Hon'ble Vivek Kumar Birla,J.
The petitioner, a resident of village Gangapur is also a card holder of the Gaon Sabha of Gangapur entitled for receiving the benefits of essential commodities to be distributed from the fair price shop of the village. The fair price shop was earlier in the name of late Indrasan Prasad, the husband of the respondent no. 5. Her daughter-in-law, namely, Susumlata wife of Rakesh was elected as a Gram Pradhan in 2012 when the shop licence was existing.
A complaint was made that such a fair price shop licence cannot be continued as the daughter-in-law had become the Gram Pradhan and according to the prohibition contained in Paragraph 4.7 of the Government Order dated 3.7.1990 read with the Government Order dated 17.8.2002 and other subsequent government orders, the fair price shop licence stood automatically cancelled. This position of law was further clarified by the Government Order dated 17.5.2010 that was considered by a full bench decision of this court in the case of Indrapal Singh Vs. State of U.P. & others reported in 2014 (123) RD 504.
Consequently a show cause notice was issued to late Indrasan Prasad who contested the matter by filing writ petition no. 36747 of 2013 which was disposed of with a direction to decide the said dispute. The Deputy District Magistrate obtained a report of the Tehsildar dated 30.5.2013 and on the basis of whatever evidence was led passed an order on 3rd of October, 2013 recording findings to the effect that Indrasan Prasad and his wife, the respondent no. 5, formed a separate family unit and were living separately from their son and daughter-in-law. In such circumstances, Clause 4.7 and the disability therein was not attracted. It is undisputed that a daughter-in-law or a father-in-law are not specifically placed in the prohibited category, but according to the definition contained in Clause 4.7 any other family member or relative who is dining in the common kitchen would also be disqualified. It is this aspect which had been considered by the full bench in the case of Indrapal Singh (supra). However, the Deputy District Magistrate in his order dated 3rd October, 2013 examined the family register extract, the existing ration card and other material to arrive at the conclusion that late Indrasan Prasad and his wife were living separately from their son and daughter-in-law at the time when the ration shop licence was given to Indrasan, when his daughter-in-law was elected as Gram Pradhan. Consequently, the said dispute came to an end and Indrasan Prasad continued to run the fair price shop himself.
Indrasan Prasad died on 19th May, 2014. Under the Government Order of 2002 aforesaid, there is a provision for allotting the fair price shop to the heir of the deceased licensed holder provided his reputation was otherwise not suspect.
The claim of the respondent no. 5 is that a proposal was made in favour of the said respondent by the Block Development Officer under the said provision which was ultimately placed before the Sub Divisional Officer who on 5th June, 2014 approved of the same and directed the completion of formalities.
The Sub-Divisional Officer on the other hand passed another order on 23rd June, 2014 directing the Block Development Officer to hold an open general meeting of the Gaon Sabha to consider the allotment of the said fair price shop licence after the death of Indrasan Prasad. The Block Development Officer, accordingly directed the holding of an open general meeting on 14th July, 2014 for which notices were circulated to the members of the Gaon Sabha about the said meeting to be held for the selection of a fair price shop licensee.
The respondent no. 5 appears to have approached the Deputy Commissioner (Food and Supply), Varanasi Region, Varanasi on 3rd July, 2014 who issued a direction to the Sub Divisional Officer, Chakiya, District Chandauli to proceed to complete the formalities pursuant to the grant of licence in favour of respondent no. 5. This letter has been filed alongwith the affidavit of the Deputy Commissioner (Food and Civil Supply) Varanasi Region, Varanasi, that is Annexure 1 thereto.
The Deputy Commissioner had been called upon to file his affidavit as to how he had proceeded to issue such orders upon which an explanation has been given that under the Government Order dated 8.6.1993 the monitoring of such supply and inspection of fair price shop is under the control of the said authority, hence the said letter was sent which is advisory in nature. Accordingly, a letter was issued on 9.8.2014 clarifying the said position. The said affidavit is on record.
On record there does not appear to be any open meeting of the Gaon Sabha having been held, and before any such meeting could be held on 14th July, 2014, the Sub Divisional Officer passed orders on 7th July, 2014 in compliance of the direction of the Deputy Commissioner to extend the benefit of allotment to the respondent no. 5.
Sri V. Singh, learned counsel for the petitioner submits that firstly there was no inquiry made about the status of the respondent no. 5 and her living condition as to how she was feeding herself after the death of her husband. Suggestion is as to whether she was living alone on her own or was being fed in the common kitchen of her son and daughter-in-law after becoming a widow. This aspect was not examined or inquired into.
Sri Singh therefore submits that if the respondent no. 5 has joined the common kitchen of the family where the daughter-in-law is the Gram Pradhan then in that event the ratio of the full bench decision in the case of Indrapal singh is clearly attracted. He therefore submits that without conducting any such inquiry or arriving at a finding, the licence could not have been granted in favour of the respondent no. 5.
His second contention is that even otherwise such an exercise had to be undertaken only after the open general meeting of the Gaon Sabha was held, the date for which had been fixed on 14th July, 2014, and without waiting for the resolution of the Gaon Sabha the orders were passed in favour of the respondent no. 5 which is in violation of the government orders dated 3rd July, 1990 and 17.8.2002.
Sri Anil Kumar Mishra for the respondent no. 5 has come forward with an explanation that the inquiry has been conducted on the complaint of the petitioner after the orders have been passed in favour of the respondent no. 5, and again it has been found that the answering respondent is living separately, and that the answering respondent has also resigned from the post of BDC, as such no disqualification exists so as to attract Clause 4.7 of the Government Order of 1990. He further submits that even otherwise, there is no requirement of any open meeting of the Gaon Sabha for the said purpose as the respondent no. 5 falls within a different category of compassionate claim, hence, there is no requirement of the formalities of the meeting of the Gaon Sabha. He submits that such a meeting is necessary only when there are competing claims, but in the instant case the petitioner's claim has not to be considered with any other claim as it is an exception under the Government Order dated 17.8.2002 for grant of licence on compassionate basis. He thus submits that on both counts as alleged by the petitioner there is no deficiency in the grant of benefit to the respondent no. 5.
Learned Standing Counsel also submits that the petitioner has not raised any such specific objections and in the circumstances the grievance raised in this petition is far fetched. Sri Suresh Singh, learned Standing Counsel further submits that the respondent no. 5 and her husband had a separate status since long and which issue had been earlier decided when such a complaint had been made against the husband of the respondent no. 5. He therefore submits that the same issue cannot now be raised at this stage after the death of Indrasan Prasad, inasmuch as, the status of the respondent no. 5 continues to be the same separate status that existed prior to the death of her husband.
Learned Standing Counsel further contends that the case of the respondent no. 5 is not covered by Clause 4.7 at all as she is the mother-in-law of the Gram Pradhan who does not fall within the prohibited category of the government order and the definition of the word family. He further submits that there is no evidence that she is enjoying a common kitchen with her daughter-in-law after the death of Indrasan. In such circumstances, the presumption of disqualification is unfounded and the argument of the petitioner deserves to be rejected.
On the second ground relating to any inquiry being made about the present status of the respondent no. 5 enjoying a common kitchen, after the death of her husband, with her daughter-in-law. Sri Suresh Singh submits that an inquiry was conducted subsequent to the allotment order and therefore the same should also be taken into account. He further submits that since the respondent no. 5 is an heir of the earlier allottee whose reputation was otherwise not disputed, the respondent no. 5 forms a different class within herself and there is absolutely no indication in the government order for holding an open meeting of the Gaon Sabha for the said purpose. He submits that the authorities have applied their mind and have found the respondent no. 5 on facts to be eligible for such allotment and have thus rightly arrived at the correct conclusion.
Having considered the submissions raised and having considered the facts as brought on record through the affidavit on behalf of the respondents, this court had granted an interim order in compliance whereof the Sub Divisional Officer has issued orders. We have considered the impact relating to the disqualification under 4.7 and we find that the full bench decision in Paragraph 43 to 53 has held as under:-
43."Household" and "Family" are not synonyms to each other, and both the provisions would take its colour, in reference to the context it has been used, keeping in view the object and purpose sought to be achieved. This Court also proceeds to take note of the fact that the Word 'Family' is not capable of any precise definition. According to Concise Oxford English Dictionary 'family' means a group consisting of two parents and their children living together as a unit; a group of people related by blood or marriage; the children of a person or couple; all descendants of a common ancestor.
44. Black's Law Dictionary defines 'family' as (i) A group of persons connected by blood, by affinity or by law especially within two or three generations (ii) A group consisting of parents and their children (iii) A group of persons who live together and have a shared commitment to a domestic relationship.
45. According to Law Lexicon term 'family' may be said to have a well defined, broad and comprehensive meaning in general, it is one of great flexibility and is capable of many different meaning according to the connection in which it is used. Thus, it may be 'children', 'wife and children', 'blood relations' or the 'members of the domestic circle'. According to context, it may be of narrow or broad meaning as intention of the parties using the word, or as the intention of law using it, may be made to appear.
46. In its ordinary and primary sense the word 'family' signifies the collective body of persons living in one house or under one head or manager or one domestic government. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.
47. According to Law Lexicon 'family' may include even domestic servants and some times persons who are merely boarders.
48. On the other hand the term "household" means the collection of individuals who normally eat food prepared in the same kitchen. In Black's Law Dictionary household has been mentioned belonging to the house and family as well as a family living together or a group of people who dwell under the same room and in the Law of Lexicon it has been described as number of persons dwelling under the same roof and composing a family and by extension all who are under one domestic head.
49. The term 'family' and 'household' are capable of wide and varying meaning and same cannot be left to be assigned a meaning in its general terms and same has to be interpreted in reference to the context it has been used keeping in view the overall object and purpose sought to be achieved.
50. The question as to whether incumbents are living together and are dining together shall always essentially be question of fact always giving a room to an incumbent to handle the situation and manipulate the situation and in order to remove all the doubts to be more precise in the matter of appointment of an agent a clear cut categorical policy decision has been taken at the first instance that Pradhan/Up-pradhan and their relatives so specified cannot be appointed as agents and secondly when Pradhan/Up-pradhan or such category of relatives in case they are elected as Pradhan or Up-pradhan, then his/her agency in question has to be terminated. The State has deliberately and intentionally defined "family" in the said context so that there is no element of doubt left on the spot that such category of incumbents who happen to be the blood relations and relations on account of marriage and also on account of dining and messing together on being elected, then the near and dear one will have to loose his/her fair price shop as there would be conflict of interest. In the definition of family there are blood relations plus relations which has been developed on account of marriage having taken place due to social orders plus members who are residing and dining together, whereas the definition of household keeps within its fold, the one who normally eat food prepared in the same kitchen. All the incumbents who fall within the definition of family may or may not be a member of household, in such a situation and in this background, the State having the absolute authority to formulate the policy for fixing the terms and conditions of appointment of agent as well as the terms and conditions for disqualification of agent the definition of family has to be seen in the said context and "household" has to be read in the context of issuance of ration card and in no other context under the scheme of things provided for. In the matter of according of agency and in the matter of incurring disqualification on relative being elected as Pradhan or Up-pradhan, there is no escape route and agency has to be cancelled.
51. Accordingly, this Court is of the view that there is no conflict whatsoever in between the provisions of Clause 2 (o) Clauses 30 and 31 of U.P. Scheduled Commodities Distribution Order, 2004 vis.a.vis with the definition of "family" as given in Government Order dated 3rd July, 1990 paragraph 4.7 and the Division Bench in Ram Murat's case 2006 (5) ADJ 396, defining the word "family" as given in Government Order dated 3rd July, 1990, Paragraph 4.7 lays down the correct law, even after enforcement of Control Order 2004, except to the extent of introducing concept of joint residence and joint kitchen in reference of Brother, whereas the definition of family is clearly inclusive of brother also and the definition of family as given in Clause 2 (o) of U.P. Scheduled Commodities Distribution Order, 2004 in no way would override the definition of family given in Paragraph 4.7 of the Government Order dated 3rd July, 1990 and the said definition has to be read in the context of issuance of ration cards and nothing beyond the same.
52. 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.
53. 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. 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."
Paragraph 50 and 53 of the said judgment categorically makes the definition inclusive of such relatives who enjoy a common kitchen. Thus a daughter-in-law who by marriage comes into the family and enjoys the same kitchen with her mother-in-law would attract the disqualification as envisaged under Clause 4.7.
If the respondent no. 5 is enjoying a common kitchen with her daughter-in-law, after the death of her husband, then in that event the disqualification would be attracted. For this purpose, it was necessary for the respondent, Deputy District Magistrate, to have got an inquiry conducted prior to passing of the order in her favour. The Deputy District Magistrate, therefore, acted in haste in proceeding to allot the licence in favour of the respondent no. 5 without conducting any inquiry. The inquiry which has been made after the passing of the order is therefore a formality which has been completed to support an otherwise deficient order. Consequently, the impugned order cannot be sustained as the respondent no. 5 has been awarded a licence without conducting any prior inquiry about the status of the enjoyment of a common kitchen by the respondent no. 5 with her daughter-in-law who is admittedly the Gram Pradhan.
The earlier decision vis-a-vis late Indrasan will not come to the aid of the respondent no. 5 on account of her changed status as a widow. The authorities will have to inquire as to how she is alone managing her affairs on her own if at all, including that of running a separate kitchen from her son and daughter-in-law. This exercise was therefore necessary as is required keeping in view the disqualification as mentioned in Clause 4.7 of the 1990 Government Order.
So far as the second issue of taking a decision in the open meeting of the Gaon Sabha is concerned, we are unable to agree with the proposition of the learned Standing Counsel and the counsel for the contesting respondent that no such meeting is necessary. The reason is that from a bare perusal of Clause 4.4 of the Government Order dated 3rd July, 1990, it is evident that any fair price shop licence would be opened only after a resolution is passed in the open meeting of the Gaon Sabha. It is only on the collective opinion of such a meeting that such allotment can be made. After such a resolution is passed, the same has to be processed through the Tehsil Level Committee for rural areas consisting of the Deputy District Magistrate as its Chairman as defined in Clause 5 of the Government Order dated 17.8.2002. Such an exercise has to be undertaken only when a resolution is passed in the open meeting as indicated in Clause 7. The allotment has to be made as per the terms and conditions contained in Clause 10 of the said government order which also envisages the grant of licence on compassionate basis.
To our mind there is no exception of the abovementioned procedure carved out for consideration of grant of licence on compassionate basis founded on the strength of the reputation of the deceased licence holder. This assessment as to the reputation of the deceased licence holder and his goodwill has to be gathered only from the resolution of the open meeting of the Gaon Sabha. It has to be the collective opinion of the Gaon Sabha, and not the individual opinion of any authority or the Tehsil Level Committee. We are of the considered opinion that even in a matter of an individual consideration of compassionate grant of licence under Clause 10 of the Government Order of 2002, it is necessary to hold an open meeting of the Gaon Sabha. It is only after such a resolution is passed that the same has to be considered by the Tehsil Level Committee and then a decision to be taken by the Deputy District Magistrate.
In the instant case, the meeting had been convened on 14th July, 2014 by the letter dated 23rd June, 2014 which was erroneously cancelled by the subsequent order dated 9.8.2014. The Deputy District Magistrate ought to have allowed the open meeting to be held on 14th July, 2014 for such consideration and should not have hastily granted the fair price shop licence to the respondent no. 5.
Even otherwise a fair price shop licence is a measure of public distribution system which is now contemplated under the Constitution of India to be a function of the local body. It is not a mere right to run the business of a fair price shop by any individual. Apart from this, the prohibitions that have been mentioned in Clause 4.7 of the Government Order dated 3.7.1990 is to prevent any monopoly in the hands of the Gram Pradhan or the relatives of such office holder. It is in order to prevent any favouritism or nepotism that such prohibitions have been engrained by making the definition of the word household and family extensive as explained by the full bench in the case of Indrapal Singh (supra).
It is evident from the facts of this case that earlier the petitioner's husband whose daughter-in-law was the Gram Pradhan enjoyed the fair price shop on the basis of certain documents that were prepared indicating his separate status of family. The issue relating to sharing the common kitchen, therefore, is essential which has to be investigated faithfully and honestly to find out the trustworthiness for any such claim.
Consequently, in view of the conclusions drawn hereinabove, on both counts the writ petition deserves to be allowed. The orders impugned dated 5th June, 2014, 3rd July, 2014, 7th July, 2014 and 9th August, 2014 are all quashed. The respondent - Deputy District Magistrate is directed to first get an inquiry held through an honest official about the correct status of the common kitchen or otherwise of the respondent no. 5 with her daughter-in-law who is the Gram Pradhan. After such an inquiry is made, the same shall be followed by an open meeting of the Gaon Sabha to be convened as was earlier decided to be held on 14th July, 2014 where after considering the reputation of the deceased licence holder as desirable and also the issue of alleged disqualification, it shall be open to the Gaon Sabha to pass an appropriate resolution whereupon the Deputy District Magistrate shall proceed to get the matter processed in accordance with law.
The writ petition is accordingly allowed with a direction that the aforesaid exercise be completed expeditiously preferably within a period of one month from today so that the villagers may not be put to any inconvenience for distribution of fair price ration that should be commenced uninterrupted keeping in view the coming Dussehra, Diwali and Eid-ul-Zuha festivals.
Order Date :- 20.8.2014 Sahu