Karnataka High Court
Jai Bharath Fair Price Shop vs The Principal Secretary To Government on 21 September, 2021
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.2880 OF 2021(GM-PDS)
BETWEEN:
JAI BHARATH FAIR PRICE SHOP,
REP BY ITS OWNER,
SRI.SYED KHALEEL,
S/O LATE SYED MAHMOOD,
AGED ABOUT 57 YEARS,
R/AT NO.E.W.S.618,
1ST STAGE HUDCO,
BANNIMANTAP,
MYSURU - 570 015. ...PETITIONER
(BY SMT. AYESHA UNNISA, ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY TO
GOVERNMENT OF KARNATAKA,
DEPARTMENT OF FOOD AND CIVIL SUPPLIES,
VIKASA SOUDHA,
BENGALURU - 560 001.
2. THE DEPUTY COMMISSIONER,
MYSURU DISTRICT,
MYSURU DISTRICT - 570 007.
3. THE TAHSILDAR,
MYSURU TALUK,
MYSURU DISTIRCT - 570 007.
4. THE DEPUTY DIRECTOR,
FOR FOOD AND CIVIL SUPPLIES DEPARTMENT,
MYSURU TALUK,
MYSURU DISTRICT - 570 007.
5. THE ASSISTANT DIRECTOR,
FOR FOOD AND CIVIL SUPPLIES DEPARTMENT,
2
MYSURU TALUK,
MYSURU DISTRICT - 570 007. ...RESPONDENTS
(BY SRI. VINOD KUMAR, AGA FOR R1-R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS FROM THE OFFICE OF THE RESPONDENTS AND
QUASH THE IMPUGNED ORDER DATED 22.10.2016 PASSED BY
THE R-2 VIDE ANNX-G RESPECTIVELY AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING-
B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner, a Fair Price Depot owner is knocking at the doors of writ court for assailing the order dated 22.10.2016 made by the 2nd respondent at Annexure-G to the extent that his Ration Cards have been diverted to another Depot on the ground that the Card Holding has fallen below the prescribed minimum number; he has also another grievance that as a consequence of diversion of Ration Cards, the authorization and the licence to run his shop have not been renewed despite request & reminder.
2. After service of notice, the learned AGA appearing for the official respondents vehemently opposes the Writ Petition making submission in justification of the impugned order and the reasons on which it has been structured; he 3 contends that in terms of policy enacted in para 11(3)(c) of the PDS Control Order, 2016, where the number of Ration Cards depletes below the minimum prescribed, the same have to be shifted to other depot and this having been done, petitioner cannot complain against the same; he also adds that when there are no Ration Cards allocated to petitioner's depot, the question of renewing the authorization/licence to run the depot would not arise; so contending he seeks dismissal of the writ petition.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant a limited indulgence in the matter as under and for the following reasons:
(a) Petitioner's Fair Price Depot was being run since decades and sans complaints from any quarters, is not much in dispute; petitioner's Card Holding has depleted below the prescribed minimum, cannot be disputed; consequently, petitioner's cards have been shifted to another depot is true;
such an exercise can be undertaken by the authorities in terms of paragraph 11(3)(c) of the PDS Control Order, 2016, is also true; however, matter does not end here. 4
(b) The impugned Official Memorandum issued by the respondent-Deputy Commissioner enlists as many as 46 Fair Price Depots of whom 44 are from Mysore city, which obviously includes that of the petitioner ie., Sl.No.4 therein; where the Ration Card Holding depletes under the prescribed minimum, it cannot be argued that the same Fair Price Depot should continue to distribute ration; the existence of power is one thing and its exercise another; the existence is not in question; however, what is challenged is the exercise of power; there is force in the vehement submission of the learned counsel for the petitioner that the respondents ought to have ensured minimum damage after exploring all alternate avenues; the authorities could have with due diligence shifted the Ration Cards of some of these depots from the other so that at least few of them would survive; this aspect having not animated the impugned order, there is a legal infirmity that it suffers from.
(c) There is yet another aspect which is lost sight of by the official respondents; out of the 44 Fair Price Depots in the city of Mysore, obviously some of them would have Card Holding much above the minimum prescribed and sometimes 5 a little above the maximum as well; even here a distributive justice could have been done by adjusting the cards so that a few of the depots from whom the cards have been now shifted can be revived; this having not been done, the impugned order has another infirmity.
(d) The Apex Court in the case of MODERN DENTAL COLLEGE & RESEARCH CENTRE vs. STATE OF MADHYA PRADESH & OTHERS, (2016) 7 SCC 353 has laid down the norms of doctrine of proportionality; the statutory authorities have to make all reasonable efforts to ensure that minimum prejudice is caused to the citizens by working out several options available in a given fact situation; the powers cannot be mechanically exercised without exploring the possibilities of alternatives; thus the contentions at (b) & (c) above can be founded on the doctrine of proportionality.
(e) There is also some force in the submission of the learned counsel for the petitioner that merely because the Ration Cards have been shifted to another Fair Price Depot, his request for renewal of authorization/licence cannot be kept pending; the renewal, if done, the petitioner gains entry to the zone of consideration for seeking allotment of Ration 6 Cards by way of shifting or otherwise in the circumstances mentioned above; otherwise, petitioner cannot have the advantage of claiming the shift.
In the above circumstances, this Writ Petition succeeds; the respondent-Deputy Commissioner is directed to consider petitioners' claim for renewal of authorization/licence in terms of PDS Control Order, 2016; a direction also issues to him to undertake the exercise of apportionment of Ration Cards in the light of the discussion hereinabove made, with the participation of all the stakeholders; all contentions in this regard are kept open.
Time for compliance is eight weeks; delay if brooked would amount to contempt of the court and entail the answering respondents with heavy costs, in addition to other penal consequences.
Now, no costs.
Sd/-
JUDGE cbc