# Pushpa Devi v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-22
- **Case number:** Writ-C No. 18519 of 2021
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpa-devi-v-state-of-u-p-ors-46581
- **Pages:** 4

## Headnote

daughter-in-law - Entitlement - GO dated
05.08.2019
excluded
daughter-in-law,
widowed or not, from the definition of 'family'
- Validity challenged - Word 'family' defined -
Held, daughter-in-law, widowed or not, is
having better right than daughter, who is
included
in
the
definition
of
'family'
in
Paragraph IV(10) of the Government Order
dated 05.08.2019 - High Court modified the GO
dated 05.08.2019 to the extent to include
daughter-in-law, widowed or not, within the
definition of 'family' and issued writ of
mandamus for issuance of fresh GO at the
earlieSt. (Para 10, 11, 12 and 13)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

472 INDIAN LAW REPORTS ALLAHABAD SERIES
226 of the Constitution of India. It stands
dismissed accordingly.
----------
(2021)12ILR A472
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-C No. 18519 of 2021

Pushpa Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Tripathi

A. Fair price shop - Allotment - Widowed
daughter-in-law - Entitlement - GO dated
05.08.2019
excluded
daughter-in-law,
widowed or not, from the definition of 'family'
- Validity challenged - Word 'family' defined -
Held, daughter-in-law, widowed or not, is
having better right than daughter, who is
included
in
the
definition
of
'family'
in
Paragraph IV(10) of the Government Order
dated 05.08.2019 - High Court modified the GO
dated 05.08.2019 to the extent to include
daughter-in-law, widowed or not, within the
definition of 'family' and issued writ of
mandamus for issuance of fresh GO at the
earlieSt. (Para 10, 11, 12 and 13)
Writ petition allowed. (E-1)
Cases relied on :-
1. U.P. Power Corporation Ltd. Vs Smt. Urmila Devi;
2011(3) ADJ 432 (FB).
2. Smt. Sudha Jain Vs St. of U.P. & ors.; 2011(5) ADJ
730
3. Smt. Geeta Srivastava Vs St. of U.P. & ors.;
2012(9) ADJ 1
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the petitioner,
Sri D.K. Tiwari, learned Additional Chief
Standing Counsel for the State-respondents.

2. By way of present petition, petitioner is
challenging the order dated 17.06.2021 passed
by respondent no. 3 contained as Annexure no. 1
to the writ petition, rejecting the application of
the petitioner for allotment of fair price shop and
also Government Order dated 05.08.2019 issued
by the Special Secretary, Government of U.P.,
Lucknow contained as Annexure no. 8 to the
writ petition.

3. Learned counsel for the petitioner
submitted that petitioner is widowed daughterin-law of late Mahadei Devi, who was earlier
allotted fair price shop. He further submitted that
husband of the petitioner namely Bablu died in a
road accident leaving behind the petitioner as
well as two daughters aged about 11 years and 6
years. Petitioner and her daughters are fully
dependent upon late Mahadei Devi, earlier fair
price shop holder, who died on 11.04.2021.
Succession certificate was also issued by Gram
Pradhan on 30.06.2021 mentioning therein that
petitioner is legal heir of late Mahadei Devi wife
of late Killu Yadav. She is Intermediate passed
and is eligible for allotment of fair price shop.
He next submitted that after death of mother-inlaw, there is no other male or female member for
compassionate allotment
under
succession.
Therefore, being legal heir (daughter-in-law,
widowed), petitioner submitted an application
dated 06.05.2021 for allotment of fair price shop
in place of late Mahadei Devi. The said
application of the petitioner was rejected by
respondent no. 3 vide order dated 17.06.2021
only on the ground that widowed daughter-inlaw does not come within the purview of 'family'
as defined in Paragraph IV(10) of the
Government Order dated 05.08.2019. He next
submitted that Paragraph IV(10) of the said
11 All. Pushpa Devi Vs. State of U.P. & Ors.
473
Government Order includes unmarried, legally
separated and widowed daughter, but excludes
daughter-in-law, widowed or not, without any
reason.

4. In support of his contention, learned
counsel for the petitioner has placed reliance
upon a Full Bench judgment of this Court in the
case of U.P. Power Corporation Ltd. Vs. Smt.
Urmila Devi passed in Special Appeal No. 1026
of 2003 decided on 27.01.2011 reported as
2011(3) ADJ 432 (FB). In case of appointment
under the Dying in harness, matter with regard
to consideration of widowed daughter-in-law has
been referred before the Full Bench in which, it
has been held that widowed daughter-in-law is
having better right than daughter. Ratio of law
given in this case shall also be applicable in the
present case, where widowed daughter-in-law
has been excluded for consideration as it was not
defined within 'family' in the Government Order
dated 05.08.2019. He next submitted that under
such facts of the case and law laid down by this
Court in the aforesaid judgment, paragraph IV
(10) of Government Order dated 05.08.2019
may be modified by including daughter-in-law,
widowed or not, within the definition of 'family'.

5. He further submitted that following the
Full Bench judgment in the case of U.P. Power
Corporation Ltd. (supra), this Court in the
matters of Smt. Sudha Jain Vs. State of U.P.
and others, 2011(5) ADJ 730 and Smt. Geeta
Srivastava Vs. State of U.P. and others, 2012(9)
ADJ 1 has taken same view and direction has
been issued to include daughter-in-law within
the definition of 'family' for the purpose of
appointment.

6. Dr. D. K. Tiwari, learned Additional
Chief
Standing
Counsel
opposed
the
submissions made by learned counsel for the
petitioner and submitted that in light of the
Government
Order
dated
05.08.2019,
application of the petitioner has rightly been
rejected, but could not dispute the factual and
legal submissions made by learned counsel for
the petitioner and law laid down by Full Bench
of this Court in the matter of appointment of
widowed daughter-in-law on compassionate
ground.

7. I have considered the rival submissions
made by learned counsel for the parties, perused
the record and judgments relied upon by the
counsel for petitioner. The facts of the case are
undisputed. The licence of fair price shop of the
petitioner was rejected only on the ground that
widowed daughter-in-law does not come within
the purview of 'family' as defined in paragraph
IV(10)
of
the
Government
Order
dated
05.08.2019. Except this, no other ground has
been taken. Paragraph IV(10) of the said
Government Order is quoted below:-

"(IV) ग्रामीण िेत्र में िाशन की दुकानों के चयन
हेतु अवनिायट अहटताएं एिं शततेः-

(1) अभ्यथी के खाते में कम से कम रू० 40000/-
उपलब्ध होां, ताधक वह अपनी दुकान हेतु आवांधटत एक माह
की सामग्री का एक बार में उठान करने के धलए आधथमक
रूप से सक्षम हो।

(2) अभ्यथी द्वारा अपने आवेदन के साथ धजलाधिकारी
द्वारा धनगमत चररत्र प्रमाण पत्र भी प्रस्तुत धकया जायेगा।

(3) उसकी िैधक्षक योग्यता कम से कम हाई स्कूल
अथवा उसके समकक्ष परीक्षा उिीणम हो।

(4) अभ्यथी की आयु 21 वषम से अधिक हो और
पररवार में धकसी अन्य सदस्य के नाम कोई उधचत दर
दुकान आवांधटत न हो।

(5) अभ्यथी स्थानीय धनवासी हो।

(6) अभ्यथी द्वारा रूपये 1000/- की अनेस्ट मनी का
बैंक डराफ्ट धजला पूधतम अधिकारी के पक्ष में जमा धकया
जायेगा। उि अनेस्ट मनी उधचत दर दुकान के आवांटन की
क्तस्थधत में प्रधतभूधत राधि में समायोधजत कर ली जायेगी।

(7) उधचत दर दुकान की धनयुक्ति की क्तस्थधत में
अभ्यथी को रूपये 10,000/- की प्रधतभूधत जमा करनी होगी
तथा रूपये 100/- का नान-जूधडधियल स्टाम्प पेपर लगाना
होगा। यह प्रधतभूधत नये धनयुि होने वाले दुकान के
अभ्यधथमयोां से ली जायेगी, धजनकी दुकान पूवम से ही धनयुि
474 INDIAN LAW REPORTS ALLAHABAD SERIES
है और सांचाधलत है, उनसे नये दर पर प्रधतभूधत जमा
करवायी जायेगी।

(8) अभ्यथी के धवरुध्द कोई भी आपराधिक मामले
पांजीकृत न हो औ न ही वह धकसी आपराधिक मामले में
दक्तित धकया गया हो।

(9) अभ्यथी अथवा उसके पररवार के धकसी सदस्य के
नाम पूवम में आवांधटत उधचत दर दुकान अधनयधमतता के
कारण धनरस्त न हुई हो और उसके धवरुध्द आवश्क वस्तु
अधिधनयम-1955 की िारा 3/7 के अन्तगमत अथवा
आपराधिक दि सांधहता के अन्तगमत काररत धकसी जघन्य
अपराि में धवधिक कायमवाही न हुई हो।

(10) ग्राम प्रिान के पररवार के सदस्योां के पक्ष में
उधचत दर की दुकान के आवांटन का प्रस्ताव नहीां धकया
जायेगा । पररवार की पररभाषा, जैसा धक उ०प्र० आवश्क
वस्तु (धवतरण के धवधनयमन का धनयांत्रण) आदेि 2016 में
दी गई है, धनम्नानुसार होगीिः-

पररवार का मुक्तखया

पधत/पत्नी धवधिक रूप से अपनाये गये दिक सन्तान
सधहत।

सन्तान जो पररवार के मुक्तखया पर पूणम रूप से आधश्रत
हो।

अधववाधहत, धवधिक रूप से पृथक और धविवा बेटी,
और

पररवार के मुक्तखया पर पूणम रूप से आधश्रत
माता/धपता"

8. The issue of consideration for
appointment of widowed dauther-in-law was
before Full Bench of this Court in the case of
U.P. Power Corporation Ltd. (supra), which
clearly states that widowed daughter-in-law is
having better right than the daughters as
included
in
Government
Order
dated
05.08.2019. Relevant paragraph of the said
judgment is quoted below:-

"We must, however, note one feature
of the definition of the word 'family' as generally
contained in most Rules. The definition of
'family' includes wife or husband; sons;
unmarried and widowed daughters; and if the
deceased was an unmarried government servant,
the brother, unmarried sister and widowed
mother dependant on the deceased government
servant. It is, therefore, clear that a widowed
daughter in the house of her parents is entitled
for
consideration
on
compassionate
appointment. However, a widowed daughter-inlaw in the house where she is married, is not
entitled for compassionate appointment as she is
not included in the definition of 'family'. It is not
possible to understand how a widowed daughter
in her father's house has a better right to claim
appointment on compassionate basis than a
widowed daughter-in-law in her father-in-law's
house. The very nature of compassionate
appointment is the financial need or necessity of
the family. The daughter-in-law on the death of
her husband does not cease to be a part of the
family. The concept that such daughter-in-law
must go back and stay with her parents is
abhorrent to our civilized society. Such
daughter-in-law must, therefore, have also right
to be considered for compassionate appointment
as she is part of the family where she is married
and if staying with her husband's family. In this
context, in our opinion, arbitrariness, as
presently existing, can be avoided by including
the daughter-in-law in the definition of 'family'.
Otherwise, the definition to that extent, prima
facie, would be irrational and arbitrary. The
State, therefore, to consider this aspect and take
appropriate steps so that a widowed daughterin-law like a widowed daughter, is also entitled
for consideration by way of compassionate
appointment, if other criteria is satisfied.

Learned Chief Standing Counsel to forward
a copy of this order to the Secretary of the
concerned Department in the State Government
for appropriate consideration."

9. This ratio of law has been followed by
this Court in the cases of Smt. Sudha Jain and
Smt. Geeta Srivastava (supra).

10. In the present case, after death of late
Mahadei Devi, out of three family members,
who are dependants (widowed daughter-in-law
and two minor daughters), only petitioner is
11 All. Shiva Kant Vs. State of U.P. & Ors.
475
major in the age to submit application for
allotment of fair price shop under succession
after death of her mother-in-law. She had
applied for the same, but rejected only on the
ground that widowed daughter-in-law is not
covered within the 'family'. Ratio of law given in
Full Bench in the case of appointment is fully
applicable in the present case also and daughterin-law, widowed or not, is having better right
than daughter, who is included in the definition
of 'family' in Paragraph IV(10) of the
Government Order dated 05.08.2019.

11. Therefore, under such facts of the case
and legal proposition, I find no good reason to
sustain the impugned order dated 17.06.2021 as
well as Paragraph IV(10) of Government Order
dated 05.08.2019 so far as it excludes daughterin-law, widowed or not, within the definition of
'family'.

12. Accordingly, the writ petition is
allowed. Let a writ of certiorari be issued
quashing the impugned order dated 17.06.2021
passed by respondent no. 3 and modifying the
Paragraph IV(10) of the Govrnment Order dated
05.08.2019 to the extent to include daughter-inlaw, widowed or not, within the definition of
'family'. A writ of mandamus be issued directing
the respondent no. 1 Secretary, Food and Civil
Supplies, Government of U.P., Lucknow to issue
fresh Government Order or modification in
Government Order dated 05.08.2019 including
daughter-in-law, widowed or not, within the
definition of 'family' .

13. Learned Chief Standing Counsel is
directed to send a copy of this order to
respondent no. 1 Secretary, Food and Civil
Supplies, Government of U.P., Lucknow for
issuance of fresh/modified Government Order at
the earliest, maximum within a period of four
weeks from the date of receiving of copy of this
order. In case Department of Food and Civil
Supplies is having posting of Additional Chief
Secretary or Principal Secretary, they are
responsible to ensure the compliance of this
order for issuance of fresh Government Order or
modification in the Government Order dated
05.08.2019.

14. Petitioner is also given liberty to serve
the certified copy of this order before the
respondent no. 1, Secretary, Food and Civil
Supplies, Government of U.P., Lucknow for
compliance.

15. Thereafrter, the respondent no. 3 is
directed to reconsider the application of the
petitioner afresh and pass appropriate order in
accordance with fresh/modified Government
Order within two weeks thereafter.
----------
(2021)12ILR A475
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 22746 of 2021

Shiva Kant ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Awtar, Mahabir Yadav

Counsel for the Respondents:
C.S.C., Azad Rai

A. UP Zamindari Abolition & Land Reform Act,
1950 - Section 161 - UPZA & LR Rules, 1952 -
Rules 144 &146 - Exchange of private land
with land of Gaon Sabha - Permissibility - No
notice of any resolution of Gaon Sabha in the
impugned order - Effect - Held, experience
shows that Section 161 of the U.P.Z.A. & L.R.
Act are often prone to abuse, lands are often
exchanged under political considerations much
to the detriment of the Gaon Sabha and public