No Acts & Articles mentioned in this case
1
AFR
Reserved on 28.10.2013
Delivered on 09.12.2013
Court No. 37
Case : WRIT C No. 24620 of 2013
Petitioner : Indrapal Singh
Respondent : State Of U.P. And 2 Others
Counsel for Petitioner : Ajay Bhanot,J.K.S. Sikarwar
Counsel for Respondent : C.S.C.,Pramod Kumar Sharma
Hon'ble Ashok Bhusan,J.
Hon'ble V.K. Shukla,J.
Hon'ble Vipin Sinha,J.
(Per: Hon'ble V.K. Shukla,J.)
For getting an authoritative pronouncement, as to
whether the definition of family as interpreted in the case of
Ram Murat and others Vs. Commissioner, Azamgarh Division,
Azamgarh and others reported in (2006) (5) ADJ 396 is correct
or not, the matter has been referred to this Full Bench for
answering the following two questions'
(i)Whether the judgment of the Division Bench in the case
of Ram Murat (supra), defining the word 'Family' as
given in Government Order dated 3.7.1990 ( Para 4.7) lays
down the correct law specially after the enforcement of
order 2004 ?
(ii)Whether the definition of family as given in Clause 2(o)
of U.P. Scheduled Commodities Distribution Order,2004,
shall override the definition of family given in para 4.7 of
Government order dated 3.7.1990 ?
The factual background in which the aforementioned
issues have been raised are that petitioner of present writ
petition was appointed as a fair price shop dealer in the year
1993. Petitioner's son Raj Bahadur was elected as Pradhan in
2
the year 2010. A show cause notice dated 5
th
November, 2012
was issued to the petitioner to show cause as to why the shop
be not cancelled, since, he is running the shop, living in the
joint family, and his son has been elected as Pradhan. Petitioner
submitted reply to the show cause notice dated 31.1.2013 and
same was followed by the order dated 3
rd
April, 2013 by which
petitioner's fair price shop agreement has been cancelled.
Petitioner at this juncture has approached this Court
questioning the validity of the decision so taken cancelling his
fair price shop agreement on 3
rd
April, 2013 and his submission
has been to the effect that petitioner's son is living separately
and cannot be treated to be a member of family and,
accordingly, ground on the basis of which petitioner's fair price
shop has been cancelled is unsustainable. Petitioner's
submission has been to the effect that the definition of family
as given in Government Order dated 3
rd
July, 1990 and as has
been interpreted in Ram Murat's case (supra) does not take into
consideration Clause 2 (o) and further Clauses 30 and 31 of
U.P. Scheduled Commodities Distribution Order, 2004, in its
correct reference and correct perspective and, in view of this,
the definition of family contained in Government Order dated
3
rd
July, 1990 has to be accepted as superseded and effaced after
the enforcement of U.P. Scheduled Commodities Distribution
Order, 2004. The Division Bench of this Court noticed the
arguments raised from the side of petitioner and proceeded to
refer the matter in the direction of getting authoritative
3
pronouncement.
Shri Ajay Bhanot, learned counsel for the petitioner,
opened his arguments by contending that the Division Bench's
judgment in the case of Ram Murat (supra) by accepting the
definition of the word 'family' as given in Government Order
dated 3
rd
July, 1990 paragraph 4.7 has not at all laid down the
correct law after enforcement of U.P. Scheduled Commodities
Distribution Order,2004 wherein a different concept and a
different definition has been introduced in the shape of “house
hold” which is synonyms to “family” and in such a situation
definition of family as mentioned in Government Order dated
3
rd
July, 1990 has to be accepted as effaced and, accordingly, by
placing reliance on the definition of family as given in
paragraph 4.7 of Government Order dated 3
rd
July, 1990, such a
punitive action could not have been taken, as has been done in
the present case and the issue in question ought to have been
dealt with on the parameters of the definition of “household”,
which is synonymus to family as is provided under Clause 2
(o) of in U.P. Scheduled Commodities Distribution Order,2004,
as same has the overriding effect over the definition of family
given in paragraph 4.7 of the Government Order dated 3
rd
July,
1990 and, as such, reference in question should be answered in
favour of petitioner and the view as taken by the Division
Bench of this Court in the case of Ram Murat’s case be reversed
in total and entire doubts on the subject be removed.
Countering the said submission Shri Ramesh Upadhyaya,
4
Chief Standing Counsel appearing with Shri S.M. Iqbal Hasan,
Advocate contended that petitioner is labouring under a
misconception and the Division Bench of this Court in the case
of Ram Murat (supra) has taken rightful view except at a place
where ‘brother’ has been sought to be excluded and it has been
submitted by him that the definition as given in Clause 2 (o) of
in U.P. Scheduled Commodities Distribution Order,2004
describing “household” in no way would override or efface the
definition of family given in paragraph 4.7 of the Government
Order dated 3
rd
July, 1990, inasmuch as, at both the places
definition in question is in all together different context and
under different scheme of things and, in view of this, the
reference in question is to be answered in negative by taking
the view that Division Bench of this Court in Ram Murat’s
Case (supra) has rightly been decided and the definition of
family given in paragraph 4.7 of the Government Order dated
3
rd
July, 1990 should be read in its entirety which should be
inclusive of ‘brother’ also as well as other members, who are
found to be dining in the same kitchen and, in view of this,
purposive and contextual construction should be made, as in
case the arguments so advanced by petitioner is accepted then
it would render the other provisions redundant and otiose and
would defeat the very purpose for which it has been
introduced.
In order to appreciate the respective arguments, as has
been advanced and canvassed before this Court, this Court
5
proceeds to take note that the Parliament has enacted the
Essential Commodities Act, 1955 and Section 3 of the said Act
empowers the Central Government to enact different control
orders for controlling production, supply, distribution etc. of
essential commodities and Section 5 of the said Act empowers
the Central Government to delegate this power by notified
order to the State Government also and the Central
Government has, accordingly, in the said direction delegated
this power to the State Governments for maintaining of supply
of food grains and other essential commodities and for
securing of their equitable distribution through fair price
shops.
Under the aforesaid provision State of Uttar Pradesh
came up with the Uttar Pradesh Food Grains & Other Essential
Articles Distribution Order, 1977, which has been published in
U.P. Gazette, Extraordinary, dated 3
rd
December, 1977 and has
been substituted by First Amendment Order dated 4
th
January,
1978, and under the aforementioned Control Order, Clause 2
dealt with the Definition clause and therein Clause 2 (a)
defined ‘adult’ as any person who has completed the age of
five years and ‘child’ as any person who has not completed that
age. Clause 2 (b), which was substituted by First Amendment
Order dated 4
th
January, 1978, defines the ‘authorized retail
distributor’ as a person appointed as ‘Agent (Retail)’ by the
District Magistrate, City Magistrate or Sub Divisional
Magistrate for sale of Government food grains and other
6
essential articles. Clause 2 (d) defined ‘other essential article’ as
a commodity other than food grains specified in the Schedule
II appended to this order, which is supplied or allotted by the
State Government for distribution to identity card holders, as a
price, fixed, from time to time, by the Central or the State
Government or any other authority or office of such
Government or the manufacturer, as the case may be, in respect
of such commodity. Clause 2 (h) proceeds to define ‘holder’ in
relation to an identity card as a person whose name or
designation appears as such on that identity card. Clause 2 (i)
proceeded to define ‘house hold’ means the collection of
individuals who normally eat food prepared in the same
kitchen. Clause 2 (j) defined identity card, Clause 2 (k) defined
qualified resident. Clause 3 proceeded to mention that sale
shall be made only through the authorized retail distributor.
Clause 8 deals with the preparation of identity cards and
therein a clear cut mention was made that a Food Officer may
either of his motion or on an application made to him by a
qualified resident issue or cause to be issued to such resident
for himself and his household or establishment, if any, an
identity card authorizing purchase of food grains and other
essential articles. Household thus has been used in the context
of issuance of identity card.
The State Government at the said point of time took a
policy decision vide Government Order dated 28.07.1985
providing therein that in the matter of allotment of fair price
7
shop i.e. for being appointed as authorized retail distributor,
the Pradhan and his family members would be all together
outside the zone of consideration, as Pradhan has a major role
to play in effectuating distribution of essential commodities.
The Government Order dated 28.07.1985 imposing restriction
on being appointed as authorized retail distributor, qua
Pradhan and his family members, has once again been
reiterated in Government Order dated 10.01.1986.
Thereafter by means of notification dated 31
st
August,
1989 U.P. Scheduled Commodities (Regulation of Distribution)
Order, 1989 has been enforced as the State Government in its
wisdom and opinion had thought it necessary and expedient
for maintaining supplies of food grains and other essential
commodities and for securing its equitable distribution and
availability at fair price. The said control order has been issued
in exercise of its powers under Section 3 of the Essential
Commodities Act, 1955 read with notification of Government
of India in the Ministry of Agriculture and Irrigation
(Department of Food) published under GSR 800, dated 9
th
June,
1978 in the Ministry of Industry and Civil Supplies
(Department of Civil Supplies and Cooperation), published
under Ka As 681 (A) and Ka Aa 682 (A) dated 30
th
November,
1974 and all other powers enabling on this behalf. The said
order in question has also been extended to the whole of Uttar
Pradesh and therein also definition had been given in Clause 2.
The definition of ‘adult’ in Clause 2 (a) was the same as
8
was provided for in the 1977 Control Order. In the 1989 Control
Order, Clause 2 (f) defines holder in relation to an identity card
and Clause 2 (g) defines household. The definition of holder is
one and the same, as is provided for under the 1977 Control
Order, mentioning therein that holder in relation to identity
card means the person whose name or designation appears as
such on the identity card and household here has been defined
as individuals who are held together in the same house and
normally eat food prepared in the same kitchen. Earlier under
1977 Control Order, household has been described as collection
of individuals who normally eat food prepared in the same
kitchen.
The said control order then defines the ‘identity card’ in
Clause 2 (h), ‘qualified resident’ in Clause 2 (i), Clause 9 deals
with preparation of identity card and here it has been clearly
provided that Food Officer may either of his motion or of an
application made to him by a qualified resident issue or cause
to be issued to such resident for himself and his household or
establishment, if any, an identity card authorizing purchase of
Scheduled Commodities. Clause 10 dealt with the contents of
identity card by providing that Food Officer shall prepare or
cause to be prepared an identity card correctly with clearly
marked on it the name and the address of the identity card
holder, the number of persons of the household or
establishment and the name or some other indication of the
Authorized Retail Distributor from whom the identity card
9
holder is entitled to purchase Scheduled Commodities.
The U.P. Food Grains and Other Essential Articles
Distribution Order, 1977 published in U.P. Gazette
Extraordinary dated 3
rd
December, 1977 and the U.P. Scheduled
Commodities (Regulation of Distribution) Order, 1989
published in gazette vide notification dated 31
st
August, 1989
have been repealed and the provisions of Sections 6, 8 and 24 of
the General Clauses Act, 1897 has been made applicable as they
apply in relation to the repeal and reenactment of Central Act
by introducing U.P. Scheduled Commodities Distribution
Order, 1990. The State Government has proceeded to issue the
same once again for maintaining supplies of food grains and
other essential commodities and for securing equitable
distribution and availability of the same on fair price. The same
has been framed under Section 3 of the Essential Commodities
Act, 1955 (Act No. X of 1955) read with notification of
Government of India in the Ministry of Agriculture and
Irrigation (Department of Food) published under GSR 800,
dated 9
th
June, 1978 in the Ministry of Industry and Civil
Supplies (Department of Civil Supplies and Cooperation),
published under Ka As 681 (A) and Ka Aa 682 (A) dated 30
th
November, 1974 and all other powers enabling on this behalf.
Under U.P. Scheduled Commodities Distribution Order,
1990, Clause 2 (b) defines the ‘adult’ in the same way and
manner, as has been described in the past, Clause 2 (c) defines
the ‘agent’ as one who is authorized to run fair price shop
10
whereas on the earlier occasion in 1977 Control Order as well
as in the 1989 Control Order in place of agent the word
‘Authorized Retail Distributor’ has been used and same
proceeds to mention that it means a person appointed as agent
by the District Magistrate, City Magistrate or Sub Divisional
Magistrate for sale of food grains and other essential
commodities. Clause 2 (g) again borrows the same definition as
has been provided under Control Orders of 1977 and 1989 by
defining the holder in relation to an identity card as a person
whose name or designation appears as such on that identity
card, Clause 2 (h) defines household in the same way and
manner as has been defined in the Control Order of 1977 as
collection of individuals who normally eat food prepared in
the same kitchen, Clause 2 (i) defines identity card means a
card issued under Clause 5 of this order, Clause 2 (k) defines
the qualified resident as a resident of an area to which this
order extends and authorized under general or special order to
receive identity card on behalf of himself or a household or an
establishment. Clause 3 and 4 deals with the setting up of fair
price shop and running of fair price shop, relevant extract of
the same is quoted below;
“3.Setting up of fair price shop – With a view to
effecting fair distribution of Scheduled
Commodities the State Government may issue
directions to setup such number of fair price shops
in an area as it deems fit.
4.Running of fair price shop – (1) A fair price
shop shall be run through such person and in such
11
manner as the Collector subject to the directions of
the State Government, may order.
(2) A person appointed to run a fair price shop
under subclause (1) shall act as the agent of the
State Government.”
A bare perusal of those particular provisions of Clause 3
and 4 would go to show that with a view to effectuate fair
distribution of Scheduled Commodities, the State Government
has been conferred an authority to issue direction for setting
up such number of fair price shop in an area as it deems fit and
the said fair price shop are to be run through such person as
the Collector subject to direction of the State Government may
order and the person so appointed to run fair price shop is to
act as agent of State Government. The State Government under
the scheme of things provided for has ample authority to take
decision as to in what way and manner the fair price shop is to
be setup and is to be run.
The State Government on 3
rd
July, 1990 has accordingly
proceeded to formulate a scheme as per which fair price shop
are to be opened and therein a full fledged procedure has been
provided for as per which the said fair price shop are to be run
and managed. The said Government Order in question has
clearly proceeded to provide for that, in the matter of opening
of fair price shops, the family member/relatives of Pradhan or
Uppradhan would not at all be given fair price shop. Clause
4.7 of the said Government Order reads as follows;
“4.7.xzke iz/kku ;k mi iz/kku ds ifjokj ds
12
lnL;ksa@lacaf/k;ksa ds i{k esa mfpr nj dh nqdku ds vkcaVu
dk izLrko ugh fd;k tk;sxkA 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”
The said Government Order in question clearly restricts
the field of being authorized to run fair price shop qua
Pradhan/Uppradhan and his family member as defined, plus
such members who stays together and eats food prepared in
common kitchen. Accordingly under the 1990 Government
Order a person who was elected as Pradhan/Uppradhan and
his family members and other members residing and dining
with him were prohibited from getting license for running of
fair price shop. Subsequent to the same, this particular
Government Order has been modified by Government Order
dated 18.07.2002, and by means of such modification, so
introduced, the license of fair price shop has to be cancelled, in
case the licensee or his family members as mentioned therein
are elected as Pradhan/Uppradhan. Relevant extract of
Government Order dated 18.07.2002 is as follows;
^^izs"kd]
Jh [katu yky]
izeq[k lfpo]
m0iz0 'kkluA
lsok esa]
leLr ftykf/kdkjh]
m0iz0A
[kk| jln vuqHkkx&6 y[kuÅ fnukad 18 tqykbZ] 2002
fo"k;& lkoZtfud forj.k iz.kkyh ds varxZr xzkeh.k {ks= esa mfpr nj ds
nqdkunkjksa dk p;uA
13
egksn;]
mi;qZDr fo"k;d 'kklukns'k la[;k&,Q 3967@29&[k&6&fnukad 03
tqykbZ] 1990 dk d`i;k lanHkZ xzg.k djsaA
2&bl laca/k esa lE;d fopkjksijkar v/kksgLrk{kjh dks ;g dgus dk
funs'k gqvk gS fd mDr 'kklukns'k ds izLrj&4-7 ds vkxs izLrj&4-7 v
fuEukuqlkj tksM+ fn;k x;k gS%&
^^;fn fdlh nqdkunkj ;k mlds ifjokj ds fdlh lnL; dks ftldh
ifjHkk"kk izLrj&4-7 esa nh xbZ gS iz/kku ;k mi iz/kku pqu fy;k tkrk gS
rks mldh nqdku dk vkoaVu fujLr dj fn;k tk;sxkA
3&d`i;k mDr 'kklukns'k bl lhek rd la'kksf/kr le>k tk;A
Hkonh;]
g0v0
¼[katu yky½
izeq[k lfpoA^^
Earlier, Pradhan/Uppradhan and his family members
were prohibited from getting shop for distribution of
scheduled commodities, and by means of subsequent
modification, in case of being elected as Pradhan/Up
pradhan, the license of fair price shop of Pradhan/Up
pradhan or his family members and members as mentioned
therein has to be necessarily cancelled, as on being elected,
same has to be treated as a disqualification to run a fair price
shop.
Under Control Order of 1990, Clause 5 deals with the
preparation of identity card and Clause 6 deals with the
contents of identity card and therein a clear cut mention has
been made that the Food Officer shall prepare or cause to be
prepared an identity card correctly with clearly marked on it
the name and the address of the identity card holder, the
number of persons of the household or establishment and the
14
name or some other indication of the agent from whom the
identity card holder is entitled to purchase Scheduled
Commodities.
Subsequent to the same State Government once again
substituted the U.P. Scheduled Commodities Distribution
Order, 1990, by issuing a new order in the year 2004 commonly
termed as U.P. Scheduled Commodities Distribution Order,
2004, and therein with the same objective the State Government
formed opinion that for maintaining of supply of food grains
and other essential commodities and for securing of their
equitable distribution and availability at fair prices, in exercise
of the powers conferred under Section 3 of the Essential
Commodities Act, 1955 (Act No. 10 of 1955) read with order of
the Government of India, Ministry of Consumer Affairs, Food
and Public Distribution, Department of Food and Public
Distribution, published under GSR 630 (E), dated August 31,
2001 and all other powers enabling him on this behalf.
The said control order in question proceeded to retain the
same definition of adult but in clause 2 (b) it was mentioned
that ‘adult’ or a ration unit means any person who has
completed the age of five years and ‘child’ or a half ration unit
means any person who has not attained the age of five years.
For the first time under the aforementioned control order
pursuant to Public Distribution System (Control) Order 2001,
framed by Central Government, in exercise of powers conferred
by Section 3 of Essential Commodities Act, concept of
15
identification of families below poverty line (BPL) by the State
Government has been introduced, and same also inheres in
itself concept of identification of Antyodaya families, and in the
said direction State Governments have been asked to formulate
suitable guidelines. Clause 14 of the said Control Order, has an
overriding effect, as it proceeds to mention, that the provisions
of the order shall have effect notwithstanding anything to the
contrary contained in any order made by a State Government
or by an officer of such State Government.
Toeing the lines of Public Distribution System Control
Order, 2001, provision has been introduced for identifying
‘Antyodaya families’ by defining Antyodaya families’ in Clause
2 (d) those poor families from amongst Below the Poverty Line
(BPL) families identified by a ‘Food Officer’ and entitled to
receive food grains under the Antyodaya Anna Yojana’ and
Clause 2 (e) defines the ‘APL’ as those families who have been
issued Above Poverty Line ration cards under this order,
Clause 2 (g) defines ‘BPL’ as those families who have, under
the guidelines of the State Government, been identified by a
Food Officer for issue of food grains at specially subsidized
rates, and again the definition of ‘Holder’ and ‘Household’ in
Clause 2 (n) and (o), has been provided in the same way and
manner, as has been dealt with in the past, holder has been
defined as a person whose name or designation appears as
such on that ration card and household means the collection of
individuals who normally eat food prepared in the same
16
kitchen. Clause 2 (p) defines ‘Ration Card’, Clause 2 (q) defines
‘Person’, Clause 2 (r) defines ‘Qualified Resident’ means a
person resident of any part of the State of Uttar Pradesh and
authorized under general or special order of the State
Government for the time being in force, to receive ration card
on behalf of himself or a household or an establishment,
Clause 2 (s) defines ‘Regional Food Controller’ and Clause 2 (t)
defines ‘Scheduled Commodity’.
Clause 3 and 4 deals with the setting up of fair price shop
and running of fair price shop, relevant extract of the same is
quoted below;
“3.Setting up of fair price shop – With a view to
effecting fair distribution of Scheduled
Commodities the State Government may issue
directions under Section 3 of the Act to setup such
number of fair price shops in an area and in the
manner as it deems fit.
4.Running of fair price shop – (1) 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.
(2)A person appointed to run a fair price shop
under subclause (1) shall act as the agent of the
State Government.
(3)A person appointed to run a fair price shop
under subclause (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.”
This particular provision of setting up of fair price shop
17
and running of fair price shop is also on the same line as it was
there in the Control Order of 1990, as here also a fair price shop
is to be run and managed through such a person and in such a
manner, as the Collector may decide subject to the directions of
the State Government and once again it has been clarified that a
person appointed to run a fair price shop under subclause (1)
shall act as the agent of the State Government and further a
person appointed to run a fair price shop under subclause (1)
shall sign an agreement, as directed by the State Government
regarding running of the fair price shop as per the draft
appended to the order before the competent authority prior to
the coming with effect of the said appointment. Thus the earlier
provision in pith and substance has been incorporated. Clause 5
deals with the identification of families living below the
poverty line. Clause 6 deals with ration card and proceeds to
mention that Food Officer shall ensure that no qualified
resident is denied a ration card under this order and Food
Officer is to ensure issuance of distinctive ration cards to APL,
BPL and Antyodaya families in accordance with the orders
issued by the State Government from time to time. Subclause
(3) of Clause 6 proceeds to mention that the designated
authority on being directed by the Food Officer is to issue a
ration card of appropriate category within one month of the
date of receipt of the application after necessary checks and
verification but only after the approval of the Food Officer, Sub
clause (4) of Clause 6 deals with contents of ration card and
18
requires that same should have clearly marked on the same, the
name, sex, age, address, occupation of holders, the number of
persons residing with the holder including their name, age, sex,
occupation and relationship with the holder alongwith other
essential details of the agent from whom the holder is entitled
to purchase scheduled commodities.
Clauses 30 and 31 deals with the savings and provisions
of the order to prevail over previous order of State Government,
which is hereby quoted below;
“30. Savings Any act performed under the
provisions of the Uttar Pradesh Scheduled
Commodities Order, 1990, which is hereby
repealed prior to commencement of this order,
shall be deemed to have been validly performed
under the provisions of this order.
31. Provisions of the order to prevail over previous
orders of State Government The provisions
of this order shall have effect notwithstanding
anything to the contrary contained in any order
made by the State Government before the
commencement of this order excepts, as respects
anything done, or omitted to be done thereunder
before such commencement.”
On the parameters of the provisions noted above the
arguments, as have been advanced qua the questions raised are
being examined as to whether, after the enforcement of 2004
Order, the judgment of Division Bench in the case of Ram
Murat, defining the word “family” as given in Government
Order dated 3
rd
July, 1990, Paragraph 4.7 lays down the correct
law, and as to whether the definition of family as given in
19
Clause 2 (o) of 2004 Order, overrides the definition of family
given in Paragraph 4.7 of Government Order dated 3
rd
July,
1990.
Concept of “household” is there right from the beginning,
inasmuch as, the definition of “household” finds place in the
Control Order of 1977 as collection of individuals who normally
eat food prepared in the same kitchen. Similar definition of
household is there in the Control Order of 1989 with slight
modification, by mentioning, where individuals who are held
together in the same house and normally eat food in the same
kitchen and in 1990 Control Order the same definition in
question has been incorporated as it has been in 1977 Control
Order i.e. collection of individuals who normally eat food in the
same kitchen. Once again at the point of time when Control
Order of 2004 has been introduced, same definition of
household as mentioned in 1977 Control Order and 1990
Control Order has been reiterated i.e. “household” means the
collection of individuals who normally eat food prepared in the
same kitchen.
“Household” under the scheme of things provided for
has always been used in reference to holder of a ration card and
in the matter of preparation of ration card, inasmuch as, it has
to be ensured by the Food Officer that such a card is issued to
qualified resident for himself and his household or
establishment, authorizing purchase of food grains and other
essential articles. Once ration card in question is issued to a
20
resident for himself and his household or establishment and the
said ration card in question has to carry on it the name and
address of card holder, the number of persons of the household
with their name and relationship with the holder, and the name
of the authorized retail distributor from whom the card holder is
entitled to purchase food grains and other essential commodities and
based on the said ration card, based on unit, once food grain and
other essential commodities are purchased by the holder from the
authorized retail distributor and the ultimate destination of said
essential commodity is the kitchen of the holder, then in the said
context, household has to be understood as the collection of
individuals who normally eat food prepared in the same kitchen.
At the point of time when Control Order of 1990 has been
introduced the definition of household has been there as
collection of individuals who normally eat food prepared in the
same kitchen but the State Government in its wisdom in the
matter of setting up of fair price shop and running of fair price
shop has not at all proceeded to borrow the aforementioned
definition of 'household' in question and to the contrary in
order to maintain transparency in Public Distribution System
and in order to avoid conflict of interest, in exercise of its
authority vested under Clauses 3 and 4 of the U.P. Scheduled
Commodities Distribution Order, 1990 framed Government
Order dated 3
rd
July, 1990 and therein a clear cut policy decision
was taken clearly providing therein that the family members
and relative of Pradhan and Uppradhan such as himself, wife,
21
son, unmarried daughter, mother, father, brother or any other
member who stays together and has a common kitchen in no
eventuality shall be entitled to be appointed as an agent to run
fair price shop. Said policy decision has been taken by the State
Government anticipating therein that there would be conflict of
interest in running and managing the Public Distribution
System, as such, prohibition should be imposed on such
incumbent being engaged as agent. The definition of family,
under Paragraph 4.7 of Government Order dated 3
rd
July, 1990 is
specific, as it clearly proceeds to define family in the context of
prohibition being imposed upon Pradhan/Uppradhan and
their family members and other members staying and dining
together in being appointed as authorized retail dealer. Family
has been defined as self, wife, son, unmarried daughter,
mother, father, brother or any other member who stays together
and takes meal cooked in one kitchen. This particular definition
is extensive as it takes within its fold the closest of relations
such as self, wife, son, unmarried daughter, mother father,
brother and even those members have been taken within the
fold of family i.e. who stay together and mess in a common
kitchen.
The State Government acquired knowledge that various
incumbents in spite of the fact that they were fair price shop
agents their family members/relatives falling within the
prohibited category as provided under paragraph 4.7 of the
Government Order dated 3
rd
July, 1990, have been contesting the
22
elections and have been winning the same and such a situation
has been leading to conflict of interest and, in view of this, the
State Government on 18
th
July, 2002 in order to remedy such a
situation has proceeded to issue Government Order and has
clearly mentioned therein that in case any shopkeeper or his
family member, who has been defined in paragraph 4.7 of the
Government Order dated 3
rd
July, 1990, is elected as Pradhan or
Uppradhan, then his shop in question would be cancelled.
The said provisions in question would go to show that in
the matter of setting up of fair price shop and running of fair
price shop there has been a deliberate departure made by the
State Government in the matter of defining family so that all
those incumbents who fall within the definition of family know
this fact as a matter of course that they cannot be appointed as
Agent and this much has also been clarified that even if they are
elected subsequent to the same, then also the shop in question
would be cancelled. The State Government being conscious of
such a situation that in the matter of setting up of shop and
running of fair price shop anomalous situation would be
created by people with vested interest by placing reliance on the
definition of household as collection of individuals who
normally eat food prepared in the same kitchen only, then there
would be room for manipulation and maneuvering has taken a
deliberate departure in the matter of defining family by
specifically including self, wife, son, unmarried daughter,
mother father, brother and apart from this any other member
23
who stays together and has a common mess, has also been
included. Definition of family is of wider amplitude here as
specific family members as well as other members who fall
within the definition of household have also been included
therein who not only dine but reside also. Wider and specific
relationship has deliberately been used in order to make the
scope of defined word correspondingly wider and precise.
“Household” and “family” in the present case has to be
interpreted and understood in the context in which they have
been used.
In Francis Bennion's Statutory Interpretation, purposive
construction has been described as under :
"A purposive construction of an enactment is one which
gives effect to the legislative purpose by (a) following the
literal meaning of the enactment where that meaning is
in accordance with the legislative purpose (in this Code
called a purposiveandliteral construction), or (b)
applying a strained meaning where the literal meaning
is not in accordance with the legislative purpose (in the
Code called a purposiveandstrained construction)."
In 'The Interpretation and Application of Statutes' by
Reed Dickerson, the author at p.135 has discussed the subject
while dealing with the importance of context of the statute in
the following terms:
"... The essence of the language is to reflect, express, and
perhaps even affect the conceptual matrix of established
ideas and values that identifies the culture to which it
belongs. For this reason, language has been called
"conceptual map of human experience".'
24
In Reserve Bank of India v. Peerless General Finance and
Investment Co. Ltd. [(1987) 1 SCC 424] Apex Court stated as
follows:
"…...........If a statute is looked at, in the context of
its enactment, with the glasses of the statute
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take
colour and appear different than when the statute
is looked at without the glasses provided by the
context. With these glasses we must look at the Act
as a whole and discover what each section, each
clause, each phrase and each word is meant and
designed to say as to fit into the scheme of the
entire Act.............."
In the case of Bombay Dyeing & Mfg. Co. Ltd. Vs.
Bombay Environmental Action Group and others 2006 (3) SCC
434 Apex Court after noticing the principle of purposive
construction concluded as follows;
“It is wellsettled principle of law that in the
absence of any context indicating a contrary
intention, the same meaning would be attached to
the word used in the latter as is given to them in
the earlier statute. It is trite that the words or
expression used in a statute before and after
amendment should be given the same meaning.
When the legislature uses the same words in a
similar connection, it is to be presumed that in the
absence of any context indicating a contrary
intention, the same meaning should attach to the
words.”
Apex Court in the case of Chairman, Indore Vikas
Pradhikaran Vs. M/s. Pure Industrial Cock & Chemicals Ltd
AIR 2007 SC 2458 has mentioned that an act should be
interpreted having regard to its history and the meaning given
25
to a word cannot be read in a different way than what was
interpreted in the earlier repealed section and the words have to
be incorporated in the context in which they are used. Apex
Court, once again in the case of State of Gujarat Vs. Justice
R.A. Mehta, 2013 (1) scale 7, has once again reiterated the same
principle, that every statute has, therefore, to be construed in
the context of a scheme as a whole. Consideration of context, it
is trite, is to be given the meaning to legislative intention
according to the terms it has been expressed.
On these principles of interpretation of statutes, the
history of the Control Order in question, as already noted
above, clearly reflects that household has always been used in
reference of preparation of ration card the document that
would ensure scheduled commodity, to the holder and the
persons residing with the holder, from authorized fair price
shop and same contextually is referable to collection of
individuals i.e. holder and persons residing with the holder,
who normally eat food in the same kitchen, and at no point of
time in the matter of engagement of agent and disqualification
of agent, the said definition has ever been used.
Clause 2 (o) of U.P. Scheduled Commodities Distribution
Order, 2004 defines household as collection of individuals who
normally eat food prepared in the same kitchen. Suggestion is
to treat and accept “Household” as synonyms to “Family” for
the simple reason that in the Hindi version of U.P. Schedule
Commodities Distribution Order, 2004, “Household” has been
26
defined as “Parivar” with the embracment of all individual
who normally eat food in the same kitchen.
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 3
rd
July, 1990 and
18
th
June, 2002 stands saved and are operating with full force as
no inconsistent provision has been reenacted. Relevant extract
of Section 24 reads as follows;
“24.Constitution of appointments, notifications,
orders etc. issued under enactments repealed and
reenacted: Where any enactment is repealed and
reenacted 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
inconsistent with the provisions reenacted,
continue in force, and be deemed to have been
27
made or issued under the provisions so reenacted,
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 Vs. Harnek
Singh reported in 2002(3) SCC 481 has proceeded to mention
that Section 24 of the General Clauses Act deals with the effect
of repeal and reenactment of an Act and the object of the
section is to preserve the continuity of the notifications, orders,
schemes, rules or byelaws made or issued under the repealed
Act unless they are shown to be inconsistent with the
provisions of the reenacted 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. 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
part of every Central Act and has to be read in such Act unless
specifically excluded. Even in cases where the provisions of the
28
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 Vs.
Harnek Singh reported in 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 re enactments 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 byelaws
made or issued under the repealed Act would be deemed to be
nonexistent making impossible the working of the reenacted
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.
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 3
rd
July, 1990
and 18
th
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 along with 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 3
rd
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 17
th
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 vuqHkkx&6y[kuÅ% 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 ftykiwfrZ 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
30
vuqcU/k i= fujLr ugh gksxkA
2&bl lEcU/k esa iwoZ esa fuxZr 'kklukns'k fnukWd 03&07&90 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 03-07-90 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 izkfo/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 3
rd
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. Thus the State
Government is clear in its mind as to in what way and manner
essential commodities are to be distributed and who is entitled
to distribute and in the said direction of maintaining
transparency in Public Distribution System and in order to
avoid conflict of interest, such a stand has been taken. Once
31
from the background of different control orders issued from
time to time, household has been used in context of
preparation of ration cards and not at all in reference to
allocation of fair price shop, then it cannot be said in the
context of statutory provisions that in order to cancel the fair
price shop agency of petitioner one will have to go strictly by
the definition of household as mentioned in 2004 Control
Order, as household is conceptually different in the
background of the present case. “Household” has to be
understood in the context it has been defined and is to be
utilized, and merely because in the Hindi version of 2004
Control Order, in place of “Household”, “Parivar” has been
mentioned same would efface the definition of family as
provided for in Government Order dated 3
rd
July, 1990, cannot
be accepted in the facts of case as Hindi version cannot be
accepted as authoritative text even otherwise, as Full Bench of
this Court in the case of Jaswant Sugar Mills Vs. P.O., AIR
1962 All 240, has taken the view that both English and Hindi
version can be looked into, and in case of conflict or divergence
between the two versions, the English version may reign
supreme and supersede the same.
“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
32
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.
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.
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.
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
33
religious customs of the community to which such persons
may belong.
According to Law Lexicon 'family' may include even
domestic servants and some times persons who are merely
boarders.
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.
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.
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
34
has been taken at the first instance that Pradhan/Uppradhan
and their relatives so specified cannot be appointed as agents
and secondly when Pradhan/Uppradhan or such category of
relatives in case they are elected as Pradhan or Uppradhan,
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
35
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.
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 3
rd
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 3
rd
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 3
rd
July, 1990 and the said definition has to be read
in the context of issuance of ration cards and nothing beyond
the same.
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
36
brother is found that he has been dining together and has been
staying under the same roof.
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 3
rd
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/Uppradhan, the
agency will have to be terminated/cancelled. Not only this,
37
other members who are residing and dining together, on their
being also elected as Pradhan/Uppradhan 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
rewrite 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)
38
is not being approved of.
In view of the above, our answer to the referred questions
is as follows:
(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.
Let our answer be placed before the appropriate Bench
hearing the writ petition.
I agree
….......................................... …......................................
(Hon'ble Ashok Bhusan,J.) (Hon'ble V.K. Shukla,J.)
I agree
…......................................
(Hon'ble Vipin Sinha, J.)
Order Date : 9.12.2013
Shekhar
Login with google
Legal Notes
Add a Note....