Rajasthan High Court - Jaipur
Rajendra vs State Of Raj & Ors on 22 October, 2011
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER 1. Rajendra Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8377/2010) 2. Vijay Kumar Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8222/2011) 3. Devendra Kumar Jat Vs. State of Rajsthan & Others (S.B.Civil Writ Petition No.10866/2010) 4. Himmat Singh Vs. State of Rajsthan & Others (S.B.Civil Writ Petition No.17145/2010) 5. Bhujpal Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.770/2011) 6. Megh Ram Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.771/2011) 7. Shri Ram Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.982/2011) 8. Kalyan Sahai Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.983/2011) 9. Roop Singh Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.984/2011) 10. Man Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.985/2011) 11. Bharat Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.986/2011) 12. Teeka Ram Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.987/2011) 13. Nand Kishore Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.1017/2011) 14.Mahila Bahuudheshya Sahakari Samiti Vs. State of Raj.& Others (S.B. Civil Writ Petition No.7982/2011) 15.Dubra Mahila Bahuudheshya Sahakari Samiti Vs. State of Raj.& Ors. (S.B. Civil Writ Petition No.7983/2011) 16.Mahila Bahuudheshya Sahakari Samiti Vs. State of Raj.& Others (S.B. Civil Writ Petition No.7984/2011) 17.Mahila Bahuudheshya Sahakari Samiti Vs. State of Raj.& Others (S.B. Civil Writ Petition No.8144/2011) 18. Bhawani Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8223/2011) 19. Sikander Lal Arora Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8224/2011) 20. Guru Dayal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8225/2011) 21. Mukesh Babu Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8226/2011) 22. Naresh Kumar Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8228/2011) 23. Narbada Devi Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8229/2011) 24. Jagdish Prasad Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8232/2011) 25. Roop Singh Solanki Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8233/2011) 26. Juhuru Khan Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8234/2011) 27. Raghuveer Prasad Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8235/2011) 28. Jagdish Gurjer Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8236/2011) 29. Rajendra Singh Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8237/2011) 30. Amar Chand Agarwal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8238/2011) 31. Mohan Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8240/2011) 32. Rajendra Kumar Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8241/2011) 33. Shankar Prasad Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8242/2011) 34. Jagdish Prasad Gupta Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8243/2011) 35. Laxmi Devi Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8244/2011) 36. Banwari Lal Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8245/2011) 37. Jagdish Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8246/2011) 38. Ramavtar Meena & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8263/2011) 39. Jhooti Devi & Ors. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8292/2011) 40. Gopal Ram Gupta Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8400/2011) 41. Dinesh Chand Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8402/2011) 42. Bhagwan Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8406/2011) 43. Omawati Chaudhary Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8407/2011) 44. Jai Ram Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8408/2011) 45. Pooran Singh Rajput Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8421/2011) 46. Rajesh Kumar Saini Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8428/2011) 47. Banwari Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8429/2011) 48. Yad Ram Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8448/2011) 49. Chimman Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8449/2011) 50. Mool Chand Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8450/2011) 51. Mukesh Kumar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8451/2011) 52. Rati Ram Gurjar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8452/2011) 53. Jalaya Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8454/2011) 54. Jale Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8455/2011) 55. Amar Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8457/2011) 56. Rajendra Singh Rajput Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8458/2011) 57. Kailash Devi Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8459/2011) 58. Prakash Chand Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8460/2011) 59. Surgyan Singh & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8472/2011) 60. Chhaju Ram Meena & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8473/2011) 61. Lal Singh & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8474/2011) 62. Govind Narayan Khatik Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8575/2011) 63. Bhoop Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8576/2011) 64. Ramji Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8578/2011) 65. Ram Prasad Bairwa & Ors. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8579/2011) 66. Mohar Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8581/2011) 67. Kudiya Ram Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8585/2011) 68. Surendra Kumar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8586/2011) 69. Amar Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8587/2011) 70. Hoshiyar Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8588/2011) 71. Pratap Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8592/2011) 72. Jay Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8602/2011) 73. ramesh Chand Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8620/2011) 74. Balvindra Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8630/2011) 75. Yad Ram Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8631/2011) 76. Madan Lal Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8632/2011) 77. Ganga Lahri Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8633/2011) 78. Somotaya Ram Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8634/2011) 79. Jakir Hussain Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8636/2011) 80. Smt. Maya Devi Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8644/2011) 81. Heera Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8645/2011) 82. Banwari Lal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8646/2011) 83. Jagdish Prasad Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8650/2011) 84. Laxmi Chand Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8653/2011) 85. Omi Singh Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8658/2011) 86. Bodu Ram Sharma Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8659/2011) 87. Amar Chand Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8661/2011) 88. Banwari Lal Yadav Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8662/2011) 89. Pooran Mal Saini Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8663/2011) 90. Subhash Chand Gupta Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8664/2011) 91. Dharmendra Kumar Agarwal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8665/2011) 92. Nathu Ram Panchal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8666/2011) 93. Bharama Meena Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8667/2011) 94. Ram Pal Saini Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8669/2011) 95. Manoj Kumar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8673/2011) 96. Hasan Mohd. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8693/2011) 97. Shri Chand Goyal Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8694/2011) 98. M/s.Parmand Ashok Kumar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8697/2011) 99. Ramotar Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8707/2011) 100.Devendra Kumar Jain & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8788/2011) 101. Munnu Lal Meena & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8789/2011) 102. Radhika Mahila Bahuudhesya Samiti Vs.State of Raj. & Others (S.B. Civil Writ Petition No.8971/2011) 103. Smt.Kesar Devi Meena & Anr. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.10363/2011) 104. Mahila Sahakari Samiti Ltd. Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.11435/2011) 105. Kishan Chand Vs. State of Rajsthan & Others (S.B. Civil Writ Petition No.8037/2011) 106. Kimat Rai Sharma & Ors. Vs. State of Rajsthan & Others 9S.B. Civil Writ Petition No.8395/2011) Writ Petitions under Article 226 of the Constitution of India. Date of Order: October 22, 2011. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. R.N. Mathur, Senior Advocate] for the petitioners. Mr. Manu Bhargava ] Mr. Rishi Kumar Sharma ] Mr. Bachu Singh Gurjar ] Mr. Shashi Bhushan Gupta ] Mr. Lokesh Sharma ] Mr. Keshav Agrawal ] Mr. V.S. Chauhan ] Mr. Raj Kamal Gaur ] Mr. N.A. Naqvi, AAG ] for the State. Mr. Dinesh Yadav, AAG ] Mr. Krishna Verma, G.C.] BY THE COURT:
Since all these writ petitions raise a common issue, therefore, the same are being decided by a common order.
Writ petition No.8377/2010 is being taken as a lead case and facts therein shall be referred to, for the adjudication of the common issue, which arises in the present bunch of writ petitions.
A challenge has been laid to the orders dated 4-5-2010, and 7-6-2010, respectively whereby the District Collector (Supply) Alwar has, in the first instance issued an order appointing various Mahila Cooperative Societies in district Alwar for running of fair price shops, and thereafter appointed the respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar for running fair price shop in 1/4th geographical area/ territorial jurisdiction of Gram Panchayat Kherli Rail, Kathumar District Alwar.
The facts of the case are that the petitioner was allotted in the year 1991 a fair price shop under Rajasthan Foodgrains & other Essential Articles (Regulation of Distribution) Order 1976 (herein after `Order 1976') for sale/ distribution of essential commodities in 1/3rd geographical area fall within the jurisdiction of Gram Panchayat Kherli Rail, Kathumar District Alwar. The petitioner's case is that since 1991 he was carrying out distribution of essential commodities with reference to ration cards issued to holders by the competent authority. The further case is that with reference to extant policy of State Government one fair price shop was to be allotted with reference to 500 ration cards or for every 2000 unitsa unit being an adult or a child who is entitled to receive foodgrains or any other essential articles on a ration card, as defined in Section 2 (r) of Order, 1976.
It has been submitted by the petitioner that the Gram Panchayat Kherli Rail, Kathumar District Alwar had total Housing Unit of 6200, for which three fair price shops were already allotted in the area and as such the move by the District Collector (Supply) Alwar under his communication dated 4-5-2010 for appointment of additional fair price shop to be run by respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar in 1/4th geographical area of Gram Panchayat Kherli Rail, Kathumar District Alwar was illegal. It has been submitted that the allotment of the additional fair price shop was contrary to government's own guidelines/ policy providing for 2000 units/ 500 ration cards per fair price shops in an area and that the appointment of respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar would entail reduction of petitioner's distribution network to 1/4th geographical area of Gram Panchayat Kherli Rail, Kathumar District Alwar as against his entitlement of 1/3rd thereof. It has been submitted that the communication dated 4-5-2010 under the hand of District Collector (Supply) Alwar was liable to be set aside and so to the consequential authorisation letter dated 7-6-2010 under Order 1976 to respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar to operate fair price shop in 1/4th geographical area of Gram Panchayat Kherli Rail, Kathumar District Alwar. It has been submitted that action of respondents was contrary to government's guidelines dated 7-5-2001, and liable to be quashed and set aside also on this ground.
In reply, the respondents have submitted that the writ petition is absolutely misdirected and not maintainable for the reason that the petitioner has not alleged any contravention of his legal or fundamental rights. It has been submitted that in any event the petitioner is a rival in trade of respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar, and as per the annunciation of law by the Hon'ble Supreme Court of India on the issue of locus standi for laying writ petition, the petitioner has no locus standi to agitate the case before this court. It is submitted that the petitioner, an allottee of a fair price shop, is seeking to keep out another allottee of a fair price shop to perpetuate his monopoly in the area. It has been submitted that number of fair price shops in any area under Order 1976, is a matter of policy and enhancement of number of fair price shops operating in various area is in consonance with the public purpose and the object of Order 1976, which is to make available foodgrains and other essential items efficiently and effectively to the public at large. It has been further submitted that even otherwise the petitioner has no case to agitate the issue before this court, in as much as the licence issued to petitioner on 30th september, 1991 itself prohibits the petitioner from raising any such objection. It is submitted that condition No.13 of the licence provides that the District Collector (Supply) would continue to have a right not only to withdraw the licence issued to the petitioner, but also to vary it in any manner whatsoever. It has been submitted that consequently in terms of condition 13 of the licence dated 30th September, 1991 issued to petitioner, the District Collector (Supply) is fully empowered to restrict the area of distribution of essential commodities for the petitioner under his licence. The reduction of the area for the operation of the petitioner's fair price shop from 1/3rd to 1/4th area of the panchayat confers on the petitioner no cause of action. It has also been submitted that the petitioner is estopped from raising the said challenge having accepted the licence dated 30-9-1991, along with the condition empowering the District Collector (supply) Alwar to withdraw and/ or vary the authorisation under the said licence. It has been also submitted that purported circular dated 7-5-2001, which the petitioner seeks to rely on, has been misconstrued by the petitioner as the said circular issued by the Additional Food Commissioner and Deputy Secretary, Food & Civil Supply, Government of Rajasthan, was advisory in nature and merely contextual in the situation prevailing with regard to the distribution system of sugar and wheat by fair price shops. It has been further submitted that in any event, the said circular relates to a period twelve years prior, and the competent authority has to base its current decisions for efficient distribution of essential commodities to persons of the category BPL and APL on condition as obtaining presently. The respondents further submitted that under the present policy of the State Government one fair price shop is desirable for servicing 500 ration cards or 2000 units. The respondents have further submitted that the circular dated 7-5-2001 on which the petition is founded does not entail an absolute restriction in any event of the matter on the opening of new fair price shops in future.
The respondents would also submit that subsequent to circular dated 7-5-2001, issued in pursuance of the 20 point programme, an order bearing No.97 (8) Kha.vi./savipra/ 2000 dated 15-11-2002 was issued by Principal Secretary, Department of Food, Government of Rajasthan for smooth and effective public distribution system and thereafter, a corrigendum dated 27-9-2003 was issued. A conjoint reading of these two orders shows that to make available the essential commodity/ foodgrain at door steps a direction was issued to have one fair price shop on each 2000 units or 500 ration cards.
The respondents have also referred to object of the Essential Commodities Act,1955 (herein after `the Act 1955'), under which Order 1976 has been issued, and submitted that the object of Order 1976 is to advance the interest of the general public by the control of the production, supply and distribution of and trade and commerce in certain commodities. Section 3 of the Act, 1955 gives power to control production, supply, distribution etc. of essential commodities which includes regulating by license, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity. The Government in exercise of the powers conferred under Act,1955 read with orders of Government of India made the Order 1976. Clause 3 of Order, 1976 provides for the issue of authorization. But the Order, 1976 does not provide for a procedure for issuance of authorization. Moreover, every authorization issued under Order, 1976 is in law be deemed to be an authorization for the purpose of Public Distribution System (Control) Order, 2001 (herein after referred as `PDS Order 2001') and every authorization holder to whom an authorization has been issued under the Order, 1976 is to comply with all the provisions of PDS Order 2001. The PDS Order 2001 provides for distribution of food grain/ essential commodities to Above Poverty Line Families (APL), to Below Poverty Line Families (BPL) so also to Antyoday Families. Under the provisions of Order, 1976 and PDS Order 2001, it is the duty of the welfare state to ensure proper and effective distribution of essential commodities/ food grain and to achieve the same, the Government is free to issue as many license/ authorization as it deems appropriate and necessary by opening fair price shops. The fair price shops are opened so as to minimize and possibly stop black marketing of food grains and other essential commodities by facilitating easy access to cheap and ready sources of supply. The Government is free to take policy decision and vary it from time to time.
It has been further submitted that with a view of welfare of women, the department of Cooperative introduced Ridhi-Sidhi Yojana in consonance with the budget speech delivered by the Hon'ble Chief Minister for State of Rajasthan. The guideline dated 1-10-2009 provides for the procedure of selection wherein the District level Selection & Monitoring Committees are to forward the names with their recommendations to the department of Cooperative through the Deputy/ Assistant Registrar at State Level, and thereafter the selection is to be made with the approval of the department of cooperative. The selection in question were made in pursuance of such guideline dated 1-10-2009 by the department of Cooperative and notified thereafter. It has been submitted that circular dated 22-1-2010 shows that while existing fair price shops are to continue, additional fair price shops are also to be created, while maintaining required number of units attached to each shop to an extent of 2000 units per fair price shop. It is submitted that appointment of additional licencees to run fair price shops would entail better reach of such shops to the targeted population. It has been submitted that area for new/ additional 500 fair price shops are identified on the basis of survey dated 21-7-2009, which was conducted keeping in view the need to bring out more efficiency in the distribution of food grains and essential commodities. It has been submitted that out of 500 fair price shops, 300 fair price shops are to be allotted to Women Cooperative Societies under Ridhi Sidhi Scheme, and 200 fair price shops were to be allotted in the tribal areas through LAMPs.
Counsel for the respondent State submits that in view of statutory empowerment of the competent authority to issue license for any number of fair price shops, as may be required no infirmity or illegality can be attached to the order dated 4-5-2010 issuing authorization in favour of respondent No.3, Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar for running a fair price shop in 1/4th geographical area of Gram Panchayat Kherli Rail, Kathumar District Alwar. It is submitted that the authorization has been also issued as per the policy framed by the State Government as reflected in the budget speech 2008-09 by Hon'ble Chief Minister in the Legislative Assembly and the petitioner has miserably failed to show any legal or fundamental right, which has been contravened owing to issue of authorization/ allotment of additional fair price shop.
Counsel for the respondent would submit that the hidden agenda/ motive of the petitioner is to profiting from the continuation of status quo without regard to the power of the State and the object of Order, 1976, which is to make available food grains and other essential commodities to persons of APL/ BPL categories in Gram Panchayats and elsewhere in consonance with the social objective of the Government.
Heard learned counsel for the parties, and perused the material available on record of the writ petitions.
At the very outset it is important to note that Article 226 of the Constitution is an extraordinary equitable remedy provided to a citizen where his legal or fundamental rights have been contravened or are in imminent danger of being contravened. Only such a citizen would have locus standi to agitate a case before this court in a writ petition. The Hon'ble Supreme Court in the case of District Collector Vs. B. Suresh [(1999) 5 SCC 612], was seized of a similar matter and where the question was as to whether an existing dealer of a fair price shop under Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973 could claim a legal right to intervene and approach the courts for being allegedly aggrieved with the State Government's decision to bifurcate the fair price shops and reduce the number of cards serviced by them. Setting aside the judgment to the contrary of Hon'ble High Court of Andhra Pradesh, the Hon'ble Supreme Court held that a Fair Price Shop dealer appointed under the provisions of the Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order 1973, had no right to perpetuate his servicing a fixed number of card holders and where the Government, as a policy decision, decided to reduce the number of cards per dealer no writ would be maintainable on this count. The Hon'ble Supreme Court held that right to trade of such a dealer under Article 19 (1)(g) of the Constitution of India was not adversely affected, as he was still entitled to keep continue his business, and further that the decision to bifurcate the fair price shops for making the delivery essential commodities to the targeted population was a policy decision which did not affect any legal right of such existing dealers.
Similarly, in Sarkari Sasta Anaj Vikreta Sangh Vs. State if Madhya Pradesh [(1981) 4 SCC 471], the Hon'ble Supreme Court has held that no one could claim a right to run a fair price shop as an agent of the Government and all that a person could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop, and where the Government took a policy decision to prefer consumers cooperative societies for appointment as their agents to run fair price shops, no cause of action for laying writ petition could said to arise for the others. It is thus clear that running of a fair price shop does not confer any indefeasible legal right on a dealer who merely acts as an agent of the Government, and the Government is free to vary/ tinker with its policy in public interest, and as such a policy formulated by the government to run fair price shop would not furnish a cause of action approaching the courts, unless a clear case of discrimination prohibited by Article 14 of the Constitution was made out. No such issue of discrimination is made out in the facts of the present case, nor agitated before this court.
In the case of Sarkari Sasta Anaj Vikreta Sangh (supra) the Hon'ble Supreme Court has again reiterated that there is no fundamental right to be appointed as an agent of a fair price shop under a government scheme. As a sequitur it follows that no variation in the service by such a dealer of a fair price shop is a contravention of any legal or fundamental right.
In the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed [(1976) 1 SCC 671], the Hon'ble Supreme Court while holding that Article 226 of the Constitution, indeed empowered the High Court to issue any person or authority including the government within its territorial jurisdiction a direction, order or writ inter alia in the nature of certiorari or mandamus for enforcement of a fundamental or legal right of any party, cautioned the courts against frivolous petitions. It was held that in order to have the locus standi to invoke the extraordinary jurisdiction, the petitioner should be an aggrieved person. After having considered the words aggrieved person in English Law, and Indian Law, the Apex Court reiterated that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject matter of writ petition, though in the case of the writs like habeas corpus or quo warranto this rule is relaxed or modified. The Supreme Court further held that as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. It was further held that where a petitioner is not denied or deprived of a legal right, or has not sustained injury to any legally protected interest, and when the impugned order does not operate as a decision against him or wrongly affect his title to something, such a person cannot be said to have been subjected to a legal wrong or suffered any legal grievance, and consequently he is not a person aggrieved and would not have the locus standi to challenge the action impugned. The Hon'ble Court stated that is necessary that where writ petitions are instituted in the High Court by thousands, many of them frivolous, a strict ascertainment at the outset of the standing of the petitioner to invoke the extraordinary jurisdiction must be insisted upon.
The Hon'ble Supreme Court further held in that case that allowing a challenge to the grant of a licence at the instance of rival in trade would only eliminate healthy competition in business, perpetuate the monopoly of the pre-existing licensee and would also affect and seriously injured fundamental right of the new licensee as he has or would have a right under Article 19 (1)(g) of the Constitution to carry on trade or business in accordance with law. Locus standi was found absent in a challenge at the instance of rival in trade.
Similarly, in Nagar Rice & Flour Mills Vs. N. Teekappa Gowda & Bros. [(1970) 1 SCC 575], the Hon'ble Supreme Court held that a Rice Mill owner had no locus standi to challenge under Article 226 setting up of a new Rice Milleven if such setting up be in contravention of Section 8 (3) (c) of the rice Milling Industry (Regulation) Act, 1958as no vested rights in applicant earlier holding a licence could be said to be infringed by the issue of fresh or additional licence.
In the facts of the present case it is apparent that the petitioner was only authorised in terms of clause 3 of Order, 1976 to set up fair price shop for the purpose of acting as an agent of government to fulfill the object of the government for supply of essential commodities to the targeted population. The provisions of Order, 1976 and the condition 13 of the licence issued to petitioner do not prohibit appointment of fresh fair price shop dealers. In fact the District Collector (Supply) has reserved his right even to withdraw the licence issued to petitioner without any demur from the petitioner. The petitioner accepted the licence along with the condition of licence, and therefore, the petitioner is estoppped from laying challenge to appointment of fresh fair price shop dealer and/ or reduction of his operation in geographical area from 1/3rd to 1/4th of the concerned panchayat. The State Government has been reasonable in ensuring that each of the existing licence holders running fair price shops would have a minimum 2000 units to service within their respective areas. The petitioner has not suffered any injury and he has no locus standi to file this petition as he is a rival in trade to respondent No.3 Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar.
It is trite that no person has a vested right under a policy. Government is always free to change its policy with the passage of time. Grant of number of licences or authorizations under Order, 1976 is a matter of policy, and State Government is free to determine number of fair price shop dealers for achieving the object of Order, 1976 at any given point of time and make available essential commodities to persons in the category of APL/ BPL. The division of geographical area of the panchayat for ration shops in the year 1991 cannot entail the petitioner having a vested right in perpetuating the status quo. The State Government has stated that due to passage of time it was decided to allot additional shops for better service of targeted population to ensure effective supply of essential commodities to each needy person. Nothing arbitrary can be found in the decision of government to allot additional fair price shops, inter alia to Mahila Bahu Cooperative Ltd., Kherli Rail, Kathumar District Alwar for running fair price shop in 1/4th geographical area of Gram Panchayat Kherli Rail, Kathumar District Alwar. Further the reasonableness of the policy decision of Government can be gathered from the fact that government has tried to ensure that each fair price shop would have 2000 units to service in its area.
The upshot of the aforesaid discussion is that the petitioner has no locus standi to lay a writ petition challenging the issue of a licence for additional fair price shop to the Mahila Bahu Cooperative Limited Kherli Rail, Kathumar, as the petitioner, a fair price shop dealer, is rival in trade. Further, in any event, the State Government has a right to appoint an additional fair price shop dealer under the Order of 1976 for effective delivery of essential commodities to the targeted population. No prejudice has been caused to the petitioner as none of his legal or fundamental right has been contravened, inasmuch as the petitioner is to continue as a fair price shop dealer to service 2000 units in the area.
Consequently, the writ petitions are absolutely without any merit and deserve to be dismissed.
Dismissed as such.
(Alok Sharma),J.
arn/