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2016 DIGILAW 3741 (ALL)

VISHAMBHAR SINGH v. STATE OF U. P.

2016-11-18

ATTAU RAHMAN MASOODI

body2016
JUDGMENT Hon’ble Attau Rahman Masoodi, J.—Heard Sri I.M. Pandey - I, learned Counsel for the petitioner, Sri Manish Mishra, learned Standing Counsel who has put in appearance on behalf of respondent Nos. 1 to 4 and Sri Azad Khan, learned Counsel who has accepted notice on behalf of respondent No. 5. 2. The fair price shop allotted to the petitioner was cancelled on the ground that his son had been elected as Gram Pradhan, therefore, by virtue of the definition of family as contained in the Government Order dated 3.7.1990 made applicable by a subsequent Government Order dated 18.7.2002, the petitioner became disentitled to be continued as fair price shop dealer. This ground was specifically assigned while passing the order of cancellation of fair price shop on 28.7.2016. 3. The order passed by the competent authority was challenged before the appellate authority and the appeal so filed was allowed by order dated 9.9.2016 on the ground that opportunity was not granted before passing the said order. The validity of the order passed by the appellate authority was questioned by the complainant before this Court in Writ Petition No. 23298 (M/S) of 2016 and the same was allowed by a detailed judgment rendered on 27.9.2016. This Court while adjudicating upon the validity of order passed by the appellate authority has categorically opined that a gross error of law apparent on the face of record is open to be set right and this Court will not shut its eyes simply on the ground that the complainant has no locus standi to challenge the appellate order. 4. The judgment passed by this Court on 27.9.2016 has attained finality and remains binding upon the petitioner as well as the authorities including the Sub Divisional Magistrate who has passed the impugned order in obedience of the verdict rendered by this Court. 5. Having failed to establish the claim on merit and allowing the judgment passed by learned Single Judge on 27.9.2016 to attain finality, the petitioner in the present writ petition has inter alia come up to raise the same dispute by questioning the validity of the Government Order dated 18.7.2002, whereby the definition of ‘’family’ as defined in the earlier Government Order dated 3.7.1990 was adopted. Although the definition of family has already been interpreted by this Court in a Full Bench judgment which was also relied upon by the learned Single Judge in its judgment dated 27.9.2016, yet the impugned order has been challenged by questioning the validity of Government Order dated 18.7.2002 which is the source of power. 6. The ground urged by learned Counsel for the petitioner is that the validity of Government Order dated 18.7.2002 was not a subject matter of challenge either before the Full Bench or before the learned Single Judge who has rendered the judgment aforesaid, therefore, the writ petition deserves to be considered on merit. 7. Sri Manish Mishra, learned Standing Counsel in reply to the submissions advanced on behalf of the petitioner has placed before this Court a Division Bench judgment dated 11.5.2016 rendered in Writ Petition No. 10175 (M/B) of 2016 wherein some observations as to the policy decision of the State in relation to the definition of ‘’family’ and its justification have been made. Although the Government Order dated 18.7.2002 was not directly challenged in the said writ petition yet the relevance of State policy forbidding the allotment of fair price shop to the family members of a Gram Pradhan has been held to be valid. 8. The submission urged by learned Counsel for the petitioner that the definition of family as envisaged under the Government Order dated 3.7.1990 and applied vide Government Order dated 18.7.2002 is violative of Article 19 (1) (g) of the Constitution of India does not appeal either to reason or purpose, hence the submission so advanced is hereby rejected. 9. The other submission advanced by learned Counsel for the petitioner is to the effect that the definition of family set out in the Government Order dated 3.7.1990 was subsequently altered with the issuance of Government Order dated 10.8.1999. 10. 9. The other submission advanced by learned Counsel for the petitioner is to the effect that the definition of family set out in the Government Order dated 3.7.1990 was subsequently altered with the issuance of Government Order dated 10.8.1999. 10. Learned Counsel for the petitioner has invited attention of this Court to paragraph No. 2 and 2(5) of the Government Order dated 10.8.1999 which for ready reference are extracted below :- ^^2- lafo/kku ds 73osa la'kks/ku ds vuqdze esa vke xzkeh.k {ks= dh lkoZtfud forj.k iz.kkyh ds vUrxZr mfpr nj dh nqdkuksa dh fu;qfDr rFkk fujLrhdj.k dk vf/kdkj xzke lHkkvksa dks ns fn;k x;k gSA vr,o xzkeh.k {ks= dh mfpr nj dh bu nqdkuksa ds p;u vkfn ds lEcU/k esa iwoZ esa fuxZr leLr 'kklukns'kksa esa vko';d la'kks/ku djrs gq, fuEu funsZ'k fn, tkrs gSa& ¼1½-------------------- ¼2½-------------------- ¼3½-------------------- ¼4½-------------------- ¼5½ xzke iz/kku ;k mi&iz/kku ds ifjokj ds lnL;ksa@lEcfU/k;ksa ds i{k esa mfpr nj ds nqdku ds vkoUVu dk izLrko ugha fd;k tk,xkA ifjokj dh ifjHkk"kk fuEuor gksxh% Lo;a] L=h] iq=] vfookfgr iq=h] ekrk] HkkbZ ;k vU; dksbZ lnL; tks lkFk esa jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gksA 11. Relying upon the subsequent Government Order, learned Counsel for the petitioner has urged that once the definition of family was altered with the issuance of Government Order aforesaid and the same having been issued looking to the background of 73rd amendment made in the Constitution of India, it would be the later Government Order issued on 10.8.1999 that will govern the definition of family rather the Government Order dated 3.7.1990 which has wrongly been referred to in the Full Bench judgment as well as the judgment rendered by the learned Single Judge subsequently. 12. Be that as it may, the Full Bench judgment has interpreted the definition of family as per Government Order dated 3.7.1990 and now the question that has cropped up is whether the Government Order dated 10.8.1999 is capable of being interpreted in a manner other than what has been opined by the Full Bench or the learned Single Judge in the later judgment referred to above. 13. The definition of family in the Full Bench judgment appears to have been interpreted in relation to Gram Pradhan when the definition of family in the Government Order dated 3.7.1990 was inclusive of the ‘’father’ as a member of family. 13. The definition of family in the Full Bench judgment appears to have been interpreted in relation to Gram Pradhan when the definition of family in the Government Order dated 3.7.1990 was inclusive of the ‘’father’ as a member of family. The definition reads as under:- ^^4-7 xzke iz/kku ;k mi iz/kku ds ifjokj ds lnL;ksa@lEcfU/k;ksa ds i{k esa mfpr nj dh nqdku esa vkoaVu dk izLrko ugha fd;k tk;sxkA ifjokj dh ifjHkk"kk fuEufyf[kr ekuh tk;sxhA Lo;a] L=h] iq=] vfookfgr iq=h] ekrk] firk] HkkbZ ;k vU; dksbZ lnL; tks lkFk jgrk gks rFkk ,d gh pwYgs dk cuk [kkuk [kkrk gksA** 14. Insofar as the Government Order dated 10.8.1999 is concerned, the definition of family does not include the term ‘’father’. In such a situation whether the Full Bench judgment interpreting the definition of family would encompass ‘’father’ within its meaning as it was interpreted in the Full Bench judgment is a question posed in the writ petition particularly when the order passed by the appellate authority specifically records as under:- ^^iz'uxr vkns'k ds voyksdu ls ;g Li"V gS fd vihydrkZ ds iq= lquhy flag xzke iz/kku gSA vihydrkZ ds fo}ku vf/koDrk }kjk ifjokj jftLVj dh lR; izfrfyfi izLrqr dh xbZ tks xzke iapk;r vf/kdkjh }kjk tkjh dh xbZ gSA mDr ifjokj jftLVj ds voyksdu ls ;g Li"V gS fd bl ifjokj esa lquhy dqekj ds vfrfjDr mudh iRuh o iq= dk uke vafdr gSA mDr ls ;g Li"V gS fd lquhy dqekj flag dk ifjokj vius firk ;kuh vihydrkZ ls vyx jgrk gSA blfy, lquhy dqekj xzke iz/kku dks vihydrkZ ds ifjokj dk lnL; ugh ekuk tk ldrkA fo}ku vf/koDrk }kjk izLrqr O;oLFkk;s bl izdj.k esa iw.kZr;k ykxw gksrh gSA ,slh fLFkfr esa ;g vihy Lohdkj fd;s tkus ;ksX; ikbZ tkrh gSA vr% ;g vihy Lohdkj dh tkrh gSA mi ftykf/kdkjh] lksgkoy tuin QStkckn }kjk ikfjr vkns'k fnukad 28-07-2016 fujLr djrs gq, vihydrkZ dh nqdku dk vuqca/k i= cgky fd;k tkrk gSA vkns'k dh ,d izfr voj U;k;ky; dks Hksth tk;A ckn vko';d dk;Zokgh bl U;k;ky; dh i=koyh lafpr vfHkys[kkxkj gksA** 15. The argument proceeds that once the petitioner has been found to be residing separately, he can not be deprived of the benefit of the definition of family as defined in the Government Order dated 10.8.1999 even as per the interpretation made in the Full Bench judgment. 16. The argument proceeds that once the petitioner has been found to be residing separately, he can not be deprived of the benefit of the definition of family as defined in the Government Order dated 10.8.1999 even as per the interpretation made in the Full Bench judgment. 16. To clarify the definition of family, Sri Shatrohan Chaudhary, Additional Chief Standing Counsel argued that the definition of family as envisaged under the Government Order dated 10.8.1999 has to be interpreted by understanding the meaning of word Suayam ¼Lo;a½ both in relation to the fair price shop dealer as well as Gram Pradhan instead of reading the same in relation to Gram Pradhan alone and in such an eventuality, the interpretation made by the Full Bench would stand in complete agreement with the later Government Order as has been placed reliance upon. 17. From a close scrutiny of the Government Order dated 10.8.1999, it is gathered that the same has been issued to streamline the supply of essential commodities in the Gram Sabha through a fair price shop dealer who is not a close relative of Gram Pradhan and there does not seem to be a purpose for dropping the term ‘’father’ from the definition of family. The meaning suggested by learned Additional Chief Standing Counsel as mentioned above may hold good in order to avoid any discrimination between father and mother. This Court is also of the opinion that an inclusive definition would only serve the purpose of the Government Orders and there is no scope to challenge the validity of the impugned Government Order on this ground particularly when the Government Order issued on 3.7.1990 was not rescinded and has been referred to in several Government Orders issued until now. 18. Accordingly the second submission advanced by learned Counsel for the petitioner also fails and is therefore rejected. The petitioner has not urged any other ground in so far as the present writ petition is concerned. 19. The submissions raised as to the validity of the Government Order dated 18.7.2002, therefore, being misconceived in the eye of law are accordingly rejected. 20. Resultantly, the writ petition is dismissed.