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2017 DIGILAW 109 (ALL)

PATI RAM v. STATE OF U. P.

2017-01-10

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Sreeprakash Singh, learned counsel for the petitioner, learned standing counsel for the respondent Nos. 1, 2 and 3 and Sri Ashuthosh, learned counsel for the respondent No. 4. 2. Undisputedly, facts are that while the petitioner was running a fair price shop of Village Panchayat Barpura Sharki, Block Chamraua, Tehsil Sadar, District Rampur, her wife, Srimati Chandrawati was elected as Gram Pradhan in the year 2015. Consequently, in view of the relevant Government Orders, the fair price shop agreement of the petitioner was cancelled by the respondent No. 3 vide order dated 14.12.2016 on the ground that the petitioner has incurred disqualification to continue the aforesaid fair price shop. 3. Learned counsel for the petitioner has heavily relied upon an interim order dated 27.5.2016 in Writ C No. 25803 of 2016, Arjun Singh v. State of U.P. and 2 others, as under; “It is contended that the fair price shop license of the petitioner has wrongly been cancelled on the ground that his wife has been elected as Gram Pradhan in the elections held recently, relying upon the Government Order dated 3.7.1990 which is not in force. It is further submitted that the prohibition of appointment of blood relation as fair price shop licensee applies only in case the applicant is related to the Gram Pradhan at the time of his selection and appointment but subsequently, if any, relative of licensee is elected as Gram Pradhan that does not disqualify the appointee. Prima facie, the matter requires consideration. Learned standing counsel representing respondents prays for and is granted six weeks time to file counter-affidavit. Rejoinder-affidavit, if any, may be filed within three weeks thereafter. List after expiry of the aforesaid period. Considering the facts and circumstances, until further orders of this Court, effect and operation of the impugned order dated 15.2.2016 passed by respondent No. 3, Sub Divisional Officer/Deputy District Magistrate, Sadar District Rampur shall remain stayed.” 4. The question as to whether a fair price shop dealer whose any family member is elected as Village Pradhan or Up-Pradhan, shall incurr disqualification to hold the fair price shop and his agreement shall be liable to be cancelled, came for consideration before the full bench of this Court in the case of Indrapal Singh v. State of U.P. and 2 others, 2013(10) ADJ 612 (FB). 5. 5. The Full Bench in the case of Indrapal Singh (supra) has considered the Government Orders dated 3.7.1990, 18.6.2002 and 17.5.2010 and held as under; “Once the State Government who otherwise is empowered to issue Government Order controlling the subject of way and manner in which fair price shop dealer is to be appointed and the fair price shops are to be run and the State Government in its wisdom has proceeded to pose restriction and disqualification on an incumbent and his family members as defined in Paragraph 4.7 from being appointed as agent on Pradhan/Uppradhan being there or being elected subsequently as Pradhan or Uppradhan, then in said context the provision of U.P. Scheduled Commodities Distribution Order, 2004, containing the definition of household cannot be pressed into the services as by virtue of the provision of Section 24 of the U.P. General Clauses Act, 1904, the aforementioned Government Orders dated 3rd July, 1990 and 18th June, 2002 stands saved and are operating with full force as no inconsistent provision has been re-enacted. Relevant extract of Section 24 reads as follows; “24. Constitution of appointments, notifications, orders etc. issued under enactments repealed and re-enacted: Where any enactment is repealed and re-enacted by an (Uttar Pradesh) Act, with or without modification, then, unless it is otherwise expressly provided, any appointment, (or statutory instrument or form) made or issued under the repealed enactment shall, so far as it is not made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, (or statutory instrument or form) made or issued under the provisions so re-enacted.” Apex Court in the case of State of Punjab v. Harnek Singh, 2002(3) SCC 481 , has proceeded to mention that Section 24 of the General Clauses Act deals with the effect of repeal and re-enactment of an Act and the object of the section is to preserve the continuity of the notifications, orders, schemes, rules or bye-laws made or issued under the repealed Act unless they are shown to be inconsistent with the provisions of the re-enacted statute. Anything duly done or suffered thereunder, are used by legislature and saving clause, is intended with the object that unless different intention appears, the repeal of an Act would not effect. The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. Anything duly done or suffered thereunder, are used by legislature and saving clause, is intended with the object that unless different intention appears, the repeal of an Act would not effect. The General Clauses Act has been enacted to avoid superfluity and repetition of language in various enactments. The object of this Act is to shorten the language of Central Acts, to provide as far as possible, for uniformity of expression in Central Acts, by giving definition of series of terms in common use, to state explicitly certain convenient rules for the construction and interpretation of Central Acts, and to guard against slips and oversights by importing into every Act certain common form clauses, which otherwise ought to be inserted expressly in every Central Act. In other words the General Clauses Act is a Act do not apply, Courts in the country have applied its principles keeping in mind the inconvenience that is likely to arise otherwise, particularly when the provision made in the Act are based upon the principles of equity, justice and good conscience. Apex Court in the same case of State of Punjab v. Harnek Singh, 2002(3) SCC 481 has considered in great detail for applicability of the Section 6 and Section 24 of the General Clauses Act and has held that Section 24 of the General Clauses Act, are specifically applicable to the repealing and reenactments statue, and its exclusion has to be specific and cannot be inferred by twisting the language of the enactments. It has also been mentioned therein that once contention as has been raised by the petitioner is accepted, it would render the provision of the 1988 redundant, inasmuch as appointments notifications, orders, schemes, rules bye-laws made or issued under the repealed Act would be deemed to be non-existent making impossible the working of the re-enacted law impossible. The provisions of the 1988 Act are required to be understood and interpreted in the light of the provisions of the General Clauses Act including Sections 6 and 24 thereof. The provisions of the 1988 Act are required to be understood and interpreted in the light of the provisions of the General Clauses Act including Sections 6 and 24 thereof. On the provisions as contained under Section 24 of the U.P. General Clauses Act, 1904, it is clearly manifested that the Government Order, which has been so issued on 3rd July, 1990 and 18th June, 2002, covers the field of appointment and that of disqualification and once the said Government Order is in 29 force and therein family has been defined in a different context altogether by mentioning who are the specific family members who are disqualified alongwith others i.e. who can also be treated alternatively as family member i.e. who are dining with the family, then looking into the area and the field of operation of the two, it could not be said that there is any conflict in between the definition of household or in the definition of family. The suggestion that has come forward on behalf of petitioner that after enforcement of Control Order of 2004, the definition of family as provided in Government Order dated 3rd July, 1990, is effaced and superseded, cannot be accepted on contextual interpretation of provisions. The suggestion that has come forward on behalf of petitioner that after enforcement of Control Order of 2004, the definition of family as provided in Government Order dated 3rd July, 1990, is effaced and superseded, cannot be accepted on contextual interpretation of provisions. The State Government once again has reiterated the same position by issuing Government Order dated 17th May, 2010 in following terms; ^^izs"kd] Mh0ds0 xqIrk] fo'ks"k lfpo] m0iz0 'kkluA lsok esa] ftykiwfrZ vf/kdkjh] y[kuÅA [kk| ,oa jln y[kuÅ% vuqHkkx&6 fnukad 17] ebZ 2010 fo"k;% lkoZtfud forj.k iz.kkyh ds vUrxZr mfpr nj nqdku ds vkoaVu ds lEcU/k esa fn'kk funsZ'kA egksn;] mi;qZDr fo"k;d ftykifwrZ vf/kdkjh y[kuÅ dks lEcksf/kr 'kklu ds i= la[;k&555@29&6&2007&162lk@01Vhlh] fnukWd 28 Qjojh] 2007 dk d`i;k lUnHkZ xzg.k djus dk d"V djsa] ftlds }kjk ;g ekxZ n'kZu fn;k x;k gS fd ;fn dksbZ O;fDr iwoZ ls mfpr nj nqdkunkj gS ,oa ckn esa xzke iz/kku fuokZfpr gks tkrk gS rks mldk vuqcU/k i= fujLr ugh gksxkA 2& bl lEcU/k esa iwoZ esa fuxZr 'kklukns'k fnukWd 3&7&1990 dks va'kr% la'kksf/kr djrs gq, 'kklukns'k la[;k&276@29&6&2002&162lk@01 fnukWd 18-7-2002 }kjk izkfo/kkfur fd;k x;k gS fd ;fn fdlh nqdkunkj ;k mlds ifjokj ds fdlh lnL; dks&ftldh ifjHkk"kk 'kklukns'k fnukWd 3-7-90 ds izLrj&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;sxkA 'kklu dk i= la[;k la[;k&255@29-6-2008&162lk@01Vhlh fnukWd 28 Qjojh] 2007 fuxZr fd;s tkus ds iwoZ mDr 'kklukns'k fnukWd 18-7-2002 dk laKku ugh fy;k x;k gSA 3& vr,o 'kklu Lrj ij lE;d fopkjksijkUr 'kklu dk i= la[;k&555@29-6-2007&162 lk@01Vhlh fnukWd 28 Qjojh] 2007 ,rn }kjk fujLr fd;k tkrk gSA iqu% ;g Li"V fd;k tkrk gS fd bl lEcU/k esa 'kklukns'k fnukWd 18-7-2002 ¼lqyHk lUnHkZ gsrq izfr layXu½ esa mfYyf[kr izko/kku gh ykxw gksxsaA 'kklu ds i= fnukad 28-2-2007 dk ykHk ftu nqdkunkjksa dks fn;k x;k gks rks d`i;k muds vuqcU/k Hkh rRdky izHkko ls fujLr dj fn;s tk;A d`i;k mDr vkns'k dk dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;A Hkonh; ¼Mh0ds0 xqIrk½ fo'ks"k lfpo^^ 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 Uppradhan, then the agreement of fair price shop in question should be cancelled.” (Emphasis supplied by me) 6. The Full Bench approved the judgment in Ram Murat and others v. Commissioner, Azamgarh Division, Azamgarh, 2006(5) ADJ 396 and held in operative portion of the judgment as under: “(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 (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.” (Emphasis supplied by me) 7. In view of the aforesaid Full Bench judgment in the case of Indrapal Singh (supra) and the admitted fact of the case that the wife of the petitioner has been elected as Village Pradhan, I do not find any infirmity in the impugned order dated 14.12.2016 cancelling the fair price shop agreement of the petitioner. The writ petition is wholly misconceived and is, therefore, dismissed.