Diwakar Prasad And Another vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 9796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 489 of 2022
 

 
Petitioner :- Diwakar Prasad And Another
 
Respondent :- State Of U.P. Thru. Prin. Secy. Food And Civil Supply And 8 Others
 
Counsel for Petitioner :- Madan Gopal Tripathi
 
Counsel for Respondent :- C.S.C.,Pankaj Gupta
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

1. Heard learned counsel for the petitioners, learned State Counsel and Shri Pankaj Gupta, learned counsel representing the Gram Panchayat concerned. Shri N. C. Upadhyay, learned counsel representing the respondent no.8 has also been heard.

2. This petition under Article 226 of the Constitution of India ostensibly filed in public interest challenges an order dated 19.05.2022 passed by the District Magistrate, Bahraich whereby the complaint made by the petitioners regarding illegal continuance of respondent no.8 as fair price shop license holder, has been rejected.

3. From a perusal of the impugned order passed by the District Magistrate, Bahraich, what we find is that there has been enmity between the petitioners and the respondent nos.8 and 9. The District Magistrate has recorded a finding in the impugned order dated 19.05.2022 that in the year 2021 wife of the petitioner no.2-Smt. Kusum Devi and daughter-in-law of petitioner no.1, namely, Smt. Kamla Devi had contested the election for the office of Gram Pradhan in the village of the village panchayat concerned against the respondent no.9 who was elected as Gram Pradhan in the said election. The District Magistrate has also recorded a finding that there has been some criminal case between the parties in respect of which First Information Report at Case Crime No137, under sections 147/148/149/307 I.P.C. was lodged. The District Magistrate has, thus, inter alia concluded that there has been long standing enmity between the petitioners-complainants and the family of respondent no.8, who is the fair price shop license holder.

4. When the learned counsel for the petitioners was confronted with the aforesaid findings recorded by the District Magistrate, our attention has been drawn by him to the averments made in paragraph 43 of the writ petition, wherein it has been stated that the F.I.R. at Case Crime no.137 was lodged on the basis of some enmity and that the fact of the matter is the F.I.R.was lodged because of some quarrel which took place between the petitioner no.1 and one Ram Raseiley, who is the grand father of Vimlesh. When we considered the said averments, what we find is that so far as lodging of the F.I.R. is concerned, some explanation has been sought to be given by the petitioners, however, we may note that Ram Raseiley with whom quarrel is said to have taken place, is the grand father of Vimlesh, who is none other than the husband of respondent no.9.

5. We further note the fact that the wife of the petitioner no.2 and daughter-in-law of petitioner no.1 had contested the election in the year 2021 for the office of Gram Pradhan against the respondent no.9, has not been denied. Thus, it is abundantly clear that there has been enmity and even election rivalry between the petitioners and respondent nos.8 and 9 as well. It may also be noticed that the petitioner no.2 in his statement before the District Magistrate has stated that in the election for the office of Village Pradhan held in the year 2021, his wife, namely, Kusum Devi and daughter-in-law of the petitioner no.1, namely, Kamla Devi had also contested the election wherein Smt. Baby-respondent no.9 was elected as Gram Pradhan. In this view, invoking the jurisdiction of this Court in a Public Interest Litigation, in our considered opinion, would not be permissible. The formation of Public Interest Litigation cannot be permitted to be used by unscrupulous persons who intend to settle their personal scores. In fact, this petition seeks to serve and espouse the personal interest of the petitioners and hence is not worthy of being entertained.

6. Even on the merits, we find that the order dated 19.05.2022 passed by the District Magistrate whereby the complaint of the petitioners has been rejected, does not require any interference by this Court in this writ petition.

7. On 02.04.2021 respondent no.9 was elected as Gram Pradhan of the Gram Panchayat concerned and the respondent no.8-Smt. Gulab Dei is the fair price shop license holder running in the same village Panchayat. The respondent no.8 is the mother-in-law of respondent no.9.

8. Relying upon a Government Order dated 03.07.1990, it has been argued by the learned counsel for the petitioners that in terms of the provisions contained in paragraph 4.7-v on election of respondent no.9 as Village Pradhan, the fair price shop license of the respondent no.8 ought to have been cancelled. Drawing attention of the Court to the Government Order dated 28.02.2022 whereby in the definition of the word "family" occurring in the Government Order dated 03.07.1990, "daughter-in-law" has been included, it has been submitted that once the daughter-in-law has been included in the definition of the word "family" occurring in the Government Order dated 03.07.1990, the provisions contained in paragraph 4.7&v of the said Government Order will operate in full force as a result of which the license of fair price shop of the respondent no.8 ought to have been cancelled on the ground that respondent no.9 has been elected as Gram Pradhan of the Gram Panchayat concerned. It has been argued that the District Magistrate by passing the order impugned in this petition has not considered the complaint made by the petitioners seeking cancellation of the fair price shop licence of respondent no.8 in correct perspective inasmuch as that admittedly the respondent no.9 is the daughter-in-law of respondent no.8 and by operation of the Government Order dated 03.07.1990 as amended on 28.02.2022, the respondent no.8 should have been removed as licensee of the fair price shop in the village concerned. 9. We have examined the aforesaid submissions made by the learned counsel for the petitioners. Paragraph 4.7 of the Government Order dated 03.07.1990 is quoted hereunder:

"4.7 xzke iz/kku ;k miiz/kku ds ifjokj ds lnL;[email protected]/k;ksa ds i{k esa mfpr nj dh nqdku ds vkoaVu dk izLrko ugha fd;k tk;sxkA ifjokj dh ifjHkk"kk fuEufyf[kr ekuh tk;sxh&Loa;] L=h] iq=] vfookfgr iq=h] ekrk] firk] HkkbZ ;k vU; dksbZ lnL; tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gksA"

10. Paragraph 4.7-v which was inserted by means of the Government Order dated 18.07.2021 is also extracted herein below:

"4.7-v ;fn fdlh nqdkunkj ;k mlds ifjokj ds fdlh lnL; dks ftldh ifjHkk"kk&4-7 esa nh x;h gS] iz/kku ;k miiz/kku pqu fy;k tkrk gS rks mldh nqdku dk vkoaVu fujLr dj fn;k tk;sxkAa"

11. We may note that by means of the Government Order dated 28.02.2022 the definition of the word "family" was altered and to the said extent the earlier Government Orders stood amended including the Government Order dated 03.07.1990. The amended definition of the word "family" as given in the Government Order dated 28.02.2022 is quoted herein below:

"vc ifjokj dh ifjHkk"kk fuEuor gksxh&

- ifjokj dk eqf[k;kA

- [email protected] fof/kd :i ls viuk;s x;s nRrd lUrku lfgrA

- lUrku tks ifjokj ds eqf[k;k ij iw.kZ :i ls vkfJr gksA

- vfookfgr] fof/kd :i ls i`Fkd vkSj fo/kok csVh vkSj

ifjokj ds eqf[k;k ij iw.kZ :i ls vkfJr [email protected]

- mDr ds vfrfjDr ifjokj ds eqf[k;k ij iw.kZ :i ls vkfJr iq=&o/kq Hkh ifjokj esa lfEefyr ekuh tk;sxhA"

12. When we peruse the amended definition of the word "family", what we find is that family would include (i) head of the family (ii) husband/wife which will include adopted son and daughter, son and daughter who are completely dependent on the head of the family, unmarried daughter and judicially separated and widowed daughter, parents dependent on head of the family and "daughter-in-law who is completely dependent on the head of the family."

13. The District Magistrate by passing the impugned order has clearly recorded a finding that respondent no.9 is though the daughter-in-law of the respondent no.8, however, she is not dependent on her. On the basis of the various evidences discussed by the District Magistrate, he has concluded that it is not only that the respondent no.9 lives and dines separately but also that she is financially dependent on her husband, namely, Vimlesh, who runs a hardware shop. The evidence led before the District Magistrate has been considered by him according to which the respondent no.8 had three sons, namely, (i) Kamlesh, (ii) Vimlesh and (iii) Durgesh. It has also come in evidence that the respondent no.8 has been living with her youngest son, namely, Durgesh and further that Smt. Baby lives with her husband, Vimlesh, who runs a hardware shop. The evidence relied upon by the District Magistrate are various reports and documents such as bank account, the document related to domestic gas connection, extract of pariwar register, khataunis of the different tenures held separately by the husband of the respondent no.9, namely, Vimlesh and other evidences.

14. On the basis of appropriate evaluation of the evidence available, the District Magistrate has, thus, recorded a finding in the impugned order that the respondent no.9 is not dependent on respondent no.8 and further that both of them dine and live separately. On the basis of the said finding, if we consider the definition of the word "family" as amended vide Government Order dated 28.02.2022, what we find is that for having any consequence relating to cancellation of fair price shop license given to mother-in-law in a situation where her daughter-in-law gets elected as Pradhan, one of the conditions is that such daughter-in-law should be completely dependent on the head of the family. In the present case, the evidence, which has been considered by the District Magistrate, has clearly established that the respondent no.9 is not dependent on the respondent no.8.

15. While exercising our writ jurisdiction against an order passed by the District Magistrate, this Court is not suppose to act as a Court of appeal and ordinarily the finding recorded by the authorities concerned in such matters are not to be interfered with unless the findings are shown or established to be perverse i.e. the findings are based on no evidence or such findings are based on consideration of inadmissible or irrelevant evidence. When we examine the order passed by the District Magistrate in this case which is under challenge, what we find is that the order of the District Magistrate does not deserve to be interfered with on facts.

16. At this juncture, learned counsel for the petitioners has drawn our attention to a Full Bench judgment of this Court rendered in the case of Indrapal Singh vs. State of U.P. and others, Writ C No.24620 of 2013 and has submitted that the word "family" has to be given a broader meaning so as to include not only the blood relation but also the persons who join the family after marriage. It has, thus, been argued that in fact if such family members live and dine together from the same common kitchen, there is always a possibility of there being conflict of interest and as such once the definition of the word "family" has been altered by means of the Government Order dated 28.02.2022 to include fully dependent daughter-in-law, a daughter-in-law living with the family has to be included and her dependence is not material for the purpose of taking a decision in terms of clause 4.7 and 4.7-v of the Government Order dated 03.07.1990.

17. The judgment of the Full Bench in the case of Indrapal Singh (supra) was rendered on 09.12.2013. The State Government thereafter has amended the definition of the word "family" on some other occasion and finally now it has been amended by means of the Government Order dated 28.02.2022. Unless and until the said Government Order dated 28.02.2022 is challenged and the definition of the family occurring in the said Government Order is struck down, we are of the considered opinion that the judgment in the case of Indrapal Singh (supra) will have no application to the facts of the present case.

18. For the reasons aforesaid, the writ petition is not only highly misconceived but also a clear manifestation of misuse of the process of Public Interest Litigation.

20. The writ petition, thus, deserves to be dismissed.

21. Resultantly, the writ petition is hereby dismissed with a word of caution that petitioners shall never misuse the forum of PIL in future for their personal cause.

 
Order Date :- 10.8.2022
 
akhilesh/
 

 
[Rajnish Kumar, J.]    [D. K. Upadhyaya, J.]