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2016 DIGILAW 3470 (ALL)

Jagat Narayan Singh v. State of U. P.

2016-10-18

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

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JUDGMENT V.K. Shukla and Mahesh Chandra Tripathi,JJ. Jagat Narayan Singh and Krishna Bahadur Singh are before this Court for quashing of the order impugned dated 25.04.2015 passed by the fifth respondent i.e. The Sub Divisional Magistrate, Mehnagar, District Azamgarh and has further prayed for a direction commanding the respondent to cancel the fair price shop of the seventh respondent i.e. Anil Kumar Singh, resident of Village Bibipur, Block-Tarwa, Tehsil-Mehnagar, District Azamgarh. 2. The brief facts of the case giving rise to the present writ petition are as follows: - From the record it is reflected that the seventh respondent namely Sri Anil Kumar Singh is running a fair price shop since last 20 years at Village Bibipur, Block-Tarwa, Tehsil-Mehnagar, District Azamgarh. It appears that late Laldhar Singh had four sons namely Mahendra Singh, Pradip Kumar Singh, Anil Kumar Singh and Anant Singh. The real brother of the seventh respondent namely Pradip Kumar Singh was Gram Pradhan of the aforesaid Gaon Sabha from 1995-2005. Thereafter, for 2005-2010 the Gram Pradhan Seat was reserved for SC/ST. In the year 2010, it was reserved for Women (General Category) and the wife of Pradip Kumar Singh namely Smt. Maya Singh was elected as Gram Pradhan and continued till date. Meanwhile, a Full Bench judgment of this Court came on 09.12.2013 in Indrapal Singh Vs. State of U.P. & others, reported in 2014 (2) AWC 1455 , wherein the word 'family' has been defined keeping in view the overall object and purpose sought to be achieved through the fair price shop by including blood relation and relation on account of marriage and also on account of dining and messing together in order to remove any doubt without leaving any space to fair price shop dealer to manipulate due to vested interest and relying the government order dated 03.07.1990. 3. In this backdrop, the petitioner along with other villagers made an application before the fifth respondent i.e. the Sub Divisional Magistrate, Mehnagar, District Azamgarh, regarding running of fair price shop by Anil Kumar Singh illegally after the full bench judgment. It is also sought to be contended that the controversy regarding brother, who is part of family, as given in the Government Order dated 03.07.1990 and the full Bench has provided to consider the Government Order dated 03.07.1990 regarding the family definition. 4. It is also sought to be contended that the controversy regarding brother, who is part of family, as given in the Government Order dated 03.07.1990 and the full Bench has provided to consider the Government Order dated 03.07.1990 regarding the family definition. 4. The full Bench of this Court in the case of Indrapal Singh (Supra) had proceeded to consider the provisions of Clause 2(o), 30 and 31 of the U.P. Scheduled Commodities Distribution Order, 2004 vis-a-vis with the definition of family as given in the Government Order dated 03.07.1990. Paragraph 4.7 and the Division Bench in Ram Murat's case, 2006(5) ADJ 396 defining the word 'family' as given in the Government Order dated 03.07.1990. The relevant paragraph 54, 55 & 56 passed in the case of Indrapal Singh (Supra) is reproduced hereunder: - "54. 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. 55. 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. 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. 56. 56. In view of the above, our answer to the referred questions 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 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 (Anya Koi Sadasya)' which has been separated by word 'Or (ya)' 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." 5. In this background, it is sought to be contended that as per paragraph 4.7 of the Government Order dated 03.07.1990, which provides that no resolution for running the fair price shop will be passed in favour of the family members/relatives of Gram Pradhan/Up Pradhan. In this background, it is vehemently contended that Smt. Maya Singh is a family member being Sister-in-Law (Bhabhi) of the seventh respondent and the seventh respondent by making manipulation in the record showing that he is residing separately. On the basis of such maneuvering, the fifth respondent admitted that the fair price shop agent, Anil Kumar Singh and Gram Pradhan Smt. Maya Singh belong to one and the same family but held that Anil Kumar Singh is residing separately to Smt. Maya Singh (Pradhan) and their dining are also on a different place, the said finding of fact is per-se bad. As such, on this score the rightful claim had been turned down in arbitrary manner and as such, this Court should come forward for rescue and reprieve of the petitioner. 6. Per contra, Sri Sanjay Kumar Singh, learned Standing Counsel appearing on the State respondents has contended that while passing the order impugned the fifth respondent has strictly proceeded as per the Government Order dated 03.07.1990 and has also kept in mind the judgment rendered by the full Bench of this Court in the case of Indrapal Singh (supra) and as such there is no infirmity or illegality in the impugned order and the writ petition is liable to be dismissed. 7. 7. We have occasion to examine the record in question and what we find that while deciding the objection of the petitioners the fifth respondent has proceeded to examine the judgment of the Division Bench in Ram Murat Singh's case defining the word 'family' as given in the Government Order dated 03.07.1990 (paragraph 4.7) which provides that the word 'brother' shall also be included in addition to wife, son, unmarried daughter, mother, father. The condition of having living together and taking food from the common kitchen shall apply only to any other member which has been separated by word in definition. He has further proceeded to observed that Anil Kumar Singh is not the brother of Smt. Maya Singh (Pradhan) and in the present matter has further observed that on spot the Regional Food Officer had also inquired into the matter and found that Anil Kumar Singh is residing separately to Smt. Maya Singh (Pradhan) and their dining are also on a different places. 8. Once this is the factual situation that a verification was made on the spot and it was been found that Anil Kumar Singh is not residing and dining together with Maya Singh (Pradhan) then we are of the considered opinion that the order impugned is strictly in consonance with the law laid down by this Court in the case of Indrapal Singh (Supra) and no infirmity or illegality is found in the impugned order as such, no interference is required in the matter. 9. In view of the aforesaid, the writ petition is dismissed.