Orissa High Court
Gambharimunda Grama Panchayat vs State Of Orissa And Ors. on 13 January, 2017
Equivalent citations: AIR 2017 ORISSA 39, (2017) 123 CUT LT 816 (2017) 2 CLR 667 (ORI), (2017) 2 CLR 667 (ORI)
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No. 13759 of 2016
An application under Article 226 of the Constitution of India.
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Gambharimunda
Grama Panchayat ......... Petitioner
-Versus-
State of Orissa and ors. ......... Opp. Parties
For Petitioner - Mr. Sukanta Kumar Dalai
For Opp.Parties nos.
1 to 4 - Mr. Deepak Kumar
Addl. Standing Counsel
For opposite parties
nos.5 and 6 - Pradipta Kumar Mohanty
(Senior Advocate)
D.N. Mohapatra
Smt. J. Mohanty
P.K. Nayak, A. Das
P.K. Pasayat
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 11.01.2017 : Date of Judgment: 13.01.2017
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S.K. SAHOO, J.Heard Mr. Sukanta Kumar Dalei, learned counsel for the petitioner, Mr. Deepak Kumar, learned counsel for the State 2 and Mr. Pradipta Kumar Mohanty, learned Senior Advocate for the opposite parties nos. 5 and 6.
The petitioner Gambharimunda Grama Panchayat represented through its Sarpanch Kanchan Dei has filed this writ application challenging the office order no.1943 dated 27.07.2016 (Annexure-1) issued by opposite party no.4, Block Development Officer, Banapur for allotment of stock of PDS items rice and wheat in favour of two private retailers i.e. opposite parties nos.5 and 6, for distribution among the PHH and AAY beneficiaries under National Food Security Act, 2013 (hereafter 'NFS Act') for the month of August 2016 with a further prayer to direct the concerned opposite parties to allow the petitioner Grama Panchayat to carry on distribution of PDS items.
2. It is the case of the petitioner that as per the licence given by the competent authority for distribution of PDS items, the petitioner Grama Panchayat was distributing such items smoothly among the villagers entitled to get the same. As per impugned order under Annexure-1, the opposite party no.4 allotted rice and wheat from the monthly quota of the Grama Panchayat for distribution in favour of opposite parties nos. 5 and 6 to some families of village Gambharimunda without the 3 knowledge of the Grama Panchayat which is contrary to the provisions of the Orissa Public Distribution System (Control) Order, 2016 (hereafter "2016 Order"). It is the further case of the petitioner that since the Grama Panchayat was dealing with PDS items of more than 150 quintals, as per the notification dated 21.04.2012 issued by Government of Odisha, Food Supplies and Consumer Welfare Department, the petitioner appointed one Jogan Sahayak for management of the distribution affairs. The Hon'ble Supreme Court while adjudicating Writ Petition (C) 196 of 2001, passed an order constituting a committee to be headed by Hon'ble Mr. Justice D.P. Wadhwa, Former Judge, Supreme Court of India, to look into the maladies affecting the proper functioning of the public distribution system (PDS) and to suggest remedial measures. Justice Wadhwa committee visited the State of Odisha and made nineteen recommendations to improve the public distribution system in the State. It was suggested, inter alia, that the appointment of the dealers has to be made in a transparent manner and the system of appointment of private dealer has to be abolished. It is further case of the petitioner that the NFS Act which came into force on 05.07.2013 was enacted to provide for food and nutritional security in human life cycle approach, by 4 ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. It is stated that Chapter V of NFS Act deals with reforms in targeted public distribution system and section 12(2)(e) states that the Central and State Government shall endeavour to progressively undertake necessary reforms in the targeted public distribution system in consonance with the role envisaged for them in the Act and the reforms shall include preference to public institutions or public bodies such as Panchayats, self-help groups, co- operatives, in licensing of fair price shops and management of fair price shops by women or their collectives. It is the case of the petitioner that the opposite party no.4 has contravened the provisions of NFS Act and 2016 Order and appointed private retailers like opposite parties nos. 5 and 6 for distribution of PDS items in village Gambharimunda. It is also highlighted that similar provisions are available in the Targeted Public Distribution System (Control) Order, 2015 (hereafter '2015 Order') relating to giving preference to public institutions or public bodies such as Panchayats, self help groups, cooperative societies in the matter of licensing of fair price shops. Therefore, in the matter of grant of licence and appointment of dealer, preference has to be given 5 to the institutional dealers like Grama Panchayats, followed by woman self-help groups, co-operative society and other self-help groups. It is stated that on extraneous consideration, two private persons like opposite parties nos. 5 and 6 have been appointed as retailers and allotted with PDS items for distribution by the opposite party no. 4 which is contrary to the sprit of the Constitution of India and also in gross violation of the recommendations made by Hon'ble Justice Wadhwa Committee as well as the provisions of NFS Act and 2015 Order and 2016 Order and therefore, Annexure-1 should be quashed as illegal, arbitrary, malafide and unconstitutional.
3. Counter affidavit was filed on behalf of opposite party no. 2, Collector, Khurda and opposite party no.3, Sub-Collector, Khurda on dated 25.08.2016 wherein it is stated that the allotment under NFS Act for the month of August 2013 were issued in favour of opposite parties nos. 5 and 6 who had got licences as per the recommendation of the opposite party no.4 and both of them were dealing with the PDS commodities as per Government guidelines. It is stated that as per Clause-4 of 2016 Order, both the institutional dealers as well as private individuals can be issued with PDS licence for dealing with PDS Commodities. A further affidavit was filed on 11.01.2017 by the 6 opposite parties nos. 2 and 3 in Court indicating therein that the opposite parties nos. 5 and 6 are old retailers operating within Gambharimunda Grama Panchayat for distribution of PDS Commodities. The opposite party no.5 is a retailer functioning since 2010-11 and opposite party no.6 is functioning as such since 2011-12 and their licences have been renewed from time to time. It is further stated in the counter affidavit that in the letter no.20784 dated 26.10.2015 issued by Food Supplies and Consumer Welfare Department, instructions were issued to keep the monthly quota of food grains for fair price shop at least 75 quintals to make it viable. Subsequently, the State Government issued another letter no.7925 dated 12.04.2016 reducing the monthly quota from 75 quintals to 50 quintals. It was directed in that letter to complete the process of rationalization in the district where it has not been completed. Since in the district of Khurda, the process of rationalization could not be completed by 30.03.2016, in respect of Gambharimunda Grama Panchayat which comes under the district of Khurda, the opposite party no.6 was found eligible having 322 numbers of PHH Card Holders and five numbers of AAY Card Holders and total allotment of rice and wheat came to 70.70 quintals which was in excess of 50 quintals limit as fixed under the letter dated 12.04.2016. It is 7 further indicated in the affidavit that another letter no.12159 dated 09.06.2016 was issued by the State Government further reducing the minimum quantum of food grains allocation from 50 quintals per month to 30 quintals keeping in view the complaints received from the beneficiaries relating to the distance of the fair price shop and especially geographical barriers. The opposite party no.5 was found eligible as he was having 159 beneficiaries of PHH categories and 16 numbers of AAY Card Holders who opted to lift their PDS Commodities from him. It is further stated in the counter affidavit that under the new ration card management system, consumers are required to fill up the applications for issuance of ration cards provided under Form-G as stipulated under Clause-27 of the 2016 Order and under Clause-4 of the said Form, the consumer has got the option to change the fair price shop from which they were lifting their food grains or express their intention to retain the same retailer. It is stated that a conjoint reading of Clauses- 3 and 4 provided under Form-G suggest that consumer is the sole authority to decide as to from which of the fair price shops, he intends to lift his stocks. It is further stated in the counter affidavit that so far as the list of beneficiaries are concerned, the petitioner Grama Panchayat is distributing PDS commodities of Q.296.80 to 1264 ration card 8 holders whereas the opposite party no.5 has been allotted to distribute PDS commodities of Q.40.05 to 183 numbers ration card holders and opposite party no.6 has been allotted to distribute PDS commodities of Q.68.70 to 317 ration card holders. It is further stated in the affidavit that Gambharimunda Grama Panchayat consists of 15 numbers of revenue villages and the opposite parties nos.5 and 6 belonged to village Godijhara and Panchugaon respectively and the beneficiaries allotted to those two opposite parties mostly hail from the said two revenue villages. It is further stated that both the villages are situated at least more than two kilometers from Gambharimunda Grama Panchayat and the beneficiaries of both the retailers have opted to lift their stocks from them. It is further stated that all the three retailers i.e. the petitioner and opposite parties nos. 5 & 6 were existing retailers under 2008 Control Order and their licenses were renewed following the process laid down under 2016 Control Order.
4. The opposite parties nos. 5 and 6 have filed their joint counter affidavit indicating therein that the petitioner Kanchan Dei was the Sarpanch of Gambharimunda Grama Panchayat who was declared disqualified by the Collector, Khurda to continue as Sarpanch and was directed to vacate the 9 Office with immediate effect vide order dated 02.02.2016 and therefore, the writ petition at her instance representing the Grama Panchayat is not maintainable. It is further stated that both the opposite parties are continuing as retailers since long and their licences were renewed from time to time and they were having no adverse record against them. It is stated that the opposite parties nos. 5 and 6 are rightly continuing as retailers under 2016 Order and the writ petition has been filed due to personal grudge in the name of Grama Panchayat even though she has not been authorized by the Grama Panchayat. It is stated that the petitioner is having no locus standi to file the writ petition and accordingly, the same should be dismissed.
5. The petitioner filed a rejoinder affidavit to the counters filed by opposite parties nos. 2, 3 5 and 6 wherein it is mentioned that as per the due resolution of the Grama Panchayat, the petitioner filed the writ petition representing the Grama Panchayat and there is no individual decision or any political vendetta behind the filing of the writ petition. The petitioner relied upon the constitutional provisions under 243-G and 243-N of the Constitution of India so also section 44 of the Orissa Grama Panchayats Act, 1964 (hereafter '1964 Act'). 10
6. The very crux of the matter which is to be decided in this case is whether after the enactment of the National Food Security Act, 2013, the Targeted Public Distribution System (Control) Order, 2015 and the Odisha Public Distribution System (Control) Order 2016, it was proper, justified and legal on the part of opposite party no.4, Block Development Officer, Banapur to allot PDS items like rice and wheat for distribution to the private retailers like opposite parties nos. 5 and 6 among the PHH and AAY beneficiaries?
7. Adverting to the contentions raised regarding the preliminary objection to the locus standi of the petitioner to file the writ petition, there is no dispute that Kanchan Dei @ Jani is the Sarpanch of Ghambharimunda Grama Panchayat. Even though in pursuance of the order passed in G.P. Case No.9 of 2013 filed in the Court of Collector and District Magistrate, Khurda and the provisions laid down under section 26(3) of the 1964 Act, the petitioner was stated to have vacated the office of Sarpanch with immediate effect as per the order dated 02.02.2016 passed by Collector, Khurda, but the petitioner challenged the said order before this Court by filing a writ petition bearing W.P.(C) No.1442 of 2016 and vide order dated 18.02.1016 passed in Misc. Case No.2483 of 2016, this Court 11 has been pleased to stay operation of the order as well as the operation of the judgment dated 08.01.2016 passed in G.P. Case No.9 and 10 of 2013. Therefore, by virtue of the order of this Court passed in W.P.(C) No.1442 of 2016, the petitioner is deemed to be continuing as Sarpanch of Gambharimunda Grama Panchayat as on the date of filing of this writ petition i.e. 05.08.2016. The petitioner has specifically stated in the writ petition that as per the due resolution of the Gram Panchayat and as directed by the Grama Panchayat, the petitioner has approached this Court challenging the action of the opposite parties in encouraging the private dealers which is not permissible in view of the mandates of the Constitution of India and contrary to the prevailing law for the time being. In the rejoinder affidavit also, the same thing has been repeated and it is stated that the petitioner is representing the Grama Panchayat. The locus standi of the petitioner to file the writ petition has not been challenged by the State. Though the opposite party nos. 5 and 6 have stated in their counter affidavit that the petitioner has not been authorized by the Grama Panchayat to file the writ application, I am not inclined to accept such contentions in absence of any documentary evidence to 12 that effect and particularly when the State of Orissa has not challenged the same.
The powers, duties and functions of Sarpanch have been enumerated under section 19 of the Orissa Grama Panchayat Act, 1964. The executive powers of the Grama Panchayat for the purpose of carrying out the provisions of the Act has to be exercised by none else than the Sarpanch who shall act under the authority of the said Grama Panchayat. Section 44 (z-3) of 1964 Act indicates that it shall be the duty of the Grama Panchayat within the limits of its funds to undertake, control and administer and be responsible for the public distribution system in respect of the Grama subject to the provisions of the Act and the rules made thereunder. Therefore, when as per section 19 of 1964 Act, the Sarpanch can exercise such other powers, discharge such other duties and perform such other functions as may be conferred or imposed on or assigned to him by or under this Act and when he is responsible to undertake and control the public distribution system in respect of the Grama and he finds some illegalities have been committed by the authorities in allotting PDS items from the quota fixed for the Grama Panchayat for distribution to the PHH and AAY beneficiaries in favour of the private retailers and the preferential 13 legal right of the Grama Panchayat in the matter of distribution of essential commodities has been hampered, the Sarpanch being an aggrieved party has every locus standi to challenge the same under the authority of the Grama Panchayat. A person can be said to be aggrieved when he is denied of a legal right by someone who has a legal duty to do something or to abstain from doing something. Therefore, the preliminary objection raised by the opposite parties nos. 5 and 6 regarding the locus standi of the petitioner being devoid of merits cannot be accepted.
8. Coming to the main issue involved in the writ petition, discussions on the relevant provisions of different Act and orders are necessary.
Section 3 of the Essential Commodities Act, 1955 deals with the power of the Central Government to control production, supply, distribution etc. of essential commodities. The Central Government by passing appropriate order can provide for regulating or prohibiting the production, supply and distribution of the essential commodities and trade and commerce therein. The order can provide for regulating by licenses, permits or otherwise the production or manufacture of any essential commodity or for regulating by licenses, permits or 14 otherwise the storage, transport, distribution, disposal etc. of any essential commodity.
Section 2(23) of the NFS Act defines "targeted public distribution system" which means the system for distribution of essential commodities to the ration card holders through fair price shops. According to section 2(4) of the NFS Act, "fair price shop" means a shop which has been licensed to distribute essential commodities by an order issued under section 3 of the Essential Commodities Act, 1955 to the ration card holders under the targeted public distribution system. Section 12(2)(e) of NFS Act which deals with reforms in targeted public distribution system states that preference to the public institutions or public bodies such as Panchayats, self-help groups, co-operatives, in licensing of fair price shops and management of fair price shops by women or other collectives are to be given.
The 2015 Order which was enacted in exercise of powers conferred by section 3 of the Essential Commodities Act, 1955 states in clause 9(4) which deals with licensing and regulation of fair price shops that the State Government shall accord preference to public institutions or public bodies such as Panchayats, self-help groups, co-operative societies in licensing 15 of fair price shops and management of fair price shops by women or their collectives.
The 2016 Order in clause 4(3) which deals with appointment of dealers and grant of license also states that preference for appointment and for grant of license as dealer shall be given to Grama Panchayats or Urban Local Body, as the case may be, followed by women self-help groups, co-operative societies and other self-help groups in that order.
Therefore, a conjoint reading of NFS Act, the 2015 Order and the 2016 Order would indicate that in the public distribution system, the first preference regarding appointment of dealers and grant of license has to be given to the Grama Panchayats followed by other institutional dealers. When the Grama Panchayats are interested for distribution of the P.D.S. commodities in the Grama and there is no allegation against such distribution on the other hand it is found that Grama Panchayats are distributing the PDS items to the beneficiaries properly, others should not be entrusted with such distribution role. On a plain reading of the aforesaid three enactments, there is no scope for any private retailers in the matter of distribution of PDS commodities. The order of preference in respect of institutional dealers has also been enumerated very clearly in 16 Clause-4 of the 2016 Order relating to appointment of dealers and grant of license. It is further stipulated in Clause-4(6) that the authority competent to appoint and to grant or renew license under the 2016 Order shall make efforts to replace private dealers with institutional dealers like Grama Panchayats or Municipalities, as the case may be, women self-help group, co- operative societies and self-help groups, within a period of two years from the date of publication of the 2016 Order in the official gazette (which was published on 16.3.2016).
The second proviso to Clause-3 which deals with licensing of fair price shop dealers indicates that a license obtained under any of the relevant licensing order in force on the date of coming into force of 2016 Order shall be valid till the date of its expiry and a fresh license shall be obtained under the 2016 Order before the expiry of the date of such license. Clause 32 of the 2016 Order states that all applications for issue of license or renewal of license which have been filed under the provisions of Orissa Public Distribution System (Control) Order, 2008 and as amended by the Odisha Public Distribution System (Control) Amendment Order, 2013 but have not been disposed of on the date of coming into force of the 2016 Order, shall be disposed of in accordance with the provisions of the 2016 Order. 17 Therefore, even if a private dealer was having a license to deal with any essential commodity as per the provisions under Odisha Public Distribution (Control) Order, 2008 as amended by Odisha Public Distribution System (Control) Order, 2013 and such license was in force as on 16.3.2016 when the 2016 Order came into force, it will remain valid till the date of its expiry. Thereafter, if the private dealer applies for a fresh license, the licensing authority shall consider the provisions of the 2016 Order which, inter alia, deals with preference for appointment and for grant of license in favour of institutional dealers and can pass appropriate order. If a fresh license has been granted in favour of a private dealer without taking note of the provisions under the 2016 Order then it would create serious prejudice to the institutional bodies that are to get preferential treatment. In view of section 44 (z-3) when the duty of the Grama Panchayat is to undertake, control and administer and be responsible for the public distribution system in respect of the Grama, if such valuable preferential legal right is taken away by engaging private dealers then the very purpose of the enactment of the NFS Act and 2015 Order and 2016 Order would be frustrated.
Article 243-G of the Constitution of India states that subject to the provisions of the constitution, the State 18 Government shall make appropriate law empowering and authorizing and enabling the Panchayats to function as institutions of self-government. Article 40 of the Constitution of India which comes within Part IV which deals with Directive Principles of State Policy states that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
Article 254 (1) of the Constitution of India indicates that if any provisions of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Trade and commerce in, and the production, supply and distribution of foodstuffs, including edible oil seeds and oils finds place at Entry no.33 of the Concurrent List. The Essential Commodities Act is enacted under Entry no.33 of the Concurrent 19 List. Therefore, there is nothing to prevent the State Legislature to legislate with respect to a Concurrent List subject merely because there is a Union law relating to the same subject.
Article 254 (2) of the Constitution of India is attracted only if the State law is "repugnant" to the Union Act, which means that the two cannot stand together. When a question of repugnance arises under Article 254, every effort should be made to reconcile the two enactments and to construe them so as to avoid there being repugnant to each other and care should be taken to see whether the two really operate in two different fields without encroachments.
Law is well settled as held in case of Nazir Ahmad
-Vrs.- Kind Emperor reported AIR 1936 PC 253 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. When the legislature in its wisdom has fixed preferential treatment to be given in the matter of appointment of dealers and grant of license which obviously includes distribution of essential commodities to different institutional bodies and specifically mentioned that the private dealers would be replaced with institutional dealers like Grama Panchayats, women self-help groups etc., any order of 20 appointment of private dealers for distribution of essential commodities would not be permissible.
In the present case, after the expiry of period of licenses of the opposite parties nos. 5 and 6 on 31.03.2016, as per Annexure-B/6 annexed to the joint counter affidavit of opposite parties nos.5 and 6, the licenses for the year 2016-17 has been renewed on 20.04.2016 which are to remain in force till 31.03.2017. The order of allotment has been made in favour of opposite parties nos.5 and 6 for distribution of PDS items like rice and wheat among the PHH and AAY beneficiaries vide impugned office order no.1943 dated 27.07.2016 of the opposite party no.4. There is no material whatsoever that the Grama Panchayats or the women self-help groups or co-operative societies or other self-help groups declined to distribute the essential commodities in respect of the ration card holders assigned to opposite parties nos. 5 and 6. In fact the petitioner Grama Panchayat has been assigned to distribute PDS items of Q.296.80 to 1264 ration card holders of Gambharimunda Grama Panchayat. There appears to be no transparency in the allotment of PDS items in favour of opposite parties nos. 5 and 6. Merely because they were old retailers, they cannot be favoured with the allotment order after coming into force of 2016 Order. By 21 allotting opposite parties nos. 5 and 6 to distribute the PDS items like rice and wheat in Gambharimunda Grama Panchayat, the preferential right of distribution in favour of the petitioner Grama Panchayat has been disturbed. Such allotment is based on malafide which is illegal and cannot be sustained in the eye of law.
9. On a conspectus analysis of the provisions of relevant Acts, Orders and law, I am of the humble view that the allotment of distribution of PDS items like rice and wheat in favour of the private retailers like opposite parties nos.5 and 6 by the opposite party no.4 vide office order no.1943 dated 27.07.2016 under Annexure-1 smacks of arbitrariness, is unfair and unreasonable, and cannot be allowed to stand in the eye of law. In the Directive Principles of State Policy, wherever there is arbitrariness and unreasonableness, there is denial of the rule of law.
10. For the forgoing reasons, the writ petition succeeds. The impugned order under Annexure-1 is hereby set aside. As per the order dated 11.08.2016 passed in Misc. Case No.12835 of 2016, it was directed that no further allotment shall be made in favour of the opposite parties nos. 5 and 6 till the next date and further ordered that the quota which was fixed in favour of opposite parties nos.5 and 6 shall be given to the petitioner 22 which shall be distributed to the entitled persons in accordance with law. The interim order was extended from time to time. Therefore, the petitioner shall continue to distribute the quantities of PDS items rice and wheat allotted to the opposite parties nos. 5 and 6 as per Annexure-1 among the PHH and AAY beneficiaries.
Accordingly, the writ application is allowed. Both the parties are directed to bear their own costs.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 13th January, 2017/Pravakar/Sisir/Sukanta