Tota Ram vs State of U.P. and Others

V.K. Shukla, J.—In the present case Petitioner has approached this Court questioning the validity of the order dated 22.12.2010 passed by Licensing Authority and order of its affirmance in Appeal dated 07.01.2011 passed by Deputy Commissioner (Food) Bareilly Division Bareilly.

Brief background of the case is that Petitioner is fair price shop dealer of village Simariya, Meerganj District Bareilly. Petitioner''s brother has been elected as Pradhan in Gram Panchayat Election held in the Uttar Pradesh in the year 2010. After Petitioner''s brother was elected as Pradhan, show cause notice was issued to Petitioner on 18.11.2010 to show cause as to why his fair price shop license may not be cancelled because his brother has been elected as village Pradhan of the village concerned. Petitioner submitted his reply contending therein that Petitioner is living separately and independently from his brother in a different house with separate Kitchen and as such fair price shop licensing cannot be cancelled. Licensing Authority thereafter proceeded to pass order of cancellation. Petitioner preferred appeal and said appeal has also been dismissed. At this juncture present writ petition has been filed.

Sri U.P. Srivastava, learned Counsel for the Petitioner contended with vehemence that under the relevant Government Orders dated 06.03.1990, 18.07.2002 as well as 20.10.2004 his fair price shop could not have been cancelled, once Petitioner and his brother have been living separately and their Kitchen was also separate as such orders passed are unsustainable.

Countering the said submission, learned Standing counsel on the other hand contended that rightful view has been taken and no interference should be made.

After respective arguments have been advanced factual position which is emerging in the present case is that Petitioner has been fair price shop licensee much prior to election of his brother as Pradhan of Gram Panchayat and after Petitioner''s brother has been elected as Pradhan, show cause notice was issued to him placing reliance on the Government Orders dated 06.03.1990, 18.07.2002 as well as 20.10.2004 that as Petitioner''s brother has been elected as Pradhan as such Petitioner is not at all entitled to function as fair price shop agent. Petitioner submitted his reply and contended therein that his case is not at all covered under the aforesaid Government Orders as he is living separately from his brother and has got separate Kitchen. Licensing Authority as well as Appellate Authority ignoring this argument advanced repelled the arguments advanced on behalf of Petitioner and order of cancellation has been passed.

This Court in the case of Ram Murat Vs. Commissioner, Azamgarh Division, Sub-Divisional Magistrate, Block Development Officer and State of U.P., has considered the issue of applicability of the aforesaid Government Orders as well as the case where brother is license holder. Relevant extract of the judgment is being extracted below:

"Point No. 4:Whether before cancellation of a licence it is necessary to record a finding that the licence holder and their family members are living in one house and their food is being cooked in one kitchen.

It was submitted by the Petitioners'' counsel that according to para 4.7 of the G.O. of 1990 the licence of a ration shop dealer can be cancelled in that case only where the person who has been elected as Pradhan or Up-Pradhan has been residing in the same house and their food is also cooked in one kitchen. Before recording any finding on this point it will be useful to go through the above para which has been reproduced by us while recording finding on point No. 1. However, for the sake of convenience relevant portion of the above para is reproduced below:

ifjokj dh ifjHkk"kk fuEufyf[kr ekuh tk;sxh Lo;a] L=h] iq=] vfookfgr iq=h] ekrk] firk] HkkbZ ;k vU; dksbZ lnL; tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkuk [kkrk gks A

Now it is to be seen that commas have been used after the words,"Lo;a] L=h] iq=] vfookfgr iq=h] ekrk] f01irk" A Thereafter there is no camma and the words "HkkbZ ;k vU; dksbZ lnL; tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkuk [kkrk gks]" have been written in one continuation.

Thus according to the law of interpretation the phrase tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkrk gks shall qualify the words HkkbZ ;k vU; dksbZ lnL; only written in one continuation without any comma.

The contention of the Petitioners that the phrase tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkrk gks applies to all the members referred to in the para could have some force if no comma had been used after any word in the sentence or if commas had been used after the words HkkbZ & lnL; also, but when commas have been used upto the word firk only and when thereafter no comma has been used, the phrase tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkuk [kkrk gks Shall qualify HkkbZ ;k vU; dksbZ lnL; only appearing after the last comma in the sentence. In other words the break up of the above definition of ifjokj will be as under:

ifjokj dh ifjHkk"kk

fuEufyf[kr

ekuh

tk;sxh %

.

Lo;a]

.

L=h]

.

iq=]

.

vfookfgr

iq=h]

.

ekrk]

.

firk]

. HkkbZ ;k vU; dksbZ lnL; tks lkFk esa jgrk gks rFkk,d gh pwYgs dk cuk [kkuk [kkrk gks A

A The above distinction is not unreasonable. There is sufficient rationale for it. Husband, wife, son, unmarried daughter, father and mother have got very close tie as family members, but that is not so in case of brothers and other persons. That is why the condition of joint residence and of joint kitchen has been provided for applicability of the G.O. to them, but this condition is not applicable in case of husband, wife, son, unmarried daughter, father and mother.

The effect of the above finding is that the disqualification for grant of fair price shop licence as well as the provisions for cancellation of the licence shall per se apply where the licence holder himself or his wife, son, unmarried daughter, mother and father have been elected as Pradhan or Up-Pradhan, but if any brother of the licence holder or his any other relation has been elected as Pradhan or Up-Pradhan,this disqualification shall apply only in that case when they are residing together in the same house and their food is being cooked in one kitchen."

The judgment of this Court clearly lays down that if the brother of fair price shop license holder is elected as Pradhan or Up-Pradhan disqualification shall apply in that case only when they are residing together in the same house and their food is being cooked in one kitchen.

On the parameter as set out the facts of the present case is being looked into. In the present case precise case of the Petitioner has been that his brother who has been elected as Pradhan has been living separately and his food is also being cooked in separate kitchen. Neither Licensing Authority nor Appellate Authority has considered this aspect of the matter as raised by the Petitioner and straight away has proceeded on presumption that once brother of the Petitioner has been elected as Pradhan, Petitioner automatically incurred disqualification. Disqualification provided under the aforesaid Government Orders ipso facto applicable is in reference of Husband, wife, son and unmarried daughter, father and mother but in case of brother or other relation disqualification is attached, once they were residing together and food is being cooked in one kitchen. In the fact of the present case as neither Licensing Authority nor Appellate Authority has considered this aspect of the matter whereas specific plea was taken by Petitioner in the written reply submitted by him by clearly mentioning that Petitioner is residing at house No. 28 whereas his brother is residing at house No. 88 and they have got separate parivar register and their food is cooked in separate kitchen but plea raised by the Petitioner has not at all been considered and has been ignored, in such a situation and in this background order passed by Licensing Authority as affirmed in Appeal is not at all being approved of.

Consequently, order dated 22.12.2010 passed by Licensing Authority and order dated 07.01.2011 passed by Deputy Commissioner (Food) Bareilly Division Bareilly are hereby quashed and set aside. Licensing Authority is directed to pass fresh order after taking into account the specific reply submitted by the Petitioner in respect of separate living and cooking after getting inquiry conducted in the matter and after providing opportunity of hearing to the Petitioner on this score.

With the above direction present writ petition is allowed.