1990 dk d`i;k lanHkZ xzg.k djsaA

2& bl laca/k es lE;d fopkjksaijkar v/kksgLrk{kjh dks ;g dgus dk funsZ'k gqvk gS fd mDr 'kklukns'k ds izLrj&4-7 ds vkxs izLrj&4 7 v fuEukuqlkj tksM+ fn;k x;k gS%&

Þ;fn fdlh nqdkunkj ;k mlds ifjokj ds fdlh lnL; dks ftldh ifjHkk"kk izLrj &4-7 es nh xbZ gS iz/kku ;k mi iz/kku pqu fy;k tkrk gS rks mldh nqdku dk vkoaVu fujLr dj fn;k tk;sxkA

3& d`i;k mDr 'kklukns'k bl lhek rd la'kksf/kr le>k tk;A

Hkonh;

g0 v0

¼[katu yky½

izeq[k lfpo

11. The public distribution system caters to the needs of most deprived sections of the society.

12. The fair price shop dealer is a pivot in the public distribution system. The essential commodities are distributed to the card holders through the agency of the fair price shop dealer. The rights of eligible persons under the National Food Security Act, 2013 are brought to fruition through the medium of the fair price shop dealer.

13. The gram pradhan is a person, who wields local political clout. The gram pradhan is a member of the committees which have oversight on the appointment of the fair price shop dealer.

14. Family is the basic unit of our social life. The urge to favour one's family is a dominant reality of our social life. But family fortunes cannot be fortified from public assets.

15. Clearly the intent of the Government Orders is to insulate the public distribution system from the conflict of private interest with public duty. Efficacy of the public distribution system depends on the transparency in the process of appointment and the impartiality of members of the committees which oversee the process of appointment. The Government Orders obviate the possibility of creation of family cartels which can influence or control the system of public distribution. The Government Orders ensure that the procedure of appointment is beyond the reproach of bias. The Government Orders shield the system of public distribution from the pulls of political preferences and the pressures of vested interests.

16. The aforesaid restrictions, which disqualify the members of the family of village pradhan to be appointed as fair price shop dealers, claimed the attention of this Court. A full bench of this Court in the case of Indra Pal Singh Vs. State of U.P., reported at 2013 (10) ADJ 612 while interpreting the scheme of the Government Orders and also the scope of the disqualifications provided thereunder held thus:

"43. A bare perusal of the aforementioned Government Order would go to show that therein once again State Government has proceeded to provide that all those incumbents, who fall within the definition of family, as is provided in Government Order dated 3rd July, 1990 and in case their family members, are elected as Pradhan or Up-pradhan, then the agreement of fair price shop in question should be cancelled. Thus the State Government is clear in its mind as to in what way and manner essential commodities are to be distributed and who is entitled to distribute and in the said direction of maintaining transparency in Public Distribution System and in order to avoid conflict of interest, such a stand has been taken. Once from the background of different control orders issued from time to time, household has been used in context of preparation of ration cards and not at all in reference to allocation of fair price shop, then it cannot be said in the context of statutory provisions that in order to cancel the fair price shop agency of petitioner one will have to go strictly by the definition of household as mentioned in 2004 Control Order, as household is conceptually different in the background of the present case. "Household" has to be understood in the context it has been defined and is to be utilized, and merely because in the Hindi version of 2004 Control Order, in place of "Household", "Parivar" has been mentioned same would efface the definition of family as provided for in Government Order dated 3rd July, 1990, cannot be accepted in the facts of case as Hindi version cannot be accepted as authoritative text even otherwise, as Full Bench of this Court in the case of Jaswant Sugar Mills v. P.O., MANU/UP/0068/1962 : AIR 1962 All 240, has taken the view that both English and Hindi version can be looked into, and in case of conflict or divergence between the two versions, the English version may reign supreme and supersede the same."

44. "Household" and "Family" are not synonyms to each other, and both the provisions would take its colour, in reference to the context it has been used, keeping in view the object and purpose sought to be achieved. This Court also proceeds to take note of the fact that the Word 'Family' is not capable of any precise definition. According to Concise Oxford English Dictionary 'family' means a group consisting of two parents and their children living together as a unit; a group of people related by blood or marriage; the children of a person or couple; all descendants of a common ancestor.

45. Black's Law Dictionary defines 'family' as (i) A group of persons connected by blood, by affinity or by law especially within two or three generations (ii) A group consisting of parents and their children (iii) A group of persons who live together and have a shared commitment to a domestic relationship.

46. According to Law Lexicon term 'family' may be said to have a well defined, broad and comprehensive meaning in general, it is one of great flexibility and is capable of many different meaning according to the connection in which it is used. Thus, it may be 'children', 'wife and children', 'blood relations' or the 'members of the domestic circle'. According to context, it may be of narrow or broad meaning as intention of the parties using the word, or as the intention of law using it, may be made to appear.

47. In its ordinary and primary sense the word 'family' signifies the collective body of persons living in one house or under one head or manager or one domestic Government. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.

48. According to Law Lexicon 'family' may include even domestic servants and some times persons who are merely boarders.

49. On the other hand the term "household" means the collection of individuals who normally eat food prepared in the same kitchen. In Black's Law Dictionary household has been mentioned belonging to the house and family as well as a family living together or a group of people who dwell under the same room and in the Law of Lexicon it has been described as number of persons dwelling under the same roof and composing a family and by extension all who are under one domestic head.

50. 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.

51. 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 loose 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 orders 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.

52. 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 MANU/UP/0835/2006 : 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.

53. 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.

54. 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 alongwith 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 v. Ram Singh, MANU/SC/0506/2009 : 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.

17. From a perusal of the scheme of the said Government Orders and the law laid down by this Court in the case of Indrapal Singh (supra), it is evident that a class of members of the family of a sitting gram pradhan incur an automatic and immediate disqualification from being appointed as the fair price shop dealer of the village panchayat of the concerned village panchayat. The family members of the village pradhan, who are ipso facto disqualified from being the fair price shop dealer of the concerned village panchayat, are wife, son, unmarried daughter, mother, father and brother. The fact of such relationship with the sitting Gram Pradhan is the cause of disqualification of the said persons from being appointed as the fair price shop dealers. No further enquiry is required. This class is composed of the immediate family members of the village pradhan.

18. The Government Orders also provide for another category of family members, who reside in the same house and share a common kitchen with the gram pradhan. Disqualification of this class of family members is not automatic, but pursuant to the findings of an enquiry. The line of the enquiry will verify the fact of the commonality of residence and dining. This class is composed of the extended family of the pradhan.

19. In case the enquiry into the twin questions of commonality of residence and sharing of the kitchen, records the findings in the affirmative, the disqualification would be incurred. It is only then, such members can be prevented from being appointed as fair price shop dealer of the aforesaid village panchayat.

20. From the admitted facts in the record, the respondent No.6 is the real brother of the sitting village pradhan of village panchayat Shivpur Mathiya, District-Kushinagar. In the light of the above discussion, the respondent No.6 incurs an automatic and immediate disqualification from being appointed as the fair price shop dealer of the aforesaid village panchayat. The fact that the respondent No.6 lives separately from his brother, who is the village pradhan and runs a separate family kitchen, is not relevant to his eligibility or lack of the same to be appointed as the fair price shop dealer of the aforesaid village panchayat.

21. The respondent No.2 has clearly misdirected itself in law by passing the impugned order dated 27.3.2018 and uphold the appointment of respondent No.6. The order dated 27.3.2018 passed by the respondent No.2, Sub-Divisional Magistrate, District-Kushinagar is arbitrary and illegal.

22. The order order dated 27.3.2018 passed by the respondent No.2, Sub-Divisional Magistrate, District-Kushinagar is quashed.

23. The matter is remanded back to the respondents authorities. A mandamus be issued commanding the respondents to execute the following directions:

1. The respondents shall initiate fresh proceedings for appointment of a new price shop dealer in accordance with law.

2. The process of appointment of the new fair price shop dealer shall be completed within a period of four months from the date of receipt of a certified copy of this order.

24. The writ petition is allowed.

25. A copy of this order shall be provided to the learned Standing Counsel for communication to the authorities.

Order Date :- 14.09.2018

Ashish Tripathi