# Raghvendra Tiwari v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-03
- **Case number:** Misc. Single No. 1383 of 2020
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghvendra-tiwari-v-state-of-u-p-ors-45707
- **Pages:** 9

## Headnote

Sale & Distribution Control) Act-sec. 13(1)-
challenging-order-cancelling his candidaturefor allotment of-fair price shop-on the ground
that-violation of principles of Natural Justicefound to be ineligible-as he is brother of gram
pradhan-a disqualification-it would-revive-an
illegal order-opposed to public policy-petition
dismissed.

B. Held, Writ jurisdiction is a discretionary
jurisdiction and a writ of certiorari would not
ordinarily be issued as a matter of course. It
has been settled by the Hon'ble Supreme Court
that an order impugned does substantial justice
between the parties, even if it does not strictly
follow niceties of law, may still not be set aside
on mere showing of irregularity in procedure,
or want of jurisdiction. Reference can be made
to the judgment rendered by the Hon'ble
Supreme Court in the case of J.P. Builders V. A.
Ramadas Rao, Civil Appeal Nos.9821-9822 of
2010 decided on 22.11.2010. The Hon'ble
Supreme Court has also held in the case of
Chandra Singh and Others Vs. State of
Rajasthan and Another reported in 2003 (6)
4 All. Raghvendra Tiwari Vs. State of U.P. & Ors.
53
 SCC 545, that an order which appears to be
illegal, may not be set aside and writ of
certiorari may not issue only to revive an illegal
order as it would be opposed to public policy.
In case, this Court grants the prayer made by
the petitioner and quashes the order dated
29.11.2019, on the ground that the petitioner
was not heard, it would only revive an illegal
order of allotment of Fair Price Shop to the
petitioner on 19.05.2018 as the petitioner has
been found to be ineligible to even put forward
his candidature so long as his brother Shri
Malendra
Tewari
remained
sitting
Gram
Pradhan of the village concerned.

List of cases cited:-

## Text

52 INDIAN LAW REPORTS ALLAHABAD SERIES
petition and has merely deposed that the
petitioner was heard before the Advisory
Board.

12. In paragraph 9 of the counter
affidavit sworn by one Padmakar Shukla,
Under
Secretary,
Home
(Confidential)
Department, U.P. Civil Secretariat, Lucknow
and filed on behalf of the State of U.P., has
merely stated that the petitioner was informed
by the State Government vide letter dated
03.05.2018 that he could attend the hearing
before the U.P. Advisory Board, Lucknow
along with his next friend (non-advocate).

13. Thus, there is no denial in the counter
affidavit of either of the respondents that at the
time of hearing of the case before the U.P.
Advisory Board, Lucknow, officers of the
detaining authority were present and heard in
the course of proceedings.

14. This infirmity being fatal renders the
impugned order legally unsustainable as held
in A. K. Roy (supra) :-

"If the detaining authority or the
Government takes the aid of a legal
practitioner or legal adviser before the
Advisory Board, the detenu must be allowed
the facility of appearing before the Board
through a legal practitioner. If it is denied to
him then a clear case of breach of Article 14 is
made out in favour of detenu. Since the
expression "legal practitioner" was interpreted
in A. K. Roy (supra) to include even the
officers of the Government when they appear
before the Board to assist the proceedings
against the detenu, the detenu too has to be
provided with equal facility of appearing
before the Board through legal practitioner."

15. In view of the above, the impugned
order cannot be sustained and is liable to be
set-aside.

16. These are the reasons upon which we
had set-aside the impugned order dated
13.04.2018 passed by the respondent no. 2,
District Magistrate, Muzaffar Nagar.
----------
(2020)02ILR A52
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 1383 of 2020

Raghvendra Tiwari ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dilip Kumar Pandey, Akhilesh Kumar

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. U.P Essential Commodities (Regulation of
Sale & Distribution Control) Act-sec. 13(1)-
challenging-order-cancelling his candidaturefor allotment of-fair price shop-on the ground
that-violation of principles of Natural Justicefound to be ineligible-as he is brother of gram
pradhan-a disqualification-it would-revive-an
illegal order-opposed to public policy-petition
dismissed.

B. Held, Writ jurisdiction is a discretionary
jurisdiction and a writ of certiorari would not
ordinarily be issued as a matter of course. It
has been settled by the Hon'ble Supreme Court
that an order impugned does substantial justice
between the parties, even if it does not strictly
follow niceties of law, may still not be set aside
on mere showing of irregularity in procedure,
or want of jurisdiction. Reference can be made
to the judgment rendered by the Hon'ble
Supreme Court in the case of J.P. Builders V. A.
Ramadas Rao, Civil Appeal Nos.9821-9822 of
2010 decided on 22.11.2010. The Hon'ble
Supreme Court has also held in the case of
Chandra Singh and Others Vs. State of
Rajasthan and Another reported in 2003 (6)
4 All. Raghvendra Tiwari Vs. State of U.P. & Ors.
53
 SCC 545, that an order which appears to be
illegal, may not be set aside and writ of
certiorari may not issue only to revive an illegal
order as it would be opposed to public policy.
In case, this Court grants the prayer made by
the petitioner and quashes the order dated
29.11.2019, on the ground that the petitioner
was not heard, it would only revive an illegal
order of allotment of Fair Price Shop to the
petitioner on 19.05.2018 as the petitioner has
been found to be ineligible to even put forward
his candidature so long as his brother Shri
Malendra
Tewari
remained
sitting
Gram
Pradhan of the village concerned.

List of cases cited:-

1. Indrapal Singh Vs. State of U.P. and Others
reported in 2014 (123) RD 504

2. Ram Murat Vs. State of U.P. and others
reported in 2006 (5) ADJ 396

3. Phool Patti Vs. Ram Singh 2009 (13) SCC 22

4. Shiv Kumar Vs. Up-Ziladhikari Chakiya,
District Chandauli and four Others decided on
20.08.2014 in Writ C-No.40973 of 2014.

5. Yogendra Singh Vs. State of U.P. through
Principal Secretary and Others in Writ Petition
No.23298
(M/S)
of
2016
decided
on
27.09.2016.

6. Virendra Singh vs Commissioner, Allahabad
Division, 2006(24) LCD 1132

7. J.P. Builders V. A. Ramadas Rao, Civil Appeal
Nos.9821-9822 of 2010 decided on 22.11.2010.

8. Chandra Singh and Others Vs. State of
Rajasthan and Another reported in 2003 (6)
SCC 545
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
parties and perused the record.

2. This petition has been filed by the
petitioner challenging the order dated
29.11.2019 passed by the opposite party
no.2-Dy. Commissioner (Food), Ayodhya
Division, Ayodhya, in Appeal No.16 of
2019, under Section 13 (1) of U.P.
Essential Commodities (Regulation of Sale
and Distribution Control), Order, 2016,
hereinafter referred to as the 2016 order.

3. It has been submitted by the
learned counsel for the petitioner that he is
a Resident of Village Dewai, Post
Dayodhi,
Block &
Tehsil
Sohawal,
District Ayodhya, and he participated in
the selection process for appointment of
Fair Price Shop License for the said Gram
Sabha.
Agenda
was
circulated
on
11.03.2018 for an open general meeting
held on 04.04.2018. The meeting was held
on
04.04.2018
in
the
presence
of
Observers appointed by the opposite party
nos.5 & 6-i.e. the Assistant Development
Officer,
Panchayat
and
Assistant
Development Officer (ST) and two Sub
Inspectors of the concerned police station.
The petitioner and one Ram Bhawan had
putforward
their
candidature.
Ram
Bhawan raised an objection to the
candidature of the petitioner on the ground
that the petitioner is the brother of Village
Pradhan and thus ineligible. The petitioner
submitted that he was living separately and
his family has been given a separate page
in the Family Register/Parivar Register of
the village concerned. The Candidature of
the petitioner was accepted and he was
recommended in the said meeting of the
Gram Sabha by a Resolution dated
04.04.2018 The matter was sent to the
S.D.M. who placed the same before Tehsil
Level
Committee
where
again
the
objection of Ram Bhawan was considered
regarding ineligibility of the petitioner,
the petitioner was thereafter allotted the
Fair Price Shop of the village Dewai. The
order of allotment dated 19.05.2018
54 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly stated that the objections raised by
Ram
Bhawan
was
found
to
be
inappropriate in view of legal advice given
by the DGC (Civil), Faizabad, with regard
to the applicability of Government Order
dated 03.07.1990.

4. The opposite party no.7 one Prem
Kumar being aggrieved by the order dated
19.05.2018 filed an Appeal before the
Commissioner and it was registered as
Appeal No.16 of 2019 under Section 13 of
the 2016 order.

5. It has been submitted that after
filing of the Appeal, although the
petitioner was arrayed as Respondent, no
notice was issued to him and he was not
heard. The opposite party no.7 had raised
two grounds in the Appeal one relating to
the Coram of the open general meeting of
the Gram Sabha held on 04.04.2018 and
the second related to ineligibility of the
petitioner under the Government Order
dated 03.07.1990. It has been submitted
that the opposite party no.7 had no locus to
file the delayed Appeal, and Appellate
Authority has arbitrarily allowed the
Appeal by the order dated 29.11.2019.

6. It has been submitted by the
learned counsel for the petitioner that the
finding
recorded
by
the
Appellate
Authority regarding the Government Order
dated 03.07.1990 and Government Order
dated 17.08.2002 are misconceived, as the
opposite party no.2 has not considered the
fact that the Parivar Register showed the
petitioner to be living separately and the
report of the concerned Revenue Officials
also showed the petitioner to be living
separately from his brother who was the
sitting Gram Pradhan. Learned counsel for
the petitioner has also stated vehemently
that the petitioner was not heard by the
Appellate Authority at all and the
appellant Prem Kumar had no locus to file
the Appeal.

7.

Learned
Standing
Counsel
appearing for the State-respondents has
stated that under Paragraph 13 (1) of the
2016 Order, any person aggrieved against
the allotment, suspension or cancellation
of Fair Price Shop may file an Appeal. The
opposite party no.7 was the resident of
Gaon Sabha and a Card Holder entitled for
receiving
the
benefits
of
essential
commodities to be distributed from the
Fair Price Shop of the village concerned.
He had thus locus to file the Appeal.

8. It has also been submitted by the
learned Standing Counsel that the order
passed by the Appellate Authority is on
the whole just, as it is based on the law as
declared by this Court in its various
judgments regarding the definition of
"FAMILY" and "HOUSEHOLDS".

9. Having heard the learned counsel
for the parties this Court has gone through
the order impugned. It is evident therefrom
that two grounds were taken with regard to
the challenge of the allotment order dated
19.05.2018 by the appellant therein.
Firstly, that the open general meeting held
on 04.04.2018 of the Gram Sabha
concerned had not been held in accordance
with the Rules for holding such meeting. It
was found from a perusal of record
summoned by the Appellate Authority that
no Agenda was circulated publicly as no
copy of the Agenda Notice was present in
the file. Moreover, the voting was
allegedly done by raising of hands but in
the recommendation/proposal of the Gaon
Sabha there was no mention that who
raised hand in favour of Ram Bhawan and
who raised hand in favour of the
4 All. Raghvendra Tiwari Vs. State of U.P. & Ors.
55
petitioner-Raghvendra Tewari. The open
general meeting was held against Rule 32
of the U.P. Panchayat Rules framed under
the Act. The Appellate Authority relied
upon the judgment rendered by this Court
reported in 2016 (1) 33 RD 46 to make an
observations with regard to the illegality of
the procedure adopted in holding the open
general meeting dated 04.04.2018.

10. The Appellate Authority has also
gone through the copies of the two pages
of the Parivar Register filed at Page nos.
58 and 60 of the lower court record, and
found therefrom that Raghvendra Tewari
was the real brother of the sitting Gram
Pradhan Shri Malvendra Tewari. The
report of the Revenue Officials stated that
they both lived in the same house. The
petitioner Raghvendra Tewari was found
ineligible in terms of Paragraph 4.7 of the
Government Order dated 03.07.1990 and
in terms of the Provisions of Government
Order No.2715/29-6-2002-162-SAA/ 2001
dated 17.08.2002. The appointment of the
petitioner was found to have been made
against the settled position in law as given
in judgments of the High Court reported in
2019 (142) RD 553 and 2019 (37) LCD
757. The order dated 19.05.2018 was set
aside and a direction was issued to the
S.D.M. Sohawal, to get a meeting held of
the Gram Sabha Dewai within a period of
two months for appointment of a new Fair
Price Shop Licensee.

11. Learned counsel for the petitioner
has stated at the bar that after this order
was issued by the Appellate Authority,
order was passed by the S.D.M. Sohawal,
Ayodhya on 18.12.2019, cancelling the
Fair Price Shop License of the petitioner
and attaching the Ration Cards to the link
shop of one Bhawan Kumar of Gram
Panchayat
Theyuanga,
Development
Block Sohawal and a direction was issued
to
the
Block
Development
Officer,
Sohawal to get an open general meeting of
the Gram Sabha concerned held and to
ensure recommendation is made for
allotment of Fair Price Shop to some other
candidate
in
accordance
with
the
provisions of the new Government Order
dated 05.08.2019.

12. A copy of the order dated
18.12.2019 has been produced before this
Court by the learned counsel for the
petitioner which is kept on record. From a
perusal thereof, it is evident that the same
has been passed as a consequence to the
order passed by the Appellate Authority
allowing the Appeal of the opposite party
no.7.

13. With regard to the locus of the
opposite party no.7, who filed the Appeal,
it has rightly been submitted by the
learned Standing Counsel that any person
aggrieved by an order of allotment can file
an Appeal in this case. The opposite party
no.7 was a resident of the village
concerned and a Ration Card Holder. The
objection of the petitioner regarding the
maintainability of the Appeal on ground of
locus is, therefore, misconceived.

14. With regard to ground taken by
Appellate authority regarding ineligibility
of the petitioner, this Court finds that the
judgment rendered by full Bench of this
Court in Indrapal Singh Vs. State of U.P.
and Others reported in 2014 (123) RD
504, has clearly held that a brother, even
though living separately, would still come
within the definition of family, and would,
therefore, be subject to the disqualification
under Paragraph 4.7 of the Government
Order
dated
03.07.1990
as
further
explained in the Government Order dated
56 INDIAN LAW REPORTS ALLAHABAD SERIES
17.08.2002 and the Government Order
dated 17.05.2010.

15. A Division Bench in the case of
Ram Murat Vs. State of U.P. and others
reported in 2006 (5) ADJ 396, had taken a
different view that although came within
the definition of family his license could
be cancelled only in the event if it was
found that he had been dining together and
had been staying under the same roof.

16. The Full Bench did not
appreciate the observations made by the
Division Bench in Ram Murat, with regard
to the definition of family members
including a brother but the brother not
being ineligible as he did not dine together
nor stayed under the same roof as the
sitting Pradhan. The Full Bench of this
Court made the following observations in
Paragraph Nos.49 to 53 of the report.

"49. The term 'family' and
'household' are capable of wide and
varying meaning and same cannot be left
to be assigned a meaning in its general
terms and same has to be interpreted in
reference to the context it has been used
keeping in view the overall object and
purpose sought to be achieved.

50. The question as to whether
incumbents are living together and are
dining together shall always essentially be
question of fact always giving a room to
an incumbent to handle the situation and
manipulate the situation and in order to
remove all the doubts to be more precise
in the matter of appointment of an agent a
clear cut categorical policy decision has
been taken at the first instance that
Pradhan/Up-pradhan and their relatives
so specified cannot be appointed as agents
and secondly when Pradhan/Up-pradhan
or such category of relatives in case they
are elected as Pradhan or Up-pradhan,
then his/her agency in question has to be
terminated. The State has deliberately and
intentionally defined "family" in the said
context so that there is no element of doubt
left on the spot that such category of
incumbents who happen to be the blood
relations and relations on account of
marriage and also on account of dining
and messing together on being elected,
then the near and dear one will have to
lose 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 order plus members who are
residing and dining together, whereas the
definition of household keeps within its
fold, the one who normally eat food
prepared in the same kitchen. All the
incumbents who fall within the definition
of family may or may not be a member of
household, in such a situation and in this
background, the State having the absolute
authority to formulate the policy for fixing
the terms and conditions of appointment of
agent as well as the terms and conditions
for disqualification of agent the definition
of family has to be seen in the said context
and "household" has to be read in the
context of issuance of ration card and in
no other context under the scheme of
things provided for. In the matter of
according of agency and in the matter of
incurring
disqualification
on
relative
being elected as Pradhan or Up-pradhan,
there is no escape route and agency has to
be cancelled.

51. Accordingly, this Court is of
the view that there is no conflict
whatsoever in between the provisions of
Clause 2 (o) Clauses 30 and 31 of U.P.
Scheduled
Commodities
Distribution
Order, 2004 vis.a.vis with the definition of
4 All. Raghvendra Tiwari Vs. State of U.P. & Ors.
57
"family" as given in Government Order
dated 3rd July, 1990 paragraph 4.7 and
the Division Bench in Ram Murat's case
2006 (5) ADJ 396, defining the word
"family" as given in Government Order
dated 3rd July, 1990, Paragraph 4.7 lays
down
the
correct
law,
even
after
enforcement of Control Order 2004,
except to the extent of introducing concept
of joint residence and joint kitchen in
reference
of
Brother,
whereas
the
definition of family is clearly inclusive of
brother also and the definition of family as
given in Clause 2 (o) of U.P. Scheduled
Commodities Distribution Order, 2004 in
no way would override the definition of
family given in Paragraph 4.7 of the
Government Order dated 3rd July, 1990
and the said definition has to be read in
the context of issuance of ration cards and
nothing beyond the same.

52. The Full Bench proceeds to
clarify that in the case of Ram Murat
(supra) the brother has been taken outside
the scope of the defined family members as
it has been mentioned therein that agency
would be cancelled only in the event if
brother is found that he has been dining
together and has been staying under the
same roof.

53. The Full Bench does not
approve of the aforementioned portion of
judgment in the case of Ram Murat
(supra), inasmuch as, it is running
contrary to the spirit of the Government
Order dated 3rd July, 1990 and the
purport and intention of Government
Order when it proceeds to define the
family
members
in
the
matter
of
engagement as well as disqualification of
agent as himself, wife, son, unmarried
daughter, mother, father, brother or any
other member who stays together and who
shares common kitchen, then by no stretch
of imagination as per the spirit of
aforementioned
Government
Order
brother could have been disjuncted from
the definition of family members and could
have been clubbed with such category of
members who were residing together and
dining together. The definition of family
members is specific i.e. inclusive of
himself, wife, son, unmarried daughter,
mother, father, brother or any other
member who stays together and dines
together in the common kitchen. "Or"
word is normally disjunctive and same in
its natural sense denotes an alternative,
and intention of using such a word has to
be gathered from its context. Here
contextual situation clearly reflects that
self, wife, son, unmarried daughter,
mother, father, brother are identified class
of family members, and on anyone of them
being elected as Pradhan/Up-pradhan, the
agency will have to be terminated/
cancelled. Not only this, other members
who are residing and dining together, on
their being also elected as Pradhan/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 re-write the definition, and
58 INDIAN LAW REPORTS ALLAHABAD SERIES
specially when same on its plain reading is
clear and categorical, with no ambiguity
worth name. Apex Court in the case of
Phool Patti Vs. Ram Singh 2009 (13) SCC
22 has clearly ruled that Courts cannot
add words to statute, or change its
language, particularly when on plain
reading meaning becomes clear. In view of
this, the definition of family which includes
brother cannot be read in a fashion to
exclude brother from defined family
members and throw him and club him in
the category of any other member, who
has been staying together and has been
dining together, in view of this, the said
portion of the Ram Murat's Case (supra) is
not being approved of."
(emphasis supplied)

17.

It
is
evident
from
the
observations of the Full Bench that this
Court has considered the disqualification
for holding a Fair Price Shop. In case the
Licensee himself or his wife, Son,
Unmarried daughter, the Mother, Father,
Brother is elected, or is the sitting Gram
Pradhan, besides the such blood relatives,
a Daughter-in-law who is related by
marriage and who stayed together and who
shared the common Kitchen has also been
included in the definition of family, by a
Division Bench of this Court in Shiv
Kumar
Vs.
Up-Ziladhikari
Chakiya,
District Chandauli and four Others
decided on 20.08.2014 in Writ CNo.40973 of 2014.

18. In the case of Shiv Kumar
(Supra), the Division Bench held that
where the Daughter-in-law had been
elected as Gram Pradhan and the Fair
Price Shop License had been given to the
Mother-in-law on compassionate ground
after the death of her husband, the
erstwhile Licensee, but the Mother-in-law
would still attract the disqualification as
envisaged under Clause 4.7 of the
Government Order dated 03.07.1990 as
she was enjoying common Kitchen with
Daughter-in-law after the death of her
husband.

19. The observations made by the
Hon'ble Division Bench with regard to the
object
sought
to
be
achieved
by
mentioning this condition of ineligibility
are relevant to be quoted hereinbelow:-

"Even otherwise a fair price
shop licence is a measure of public
distribution
system
which
is
now
contemplated under the Constitution of
India to be a function of the local body. It
is not a mere right to run the business of a
fair price shop by any individual. Apart
from this, the prohibitions that have been
mentioned
in
Clause
4.7
of
the
Government Order dated 3.7.1990 is to
prevent any monopoly in the hands of the
Gram Pradhan or the relatives of such
office holder. It is in order to prevent any
favouritism
or
nepotism
that
such
prohibitions have been engrained by
making
the
definition
of
the
word
household
and
family
extensive
as
explained by the full bench in the case of
Indrapal Singh (supra).".

20. Learned counsel for the petitioner
during the course of arguments has
referred to a judgment passed by a Coordinate Bench of this Court in Yogendra
Singh Vs. State of U.P. through Principal
Secretary and Others in Writ Petition
No.23298 (M/S) of 2016 decided on
27.09.2016. This Court has carefully
perused the said judgment and after
referring to the answers given by the Full
Bench, in Indrapal Singh (Supra) to the
question referred to it as follows:-
4 All. Raghvendra Tiwari Vs. State of U.P. & Ors.
59

"(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 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."

21. The Co-ordinate Bench of this
Court has observed as under:-

"Thus,
the
Full
Bench
categorically held that Clause 4.7 of the
government order dated 3.7.1990, as
modified by the government order dated
18.7.2002, as far as a definition of 'family'
is concerned, is divided into two parts -
the first part consists of the 'blood
relations such as son, father, daughter
etc.' and this part is not dependent upon
the condition that the members should be
dining and residing together. The second
part consists of other relatives who are
included in the definition of 'family', if they
are found to be dining and residing
together. The full bench considered
exclusion of the relationship of brother
from the first part and held it to be
contrary to the letter and spirit of the
government
order
dated
3.7.1990.
Accordingly
it
included
the
said
relationship by judicial mandate in the
first part of the definition of 'family'
meaning thereby this relationship was held
not to be dependent upon the condition of
dining and residing together.

In view of the Full Bench
decision there is hardly any doubt that a
father could not have been allotted the
fair-price-shop if the son was Gram
Pradhan, as this would be covered by the
first part of the definition based on blood
relationship.

As far as the contention of
learned counsel appearing for the opposite
party no.4 that the father was allotted the
shop prior to the election of the son as
Gram Pradhan is concerned the said plea
is also not available to him in view of the
government order dated 18.7.2002 which
says that if it had been allotted, even then,
it shall be cancelled. The said government
order was also considered by the Full
Bench Decision. As far as reliance placed
by learned Counsel appearing for opposite
party no.4 upon the Single Bench Decision
of this Court in Virendra Singh vs
Commissioner,
Allahabad
Division,
2006(24) LCD 1132, wherein it was held
that para 4.7 of the government order
dated 3.7.1990 would not apply to existing
licensee is concerned, this court finds
firstly, that the said judgement does not
take into consideration the modification of
para 4.7 of the government order dated
3.7.1990 by the subsequent government
order dated 18.7.2002 which leaves no
doubt about the policy of the government
which is applicable to existing licensees
also. Furthermore, a similar fact situation
existed in the case of Ram Murat and
others
vs
Commissioner
Azamgarh
Division, 2006 (5) ADJ 396 where the
brother had been allotted the fair-priceshop earlier and the family member had
60 INDIAN LAW REPORTS ALLAHABAD SERIES
been
elected
as
Gram
Pradhan
subsequently and it is in this case that a
reference was made to the Full Bench
which was considered in Indarpal Singh's
case (supra) and it was held that the
brother's
licence
was
liable
to
be
cancelled, therefore in view of the dictum
of the Full Bench the reliance placed by
the learned counsel for the opposite party
no.4 upon the judgement in Virender
Singh's case is misplaced and the
aforesaid plea is rejected."
(emphasis supplied)

22. Rather than supporting the case
of the petitioner the judgment in Yogendra
Singh (Supra) goes against the petitioner's
contention.

23. This Court has also considered
the arguments raised by the learned
counsel
for
the
petitioner
that
the
petitioner was never heard and the order
has been passed in violation of the
Principles of Natural Justice. This Court
finds from the order impugned, no
evidence that the petitioner was heard.
However, the Principles of Natural Justice
are not a straitjacket formula that have to
be applied in all cases irrespective of the
consequences. In this case, the petitioner
was ineligible to have participated in the
open general meeting and put-forward his
candidature for allotment of Fair Price
Shop of
the
village
concerned.
In
accordance with law settled by the Full
Bench of this Court in Indrapal Singh Vs.
State of U.P. (Supra), an objection was
raised by the contesting candidate which
was over-ruled. The contesting candidate,
thereafter, filed objection before the Tehsil
Level
Committee,
the
Tehsil
Level
Selection Committee sought advice of the
DGC (Civil) in the matter who gave a
misconceived advice, on the basis whereof
the petitioner was allotted the Fair Price
Shop License.

24.

Writ
jurisdiction
is
a
discretionary jurisdiction and a writ of
certiorari would not ordinarily be issued as
a matter of course. It has been settled by
the Hon'ble Supreme Court that an order
impugned does substantial justice between
the parties, even if it does not strictly
follow niceties of law, may still not be set
aside on mere showing of irregularity in
procedure,
or
want
of
jurisdiction.
Reference can be made to the judgment
rendered by the Hon'ble Supreme Court in
the case of J.P. Builders V. A. Ramadas
Rao, Civil Appeal Nos.9821-9822 of 2010
decided on 22.11.2010.

25. The Hon'ble Supreme Court has
also held in the case of Chandra Singh
and Others Vs. State of Rajasthan and
Another reported in 2003 (6) SCC 545,
that an order which appears to be illegal,
may not be set aside and writ of certiorari
may not issue only to revive an illegal
order as it would be opposed to public
policy. In case, this Court grants the prayer
made by the petitioner and quashes the
order dated 29.11.2019, on the ground that
the petitioner was not heard, it would only
revive an illegal order of allotment of Fair
Price Shop to the petitioner on 19.05.2018
as the petitioner has been found to be
ineligible
to
even put
forward
his
candidature so long as his brother Shri
Malendra Tewari remained sitting Gram
Pradhan of the village concerned.

26. The writ petition is, therefore,
dismissed. No order as to costs.
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(2020)02ILR A60
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2020