Calcutta High Court (Appellete Side)
Gokul Chandra Das & Anr vs The State Of West Bengal And Others on 20 September, 2021
20.09.2021
Item Nos. 25-27
Crt.No.11
K.B. M.A.T. 1033 of 2021
I.A. No.CAN 1 of 2021
Gokul Chandra Das & Anr.
-versus-
The State of West Bengal and others.
With
MAT 1034 of 2021
I.A. No.CAN 1 of 2021
Ashoke Kumar Gayen & Ors.
-vs-
The State of West Bengal & Ors.
With
MAT 1035 of 2021
I.A. No.CAN 1 of 2021
Mrityunjoy Garang & Ors.
-vs-
The State of West Bengal & Ors.
(Via Video Conference)
Mr. Saptangsu Basu
Mr. Pingal Bhattacharyya
... For the appellants in MAT 1033 of 2021.
Mr. S.N. Mookherjee, Ld. A.G.
Mr. Arinban Ray, Ld. G.P.
Mr. Sanjay Basu
Mr. Sirsanya Bandopadhyay
Mr. Arka Nag
Mr. Piyush Agarwal
Mr. Utsha Dasgupta
Mr. Rajarshi Dutta
... For the State-respondents in MAT 1033 of 2021.
Mr. Sagar Bandopadhyay Mr. Triptimoy Talukdar ...... for the appellant in MAT 1034 of 2021. Mr. S.N. Mookherjee, Ld. A.G. Mr. Arinban Ray, Ld. G.P. Mr. Sanjay Basu Mr. Sushovan Sengupta Mr. Piyush Agarwal Mr. Arka Kumar Nag Mr. Utsha Dasgupta Mr. Rajarshi Dutta Mr. Subir Pal ... For the State-respondents in MAT 1034 of 2021. 2 Mr. Joydip Kar Mr. Debrata Saha Roy Mr. Sagar Bandopadhyay Mr. Pingal Bhattacharyya Mr. Subhankar Das Mr. Neil Basu ..... for the appellants in MAT 1035 of 2021. Mr. S.N. Mookherjee, Ld. A.G. Mr. Arinban Ray, Ld. G.P. Mr. Sanjay Basu Mr. Sushovan Sengupta Mr. Arka Nag Mr. Piyush Agarwal Mr. Utsha Dasgupta Mr. Manas Sadhu Mr. Rajarshi Dutta ... For the State-respondents in MAT 1035 of 2021. Mr. Ajay Chaubey Ms. Shakshi Rathi ...... for the Union of India in all three appeals. The short question which has arisen for consideration conjointly in these appeals and, in respect of which arguments have been presented to this Court at this stage, is as to whether the Judgement and order of the Hon'ble Single Bench dated 15th September, 2021 in the writ petition being WPA 14013 of 2021 is required to be stayed and, so also the "Duare Ration Scheme" (for short, the Scheme) in respect of which Guidelines have been announced by the Department of Food and Supplies, Government of West Bengal for the month of September, 2021.
The Hon'ble Single Bench had, inter alia, held that the Scheme meant for ensuring delivery of foodgrains at 3 the doorsteps of the beneficiaries/consumers, is not in violation of the statutory provisions and, is in consonance with the welfare measures required to be taken in an overall pandemic environment. The writ petition was also dismissed on the factual ground that the delivery mechanism in the present digital age envisages reaching out to the beneficiaries/consumers at the point where it is most suitable for such beneficiaries/consumers to obtain access to the goods/the foodgrains.
Mr. Kar, Mr. Basu, Mr. Saha Roy and Mr. Bandopadhyay, learned Counsel and learned Senior Counsel appearing for the appellants in the three analogous appeals assisted by their learned Counsel and instructing Advocates in the order of their appearances as printed in the cause title above have, inter alia, principally argued that the appellants as licence holders of Fair Price Shop (FPS) are entitled to be treated in accordance with the statutory provisions which, respectively are the Essential Commodities Act, 1955 (for short ECA) and the National Food Security Act, 2013 (NFSA).
It is submitted that the duty of the State Government is to lift foodgrains at the depots and reach them to fixed FPS shoprooms from where such foodgrains are to be collected by the beneficiaries/consumers. It is submitted that the FPS licence holders cannot be treated as ordinary traders for delivering the foodgrains since the 4 principles behind their licence, which are also the principles behind the Public Distribution System, are circumscribed by statute, viz. the ECA and the NFSA.
Referring to several provisions of the ECA and NFSA, the further point is taken by the appellants that even a welfare measure in the name of a pilot project cannot exceed the contours of the statute. The concept of doorstep distribution is not a condition of licence.
On the factual aspect it is pointed out that the FPS shop owners shall be held liable for any mal-distribution of foodgrains. Apart from the above, issues connected to compensation and protection from looting during distribution have been collectively raised on behalf of the appellants.
Arguing for the State-respondents, learned Advocate General points out that the very shape of the Scheme is shown to be as a pilot project which has to ensure last mile delivery of foodgrains. The very concept of a pilot project read with the guidelines in the nature of a Scheme envisages that the same can be finetuned as the Scheme progresses.
It is submitted that the emphasis of NFSA, which is the legislation holding the field connected to public 5 distribution of foodgrains is, on providing access to quality and quantity foodgrains for living a life of dignity.
The details of the Scheme are in consonance with the object of the NFSA and, the State is in the process of obtaining realtime feedback on the quality and extent of coverage of the new distribution process.
Learned Advocate General provides some statistics to back up the aforesaid argument and they are as follows:-
That the pilot scheme involves fifteen percent of the total number of dealers. The said fifteen percent of dealers, counted numerically, would stand at around 3100 out of which 3043 have willingly participated in the pilot scheme. 16.8 lac ration cardholders comprising 4.05 lac families have already benefitted from the pilot project in the month of September, 2021 alone.
It is therefore submitted that the intention of the NFSA to maximise targeted distribution of foodgrains is in motion and therefore, there is no reason at this interim stage for such pilot project to be nixed.
Having heard the parties and considering the materials placed, at this interim stage the attention of this Court is drawn to the Objects and Reasons of the 6 NFSA which underscores ensuring access to quality and quantity foodgrains. To the mind of this Court, the comfort and convenience of the appellants as licencees of FPS, again at this stage, must yield to the larger public interest for ensuring that the Objects of the NFSA are achieved.
This Court is also of the view that notwithstanding the necessity of ultimately reading the pilot project aka the Scheme within the four corners of the statutory provisions, i.e. the ECA and the NFSA, the arguments advanced by the appellants of the Scheme being perverse and subversive of the statutory mandate must await a not-too-distant ultimate consideration on merits.
Prima facie therefore, this Court is unable to accept the proposition that the Scheme is/are the Statute(s) itself. In such a premise, the issues in the writ petition and, hence this appeal, require an ultimate judicial engagement inter se the parties.
In other words, the Scheme being in the nature of a State-run project which must not be repugnant to the Central legislation in the field, the State has to discharge the onus of ultimately proving compatibility of the former with the latter. Such proof would undoubtedly lie in the details.
In the backdrop of the above discussion, the prayer for an interim order stands refused at this stage. 7
Points on being allowed to place the cause-of-action on behalf of the appellants/writ petitioners in representative capacity and, questioning the maintainability of the appeals/writ petitions as respectively taken by the appellants and the State- respondents be kept open.
All the three appeals along with the Cross-Objection filed by the State respondents shall be finally and analogously heard.
Let Affidavit-in-Opposition be filed within six weeks; Reply within two weeks thereafter.
Liberty to mention for enlistment strictly upon notice to each other after the period granted to exchange affidavits is complete.
All parties to act on a gist of the communication of this order.
All parties shall also act in terms of a copy of the order downloaded from the official website of this Court.
Urgent xerox certified copy of this order, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kesang Doma Bhutia, J.) - (Subrata Talukdar,J.)