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2022 DIGILAW 223 (ALL)

Kusumlata v. State of U. P.

2022-02-21

JAYANT BANERJI, SURYA PRAKASH KESARWANI

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JUDGMENT : 1. Heard Sri Arvind Srivastava, learned counsel for the appellant-petitioner and Sri Girish Vishwakarma, learned standing counsel for the State-respondents. 2. This special appeal has been filed praying to set aside the judgment and order dated 29.11.2021 in Writ-C No.21935 of 2021 (Smt. Kusumlata vs. State of U.P. and 2 others) passed by the learned Single Judge. 3. The aforesaid writ petition was filed by the petitioner praying for the following relief : “(i) Issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 2 S.D.M. Bharthana District Etawah to consider the claim of the petitioner for compassionate appointment of under the U.P. Essential Commodities Act (Rules and Distribution Order, 2016). (ii) Issue a writ, order or direction in nature of Mandamus directing the respondent no.2 to appoint the petitioner as dealer in place of her father at Newadi Khurd, Nyay Panchayat-Aheripur, Block-Maheva, Pargana- Bharthana, District Etawah under the dying in harness rule prescribed under U.P. Essential Commodities Act (Rules and Distribution Order, 2016).” 4. Learned counsel for the appellant-petitioner states that subsequently, by means of an amendment application, challenge to the constitutional validity of Clause IV(10) of the Government Order dated 05.08.2019 defining the word ‘family’, was also made. By the impugned judgment, the learned Single Judge has dismissed the writ petition observing as under: “32. But the present dispute is in regard to allotment of a dealership of fair price shop on the death of father of petitioner, who is married and residing at a different village. The authorities had not refused to grant dealership to the eligible dependents of the deceased Nekram. The argument raised by learned counsel as to legal representative as provided in Section 2 (II) of the Code of Civil Procedure which includes the petitioner does not have any relevance in present scenario as the existence of dealership arises out of an agreement between the parties. Once the agreement has come to an end on the death of Nekram the license can only be granted on fulfilling the conditions laid down in the Government Order dated 05.08.2019. Sub-clause 5 of Clause IV categorically provides that applicant has to be local resident. 33. Once the agreement has come to an end on the death of Nekram the license can only be granted on fulfilling the conditions laid down in the Government Order dated 05.08.2019. Sub-clause 5 of Clause IV categorically provides that applicant has to be local resident. 33. The concept of allotting dealership to a local resident is firstly that he is acquainted with the most of the card holders as they are living in same village and secondly his availability in attending and running the fair price shop. The Government as well as the Apex Court have recognized that right to food is part of Article 21 of the Constitution. In case, dealership is given to an outsider who is unable to run the fair price shop due to his/her unavailability the very purpose for enacting the Act of 2013 and Control Order of 2016 would be rendered otiose. 34. That Sub-clause 5 of Clause IV of the government order of 2019 specifically provides that applicant should be a local resident. Petitioner is admittedly a resident of a different village, and not of the village where the fair price shop is to be allotted. The validity of the said condition of the government order has not been challenged in the writ petition, and only challenge has been made to declare the word "unmarried" as unconstitutional from the definition of family prescribed under Sub-clause 10 of Clause IV. 35. Once the government order specifically provides the applicant to be the resident of the same village where the shop has to be allotted, no such allotment can be made to an outsider. The argument of petitioner's counsel that married daughter should also be included in the definition of the word "family", in the present scenario cannot be accepted as the license is granted only on the fulfillment of the conditions prescribed under the government order of 2019. Petitioner being not able to fulfill the essential conditions cannot be granted such license. 36. More so, the Control Order of 2016 does not make any distinction between the sons and daughters of a license holder, as in case of Rule 2 (c) of the Dying-in- Harness Rules. The definition of family occurring in the Control Order of 2016 as well as the government order of 2019 embraces the word "dependant child", which also includes the dependant father and mother. The definition of family occurring in the Control Order of 2016 as well as the government order of 2019 embraces the word "dependant child", which also includes the dependant father and mother. Argument that married daughter had been excluded creates gender bias cannot be accepted, as the very purpose is the distribution of food grains to the card holders attached to the ration shop situated in village. Once the daughter of a licensee is married outside the village, she cannot continue to run the fair price shop and distribute ration. The sole purpose of enacting the Act of 2013 and the Control Order of 2016 is that the food reaches the last person of the society and a licensee being only an agent of the State through which the target is achieved by both the Central Government and the State Government. 37. Having considered the facts and circumstances of the case, this Court finds that no ground is made for declaring the word "unmarried" as unconstitutional from the definition of family provided under Sub-clause 10 of Clause IV of the Government Order dated 05.08.2019. 38. Writ petition fails and is hereby dismissed.” 5. Learned counsel for the appellant petitioner submits that merely because the petitioner is a married daughter, she cannot be discriminated in the matter of allotment of Fair Price Shop. Such discrimination is hit by Article 14 of the Constitution of India. He relied upon a Division Bench judgment of this Court in Writ-C No.60881 of 2015 (Smt. Vimla Srivastava vs. State of U.P. and another) decided on 04.12.2015. 6. Learned standing counsel supports the impugned judgment. 7. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the writ petition. 8. The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to as ‘the Control Order, 2016’) was framed by the State Government in exercise of powers conferred under Section 3 of the Essential Commodities Act, 1955 with the object of maintaining the supplies of food-grains and other essential commodities and for securing its equitable distribution at fair prices under the targetted Public Distribution System. Clause 2(p) of the Control Order, 2016 defines the word ‘family’ as under: (p) "Family" means group of following persons- Head of the family Husband/wife, including legally adopted children. Clause 2(p) of the Control Order, 2016 defines the word ‘family’ as under: (p) "Family" means group of following persons- Head of the family Husband/wife, including legally adopted children. Adult children, who are fully dependent on the head of the family. Unmarried, legally separated and widow daughters; and Fully dependent mother/ Father, of the head of the family. 9. Clause 2(b) of the Control Order, 2016 defines the word ‘agent’ to mean a person or cooperative society or a corporation of the State Government authorised to run a Fair Price Shop under the provisions of this Control Order. Clause 7 of the Control Order 2016 provides as under : Appointment 7- (1) and regulation of fair price shops.- With a view to affecting fair distribution of foodgrains and scheduled commodities the State Government shall issue directions under section-3 of the Act to such number of fair price shop in an area and in the manner as it deems fit. (2) (i)- A fair price shop shall be run through such person and in such manner as the Collector, subject to the directions of the State Government may decide. (ii)- A person appointed to run a fair price shop under sub clause (I) shall act as the agent of the State Government. (iii)- A person appointed to run a fair price shop under sub clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop. as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment. (3) The Food Commissioner shall ensure that the number of ration card holders attached to a fair price shop are reasonable, the fair price shop is so located that the consumer or ration card holder does not have to face difficulty to reach the fair price shop and that proper coverage is ensured in hilly, desert, tribal and such other areas difficult to access. (4) The State Government shall fix an amount as the fair price shop owner's margin, which shall be periodically reviewed for ensuring sustained viability of the fair price shop operations. (5) The Food Commissioner shall put in place a mechanism to ensure the release of fair price shop owner's margin without any delay. (4) The State Government shall fix an amount as the fair price shop owner's margin, which shall be periodically reviewed for ensuring sustained viability of the fair price shop operations. (5) The Food Commissioner shall put in place a mechanism to ensure the release of fair price shop owner's margin without any delay. (6) The State Government shall allow sale of commodities other than the foodgrains and other scheduled commodities distributed under the Targeted Public Distribution System at the fair price shop to improve the viability of the fair price shop operations. 10. In exercise of powers conferred under Clause-15 of the Control Order, 2016, the State Government issued a Government Order No.6/2019/1358/29-6-2019-162 lk0 2001, dated 05.08.2019 (hereinafter referred to as ‘the Government Order, 2019’) for selection of Fair Price Shops agents and reservation. Clause IV of the Government Order, 2019 provides for eligibility conditions for selection of Fair Price Shop agents in rural areas. Sub-Clause 5 of Clause IV provides that the applicant should be a resident of the locality. Sub-Clause 10 of Clause IV of the Government Order, 2019 reproduces the definition of the family given in the Control Order, 2016. 11. Clause 7-(1) of the Control Order, 2016 provides that with a view to affecting fair distribution of foodgrains and scheduled commodities, the State Government shall issue directions under Section-3 of the Act to such number of fair price shop in an area and in the manner as it deems fit. Sub-Clause 2(i)/(ii) of Clause 7 of the Control Order, 2016 provides that a fair price shop shall be run through such person and in such manner as the Collector, subject to directions of the State Government, may decide and a person appointed to run a fair price shop under sub-clause (1) shall act as the Agent of the State Government. 12. Basic object and purpose of the aforesaid Control Order 2016 is the distribution of foodgrains and scheduled commodities in an area through agents for the benefit of people, particularly economically weaker section of the society. 12. Basic object and purpose of the aforesaid Control Order 2016 is the distribution of foodgrains and scheduled commodities in an area through agents for the benefit of people, particularly economically weaker section of the society. Such agents are required to distribute allocated foodgrains under the targeted Public Distribution System to eligible house-holds in an area and for that purpose, an eligibility condition has been attached by sub-clause (5) of Clause IV of the Government Order, 2019 that an applicant for fair price shop should be resident of the locality, i.e. the locality for which fair price shop has been created for fair distribution of foodgrains and essential commodities in that locality. 13. As per own case of the petitioner, she was married long ago with one Sri Harnam Singh and is resident of Village and Post Rajpur, Tehsil Chakarnagar, District Etawah whereas the Fair Price Shop in question is of Village Nivadi Khurd, Tehsil Khurd, District Etawah. The agent of the aforesaid Fair Price Shop in question was the father of the petitioner, namely Sri Nekram who died on 15.02.2021 leaving behind his wife Smt. Suman Devi, sons namely Bhupendra Pratap Singh (date of birth 15.02.2000), Karvendra Pratap Singh (date of birth 06.07.2003) and Devendra Pratap Singh (date of birth 05.07.2006). The aforesaid wife of the deceased Fair Price Shop Agent applied for the Fair Price Shop in question but subsequently she moved an application dated 31.05.2021 that she is unable to run the Fair Price Shop and, therefore, it may be allotted to her daughter, i.e. the petitioner. The application of the aforesaid Suman Devi (wife of the deceased agent), was considered and it was rejected by the Committee headed by the S.D.M. Bharthana vide order dated 26.06.2021. 14. The facts as briefly mentioned above, clearly show that the petitioner is not eligible as she is not the resident of the locality of the Fair Price Shop in question. That apart, looking into the object and purpose of Public Distribution System, the definition of the word ‘family’ as given in the Government Order, 2019 is neither arbitrary nor discriminatory. That apart, the aforesaid definition is merely reproduction of the definition of the word ‘family’ given in the Control Order, 2016, which has not been challenged by the petitioner. That apart, looking into the object and purpose of Public Distribution System, the definition of the word ‘family’ as given in the Government Order, 2019 is neither arbitrary nor discriminatory. That apart, the aforesaid definition is merely reproduction of the definition of the word ‘family’ given in the Control Order, 2016, which has not been challenged by the petitioner. The use of the words ‘unmarried daughter’ in the definition of the word ‘family’ given in the Government Order, 2019, is not discriminatory. The provisions of the Government Order, 2019 cannot be viewed or interpreted in the manner the provisions of The U.P. Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 has been interpreted by Division Bench in the case of Smt. Vimla Srivastava (supra). 15. For all the reasons afore-stated, we do not find any illegality in the impugned order passed by the learned Single Judge. Neither the word ‘unmarried’ used in the definition of the word ‘family’ as defined under the Government Order, 2019 is discriminatory nor the petitioner is eligible for appointment as fair price shop agent inasmuch as she is not resident of the locality where the Fair Price Shop in question is established and thus, she does not even fulfil basic eligibility criteria provided in Clause IV(5) of the Government Order, 2019. 16. For all the reasons afore-stated, we do not find any merit in this special appeal. Consequently, the Special Appeal is dismissed.