Calcutta High Court (Appellete Side)
Shibanand Prasad Ram & Ors vs State Of West Bengal & Ors on 6 October, 2016
Author: Tapash Mookherjee
Bench: Tapash Mookherjee
1
6.10.2016
S.D.
W.P. 12046 (W) of 2016
Shibanand Prasad Ram & Ors.
Vs.
State of West Bengal & Ors.
Mr. Kalyan Kumar Bandyopadhyay
Mr. R.A. Agarwal
Mr. D. Saha Roy
Mr. Pingal Bhattacharya
....For the Petitioners.
Mr. Amitesh Banerjee
....For the State.
Mr. Mainak Bose
Mr. Pratik Shanu
For the Respondent Nos. 14, 18, 19, 22,
44, 45, 47, 48, 49, 53 to 58.
All the petitioners in this writ petition totalling 45 are the owners of fair price shop (in short F.P.S.) and running their businesses in different areas in the district - Jalpaiguri.
Public Distribution System in the tea garden area are different from other areas of the State. Three categories of persons do reside within the tea garden area and beyond. One category is the workers in the tea garden, second category are the 'non-workers' residing 2 within the tea garden areas and the third category includes people residing outside the tea garden area.
First category was never covered by the public distribution system and second and third categories were covered by the public distribution system.
All the petitioners have licence to distribute public distribution commodities (in short P.D.C.). Recently, the State Government by some notifications appointed new dealers and curtailed the number of ration cards tagged with respective licence of the present petitioners. The main grievances of the petitioners are against such action of the State Government.
Learned advocates appearing for the petitioners have submitted that notifications declaring vacancies, appointing new dealers and curtailing the number of Ration Cards of the petitioners have been all done in violation of the provisions in paragraph 20 of the West Bengal Public Distribution System (Maintenance and Control) Order 2013, as amended. It was their further submission that the reduction of number of Ration Cards from the present petitioners are penal action and such penal action has been taken by the authority 3 concerned without following the mandatory provision in paragraph 24 of the aforesaid Rules of 2013.
It was also a contention of the learned advocates of the petitioners that the amendment of the aforesaid Control Order dated 30th October, 2015 was introduced for the purpose of implementation of the provision in National Food Safety Act 2013, as it is stated in the object clause of the amendment itself, but the amendment of the Control Order has been given effect to prior to the effect of the said Act. So, the amendment itself is bad in law.
The next contention of the learned Advocates for the petitioners were that the amended Rules of the year 2013 does not authorize the State Government to cancel the dealership or delinking of any ration card from any existing dealer and the provisions introduced by the said amendment is the guideline for the appointment of a new dealer and as such the amendment is not applicable, so far as the existing dealers are concerned.
It has been further alleged that all the decisions relevant in this case had been taken by the Government before and subsequently actions impugned were taken, which were nothing but an eye wash. 4
The last contention of the learned Advocates for the petitioners were that the action of delinking some ration cards from the petitioners' licence have deprived the petitioners' right to livelihood guaranteed under Article 14, 19 (1) (g) and 21 of the Constitution of India.
Learned Advocates for the respondents-State, in reply, have argued that prior to the year 2006, there was no ration card attached to any of the present petitioners for distribution of public distribution commodity to any 'non-workers' category.
It was only after 2006 'non-workers' category were covered by the public distribution system and for such reason ration cards were given to some dealers for supply of public distribution commodity to the 'non-workers' category also including the present petitioners.
They have further stated that the amendment to the relevant Rules have been brought, in view of the change of the Government Policy to grant licence for distribution of the public distribution commodity in favour of the Manager of the tea gardens where the gardens are operating successfully and to 'Self-Help' group in other cases, and to implement the provisions in the amended Rules, the notifications impugned in this writ petition have been issued. Hence, 5 the notifications challenged, do not violate any provision in paragraph 20 of the Control Order, 2013.
It was their further contention that the licence, as a whole, of none of the petitioners has been cancelled by the notifications impugned and only the ration cards of the 'non-workers' category have been delinked from the present petitioners and tagged with other dealers, newly appointed.
It was also their contention that all the petitioners were running their businesses on the basis of the ration cards allotted for the people falling within the third category and it was only those added ration cards which have been delinked by the notifications challenged. So, the question of depriving the petitioners from their right to livelihood has not been taken away and it has been also argued by them that the State has no liability to ensure or increase the profit of any M.R. Dealer and it is purely within the discretion of the State Government to allot ration cards to any M.R. Dealer on the basis of the convenience of the consumers.
At the very outset, it should be mentioned that the points and counterpoints raised by the learned Advocates on both sides involve intricate questions of law and it is not possible to take any decision on 6 any of those points at this stage because affidavits of the respondents are not on record, as yet.
So, hearing today has been confined on the limited question whether the petitioners are entitled to any interim order as prayed for in prayers i) and j) in the writ petition.
Admittedly, licence of none of the petitioners has been cancelled by the order or notifications impugned in this writ petition and by the impugned orders and notifications, the ration cards of the 'non-workers' category have been only delinked from the dealership of the petitioners. Such action may reduce profit potential of the dealership of the petitioners.
It is true that reasonable numbers of ration cards should be allotted to all the M.R. Dealers to make their licences economically viable but economical viability is not the only criteria for consideration for allotting ration cards to any M.R. Dealer, because of change of situations, the allotment may be reduced or increased and such decision is a policy matter of the Government.
There cannot be any dispute to the facts that all the petitioners ran their respective businesses for decades with the ration cards still tagged with the dealership of the respective petitioners. Whether the 7 ration cards remaining tagged with the dealerships of the petitioners are adequate to run the businesses with sufficient profits cannot be decided by this Court. It has been submitted by the learned Advocates for the respondent/State that the authorities concerned are not going to delink further any ration card from the dealerships of the petitioners. In the circumstance, it cannot be said that the right to livelihood of the petitioners are at stake because of the Notifications and Orders impugned in this writ petition.
Having thus considered the facts and circumstances of the case and the submissions of the learned Advocates on both sides, I am of the view that no interim order at this stage should be passed in this case. So, the prayer is rejected.
Respondents are given the liberty to file their affidavit-in- oppositions within three weeks after the Puja Vacation. Reply thereto, if any, be filed within two weeks thereafter and the matter be listed five weeks after the Puja Vacation.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Tapash Mookherjee, J.) 8