Calcutta High Court (Appellete Side)
Gour Chandra Gorai & Ors vs The State Of West Bengal & Ors on 8 November, 2016
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE ANIRUDDHA BOSE
W.P. No. 31930(W) of 2013
+
W.P. No. 6252(W) of 2013
Gour Chandra Gorai & Ors.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 31935 (W) of 2013
Banalata Sahu & Ors.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 32041 (W) of 2013
Ranjit Kumar Nayek & Anr.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 32042 (W) of 2013
Ajit Kumar Patra & Anr.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33432 (W) of 2013
Kali Kinkar Laha
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33434 (W) of 2013
Ananda Mohon Mahato
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33436 (W) of 2013
Nilachal Mahata
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33437 (W) of 2013
Subodh Mahato & Ors.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33900 (W) of 2013
Kriti Mohan Dey
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33491 (W) of 2013
Narayan Mahanty
Vs.
The State of West Bengal & Ors.
With
W.P. No. 33492 (W) of 2013
Uttam Kumar Tibriwalla
Vs.
The State of West Bengal & Ors.
Advocates for the Petitioners: Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharya.
Advocates for the State: Mr. Susovan Sengupta,
Mr. Subir Pal.
Judgment On: 8th November, 2016.
ANIRUDDHA BOSE, J.:-
1. These writ petitions are concerned with curtailing of the consumers
tagged with the dealerships of the petitioners, who hold licences for such
dealerships and at present operate under the West Bengal Public
Distribution System (Maintenance and Control Order), 2013 in certain
selected areas comprised within 23 Blocks in three districts of West
Bengal, being West Midnapore, Purulia and Bankura. The petitioners' fair
price shops are located within the aforesaid 23 Blocks, which have been
referred to in different administrative documents as Left Wing Extremist
(LWE) affected areas as also Jangal Mahal. The aforesaid Control Order
was promulgated by the State Government in exercise of power conferred
by Section 3 by the Essential Commodities Act, 1955 read with
Government of India, Ministry of Consumer Affairs, Food & Public
Distribution (Department of Food & Public Distribution) Order No. G.S.R.
630C dated 31st August, 2001.
2. The first writ petition among the present set, W.P. 6252 (W) of 2013,
was instituted by nine dealers from Midnapore Sadar Sub-Division in the
district of West Midnapore questioning certain steps initiated by the
District Controller to engage Self-Help Groups (SHGs) to operate
"additional outlets" for supply of public distribution commodities.
Petitioners in this petition have urged that in terms of instruction of the
authorities, they had established certain additional outlets away from their
fair price shops to be nearer to some of the beneficiaries attached to their
dealerships and the authorities were contemplating handing over these
outlets to the SHGs. The 2013 Control Order had not become operational
at that point of time. In W.P. 31930(W) of 2013, all but one of these nine
petitioners (in W.P. 6252 (W) of 2013) approached this Court afresh,
questioning fresh steps taken by the authorities in respect of eight
additional outlets, for which vacancy notice was issued on 23rd September
2013 by the sub-Divisional Controller of Midnapore Sadar. In their earlier
writ petition, an order of status quo was passed on 4th March 2013 as
regards supply of ration articles to the petitioners, and the order of status
quo was prevailing when the vacancy notice was issued. One of the
grounds taken in W.P. 31930(W) of 2013 is that the steps taken for
declaration of vacancy were in breach of the order of status quo.
Otherwise, these petitions are founded on common grounds and have been
heard analogously.
3. In W.P. 31935(W) of 2013 the petitioners are four dealers under
police station Belpahari, whereas in W.P. 32041(W) of 2013 two existing
dealers from Binpur Block-I are the writ petitioners. W.P. 32042(W) of
2013 has also been brought by two dealers of Binpur-I Block, all being
within the same district, being West Midnapore. All these petitioners
question vacancy notifications issued by the Sub-Divisional Controller,
Jhargram on 23rd September 2013. W.P. 33434 (W) of 2013 the petitioner
is a dealer from the district of Bankura and his outlet is within the
Simlipal Block of the same district. The writ petitioner in W.P. 33432 (W)
of 2013 is a dealer from Bagmundi, Purulia and questions the vacancy
notice of 21st September 2013 issued by the Sub- Divisional Controller of
the concerned Block. The writ petitioner in W.P. 33436 of 2013 is from
Bankura district having his fair price shop in Sarenga Block, and he
challenges the legality of a vacancy notice issued by the Sub-Divisional
Controller, Khatra on 23rd September 2013. In W.P. 33437 (W) of 2013,
the petitioner's dealership is in Raipur Block, also from the district of
Bankura. In W.P. 33491(W) of 2013, the sole writ petitioner operates his
dealership business from Barabazar in Purulia Sadar. Similar is the case
of the writ petitioner in W.P. 33492(W) of 2013, who operates his
dealership business also from Barabazar under Purulia Sadar sub-
Division. The petitioner in W.P. 33900(W) of 2013 operates similar fair
price shop from Bagmundi under Purulia Sadar Sub-Division. The
petitioners from Purulia district have assailed the legality of a vacancy
notice dated 21st September 2013. All these petitioners were asked to set
up additional outlets at a place different from their subsisting outlets in
respect of some of their tagged consumers at the instance of the district
authorities to facilitate ease in lifting of ration articles by the beneficiaries
of different Public Distribution Schemes from locations closer to their
residences. The vacancy notices have been issued in respect of these
outlets, seeking fresh appointment of dealers to cater the consumers who
stood tagged to the petitioners' fair price shops. The petitioners have also
challenged legalities of certain other ancillary steps taken by the State
authorities for delinking certain consumers of the petitioners and tag them
with the dealers to be appointed as per the fresh vacancy notices.
4. The decision of the State Government to set up additional outlets for
the PDS beneficiaries in Jangal Mahal is reflected in a guideline issued by
the Joint Secretary to the Government of West Bengal, Department of Food
and Supplies under Memo no. 4776-FS/FS/Sectt/Food/13A-02/2011
dated 5th July 2011. Such guideline appears in the form of a
communication addressed to the Director DDP&S and stipulates:-
"It has been observed that a section of the poor in the
Left Wing Extrimist (LWE) affected areas of West
Midnapore, Bankura and Purulia is being deprived of
the P.D.S.- benefits for various reasons causing
unrest in the locality. In many cases Ration Card
holders are to travel a long distance to purchase
P.D.S.- items which the poor residing in far flung
areas could hardly afford. In such cases attempts
are being made to appoint more M.R. Dealers which,
of course, will take a lot of time. In the meantime, it
has been decided to distribute ration commodities in
some far flung areas in 23 Blocks of these districts
from a few temporarily identified outlets, in addition
to the existing M.R. Dealers, as per the 'Micro Plans'
to be prepared by the concerned District Magistrates
in consonance with the discussions held in the
meeting with the Chief Secretary on 4th July, 2011.
The salient features of the programme is appended
below:-
1. For streamlining TPDS in Jangal Mahal
additional retail outlets will be opened in B.D.O.
offices, G.P. offices, near Police Station/Police
camps and even in Polling Stations (if required) -
as will be decided by the District Magistrate who
will set up these outlets in consultations with
DCF&S, SCF&S, SDOs and BDOs. Area of
operation of existing M.R. dealer will be decreased
in small circle which is to be defined also.
2. These outlets are to be set up mainly to serve
people of far flung areas so that Ration Card
holders need not move a long way to have their
allotted P.D.S. items.
3. The District administration will chalk out
suitable plans, fix well defined command areas of
proposed outlets and make wide publicity so that
people should know exactly where to go, on which
days and time.
4. Initially, these outlets shall be manned by
casual workers/volunteers to be deployed by
the district administration. Other work forces for
supporting the programme, may be drafted from
the B.D.O. office, G.P. Office and other areas as
will be deemed fit by the District Magistrate.
5. Foodgrains allotted to the selected outlets
shall be delivered by concerned MR Distributor
directly under the doorstep delivery scheme.
6. Separate accounts shall be maintained by the
in-charge of the outlets. Allocation of Foodgrains
shall be made taking into account the number of
units tagged, prescribed scale and closing stock.
Of course, commissions allowed for Foodgrains
allotted and distributed from the outlets shall be
handed over to the MR dealer concerned.
7. Tagging of beneficiaries/allocation of ration
commodities etc. shall be done by the field officials
of Food & Supplies Department under the
guidance of DCF&S informing the District
Magistrates from time to time.
8. The DCF&S shall be responsible for ensuring
timely availability of stock of ration commodities at
all such outlets. To avert harassment of the
public, time schedule for distribution is to be
maintained strictly.
9. In case of any local dispute, the B.D.O. is
consultation with officials of Food & Supplies
Department shall take suitable decisions.
10. If any genuine inhabitant is found without
having ration card he/she should be covered by
issued new ration cards as per guideline issued
vide No. 3477-FS/Sectt/Food/13A-02/2011
dated 17.06.2011 if, of course, found otherwise
eligible.
11. All formalities for implementation of the
Special Scheme shall have to be completed by
15.07.2011.
To ameliorate hardships of the people in 23
identified blocks and serve the consumers more
effectively, concerted efforts are necessary."
5. After issue of the guideline and at the instance of the authorities,
these petitioners claim to have had created additional locations for their
existing consumers upon investment of substantial sum of money. The
State Authorities in some cases had started initiating steps for inviting
new applications even before declaring vacancies in dealerships for the
areas which were being catered through such additional location points by
the petitioners. The dealers, who are petitioners before me also question
the legality of such action. The State has contested these petitions, but
affidavits-in-opposition have been filed in two writ petitions, being W.P.
No. 31930 (W) of 2013 and W.P. No. 33492 (W) of 2013. In each of these
two petitions, the respondents have used two affidavits, described as
affidavit-in-opposition and supplementary affidavit-in-opposition. W.P. No. 31930 (W) of 2013 relates to vacancy notices pertaining to West Midnapore, whereas the affidavits used W.P. No. 33492 (W) of 2013 pertain to dealers from the district of Purulia. The legal points involved in all these writ petitions are broadly the same though there are factual variations in individual cases, which are not of great material significance.
6. Mr. Sengupta, learned counsel for the State in this set of writ petitions has adopted these two affidavits in all the writ petitions and argued the case on legal issues. The petitioners have come before me at a stage when vacancy notices were issued in respect of dealership in those specific areas, except in W.P. 6252 (W) of 2013. I have referred to the scope of W.P. 6252 (W) of 2013 briefly earlier in this judgment. After publication of vacancy notices in respect of the dealership zones covered in W.P. 6252 (W) of 2013, W.P. No. 31930 (W) of 2013 was instituted, which comprehensively dealt with the grievances of the dealers who brought that proceeding.
7. On behalf of the petitioners arguments have been primarily advanced on breach of provisions of the 2013 Control Order in declaration of vacancy in respect of consumers they had been serving. It has also been contended on behalf of the petitioners that it was policy of the State to allocate at least 5000 beneficiaries in respect of each dealership to make the latter economically viable. On this point, reference was made to a memorandum issued by the same department, bearing no. 1-78- FS/FS/SECTT/FOOD/6F-3/85Pt.I dated 13th April 1999. It has been specified, inter alia, in this memorandum:-
"....... Under the circumstances, I am directed by order of the Governor to state that, in supersession of all orders issued earlier in this regard, the following guidelines shall be followed in respect of appointment, tagging and retagging of Distributors, Wholesales and retailers in MR areas. A. Not more than 5000 ration card shall be tagged with a MR dealer.
B. (1) not more than 50 MR dealers (2) 2.50 Lakh ration cards shall be tagged with a MR Distributor/Wholesaler.
C. Appointment, tagging or retagging may be considered only when the total number of dealers and rationees exceed those specified at A and both (1) and (2) of B above.
However, under exceptional circumstances arising out of geographical barriers and unusually long distances required to be covered by the dealers causing drainage on account of high transport changes, to the State revenue, such conditions may of course be reviewed accordingly.
All proposals of declaration of vacancies in terms of the aforesaid guidelines may henceforth be submitted to the Government through the district level statutory authorities for approval, with sufficient justification. However, the procedure already laid down in respect of selection and appointment of dealer/distributor will remain unchanged.
This order shall take immediate erect and shall remain in force until further orders."
8. The process for declaration of vacancies and delinking of a set of consumers from individual dealers in Jangal Mahal, which constitute the subject of dispute in these proceedings appears to have been triggered by a memorandum dated 27th August 2013 (no. 102-JS(P)/I/F&S) issued by the Joint Secretary, Food & Supplies Department, addressed to the Director, DDP&S. A copy of this memorandum was made available to the Court by the petitioners, and this memorandum reads:-
"I am directed to request you to kindly ask the respective SC F&S/DC, F&S of the three districts of jungalmahal areas to send proposals for creation of vacancies of MR Dealers for running the 29 newly constructed Additional outlets.
On receipt of proposals, the same may be verified/re- enquired, if required and sent to the Government for approval. On receipt of the approval, a Notice inviting applications may be floated in the Daily Newspapers for wide publicity.
In respect, it may be noted that the Government in the Department of Food & Supplies is very much keen to engage SHGs specially women SHGs for running the outlets as contained in the provision of Clause 20(iii) of West Bengal Public Distribution System (Maintenance & Control) Order, 2013. The entire process will have to be completed by 10th October, 2013 positively."
In respect of the petitioners in W.P. 31930 (W) of 2013, the genesis of the dispute appears to lie in a communication of the DDP&S to the District Controller, F&S, West Midnapore seeking for a similar proposal from the Sub-Divisional Controllers. This communication, bearing Memo No. 3584(3) FMR/115-3/2012 dated 2nd September 2013 stipulates:-
" In connection with the F&S Department No. under reference and captioned subject, he is directed to obtain proposals for creation of vacancies of M.R. Dealers for running the newly constructed Additional outlets from the concerned Sub-divisional Controllers, F&S, in his district and send the same to this Directorate by 10th September with his comments. This should be treated as extremely urgent."
9. Prior to issue of the vacancy notices and advertisements, there are materials which demonstrate that authorities had already embarked upon exercise for identifying the SHGs in the said area. Such an identification exercise in the form of a memorandum (No. 1594/)/X - PDS/DRD Cell issued by the Project Director, DRD Cell, West Midnapore Zilla Parishad has been annexed as "P4" to W.P. 31930 (W) of 2013.
10. Mr. Sengupta, learned Counsel for the respondents has made available different vacancy notices, which were published in the Kolkata Gazette Extraordinary. In respect of the district of West Midnapore, he has referred to copies of the Gazette dated 4th March 2014 (memo no. 1047/JFS/13) and 23rd September 2013 (memo no. 1020/S.C.F & S/MDN/13, in respect of the Jhargram and Midnapore Sadar sub- Divisions. For the district of Bankura, there are three notices, all relating to Khatra Sub-Division, bearing memo no. 511/S.C.F & S/KH/13 and 510/S.C.F & S/KH/13, and 509/S.C.F/S.C.F & S/KH/13, all dated 23rd September 2013. The notice pertaining to the vacancies in Purulia district is also dated 21st September 2013 published in the Gazette dated 1st October 2013. The issuing officer of all the Gazettes are Sub-Divisional controllers of the respective zones.
11. On behalf of the petitioners, it has been argued by Mr. D.Saha Roy, learned Counsel the notifications are invalid because the respective Sub- Divisional Controllers had issued them on external dictat, at the instance of higher authorities whereas the proposals for declaration of vacancies had to be mooted by the Sub-Divisional Controllers.
12. So far as W.P.No.33492 (W) of 2013 is concerned, he submitted that the proposal of the Sub-Divisional Controller as well as the Controller was against creation of new vacancies at certain locations contemplated, on the ground that creation of such vacancy would cause inconvenience the beneficiaries. The writ petitioner in this case had opened an additional outlet at Fuljhore under Sindri Gram Panchayat. The petitioner's main outlet is in the same Gram Panchayat, at the village Sindri. It has also been argued by Mr. Saha Roy that as per Clause 24(2) of the 2013 Control Order, reduction in the number of linked consumers constitute punishment, the imposition of which must be preceded by a proceeding in prescribed manner. In these cases, Petitioner's case is that in the garb of implementing policy, specific provisions in the Control Order is sought to be violated.
13. It has been contended on behalf of the petitioners that the authorities are bound to maintain minimum 5000 consumers for individual dealers and to sustain their case on this point, Mr. Saha Roy has referred to an affidavit of the Principal Secretary of the Food and Supplies department affirmed in connection with a contempt proceeding in this Court in WPCRC NO. 155 (W) of 2013. In that affidavit, referring to the policy of the State as regards the number of linked consumers, it has been stated:-
"31. That as per provision of G.O.No. 1478-FS dated 13.04.1999 not more than 5000 ration cards can be tagged with a Fair-Price Shop. Tagging/Re-tagging of ration cards or creation of a fresh vacancy is considered when the ration cards tagged with a existing Fair-Price Shop exceeds the above limit. Although there is no minimum limit, such numbers of ration cards are tagged with a new Fair-Price Shop so as to make it economically viable. There is no deviation from such policy. Instead of framing new policy it is being strictly enforced.
32. That there was no rational basis in giving declaration of 41 Nos. of vacancies earlier in view of the fact some to the vacancies were declared in respect of some of the areas of tea gardens within Siliguri Sub-Division, Darjeeling where the numbers of ration card holders were too inadequate- for example 77, 710, 384, 935, 1102, 1200, 815, 903 etc. - to make appointment of dealers/fair price shop owners in such areas viable, and for which reorientation was required to the extent of clubbing such areas with the nearest area in terms of the accessibility of the beneficiary/consumer depending upon the economic viability of fair price shop owners to be appointed in that areas as well by taking into consideration of the circular bearing no.1478 FS dated 13.04.99 or declaration of vacancies afresh."
14. My attention has been specifically drawn by Mr. Saha Roy to the vacancy notice in respect of dealerships in Purulia, being memo no.748/SC/FS/PRL dated 21st September 2013. It has been recorded in this notice that the said notification was issued as per verbal approval from the Special Secretary to the Government of West Bengal. Stand of the petitioners is that such approval cannot fulfil the requirement of obtaining approval in terms of the provisions of the Control Order. Argument has also been advanced by Mr. Saha Roy that the requirement of the Control Order is publication of vacancy notices in two newspapers including a local daily and in the case, the vacancy notices were not published in any newspaper, which was contrary to the provisions of 20(ii) of the 2013 Control Order. On this point two judgments of this Court in MAT No. 676 of 2011 (State of West Bengal Vs. Imal Kujur & Ors) decided on 19th July, 2011 and APOT No. 261 of 2011 (Barun Ghosh Vs. Goutam Kumar Saha & Ors) decided on 1st September, 2011 have been relied upon by the petitioners. I do not think ratio of the judgment in the case of Imal Kajur (supra) applies in the facts of the given cases. So far as the judgment in the case of Barun Ghosh (supra) is concerned, this authority holds the implication of the punctuation 'slash' ('/') used in statutes, and when two modes of doing things are expressed in a statute, punctuated by a slash, the impact of this punctuation shall have to be construed as conjunctive and both modes are to be followed. This judgment was delivered construing the provisions of a Control Order of 2003 guiding the same field, which the Control Order of 2013 replaced. Clause 20 (ii) of the 2013 Control Order contemplates Gazette Notification and advertisements in two sets of newspapers, "in a local as well as in a widely circulated daily newspaper." Thus the advertisements are required to be published for fresh vacancies in a widely circulated daily newspaper and a local daily. Mr. Sengupta has taken me through a composite advertisement published in Bartaman, a daily newspaper, which could fit the description of a widely circulated newspaper. This advertisement covers vacancies in all the three districts. So far as West Midnapore is concerned, there are two independent advertisements in Pratidin and for the vacancies in Khatra Sub-Division of Bankura, advertisement has been made Bankura Barta. Copies of these advertisements have been enclosed to a note submitted by Mr.Sengupta, which was made available to the learned Advocate for the petitioners. No such advertisement in any local daily in respect of the vacancies in Purulia, however, has been brought to my notice.
15. The State has questioned locus of the petitioners as existing dealers to maintain these applications. Relying on a decision of the Supreme Court in the case of DISTRICT COLLECTOR AND ANOTHER Vs. B.SURESH AND OTHERS [(1999) 5 Supreme Court Cases 612], it has been submitted by Mr. Sengupta that a dealer does not have vested legal right to any particular number of ration cards in respect of his fair price shop and it is permissible for the State authorities to improve the existing public distribution system by rearranging consumer linkage vis-à-vis existing dealers. On the same point another decision of the Supreme Court in the case of APM TERMINALS B.V Vs. UNION OF INDIA AND ANOTHER [(2011)6 Supreme Court Cases 756] has been relied upon. On argument of Mr. Saha Roy that in terms of paragraph 24 of the Control Order reduction of ration cards would constitute penalty for a licensee or a dealer for committing irregularities, stand of the respondents is that in these cases the steps for delinking were not been taken for any irregularity but such steps were necessary to implement a State policy reflected in the administrative decision of 2011. Mr. Sengupta argued that all the norms had been followed in declaring the vacancies and as such the writ petition ought to be dismissed. On argument of the petitioners that their business would become unviable with further delinking of the consumers, it has been submitted on behalf of the State that in Jangal Mahal or LWE, the availability of certain ration commodities have been doubled, which would offset the anticipated losses of the dealers there because of this exercise. This submission of the State was supplemental to their main submission that a dealer cannot claim any vested legal right on the number of consumer remaining attached to his dealership.
16. First I shall deal with the question of locus of the petitioners to maintain these actions. The petitioners, in support of these actions, sought to rely on a memorandum dated 13th April, 1999 to which I have referred to earlier in this judgement. The aforesaid memorandum of 13th April, 1999 does not mandate that each dealer has to have a minimum of five thousand ration cards linked to his fair price shop. On the other hand this memorandum imposes a limit on the number of ration cards a dealer can have tagged to his dealership. Moreover, the 1999 memorandum itself contemplates exceptions to the contemplated card linkage on the basis of distance related difficulties of the beneficiaries of the Public Distribution System. The statements made in the affidavit in WPCRC No. l55 (W) of 2013 also does not lay down a clear policy on card linkage. Though the expression 'policy' has been used by the deponent thereof, these affidavits speak of a general practice in relation to the 1999 memorandum. The reason shown by the State for effecting these adjustments in dealer- linkages come within the exceptional circumstances contemplated in the said memorandum itself. The petitioners' cases do not improve on the basis of the two paragraphs extracted from the said affidavits. The primary object of public distribution system is to facilitate supply of essential commodities to the economically weaker and vulnerable sections of population. If certain measures are taken by the State which reduces the number of tagged consumers of a particular dealer below five thousand, that would not constitute breach of any statutory instrument or policy decision of the State. The Control Order itself does not specify any minimum number of consumers a dealer shall be entitled to hold on to. I have already referred to the implication of the 1999 memorandum. Thus, I do not think any individual dealer can insist on tagging of five thousand consumers to his dealership. He has no vested legal right to claim a minimum number of consumers. The decision of the Supreme Court in the case of B. Suresh and Others (supra) and a Bench decision of this Court in the case of Anil Kumar Shaw Vs. State of West Bengal and Others [(2007)3 CHN 1] have been relied upon by the State to contend that in the absence of any established of legal right being breached no writ petition can be brought. The case of Gajraj Singh Vs. State Transport Appellate Tribunal [(1997)1 SCC 650] has also been cited by the State on this point. I have already opined that the dealers under the 2013 Control Order do not have a legal right to claim any particular number of consumers to remain tagged to their dealerships. The petitioners before me however, have contended that their consumers are being detached in violation of the provisions of the 2013 Control Order and fresh applications have also been invited in respect of their detached dealers. In a case of this nature dealing with commercial interest of licensees of Public Distribution System, in my opinion, the licensees cannot claim any vested legal right over the number of consumers who can be tagged to them. But if they allege that their existing consumers are being detached and complain of delinking of such consumers to be fraught with extreme arbitrariness or unreasonableness, then the dealer will have right to question such act on the part of the State. For instance, if a dealer finds all his consumers are being detagged from his fair price shop and are being linked with a person who does not have any license of dealership in the first place, I do not think doors of the Court should be shut for him because he has no legal right over the number of consumers. The dealer in such case can found his complaint on violation of Article 14 of the Constitution. The relationship of a dealer with the State and the consumers of public distribution commodities are guided in these cases by a Control Order. If the dealer can demonstrate any breach in the process of detaching in violation of the Control Order, in such a situation, in my opinion, the action of the State can be subjected to judicial scrutiny. Such complaint, on action of this nature if it is sustained would render the action illegal. The three authorities relied upon by Mr. Sengupta for non- suiting the petitioners, in my opinion, do not lay down a ratio which makes it altogether impermissible for the Court to review an administrative decision by the administrative authorities of this Control Order on the question of detagging of consumers from a dealer on these two limited grounds. I shall confine my scrutiny of the State action assailed in this batch of writ petitions on these limited grounds.
17. The provisions relating to declaration of vacancies and appointment of dealers are, inter alia, contained in paragraph 20(ii) of the 2013 Control Order, which stipulates:-
"If it appears necessary for the District Administration to declare a new vacancy for catering to the need of consumers in any particular area, the vacancy has to be declared with the approval of Department. In that case the Sub-divisional Controller, Food and Supplies shall submit the proposal of any vacancy of dealer to the concerned District Controller (F&S), who in turn, will send it to the Director of DDP&S. The Director, DDP&S, will examine the proposal, if necessary, make re-enquiry and send the proposal to the Department for approval. After obtaining approval of the State Government, the Sub-divisional Controller, Food and Supplies shall declare such vacancy stating the eligibility criteria through notice in the office notice board and official Gazette notification/advertisement in a local as well as in a widely circulated daily news paper. The last date of receiving applications shall be thirty days from the date of notification of the vacancy."
18. Applicability of aforesaid provision in relation to the vacancy notices involved in these proceedings has not been disputed on behalf of the respondents before me. The petitioners' case is that there have been breaches of the prescribed mode for declaration of vacancies for independent fair price shops at the additional locations and vacancy notices have been issued by the Sub-Divisional Controllers at the diktat of his superior officers. I have already opined that the petitioners do not have vested legal rights on retaining a specified number of tagged consumers. As regards the process followed before vacancy notices were issued, it has been stand of the State that the laid down procedure of mooting of proposals by the Sub-Divisional Controllers were duly followed in respect of each vacancy at those locations. Proposals of the District Controller and Sub-Divisional Controllers in relation to West Mindnapore have annexed in the affidavit-in-opposition in W.P. No. 33492 (W) of 2013 which may be treated as samples while testing this issue. No evidence is there in relation to vacancies in Khatra Sub-Division of Bankura district. On behalf of the State, however, it was submitted that such a course was followed, and applying the presumption principle comprised in Section 114 of the Evidence Act, 1872, I shall proceed on the basis that such a course was followed in respect of the vacancy notices of Bankura. But such proposals were made, as it appears from the communication of the Sub- Divisional Controller annexed in the affidavit-in-opposition in W.P. 33492 (W) of 2013. On the basis of directive of superior authorities. It has been recorded in the proposal of the Sub-Divisional Controller, Purulia (Annexure "A" to that affidavit):-
"As per the order of the Director, DDP&S vide his memo no. 3584(3)/FMR/11S-3/1 sending herewith the vacancy proposal-cum-status report regarding 10 additional DS outlets in Junglemahal areas of Purulia District with specific comments."
It is case of the petitioners that for the two other districts also, the Sub- Divisional Controllers were responding to external diktat and pre-proposal decisions were taken at the superior level.
19. When a statutory instrument mandates certain procedures to be followed in a particular manner, such procedure would have to be followed in that manner only. If the instrument mandates a particular decision to be taken by a specified authority applying his mind, decision would have to be taken by such authority only with his independent judgment. But have these cardinal principles of statutory construction been violated in these cases, with decision being taken at the higher levels of the decision making process, leaving the Controllers and Sub-Divisional Controllers to merely perform ministerial acts? I do not think so. The subject involved in these cases is distribution of ration articles to the consumers in a geo- politically identifiable area. Object of the State is to improve the distribution process, and for that purpose a policy decision has been taken. The area has been identified applying intelligible criteria and rational decision making process. I do not find any fault in the policy itself. There is a subsisting channel of distribution within a statutory framework for making the ration articles available. In such circumstances, if the State machinery wants to improve the distribution channel through a process which does not impinge upon any of the stakeholders' vested legal rights, in my opinion, merely because the decision has been taken initially at the top level of the administrative hierarchy and then the statutory bodies lower in the hierarchy has been activated to comply with the laid down statutory process for implementing the policy, the process would stand vitiated. The Sub-Divisional Controllers while discharging their duty in terms of Clause 20(ii) of the 2013 Control Order are not exercising any quasi-judicial power which would require their decision making process totally insulated. The State is empowered and entitled to implement its policy through its agencies. If these statutory authorities are left to do their own thinking before mooting the proposal, each Sub-Divisional Controller might initiate individual proposals which would frustrate the State policy. The provision in Clause 20 (ii) of the Control Order which provides proposal for a new vacancy to be mooted by the District Administration does not exclude or forbids the State acting through superior authorities to decide on the necessity to create new vacancies for a specified area covering multi-district territories. Moreover, the vacancy creation process contemplated in Clause 20(ii) of the 2013 Control Order is confined to identifying necessities of creating vacancies in individual districts. It does not envisage a situation where the State, on considering special need of a region comprised within several districts comes forward with a common distribution policy. But such decision has to be implemented through the subsisting statutory process. The State Government would also not be bound by the proposal of the Sub-Divisional Controllers or Controllers. The power of the State to take a contrary view is also implicit in Clause 20 (ii), which in effect provides for screening of such proposals by the Director, DDP&S, who has been authorized to make re-enquiry and then send the proposal for approval. If it was a lone case of superiors dictating a Sub-Divisional Controller to come forward with a proposal in a particular manner unsupported by any policy, in that event such an action might have been legally flawed, but not in this batch of cases. I have already referred to Mr. Saha Roy's submission that vacancy notices in certain cases in Purulia district have been issued contrary to the proposal of the Sub-Divisional Controller. My opinion on this point is that since the authorities' intention is to implement State policy on certain aspects of distribution of ration articles, it would be permissible for the State to give approval to a vacancy creation process which could be contrary to that proposed by the Sub-Divisional Controllers.
20. Mr. Saha Roy had also submitted that reduction of linked consumers is a penal measure and the prescribed measures contained in Clause 24(2) of the 2013 Control Order had not been followed in the cases of the petitioners. In these cases, however, such reductions are not being effected for any irregularities on the part of the respective dealers. The delinking is taking place on the basis of State's decision to take certain measures for improving the distribution system of ration articles. Argument of the petitioners that their dealership business would become unviable also is not sustainable, in view of my finding that they do not have any vested legal right to retain any specified number of card holders. So far as the petitioners of West Midnapore and Bankura are concerned, I do not find any flaw in the decision making process in issue of the vacancy notices and consequential delinking of existing consumers. I accordingly sustain the legality of the respective vacancy notices.
21. In respect of vacancy notices for the district of Purulia, however, I do not find any advertisement was issued in any local newspaper. The petitions concerning vacancy notices of Purulia are W.P. 33432 (W) of 2013, W.P. 33491 (W) of 2013, W.P. 33492 (W) of 2013 and W.P. 33900(W) of 2013. The vacancy notice annexed at page 26 of the affidavit-in- opposition W.P. 33492 (W) of 2013 reveals that the notification was issued on verbal approval of the Special Secretary to the Government of West Bengal. In the Bench decision of this Court in the case of Barun Ghosh (supra), dealing with a similar provision of the West Bengal Public Distribution System (Maintenance Control) Order 2003 found insertion of a similar notification in two "insignificant local newspapers" not meeting the statutory requirement. The notification in that proceeding was not published in any widely circulated newspapers or in the Gazette. While adjudicating these four writ petitions, I have considered the submission of the respondents that the petitioners have no locus to maintain these actions as no vested legal rights of the petitioners are being breached in connection with publication of vacancy notices. But publication of these notices has a bearing upon retention of petitioners' linked consumers. While they do not have any legal right to insist on certain card-holders remaining attached to their fair price shops, if their existing consumer are shifted to a new dealer to be appointed on the basis of publication of such vacancy notices, they are entitled to seek compliance of prescribed legal process. This legal process has not been followed in their cases in two ways. First, there has been no publication of the vacancy notice in a local newspaper. Secondly, approval of State in these cases has been verbal. Approval of the State is a statutory requirement and it is implicit in Clause 20 (ii) that such approval has to be in writing. No state machinery ought to function on oral communication in discharge of statutory duty as such statutory action ought to be traceable and verifiable. Such "verbal" approval cannot constitute approval in terms of Clause 20(ii) of the 2013 Control Order, and in my opinion, the Vacancy Notice assailed in these four writ petitions have not been issued in proper compliance of legal provisions. For these reasons, I set aside the vacancy notice issued by the Office of the Sub-Divisional Controller, Food & Supplies, Purulia bearing Memo No. 748/SC/FS/PRL dated 21st September 2013. All consequential steps taken in pursuance thereof shall also stand invalidated. The respondents, however, shall be at liberty to issue such notice afresh upon, and if, the requisite approval is granted by the State. The advertisements contemplated in Clause 20 (ii) of the 2013 Control Order shall also be issued afresh. These four petitions are allowed in the above terms.
22. So far as the other writ petitions are concerned, in W.P. 31930 (W) of 2013, an additional point was taken that the steps taken for obtaining the proposal from the Sub-Divisional Controller and subsequent approval thereto leading to issue of vacancy notices were in violation of the order of status quo granted in W.P. No. 6252 (W) of 2013 on 4th March 2013. I do not accept this submission because these steps were taken after the 2013 Control Order had become operational on 8th August 2013 and promulgation of this Control Order had altered the circumstances on the basis of which the initial status quo order was issued on 4th March 2013. In any event, we have heard W.P. 6252 (W) of 2013 along with W.P. 31930 (W) of 2013 as also other writ petitions on the same subject, and in this judgment all the points argued in these two petitions have been dealt with. I do not find any illegality in the action of the respondents complained against by the petitioners in W.P. 31930 (W) of 2013, W.P. 31935 (W) of 2013, W.P. 32041 (W) of 2013, W.P. 32042 (W) of 2013, W.P. 33434 (W) of 2013, W.P. 33436 (W) of 2013 and W.P. 33437 (W) of 2013. These writ petitions shall stand dismissed and interim orders subsisting in these maters shall stand vacated.
23. There shall be no order as to costs.
24. Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.
(ANIRUDDHA BOSE, J.)