# Naeem Ahmad v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 801
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-18
- **Case number:** Civil Misc. Writ Petition No. 407 of 2005
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naeem-ahmad-v-state-of-u-p-and-others-41506
- **Pages:** 5

## Headnote

Constitution
of
India
Article-226-
Cancellation of the licence of fair price
shop on ground-father of petitioner
already
running
fair
price
shop
prohibition contained in clause 10 (e) of
G.O. 28.10.82 directly comes-theory of
separation
from
family
set
-up-not
reliable-held-cancellation proper.

Held: Para-10

Having found so, the petitioner therefore
suffers from a disqualification under the
Government Order dated 28.10.2002 and
he could not have been granted a
license. This being the position, it is not
necessary to enter into the merits of the
other charges against the petitioner, and
his explanation in that respect.
Case law discussed:
1982(2) SCC 210

## Text

3 All] Naeem Ahmad V. State of U.P. and others

801
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 407 of 2005

Naeem Ahmad

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri R.K. Pandey

Counsel for the Respondents:
Sri C.P. Mishra
S.C.

Constitution
of
India
Article-226-
Cancellation of the licence of fair price
shop on ground-father of petitioner
already
running
fair
price
shop
prohibition contained in clause 10 (e) of
G.O. 28.10.82 directly comes-theory of
separation
from
family
set
-up-not
reliable-held-cancellation proper.

Held: Para-10

Having found so, the petitioner therefore
suffers from a disqualification under the
Government Order dated 28.10.2002 and
he could not have been granted a
license. This being the position, it is not
necessary to enter into the merits of the
other charges against the petitioner, and
his explanation in that respect.
Case law discussed:
1982(2) SCC 210

(Delivered by Hon'ble A.P. Sahi, J.)

1. The short question raised in this
petition is, as to whether the SubDivisional
Magistrate
was
right
in
canceling the license to run a fair price
shop issued in favour of the petitioner, as
affirmed by the Commissioner in appeal
under
the
provisions
of
the
U.P.
Scheduled
Commodities
Distribution
Order, 2004 read with the Government
Order dated 28.10.2002.

2. The petitioner was granted a
license to run a fair price shop under the
Government Order dated 28.10.2002,
which was then prevalent, in the year
2003. This was done according to the
petitioner under a valid resolution of the
Gram Sabha to run the shop at Village
Houspura within Gram Panchayat Sainjni.
Charges of maldistribution were brought
against him coupled with the charge of
having concealed the fact that his father,
Mohd. Sayeed, was already a license
holder of a fair price shop at village
Sainjni which disqualifies the petitioner
for a license under Clause 10(e) of the
Government Order dated 28.10.2002.

3. An enquiry was conducted with
opportunity to the petitioner who, apart
from defending the charges on the ground
of improper procedure adopted during
enquiry, went on to urge that since he was
living separately from his father, he did
not inhere any such disqualification as
alleged aforesaid. It was also contended
by the petitioner in his reply that the
documents which he wanted to support
his stand with, were lost on his way to the
Sub-Divisional
Magistrate's
office.
Relying on the extract of the family
register of Village Juldhakiya, Gram
Sabha Sainjni, Nyaya Panchayat Dilari,
Tehsil Thakurdwara, District Moradabad,
it was pleaded that the petitioner's family
has been shown separately from that of
his father and as such it is urged that the
conclusions drawn by the Sub-Divisional
Magistrate
as
affirmed
by
the
Commissioner are erroneous. In short,
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

since the petitioner is separated from his
father, therefore he does not belong to the
same family as per the Government Order
dated 28.10.2002 and therefore he does
not suffer from any such disqualification.
The prayer is to accordingly quash the
impugned orders as they proceed on
erroneous assumption of law and fact.

4. I have heard learned counsel for
the petitioner and Sri C.P. Mishra, learned
standing counsel for the State who has
cited the decision in the case of Baldev
Sahai Bangia Vs. R.C. Bharin reported
in 1982(2) SCC 210 to support his
submissions.

5. Learned counsel for the petitioner
has reiterated the submissions that were
advanced before the authorities below and
has invited the attention of the Court to
the extract of the family register appended
to this writ petition to support the stand of
segregation of the family status of the
petitioner. He contends that once the
petitioner is recorded as the head of a
separate family and the petitioner claims
to be living under a separate roof in a
distinct household, the authorities have
committed an error in construing the
provisions
adversely
against
the
petitioner.

6. In response, learned standing
counsel contends that the definition of
separation of family and its interpretation
under personal law or under special
statutes would not govern the definition of
family as occurring in the Government
Order dated 28.10.2002. He urges that the
word family has not been specifically
defined but in view of the purpose of the
order governing grant of license of
running a fair price shop, the widest
possible meaning should be construed,
and for that he relies on paras 12 to 17
and para 24 of the decision in the case of
Baldev Bangia (supra).

7. Having considered the rival
submissions it is not disputed by the
petitioner that his father, Mohd. Sayeed,
was already possessed of a license to run
a fair price shop at Village Sainjni since
1993. Both of them, according to the
admitted family register extract, are
residents of Village Juldhakiya within the
same
Gram
Panchayat
and
Nyaya
Panchayat. During inspection both shops
were allegedly found running from the
same
premises
at
Juldhakiya.
The
petitioner has been granted license at
Village Houspura within the same vicinity
of
Gram
Panchayat
Sainjni.
The
Government Order dated 28.10.1982 in
Clause 10(e) prohibits the grant of license
to a person of the same family. It does not
confine it to the same village or the same
Gaon Sabha or Gram Panchayat. The
emphasis is on the word 'family' which
has not been given any definition in the
Government Order.

To my mind, giving it any restricted
meaning, would defeat the very purpose
of the said provision. Grant of license is
for a public distribution system through a
'fair price shop'. This cannot be permitted
to function so as to create a monopoly in
favour of the members of one family. This
appears
to
be
a
more
reasonable
interpretation as it serves the purpose and
also
eliminates
any
possibility
of
nepotism and favoritism. If the rule
making authority has left some gap, it is
the duty of the Court to cull out the intent
through purposive interpretation. One can
easily apply Heydon's rule to construe that
the prohibition contained in Clause 10(e)
aforesaid is a reasonable restriction so as
3 All] Naeem Ahmad V. State of U.P. and others

803
to exclude any other grant of license to a
member of the same family. To give a
narrow or constricted meaning to my
mind would be to do violation to the rule
itself. In my considered opinion the
widest possible meaning should be given
as understood ordinarily in such matters.
However in the present case since the
relationship of father and son is admitted,
it would not be necessary to venture to
give
any
exhaustive
definition
for
deciding the issue involved herein.

8. The petitioner claims separation
on the strength of the family register. No
other evidence has been led to establish
separation like the existence of a separate
house
or
evidence
to
believe
the
separation of Kitchen. However such
issues are not that relevant as the
relationship of the petitioner with his
father is a blood relation. This does not
snap even if the petitioner claims himself
to be sheltered beneath a separate roof.
For this the definition of the word family,
as generally understood, can be looked
into as referred to in the decision of
Baldev Sahai's case (supra) paras 12 to 17
and para 24 quoted below:-

12. We have heard counsel for the
parties
and
given
our
anxious
consideration to all aspects of the matter
and we feel that the High Court has taken
a palpably wrong view of the law in
regard to the interpretation of the term
'member of the family' as used in clause
(d) of the proviso to Section 14(1) of the
Act. In coming to its decision, the High
Court
seems
to
have
completely
overlooked the dominant purpose and the
main object of the Act which affords
several intrinsic and extrinsic evidence to
show
that
the
non-applicants
were
undoubtedly members of the family
residing in the house and the migration of
the main tenant to Canada would make no
difference. The word 'family' has been
defined in various legal dictionaries and
several authorities of various courts and
no court has ever held that mother or a
brother or a sister who is living with the
older member of the family would not
constitute a family of the said member.
Surely, it cannot be said by any stretch of
imagination that when the tenant was
living with his own mother in the house
and after he migrated to Canada, he had
severed all his connections with his
mother so that she became an absolute
stranger
to
the
family.
Such
an
interpretation is against our national
heritage and, as we shall show, could
never have been contemplated by the Act
which has manifested its intention by
virtue of a later amendment.

13. Coming now to the definitions,
we find that in Words and Phrases
(Permanent Edition, Volume 16) at pages
303-11 the word 'family' has been defined
thus:
The father, the member, and the
children ordinarily constitute a 'family'.

The word 'family' embraces more
than a husband and wife and includes
children.

A 'family' constitutes all who live in
one house under one head.

Father and mother of two illegitimate
children, and children themselves, all
living together under one roof, constitute
a 'family'.

The
word
'family'
in
statute
authorizing use of income for support of
ward and 'family' is not restricted to those
804 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

individuals to whom ward owes a legal
duty of support, but is an expression of
great flexibility and is liberally construed,
and includes brothers and sisters in poor
financial circumstances for whom the
insane ward, if competent, would make
provision.

The general or ordinarily accepted
meaning of the word 'family' as used in
Compensation Act, means a group,
comprising immediate kindred, consisting
of the parents and their children, whether
actually living together or not.

14. Similarly, in Webster's Third
New International Dictionary, the word
'family' is defined thus:

Household including not only the
servants but also the head of the
household and all persons in it related to
him by blood or marriage ...... a group of
persons of common ancestry.

15. In Chamber Twentieth Century
Dictionary (New Edition 1972, the word
'family' has been defined thus:

The household, or all those who live
in one house (as parents, children,
servants): parents and their children.

16. In Concise Oxford Dictionary
(Sixth Edition), the same definition
appears to have been given of the word
'family' which may be extracted thus:
Members of a household, parents,
children, servants, etc.; set of parents and
children, or of relations, living together or
not; person's children. All descendants of
common ancestor, ...

17. A conspectus of the connotation
of the term 'family' which emerges from a
reference to the aforesaid dictionaries
clearly shows that the word 'family' has to
be given not a restricted but a wider
meaning so as to include not only the
head of the family but all members or
descendants from the common ancestors
who are actually living with the same
head. More particularly, in our country,
blood relations do not evaporate merely
because a member of the family-the
father, the brother or the son - leaves his
household and goes out for some time.
Furthermore,
in
our
opinion,
the
legislature has advisedly used the term
that any member of the family residing
therein for a period of six months
immediately before the date of the filing
of the action would be treated as a tenant.
The stress is not so much on the actual
presence of the tenant as on the fact that
the members of the family actually live
and reside in the tenanted premises. In
fact, it seems to us that clause (d) of the
proviso to Section 14(1) of the Act is a
Special concession given to the landlord
to obtain possession only where the
tenanted premises have been completely
vacated by the tenant if he ceased to
exercise any control over the property
either through himself or through his
blood-relations.

24. Even as far back as 1930, Wright,
J. in Price V. Gould (a King's Bench
decision) had clearly held that the word
'family' included brothers and sisters and
in this connection observed as follows:

I find as a fact that the brothers and
sisters were residing with the deceased at
the time of her death ....... It has been laid
down that the primary meaning of the
word 'family' is children, but that primary
meaning is clearly susceptible of wider
interpretation, because the cases decide
3 All] Nav Nirman Thekedar Kalyan Association and another V. State of U.P. and another

805
that the exact scope of the word must
depend on the context and the other
provisions of the will or deed in view of
the surrounding circumstances.
*

*
Thus, in Snow v. Teed it was held that
"the word 'family' could be extended
beyond not merely children but even
beyond the statutory next of kin"."

9. A common understanding, which
also appears to be reasonable from the
common man's understanding point of
view, of the word family in the present
context would include a blood relation
without any distinction on separation. The
clause referred to herein above does not
draw
any
dissimilarity
between
a
separated or unseparated family member.
The family register exists for a different
purpose, namely to identify the people
living in a village or a locality. The mere
mention of the petitioner as a different
family head in the family register does not
snap his ties with his father and to that
extent he has been rightly considered to
belong to his father's family.

10. Having found so, the petitioner
therefore suffers from a disqualification
under the Government Order dated
28.10.2002 and he could not have been
granted a license. This being the position,
it is not necessary to enter into the merits
of the other charges against the petitioner,
and his explanation in that respect.

11. Learned counsel contends that
the license of the petitioner's father too
has been canceled. The same is not a
subject matter of this petition and if that is
so, the petitioner's father can always raise
this issue which can be decided without
being prejudiced with the grant or
otherwise of a license to the petitioner.
12. The petition is accordingly
dismissed subject to the observations
made herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE R.A. SINGH, J.

Civil Misc. Writ Petition No. 39608 of 2009

Nav Nirman Thekedar Kalyan Association
and another

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri S.P. Pandey
Sri S. Sahi

Counsel for the Respondents:
Sri S.C. Chaturvedi(ADDL. Adv. General)
Sri Satyendra Nath Srivastava
S.C.

Constitution
of
India
Article
15(4)-
readwith Article 19(1)(g)- Restriction on
fundamental
Rights-G.O.
30.06.09providing reservation of 20% to S.C.
Govt. contractor and 2 % Schedule Tribe
contractor-challenged
on
ground
of
restriction on his right of business-heldneither the said G.O. Creates monopoly
in favour of S.C. /S.T. Contractors not
put any restriction upon the right of
petitioners
rather
the
Government
exercised power for upliftment and
advancement
of
S.C./S.T.
Contractor
under
Article
15(4)-held
G.O.
Not
violating the provision of Art. 19(1)(g)-
warrant no interference by writ court.

Held: Para 27

Taking into consideration the entire facts
and circumstances and the contents of
the Government order dated 30th June,