# Vivek Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-08
- **Case number:** Writ - C No. 3996 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-pandey-v-state-of-u-p-ors-51884
- **Pages:** 6

## Headnote

Law
-
order
rejecting
the
representation
of
the
petitioner
on
compassionate ground upon death of his
grandfather-under
challenge-GO
dated
05.08.2019 deals with allotment of fair
price shops-definition of family-same as in
Cluase 2(p) of the Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution
Control)
Order,
2016-
Government policy amended to include
daughter-in-law in the definition of familygrandson not included-policy not arbitraryno illegality in the impugned order-petition
dismissed. (Paras 15, 16, 18 and 21)

HELD:
This Court can make any interference in policy
laid down by the Government for compassionate
appointment of the dependants of deceased fair
price shop holders, only on the limited grounds
recognized by law in this regard. (Para 18)

As the Government has framed a policy for
compassionate appointment of dependants of
deceased fair price shop licensees by issuing the
Government Order dated 05.08.2019 and it has
decided to adopt the same definition of family for
the purpose of compassionate appointments as is
mentioned in Clause 2(p) of the Control Order,
2016, and when this Court interfered in some
matters to enlarge the scope of this definition,
the Government decided to amend the policy and
issued
another
Government
Order
dated
28.02.2022 so as to modify the definition of
family to the extent of including a daughter-inlaw, who is wholly dependent on the head of the
family and the Government did not think it proper
to include a Grand-son of the deceased also to be
eligible for compassionate appointment, this
policy of the Government cannot be said to be
arbitrary
or
unreasonable.
In
these
circumstances, this Court finds no good ground
to interfere in the Government's policy to as to
issue a direction for appointment of the Grandson of the deceased fair price shop owner on
compassionate ground. (Para 21)

Petition dismissed. (E-14)

List of Cases cited:

## Text

5 All. Vivek Kumar Pandey Vs. State of U.P. & Ors.
1785
Additional
Commissioner
(Judicial),
Lucknow Division, Lucknow are hereby
quashed.

19. However, it will be open for the
authorities to institute fresh proceedings
under the Ceiling Act against the petitioners,
in accordance with law.

20. The parties will bear their own
costs of litigation.
----------
(2024) 5 ILRA 1785
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ - C No. 3996 of 2024

Vivek Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pawan Kumar Pandey, Shashank Singh

Counsel for the Respondents:
C.S.C., Mohan Singh

Civil
Law
-
order
rejecting
the
representation
of
the
petitioner
on
compassionate ground upon death of his
grandfather-under
challenge-GO
dated
05.08.2019 deals with allotment of fair
price shops-definition of family-same as in
Cluase 2(p) of the Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution
Control)
Order,
2016-
Government policy amended to include
daughter-in-law in the definition of familygrandson not included-policy not arbitraryno illegality in the impugned order-petition
dismissed. (Paras 15, 16, 18 and 21)

HELD:
This Court can make any interference in policy
laid down by the Government for compassionate
appointment of the dependants of deceased fair
price shop holders, only on the limited grounds
recognized by law in this regard. (Para 18)

As the Government has framed a policy for
compassionate appointment of dependants of
deceased fair price shop licensees by issuing the
Government Order dated 05.08.2019 and it has
decided to adopt the same definition of family for
the purpose of compassionate appointments as is
mentioned in Clause 2(p) of the Control Order,
2016, and when this Court interfered in some
matters to enlarge the scope of this definition,
the Government decided to amend the policy and
issued
another
Government
Order
dated
28.02.2022 so as to modify the definition of
family to the extent of including a daughter-inlaw, who is wholly dependent on the head of the
family and the Government did not think it proper
to include a Grand-son of the deceased also to be
eligible for compassionate appointment, this
policy of the Government cannot be said to be
arbitrary
or
unreasonable.
In
these
circumstances, this Court finds no good ground
to interfere in the Government's policy to as to
issue a direction for appointment of the Grandson of the deceased fair price shop owner on
compassionate ground. (Para 21)

Petition dismissed. (E-14)

List of Cases cited:

1. Writ Petition No.2899 (MS) of 2015 (Ashok
Kumar Vs St. of U.P. through Principal Secretary,
Food & Rasad Department and two others

2. Kusumlata Vs St. of U.P., 2022 SCC OnLine All
1025

3. Shri Sitaram Sugar Co. Ltd. Vs Union of India,
(1990) 3 SCC 223

4. M.P. Oil Extraction Vs St. of M.P., (1997) 7 SCC 592

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Pawan Kumar Pandey,
learned counsel for the petitioner, Shri S.K.
1786 INDIAN LAW REPORTS ALLAHABAD SERIES
Khare, learned Standing Counsel for the
opposite parties no.1 to 4 and Shri Mohan
Singh, learned counsel of the opposite party
no.5.

2. By means of the instant petition, the
petitioner is seeking quashing of an order
dated 21.03.2024 passed by the opposite
party no.4- Sub-Divisional Magistrate,
Tehsil-Alapur, District - Ambedkar Nagar,
whereby the petitioner's representation for
being allotted Fair Price Shop of Village-
Manapur, Semra on compassionate ground
due to death of Srinath Pandey - the licensee
of the shop, has been rejected on the ground
that the petitioner being a grandson of the
deceased licensee, is not entitled to be
granted the license on compassionate
ground.

3. Earlier the petitioner had filed Writ
- C No.1280 of 2024 which was disposed of
by means of an order dated 12.02.2024
giving liberty to the petitioner to move a
representation to the opposite party no.4 and
in case such a representation was made, the
opposite party no.4 was directed to consider
and decide the same expeditiously by
passing a reasoned and speaking order.

4. While rejecting the petitioner's
representation,
the
Sub-Divisional
Magistrate, Alapur has stated in the
impugned order dated 21.03.2024 that
consequent to death of the fair price shop
owner Shri Srinath Pandey, his fair price
shop license was cancelled by means of an
order dated 04.04.2023. Shri Om Prakash
Pandey, son of Late Srinath Pandey, had
applied for allotment of the shop a as
dependent of the deceased fair price shop
owner, in accordance with the Government
Order dated 05.08.2019. The aforesaid
Government Order provides that in case of
death of a fair price shop owner, his
dependent may given an application for
allotment of the shop within 30 days of
death of the deceased fair price shop owner,
along with no objection certificate issued by
other adult members of the deceased family,
provided the applicant fulfills the eligibility
conditions for allotment of fair price shop.
The definition of family for this purpose
would include the following persons:-

(i) Head of the family;

(ii) Husband/wife and legally
adopted children;

(iii) Children fully dependent on
the head of the family;

(iv)
Unmarried,
judicially
separated and widowed daughter;

(v) Mother/Father, who are wholly
dependent on the Head of the Family.

5. The eligibility conditions for
allotment of a fair price shop is that the
candidate must have passed at least High
School or equivalent examination.

6. Shri Om Prakash Pandey son of the
deceased-licensee, did not possess this
eligibility qualification of having passed the
High School examination and, therefore, his
application could not be accepted.

7. Meanwhile, the petitioner filed Writ
- C No.1665 of 2004 in this Court which was
disposed of by means of the aforesaid order
dated
12.02.2024
and
thereafter
the
petitioner has applied for grant of a fair price
shop license under the provisions the
Government Order dated 05.08.2019, which
provides for grant of fair price shop license
to dependents of deceased fair price shop
licensee.

8. The petitioner's application has been
rejected on the ground that he is a grandson
of the deceased fair price shop licensee and
5 All. Vivek Kumar Pandey Vs. State of U.P. & Ors.
1787
the grandson is not included in the definition
of family given in the Government Order
dated 05.08.2019. Therefore, the applicant is
not entitled to be allotted a fair price shop as
dependent of the deceased fair price shop
licensee
under
provisions
of
the
Government Order dated 05.08.2019.

9. While challenging the validity of the
aforesaid order, learned counsel for the
petitioner has stated that in the judgment of
order dated 03.09.2020 passed by a
coordinate Bench of this Court in Writ
Petition No.13015 (MS) of 2020, this Court
had relied upon an earlier order dated
20.07.2016
passed
in
Writ
Petition
No.2899 (MS) of 2015 (Ashok Kumar vs.
State of U.P. through Principal Secretary,
Food & Rasad Department and two
others), wherein the Court had observed
that son of the deceased, fair price shop
licensee had predeceased him, the definition
of family can be enlarged and had directed
the competent authority to consider the
claim of a grandson of the deceased fair
price shop licensee. The learned counsel for
the petitioner has also placed reliance an
order dated 10.01.2022 passed by this Court
sitting at Allahabad in Writ - C No.32392
of 2021, wherein this Court relied on the
decisions of Ashok Kumar and Sunil
Kumar Yadav (supra) and held that
grandson was included in the definition of
family. The learned counsel for the
petitioner has also placed reliance on an
order dated 24.01.2024 passed by this
Court in Writ - C No.336 of 2024, wherein
this Court has followed the earlier order
passed in the case of Sunil Kumar Yadav
(supra).

10. A supplementary affidavit has
been filed by the petitioner stating that
during life time of the fair price shop
licensee, the petitioner, who is grandson,
used to work along with him and assist
him running the shop.

11. Per contra, the learned Standing
Counsel has submitted that the State
Government has framed a policy for grant
of fair price shop license to dependents of
deceased fair price shop owners on
compassionate ground, by issuing a
Government Order dated 05.08.2019. As a
matter of policy, the Government decided
that in case of death of a fair price shop
licensee, son of dependents, who are
members of his family and who fulfill the
other eligibility conditions, may be
considered for allotment of fair price shop
on compassionate basis. The family
members include head of the family,
husband/wife; children, including adopted
children, who are wholly dependent on
head of the family, unmarried, judicially
separated or widowed daughter and
parents, who are wholly dependents on the
head of the family. This does not include
any other person. Subsequently, numerous
orders were passed by this Court enlarging
the scope of family given in the
Government Order dated 05.08.2019.

12. The learned Standing Counsel has
placed before this Court a copy of the
Government
Order
dated
28.02.2022,
whereby besides the members of family
already
mentioned
in
the
earlier
Government Order dated 05.08.2019, the
daughter-in-law, who is wholly dependent
on the head of the family, has also been
included in the definition of the family.

13. The learned Standing Counsel has
submitted
that
after
taking
into
consideration various orders passed by this
Court, the State Government thought it
proper to modify its policy only to the extent
of inclusion of wholly dependent daughter-
1788 INDIAN LAW REPORTS ALLAHABAD SERIES
in-law definition of family and the State
Government did not include grandson of the
deceased fair price shop owner in the
definition of family. He further submitted
that neither the petitioner has challenged
validity of the Government Order dated
05.08.2019 or the subsequent Government
Order dated 28.02.2022, wherein the
grandson of the deceased fair price shop
owner have not been included in the
definition of family for the purpose of grant
of fair price shop license on compassionate
basis consequent to death of the fair price
shop licensee, nor can the policy be
challenged in absence of the same being
suffering from unreasonableness. He has
placed reliance on decision rendered by a
Division Bench of this Court sitting at
Allahabad in Special Appeal No.89 2022,
decided
on
21.02.2022,
wherein
the
Division Bench found that the policy does
not
suffer
from
any
Wednesburry
unreasonableness.

14. The learned Standing Counsel
further submitted that the definition of
family given in the Government Order dated
05.08.2019 is the same as given in Essential
Commodities (Regulation of Sale &
Distribution Control) Order, 2016.

15. 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:

"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.

16. In Kusumlata v. State of U.P.,
2022 SCC OnLine All 1025, the petitioner,
who was a married daughter of the deceased
fair price shop holder, had prayed for being
appointed in place of her father under the
dying in harness rule prescribed under U.P.
Essential Commodities Act (Rules and
Distribution Order, 2016). 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. The Single Judge
had dismissed the Writ Petition holding
that the petitioner being a married
daughter, was not residing in the village
and she was not eligible for being
appointed in place of her deceased father
on compassionate ground.

17. While upholding the decision of
the Single Judge, the Division Bench held in
Special Appeal that "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"
5 All. Vivek Kumar Pandey Vs. State of U.P. & Ors.
1789

18. This Court can make any
interference in policy laid down by the
Government
for
compassionate
appointment of the dependants of deceased
fair price shop holders, only on the limited
grounds recognized by law in this regard.

19. In Shri Sitaram Sugar Co.
Ltd. v. Union of India, (1990) 3 SCC 223,
the Hon'ble Supreme Court held that: -

"59....What is best for the sugar
industry and in what manner the policy
should be formulated and implemented,
bearing in mind the fundamental object of
the statute, viz., supply and equitable
distribution of essential commodity at fair
prices in the best interest of the general
public, is a matter for decision exclusively
within
the
province
of
the
Central
Government. Such matters do not ordinarily
attract the power of judicial review."

20. In M.P. Oil Extraction v. State of
M.P., (1997) 7 SCC 592, it was laid down
that: -

"41....The executive authority of
the State must be held to be within its
competence to frame a policy for the
administration of the State. Unless the
policy framed is absolutely capricious and,
not
being
informed
by
any
reason
whatsoever, can be clearly held to be
arbitrary and founded on mere ipse dixit of
the
executive
functionaries
thereby
offending Article 14 of the Constitution or
such policy offends other constitutional
provisions or comes into conflict with any
statutory provision, the Court cannot and
should not outstep its limit and tinker with
the policy decision of the executive
functionary of the State. This Court, in no
uncertain terms, has sounded a note of
caution by indicating that policy decision is
in the domain of the executive authority of
the State and the Court should not embark
on the unchartered ocean of public policy
and should not question the efficacy or
otherwise of such policy so long the same
does not offend any provision of the statute
or the Constitution of India. The supremacy
of each of the three organs of the State i.e.
legislature, executive and judiciary in their
respective fields of operation needs to be
emphasised. The power of judicial review of
the executive and legislative action must be
kept within the bounds of constitutional
scheme so that there may not be any
occasion to entertain misgivings about the
role of judiciary in outstepping its limit by
unwarranted judicial activism being very
often talked of in these days. The democratic
set-up to which the polity is so deeply
committed cannot function properly unless
each of the three organs appreciate the need
for mutual respect and supremacy in their
respective fields."

21. As the Government has framed a
policy for compassionate appointment of
dependants of deceased fair price shop
licensees by issuing the Government Order
dated 05.08.2019 and it has decided to adopt
the same definition of family for the purpose
of compassionate appointments as is
mentioned in Clause 2(p) of the Control
Order, 2016, and when this Court interfered
in some matters to enlarge the scope of this
definition, the Government decided to
amend the policy and issued another
Government Order dated 28.02.2022 so as
to modify the definition of family to the
extent of including a daughter-in-law, who
is wholly dependant on the head of the
family and the Government did not think it
proper to include a Grand-son of the
deceased
also
to
be
eligible
for
compassionate appointment, this policy of
the Government cannot be said to be
1790 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrary
or
unreasonable.
In
these
circumstances, this Court finds no good
ground to interfere in the Government's
policy to as to issue a direction for
appointment of the Grand-son of the
deceased
fair
price
shop
owner
on
compassionate ground.

22. There is no illegality in the
impugned order dated 21.03.2024 passed by
the opposite party no. 4 rejecting the
petitioner's
claim
for
compassionate
appointment as a fair price shop licensee
consequent to the death of the petitioner's
grand-father.

23. The Writ Petition lacks merits
and the same is dismissed.
----------
(2024) 5 ILRA 1790
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Writ - C No. 4036 of 2024

Smt. Binu Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vivek Kumar Verma, Shalini Gupta

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

Civil Law - revenue law-fisheries lease
executed
between
husaban
dof
the
petitioner and revenue authorities for a
period of 10 years- husband of the
petitioner
died-authorities
refused
to
accept payment of rent by the petitionerSection 108 of U.P. Revenue Code, 2006Rules 58 and 59 of Rule 2016-every lease
conferred under Rule 58 shall be deemed to
be an agricultural lease-succession order
under Section 108 of the Code applicablehusband
of
the
petitioner
being
a
government lessee-covered under section
108 of the Code-petitioner being his widow
is entitled to succeed his leasehold rightssection 4(2) of the U.P. Revenue CodeAgriculture includes pisciculture-direction
issued to grant benefits of succession to
the petitioner-Petition allowed. (Paras 7, 8,
11 and 12)

HELD:
This Court has gone through section 108 which
provides for general order of succession to male
bhumidhar, asami, Government lessee and a widow
has a right for such succession. Under Rule 59 of
the Rules of 2016 also every lease conferred under
Rule 58 shall be deemed to be a lease for
agricultural purpose. Therefore, if such lease is
considered to be a lease for agricultural purposes,
then the general order of succession mentioned
under Section 108 could apply. (Para 7)

In Smt. Gyan Mati & Others Vs St. of U. P. & ors.,
bearing Misc. Bench No. 27765 of 2016 a Division
Bench of this Court while considering the relevant
provisions of the U.P. Revenue Code and the
Rules framed thereunder referred to Section 108
of the Code which provides the general order of
succession to a male bhumidhar, asami and
Government lessee and observed that under
Section 108 there are three categories of persons
whose rights in land holdings are to devolve upon
their heirs in terms of the provisions contained
therein and these categories are; (i) bhumidhar,
(ii) asami and (iii) Government lesseet. (Para 8)

The petitioner's late husband being covered
under Section 108 of the Revenue Code, being an
allottee of a Government lease, the order of
succession as given thereunder needs to be
followed. The petitioner being a widow is entitled
to succeed to the leasehold rights of her dead
husband. (Para 11)

We are fortified in our view also by the definition
given of "agriculture" in Sub-Section 2 of Section
4 of the U.P. Revenue Code, 2006 where
agriculture is defined to include horticulture,