Jammu & Kashmir High Court
Ch. Makhan vs State Of J&K; And Others on 27 July, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No.842/2017, MP No.1/2017
OWP No.843/2017, MP No.1/2017
OWP No.848/2017, Mp No.1/2017
OWP No.860/2017, MP No.1/2017
OWP No.869/2017 MP No.1/2017
OWP No.870/2017, MP No.1/2017
OWP No.871/2017, Mp No.1/2017
OWP No.876/2017, MP No.1/2017
OWP No.1885/2016, Mp No.1/2016
OWP No.687/2017, MP No.1/2017
Date of order: 27.07.2017
1. Ch. Makhan v State of J&K and others.
2. Abdul Karim v State of J&K and others.
3. Roshan Din and anr. v State of J&K and others.
4. Kewal Singh v State of J&K and others.
5. Chatter Singh v State of J&K and others.
6. Abdul Haq v State of J&K and others.
7. Shub Kumar Puri v. State of J&K and others.
8. Ch. Noor Hussain v. State of J&K and others.
9. Younis Rashid and ors. v State of J&K and others.
10. Fair Price Shop Dealers of v. State of J&K and others.
Tehsil Mahanpura/Billawar and Basholi
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s) : Mr. Aseem Sawhney, Advocate.
Mr. N.D.Qazi, Advocate.
Mr. Waseem Akram, Advocate.
For the Respondents(s) : Mrs. Seema Shekhar, Sr. AAG.
i/ Whether to be reported in : Yes
Press/Media
ii/ Whether to be reported in : Yes
Digest/Journal
OWP Nos.842/2017, 843/2017, 848/2017, 860/2017, 869/2017, 870/2017, 871/2017 & 876/2017
1. The petitioners in all these writ petitions claim to have been appointed as Fair Price Dealers by the department of Consumer Affairs and Public Distribution Department on different dates, for different areas of different districts. The petitioners further claim that they have been serving the public of the areas for which they have been appointed for the last several years with an unblemished record and now at this age when the petitioners have either become over aged or likely to OWP Nos.842/2017 along with nine other cases Page 1 of 15 become as such, their livelihood has been put at stake by the respondents, who are contemplating to either replace the petitioners or to appoint new dealers for the areas, which are presently fed by them. They, therefore, submit that the respondents have already set the process in motion for bifurcating the dealership/Fair Price Rationees/RTs of the petitioners for extraneous and political considerations. The petitioners further submit that appointment of new dealers in the areas of the petitioners is illegal, arbitrary and has the effect of depriving the petitioners of their fundamental right to livelihood. Respondent Nos. 1 to 3 are going ahead for appointment of new dealers to the detriment of the petitioners without even putting the petitioners to show cause notice or holding any enquiry into the matter.
2. The petitioners further claim that they have learnt that the government in terms of the impugned Annexure-A to Govt. Order No.137-FCS& CA of 2016 dated 02.09.2016 has directed the opening of new Fair Price Shops by taking out some ration tickets of the petitioners, which action of the government, argue learned counsels for the petitioners, is violative of Govt. Order No.127-FCS & CA of 2016 dated 04.08.2016. It is, thus, contended that as per the policy governing the appointment of new ration dealers/Fair Price Shop Dealers as contained in Govt. Order dated 04.08.2016, a new Fair Price Shop is to be OWP No.842/2017 along with nine other cases Page 2 of 15 opened for every 250 Ration Tickets providing further that existing Fair Price Shop Dealers can retain Ration Tickets (RTs) even more than 250 and upto 499, if there is no feasibility of opening the second fair price shop in the area. The policy further provides that rationees should have fair price shop existing within a radius of 1.5 kilometer to 2 kilometer from their residence subject to having 250 RTs to be bifurcated. As admitted by the learned counsel for the petitioners, their fair price shops are catering to RTs more than 250 in number and in many cases even more than 500 RTs. The petitioners, therefore, apprehend that RTs beyond 250 would be taken out from them and shifted to the newly opened Ration Dealers/Fair Price Shops, which in turn would substantially reduce their commission and thus, would affect their livelihood. It is also contended by the petitioners that for the last several years the respondents have not adequately enhanced the commission and therefore, even prior to the issuance of the impugned policy of appointment of new dealers, the petitioners were making their both ends meet with great difficulty. They, therefore, submit that the impugned policy has come to them as a bolt from the blue and has further reduced their income, which they were earning by way of meager commission by distribution of ration to the rationees.
OWP No.842/2017 along with nine other cases Page 3 of 15
3. In the aforesaid factual background, the petitioners in all these writ petitions have prayed for a direction to the respondents not to replace them or take away their existing ration tickets and transfer the same to new fair price dealers arbitrarily. They have also prayed for a direction to the respondents to permit the petitioners to work as ration dealers/fair price shop dealers smoothly without causing any hindrance and taking away the ration tickets from their areas of operation. Lastly the petitioners also seek writ in the nature of certiorari for quashing the impugned Annexure-A to Government Order No.137-FCS & CA of 2016 dated 02.09.2016 insofar as it pertains to the petitioners and their right to livelihood.
4. The respondents, who were on caveat when the case was taken up for consideration, were put on notice. They have filed their reply affidavit/objections in which they have taken a clear stand that in the absence of any challenge to Government Order No.127-FCS&CA of 2016 dated 04.08.2016, which has been issued to give effect to the policy for opening of fair price shops under the Targeted Public Distribution System (Control) Order, 2015, the writ petitions are not maintainable. It has been contended by the respondents that fair price shops are opened by the government for running the public distribution system for distribution of essential commodities in consonance with the OWP No.842/2017 along with nine other cases Page 4 of 15 provisions of the Essential Commodities Act read with the Targeted Public Distribution System (Control) Order, 2015. In terms of the aforesaid order, it is submitted, revised norms/guidelines for opening of new fair price shops have been issued vide Government Order No.127-FCS&CA of 2016 dated 04.08.2016. Furthermore, in light of the implementation of the National Food Security Act, 2013 and the Mufti Mohammad Sayed Food Entitlement Scheme as also the increase of more than 20 lakh souls, which have come within the network of public distribution system, the government after identifying the sites for opening of new fair price shops to facilitate hassle free distribution of ration without putting the rationees to any inconvenience, sanctioned the opening of 4388 new fair price shops vide Government Order No.137-FCS&CA dated 02.09.2016. It is claimed by the respondents that the aforesaid act has since been upheld by this Court by deciding a batch of writ petitions with lead case OWP No.730/2016 titled Talib Hussain v. State of J&K and others. It is, thus, argued that the public distribution system is to be run in a manner which sub serves the interests of the rationees and the grievance of the petitioners, projected against the opening of new fair price shops, is misconceived and merits outright rejection. The respondents have placed strong reliance upon Government Order No.127-FCS&CA dated 04.08.2016 to contend that while OWP No.842/2017 along with nine other cases Page 5 of 15 sanctioning opening of new fair price shops the interest of the existing fair price shop dealers have been adequately taken care of and it is not the case of the petitioners, argues learned counsel for the respondents, that their ration tickets are being reduced to less than 250. As per the new norms, minimum 250 ration tickets have been provided to sustain the dealer as well as for proper distribution of ration to the rationees.
5. Learned counsel for the respondents further argues that even in cases where second fair price shop/new fair price shop is not feasible or not having additional 250 ration tickets, the existing fair price shop dealer has been permitted to retain the ration tickets even upto to 499. This is how, contends learned counsel for the respondents, interest of existing fair price dealers too have been taken care of. Lastly, it is argued by the learned counsel for the respondents that at no point of time any assurance was extended to the petitioners to have particular number ration tickets. The fair price dealers, who were appointed with small number of RTs have now catering RTs ranging from 500 to even more than 2000, as a result whereof there has been total mis-management and complaints of deficiency of service at their hands. In light of the aforesaid facts, learned counsel for the respondents submits that no right of the petitioners is violated and therefore, the writ petitions are not maintainable and the same deserve to be dismissed. OWP No.842/2017 along with nine other cases Page 6 of 15
6. Considered the submissions made by learned counsel for the parties and meticulously perused the record and gone through the provisions of the National Food Security Act, 2013, which have been promulgated by the Government of India and extended to the State of Jammu & Kashmir as well. The Act provides for food and nutritional security, in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and the matters connected there with or incidental thereto. Section 12 of the National Food Security Act, 2013 specifically provides that the Central or State Government shall endeavor to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them under the Act. In the aforesaid Section, it is further provided that reforms shall, inter alia, include:-
i) Doorstep delivery of food grains to the Targeted Public Distribution System outlets;
ii) Full transparency of records; and
iii) Preference to public institutions or public bodies like
Panchayats, self help groups, co-operatives, in licensing of fair price shops and management of fair price shops by women or their collectives.
7. The reforms indicated in sub Section 2 of Section 12 of the National Food Security Act are not exclusive but inclusive OWP No.842/2017 along with nine other cases Page 7 of 15 and therefore, States have been left free to devise the targeted distribution system in consonance with the objective of the Act and to provide quantity and quality foodgrains at affordable prices to the targeted population. Similarly, the Central Government has issued Targeted Public Distribution System (Control) Order, 2015 in exercise of powers conferred by Section 3 of the Essential Commodities Act, 1955. The aforesaid Control Order, as is apparent from its preamble, has been issued for maintaining supplies and securing availability and distribution of essential commodity, namely, foodgrains under the Targeted Public Distribution System envisaged under the National Food Security Act (supra). The Regulation 9 of the aforesaid Control Order deals with licensing and regulation of fair price shops. For facility of reference, Regulation 9 is reproduced here under:-
"9. Licensing and regulation of fair price shops.--(1) The State Government shall issue an order under section 3 of the Act, but not inconsistent with this Order, for regulating the sale and distribution of the essential commodities. (2) The license to the fair price shop owners shall be issued under the said order and the order issued by the State Government shall be notified and displayed on web portal.
(3) The designated authority appointed by the State Government shall issue the licenses to the fair price shop owners.
(4) The State Government shall accord preference to public institutions or public bodies such as panchayats, self help groups, cooperative societies in licensing of fair price shops and management of fair price shops by women or their collectives.
(5) The licences to the fair price shop owners shall be issued keeping in view the viability of the fair price shop. (6) The State Government shall ensue that the number of ration card holders attached to a fair price shop are OWP No.842/2017 along with nine other cases Page 8 of 15 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, tribal and such other areas difficult to access.
(7) 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.
(8) The State Government shall put in place a mechanism to ensure the release of fair price shop owner's margin without any delay.
(9) The State Government shall allow sale of commodities other than the foodgrains distributed under the Targeted Public Distribution System at the fair price shop to improve the viability of the fair price shop operations."
8. As is apparent from a bare perusal of Regulation 9, the State Governments have been empowered to regulate the sale and distribution of essential commodities including food grains. It, inter alia, provides that the fair price shop owners would be properly licensed, which shall be notified and displayed. It further provides that the license to the fair price shop owners would be issued keeping in view the viability of fair price shops and to ensure that number of ration card holders attached to a fair price shop are reasonable and the fair price shop is so located that consumer or ration card holder does not have to face any difficulty to reach the fair price shop. It also provides for fixation of amount as fair price shop owner's margin, which would be periodically reviewed for ensuring sustained viability of fair price shop operations. Pursuant to the aforesaid provisions contained in the Control Order, the government in suppression of all previous government orders/circulars/ OWP No.842/2017 along with nine other cases Page 9 of 15 instructions, issued Government Order No.127-FCS&CA of 2016 dated 04.08.2016, whereby revised norms/guidelines with regard to opening of fair price shops on commission basis were promulgated. The guidelines aforesaid are contained in Annexure to the aforesaid government order, paragraph A whereof lays down parameters to be kept in mind while opening new fair price shops. For better appreciation and facility of reference, paragraph Q of the Annexure to Government Order No.127-FCS&CA dated 04.08.2016 is reproduced hereunder:-
"A) Opening of New Fair Price Shops:-
(i) New Fair Price Shop shall be opened for every 250RT's.
However existing Fair Price Shop holder will retain more RTs if there is no feasibility of opening second Fair Price Shop i.e. there can be upto 499 RTs with a FP Shop.
(ii) Rationees should have F.P.Shop/Govt. Sale Depots within radius of 1.5 to 2 km from their residence subject to having 250 RT's to be bifurcated.
(iii) Location of the F.P.Shop shall not be changed by the F.P.S holder without the written permission of concerned Assistant Director.
(iv) New FPS will be opened for every 200-250 families but if in a Revenue Village, if there are lesser families opening of new FPS will not be a constrains, however in case of hilly/inaccessible area opening of FPS can be for lesser number of families also."
9. From the perusal of paragraph A, it is apparent that new fair price shop shall be opened for every 250 RTs and existing fair price shop holders will retain more RTs, if there is no feasibility of opening of second fair price shop in the area and in such cases, the existing fair price shop can even retain RTs up to 499. Similarly, rationees would have the facility of fair price shop/Govt. Sale Depots within the radius of 1.5 to 2 kilometer OWP No.842/2017 along with nine other cases Page 10 of 15 from their residence subject to having 250 RTs to be bifurcated. The aforesaid provisions on the face of it, are per se fair and just and do not take away any of the right of the petitioners.
10. Learned counsel for the respondents has also brought to the notice of this Court the orders issued by the government from time to time revising rates of commission and therefore, the grievance of the petitioners that the rates of their commission have not been adequately raised/enhanced from time to time is factually incorrect. Even in the National Food Security Act, 2013 there are adequate directions to the States to periodically review the commission/margin of the fair price shop owners so as to ensure their viability and sustenance.
11. Otherwise also, writ petitions would not be maintainable at the behest of the petitioners to quash the impugned Annexure to Government Order No.137-FCS&CA of 2016 dated 02.09.2016, unless there is challenge to Government Order No.127-FCS&CA of 2016 dated 04.08.2016 and perhaps without challenging the relevant provisions of National Food Security Act, 2013 and Control Order, 2015 (supra), which have been reproduced herein above.
12. Contention of the petitioners that by assuring them retention of RTs enrolled with them by issuing orders and circulars from time to time, the government has given legitimate expectation to them that their ration tickets will not be taken OWP No.842/2017 along with nine other cases Page 11 of 15 away and their income/margin would not be reduced, also cannot be accepted. It is trite law that a claim based on legitimate expectation can be defeated by the larger public interest. A private interest, it is well settled, has to succumb to the larger public interest. (See Navjyoti Co-op Group Housing Society v. Union of India; (1992) 4 SCC 477). However, the petitioners have even failed to demonstrate with reference to any material on record that they were ever extended any assurance that they would retain a particular number of ration tickets or that the ration tickets enrolled with them shall not be decreased, reduced or varied. In the absence of any such assurance/assurances extended by the government, there is no reason or occasion for the petitioners to expect legitimately that the ration tickets/rationees enrolled with them will never be reduced. As noted herein above, with a view to implement the National Food Security Act, 2013 and to provide quantity and quality foodgrains to the targeted population, the Governments were obligated to come with a scheme providing for fair distribution of the foodgrains to the targeted population in consonance with the principles laid down in the Act and the Control Order of 2015, reference to the salient provisions whereof has already been made herein above.
13. Annexure-A to Government Order No.137-FCS&CA of 2016 dated 02.09.2016 impugned in these petitions is nothing OWP No.842/2017 along with nine other cases Page 12 of 15 but a step taken by the government to implement the statutory provisions of the National Food Security Act, 2013 and to provide for a mechanism to ensure that foodgrains are delivered to the targeted population at their doorstep and that the distribution is made in fair and equitable manner so as to sub-serve the larger interest of the rationees, though, at the same time taking adequate care of the viability of the fair price shops both existing and the new.
14. Learned counsels for the petitioners have referred to judgment of Hon'ble Supreme Court in the case of Madhya Pradesh Ration Vikreta Sangh and Ors. v. State of M.P; AIR 1981 SC 2001 and a judgment of Andhra Pradesh High Court passed on 19.04.1997 (B. Suresh v. District Collector, Nizamabad). Both the judgments have been passed in a total different context and in any case prior to the promulgation of the National Food Security Act, 2013 and without taking note of the Control Order, 2015. Besides, the aforesaid judgments do not lay down the law that the fair price shop dealers have a fundamental right to have a particular number of ration tickets. The new guidelines referred to herein above, do take adequate care of the viability of the existing dealers and make sufficient provisions for their sustenance.
15. Viewed from any angle, challenge to the impugned Annexure to Govt. Order No.137-FCS & CA of 2016 dated OWP No.842/2017 along with nine other cases Page 13 of 15 02.09.2016 fails. The writ petitions are totally misconceived and devoid of any merit, therefore, dismissed along with connected MPs. In the peculiar fact circumstances, there shall, however, be no order as to costs.
OWP Nos. 687/2017 & 1885/2016
16. In these two writ petitions the petitioners have simply prayed for a direction to the respondents to strictly adhere to Government Order No.127-FCS&CA of 2016 dated 04.08.2016 issued by respondent No.1 and to permit them to retain atleast 250 RTs. The stand of the Government taken in their objections is to the effect that the new fair price shops are to be opened for every 200-250 families and if in any revenue village there are lesser families that too would not be a constraint. However, insofar as the existing ration dealers are concerned, the Government Order No.127-FCS&CA of 2016 dated 04.08.2016 has taken care of them by providing that not only they would be entitled to retain 250 ration tickets but they can even retain upto 499 ration tickets in case opening of new fair price shop is not feasible.
17. These writ petitions appears to have been filed on mere apprehension and in view of the fact that the Government is committed to strictly adhered to government order NO.127- FCS&CA dated 04.08.2016, there remains nothing to be OWP No.842/2017 along with nine other cases Page 14 of 15 adjudicated upon in these petition. Accordingly, these petitions are disposed of with a direction to the respondents that while opening fresh/new fair price shops, Government Order No.127- FCS&CA of 2016 dated 04.08.2016 shall be strictly adhered to and the ration tickets of the existing ration dealers shall not be reduced below 250.
(Sanjeev Kumar) Judge Jammu, 27.07.2017 Vinod OWP No.842/2017 along with nine other cases Page 15 of 15