# Smt. Kusumlata v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-21
- **Case number:** Special Appeal No. 89 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusumlata-v-state-of-u-p-ors-48300
- **Pages:** 7

## Headnote

A. Civil Law - Essential Commodities Act,
1955
-
Section
3
-
UP
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Fair
price
licence
-
Compassionate
appointment - Agent - Condition that the
applicant must be resident of locality,
imposed - Effect - GO dated 05.08.2019 -
Term 'family include unmarried daughter,
but not married daughter - Validity
challenged on the basis of its being hit by
Article 14 - Held, basic object and purpose
of the aforesaid Control Order 2016 is the
distribution of foodgrains and scheduled
commodities in an area through agents for
the
benefit
of
people,
particularly
economically
weaker
section
of
the
society - Held further, looking into the
object and purpose of Public Distribution
System, use of the words 'unmarried
daughter' in the definition of the word
'family' given in the Government Order,
2019, is not discriminatory. (Para 12 and
14)
Special Appeal dismissed. (E-1)

## Text

4 All. Smt. Kusumlata Vs. State of U.P. & Ors.
705
Authority within a month carrying the
following terms:

(i) The tenants shall handover peaceful
and vacant possession of the demised shop
to the landlord;

(ii) During the aforesaid period of
time, the tenants will not sub-let the
demised shop or permit any third person to
occupy it; and,

(iii) During the aforesaid period of
three months, the tenants shall not damage
or disfigure the demised shop in any
manner.

29. In the event an undertaking is not
filed on affidavit within a month in the
above terms, the release order passed by
the Prescribed Authority shall become
executable forthwith.
----------
(2022)04ILR A705
APPEELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal No. 89 of 2022

Smt. Kusumlata ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Dubey, Sri Arvind Srivastava

Counsel for the Respondents:
C.S.C.

A. Civil Law - Essential Commodities Act,
1955
-
Section
3
-
UP
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016 - Fair
price
licence
-
Compassionate
appointment - Agent - Condition that the
applicant must be resident of locality,
imposed - Effect - GO dated 05.08.2019 -
Term 'family include unmarried daughter,
but not married daughter - Validity
challenged on the basis of its being hit by
Article 14 - Held, basic object and purpose
of the aforesaid Control Order 2016 is the
distribution of foodgrains and scheduled
commodities in an area through agents for
the
benefit
of
people,
particularly
economically
weaker
section
of
the
society - Held further, looking into the
object and purpose of Public Distribution
System, use of the words 'unmarried
daughter' in the definition of the word
'family' given in the Government Order,
2019, is not discriminatory. (Para 12 and
14)
Special Appeal dismissed. (E-1)
(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Jayant Banerji, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the appellant-petitioner
and Sri Girish Vishwakarma, learned
standing counsel for the State-respondents.

2. This special appeal has been filed
praying to set aside the judgment and order
dated 29.11.2021 in Writ-C No.21935 of
2021 (Smt. Kusumlata vs. State of U.P. and
2 others) passed by the learned Single
Judge.

3. The aforesaid writ petition was
filed by the petitioner praying for the
following relief:

"(i) Issue a writ, order or direction in
the nature of Mandamus commanding the
respondent no. 2 S.D.M. Bharthana District
Etawah to consider the claim of the
petitioner for compassionate appointment
of under the U.P. Essential Commodities
Act (Rules and Distribution Order, 2016).
706 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Issue a writ, order or direction in
nature
of
Mandamus
directing
the
respondent no.2 to appoint the petitioner as
dealer in place of her father at Newadi
Khurd, Nyay Panchayat-Aheripur, BlockMaheva, Pargana- Bharthana, District
Etawah under the dying in harness rule
prescribed
under
U.P.
Essential
Commodities Act (Rules and Distribution
Order, 2016)."

4. Learned counsel for the appellantpetitioner states that subsequently, by
means of an amendment application,
challenge to the constitutional validity of
Clause IV(10) of the Government Order
dated
05.08.2019
defining
the
word
''family', was also made. By the impugned
judgment, the learned Single Judge has
dismissed the writ petition observing as
under:

"32. But the present dispute is in
regard to allotment of a dealership of fair
price shop on the death of father of
petitioner, who is married and residing at a
different village. The authorities had not
refused to grant dealership to the eligible
dependents of the deceased Nekram. The
argument raised by learned counsel as to
legal representative as provided in Section
2 (II) of the Code of Civil Procedure which
includes the petitioner does not have any
relevance in present scenario as the
existence of dealership arises out of an
agreement between the parties. Once the
agreement has come to an end on the death
of Nekram the license can only be granted
on fulfilling the conditions laid down in the
Government Order dated 05.08.2019. Subclause 5 of Clause IV categorically
provides that applicant has to be local
resident.

33. The concept of allotting dealership
to a local resident is firstly that he is
acquainted with the most of the card
holders as they are living in same village
and secondly his availability in attending
and running the fair price shop. The
Government as well as the Apex Court have
recognized that right to food is part of
Article 21 of the Constitution. In case,
dealership is given to an outsider who is
unable to run the fair price shop due to
his/her unavailability the very purpose for
enacting the Act of 2013 and Control Order
of 2016 would be rendered otiose.

34. That Sub-clause 5 of Clause IV of
the government order of 2019 specifically
provides that applicant should be a local
resident. Petitioner is admittedly a resident
of a different village, and not of the village
where the fair price shop is to be allotted.
The validity of the said condition of the
government order has not been challenged
in the writ petition, and only challenge has
been
made
to
declare
the
word
"unmarried" as unconstitutional from the
definition of family prescribed under Subclause 10 of Clause IV.

35. Once the government order
specifically provides the applicant to be the
resident of the same village where the shop
has to be allotted, no such allotment can be
made to an outsider. The argument of
petitioner's counsel that married daughter
should also be included in the definition of
the word "family", in the present scenario
cannot be accepted as the license is
granted only on the fulfillment of the
conditions
prescribed
under
the
government order of 2019. Petitioner being
not able to fulfill the essential conditions
cannot be granted such license.

36. More so, the Control Order of
2016 does not make any distinction
between the sons and daughters of a license
holder, as in case of Rule 2 (c) of the
Dying-in-Harness Rules. The definition of
family occurring in the Control Order of
4 All. Smt. Kusumlata Vs. State of U.P. & Ors.
707
2016 as well as the government order of
2019 embraces the word "dependant
child", which also includes the dependant
father and mother. Argument that married
daughter had been excluded creates gender
bias cannot be accepted, as the very
purpose is the distribution of food grains to
the card holders attached to the ration shop
situated in village. Once the daughter of a
licensee is married outside the village, she
cannot continue to run the fair price shop
and distribute ration. The sole purpose of
enacting the Act of 2013 and the Control
Order of 2016 is that the food reaches the
last person of the society and a licensee
being only an agent of the State through
which the target is achieved by both the
Central
Government
and
the
State
Government.

37. Having considered the facts and
circumstances of the case, this Court finds
that no ground is made for declaring the
word "unmarried" as unconstitutional from
the definition of family provided under Subclause 10 of Clause IV of the Government
Order dated 05.08.2019.

38. Writ petition fails and is hereby
dismissed."

5. Learned counsel for the appellant
petitioner submits that merely because the
petitioner is a married daughter, she cannot
be discriminated in the matter of allotment
of Fair Price Shop. Such discrimination is
hit by Article 14 of the Constitution of
India. He relied upon a Division Bench
judgment of this Court in Writ-C No.60881
of 2015 (Smt. Vimla Srivastava vs. State of
U.P. and another) decided on 04.12.2015.

6. Learned standing counsel supports
the impugned judgment.

7. We have carefully considered the
submissions of the learned counsels for the
parties and perused the record of the writ
petition.

8. The Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution
Control)
Order,
2016
(hereinafter referred to as ''the Control
Order, 2016') was framed by the State
Government
in
exercise
of
powers
conferred under Section 3 of the Essential
Commodities Act, 1955 with the object of
maintaining the supplies of foodgrains and
other
essential
commodities
and
for
securing its equitable distribution at fair
prices
under
the
targetted
Public
Distribution System. Clause 2(p) of the
Control Order, 2016 defines the word
''family' as under:

(p)

"Family" means group of following
persons-
- Head of the family
- Husband/wife, including legally
adopted children.
- Adult children, who are fully
dependent on the head of the
family.
- Unmarried, legally separated and
widow daughters; and
- Fully dependent mother/ Father,
of the head of the family.

9. Clause 2(b) of the Control Order,
2016 defines the word ''agent' to mean a
person
or
cooperative
society
or
a
corporation of the State Government
authorised to run a Fair Price Shop under
the provisions of this Control Order. Clause
7 of the Control Order 2016 provides as
under:

Appointment 7- (1) and
regulation of fair price
shops.-
With a view to
affecting fair
distribution of
708 INDIAN LAW REPORTS ALLAHABAD SERIES

foodgrains
and scheduled
commodities
the
State
Government
shall
issue
directions
under section3 of the Act to
such number
of fair price
shop
in
an
area and in
the manner as
it deems fit.
(2)
(i)-
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.
(ii)- A person
appointed to
run
a
fair
price
shop
under
sub
clause ( I )
shall act as
the agent of
the
State
Government.
(iii)- A person
appointed to
run
a
fair
price
shop
under
sub
clause ( 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.
(3)
The
Food
Commissioner
shall
ensure
that
the
number
of
ration
card
holders
attached to a
fair
price
shop
are
reasonable,
the fair price
shop
is
so
located
that
the consumer
or ration card
holder
does
not have to
face difficulty
to reach the
fair
price
shop and that
proper
coverage
is
ensured
in
hilly,
desert,
4 All. Smt. Kusumlata Vs. State of U.P. & Ors.
709
tribal
and
such
other
areas difficult
to access.
(4)
The
State
Government
shall fix an
amount as the
fair
price
shop owner's
margin, which
shall
be
periodically
reviewed for
ensuring
sustained
viability of the
fair
price
shop
operations.
(5)
The
Food
Commissioner
shall put in
place
a
mechanism to
ensure
the
release of fair
price
shop
owner's
margin
without
any
delay
(6)
The
State
Government
shall
allow
sale
of
commodities
other than the
foodgrains
and
other
scheduled
commodities
distributed
under
the
Targeted
Public
Distribution
System at the
fair
price
shop
to
improve
the
viability of the
fair
price
shop
operations.

10. In exercise of powers conferred
under Clause-15 of the Control Order,
2016, the State Government issued a
Government Order No.6/2019/1358/29-62019-162lk0/2001,
dated
05.08.2019
(hereinafter referred to as ''the Government
Order, 2019') for selection of Fair Price
Shops agents and reservation. Clause IV of
the Government Order, 2019 provides for
eligibility conditions for selection of Fair
Price Shop agents in rural areas. SubClause 5 of Clause IV provides that the
applicant should be a resident of the
locality. Sub-Clause 10 of Clause IV of the
Government Order, 2019 reproduces the
definition of the family given in the Control
Order, 2016.

11. Clause 7- (1) of the Control
Order, 2016 provides that with a view to
affecting fair distribution of foodgrains and
scheduled
commodities,
the
State
Government shall issue directions under
Section-3 of the Act to such number of fair
price shop in an area and in the manner as
it deems fit. Sub-Clause 2(i)/(ii) of Clause
7 of the Control Order, 2016 provides that a
fair price shop shall be run through such
person and in such manner as the Collector,
subject
to
directions
of
the
State
Government, may decide and a person
appointed to run a fair price shop under
sub-clause (1) shall act as the Agent of
the State Government.
710 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Basic object and purpose of the
aforesaid Control Order 2016 is the
distribution of foodgrains and scheduled
commodities in an area through agents
for the benefit of people, particularly
economically weaker section of the society.
Such agents are required to distribute
allocated foodgrains under the targeted
Public Distribution System to eligible
house-holds in an area and for that purpose,
an eligibility condition has been attached
by sub-clause (5) of Clause IV of the
Government Order, 2019 that an applicant
for fair price shop should be resident of
the locality, i.e. the locality for which fair
price shop has been created for fair
distribution of foodgrains and essential
commodities in that locality.

13. As per own case of the petitioner,
she was married long ago with one Sri
Harnam Singh and is resident of Village and
Post Rajpur, Tehsil Chakarnagar, District
Etawah whereas the Fair Price Shop in
question is of Village Nivadi Khurd, Tehsil
Khurd, District Etawah. The agent of the
aforesaid Fair Price Shop in question was the
father of the petitioner, namely Sri Nekram
who died on 15.02.2021 leaving behind his
wife Smt. Suman Devi, sons namely
Bhupendra Pratap Singh (date of birth
15.02.2000), Karvendra Pratap Singh (date of
birth 06.07.2003) and Devendra Pratap Singh
(date of birth 05.07.2006). The aforesaid wife
of the deceased Fair Price Shop Agent
applied for the Fair Price Shop in question
but subsequently she moved an application
dated 31.05.2021 that she is unable to run the
Fair Price Shop and, therefore, it may be
allotted to her daughter, i.e. the petitioner.
The application of the aforesaid Suman Devi
(wife of the deceased agent), was considered
and it was rejected by the Committee headed
by the S.D.M. Bharthana vide order dated
26.06.2021.

14. The facts as briefly mentioned
above, clearly show that the petitioner is
not eligible as she is not the resident of the
locality of the Fair Price Shop in question.
That apart, looking into the object and
purpose of Public Distribution System, the
definition of the word ''family' as given in
the Government Order, 2019 is neither
arbitrary nor discriminatory. That apart, the
aforesaid definition is merely reproduction
of the definition of the word ''family' given
in the Control Order, 2016, which has not
been challenged by the petitioner. The use
of the words ''unmarried daughter' in the
definition of the word ''family' given in the
Government
Order,
2019,
is
not
discriminatory. The provisions of the
Government Order, 2019 cannot be viewed
or interpreted in the manner the provisions
of The U.P. Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 has been interpreted by
Division Bench in the case of Smt. Vimla
Srivastava (supra).

15. For all the reasons afore-stated,
we do not find any illegality in the
impugned order passed by the learned
Single Judge. Neither the word ''unmarried'
used in the definition of the word ''family'
as defined under the Government Order,
2019 is discriminatory nor the petitioner is
eligible for appointment as fair price shop
agent inasmuch as she is not resident of the
locality where the Fair Price Shop in
question is established and thus, she does
not even fulfil basic eligibility criteria
provided
in
Clause
IV(5)
of
the
Government Order, 2019.

16. For all the reasons afore-stated,
we do not find any merit in this special
appeal. Consequently, the Special Appeal
is dismissed.
----------
4 All. Sonu Kumar Yadav Vs. State of U.P. & Ors.
711
(2022)04ILR A711
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIVEK VARMA, J.

Civil Misc. Review Application No. 93 of 2021
In Special Appeal No. 755 of 2019

Sonu Kumar Yadav ...Appellant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Appellant:
Sri Sudhakar Pandey

Counsel for the Opp. Parties:
C.S.C.

A. Practice and Procedure - Review -
Scope of interference - Special appeal and
writ petition arising out of claim for
appointment on compassionate ground
was dismissed on merit, review against
which filed - Re-argument on the merit of
the matter - Permissibility - Held, Review
is not an appeal in disguise. Rehearing of
the matter is impermissible in the garb of
review - It is an exception to the general
rule that once a judgment is signed or
pronounced, it should not be altered (Para
5 and 11)
Review application dismissed. (E-1)
List of Cases cited :-
1. Thungabhadra Industries Ltd. Vs The
Government of Andhra Pradesh; AIR 1964 SC
1372
2. Aribam Tuleshwar Sharma Vs Aribam Pishak
Sharma; 1979 (4) SCC 389
3. Meera Bhanja Vs Nirmala Kumari Choudhury;
AIR 1995 SC 455
4. Parsion Devi & ors. Vs Sumitri Devi & ors.;
1997 (8) SCC 715
5. Rajendra Kumar Vs Rambai; AIR 2003 SC
2095
6. Lily Thomas Vs U.O.I.; AIR 2000 SC 1650
7. Inderchand Jain Vs Motilal; (2009) 4 SCC 665
8. Kamlesh Verma Vs Mayawati & ors.; 2013 (8)
SCC 320
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Vivek
Varma, J.)

1.

By
way
of
this
Review
Application, applicant, Sonu Kumar Yadav,
has sought review of the judgment and
order dated 2.7.2019 passed by this Court
(Coram: Justice Govind Mathur and Justice
Vivek Verma) in Special Appeal No.755 of
2019 (Sonu Kumar Yadav Vs. State of U.P.
and others).

2. Factual matrix of the case is that
Sri Rajendra Prasad Yadav father of the
appellant-petitioner while holding the post
of
Constable
in
Provincial
Armed
Constabulary
(PAC)
37th
Battalion,
Kanpur availed five days emergency leave.
He did not return to the duties after
completion of leave period. Looking to the
continuous unauthorized absence, a notice
was issued to Sri Rajendra Prasad Yadav
for initiating disciplinary action against him
and he was placed under suspension under
an
order dated
30th
August,
2005.
Disciplinary proceedings too were initiated
and by the order dated 15th May, 2006 he
was dismissed from service.

3. A missing report was filed by the
present
appellant-petitioner
at
Police
Station Kotwali Bansdeeh. A civil suit
then was filed to have a declaratory decree
relating to death of Sri Rajendra Prasad
Yadav being not seen from a period of
more than seven years. On having such
declaration,
the
appellant-petitioner