Allahabad High Court
Sarfaraz Khan vs State Of U.P. And 3 Others on 2 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 5370
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 56 Case :- WRIT - C No. - 13135 of 2018 Petitioner :- Sarfaraz Khan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.,K.S. Tiwari Hon'ble Ajay Bhanot,J.
1. The petitioner is a fair price shop dealer of Gram Panchayat Shadi Bankat, Block-City, District-Mirzapur. The fair price shop dealership of the petitioner was suspended by order dated 16.03.2018 and a show cause notice was issued by the self same order.
2. The petitioner has assailed the composite order of suspension/show cause notice dated 14.03.2018 in the instant writ petition.
3. The submission of Sri Kailash Singh Kushwaha, learned counsel assisted by Sri Sanjay Kushwaha, learned counsel for the petitioner is that the respondent authority which took out the order dated 16.03.2018 was not competent to do so. The order of suspension is passed by the authority in excess of jurisdiction vested by law. The jurisdiction of the respondents authorities to suspend the fair price shop licence of the petitioner and conduct any enquiry into malpractices stood ousted after the promulgation of The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015. There is a head on collision and an irreconcilable conflict between The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to as "Control Order 2016") promulgated in exercise of powers under Section 3 of the Essential Commodities Act, 1955 and the National Food Security Act, 2013. The National Food Security Act, 2013 shall prevail and consequently, the authorities in the Control Order 2016 stand superseded and the order is beyond jurisdiction.
4. Sri Siddharth Singh, learned Additional Chief Standing Counsel assisted by Sri S.R. Tripathi, learned Standing Counsel for the respondent-State submits that there is no conflict between The National Food Security Act, 2013 and the Control Order 2016. The action taken by the respondent-authority is under the Control Order, 2016, read with the terms of the contract of fair price shop dealership awarded to the petitioner. Both the enactments namely, The National Food Security Act, 2013 and the Control Order 2016 can be construed harmoniously and implemented simultaneously.
5. Heard learned counsel for the parties.
6. The facts of the case lie in a narrow campus. The show cause notice-cum suspension order was issued to the petitioner on 16.3.2018. The show cause notice records the commission of various malpractices in the distribution of essential commodities by the petitioner. The order dated 16.3.2018 asks the petitioner to tender his defence with regard to the charges of various malpractices and irregularities in the distribution of essential commodities enumerated in the order and to show cause as to why his contract be not cancelled.
7. The controversy at hand is essentially legal in nature. The legal issues which arise for consideration in this case can be defined thus:
(A) Whether there is an irreconcilable conflict between The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015 and the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, consequent to which the latter enactment stands superseded or stymied in its operation?
(B) Whether the jurisdiction of the authorities under the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, and the contract between the State Government and the fair price shop dealer to take out proceedings to suspend and enquire into malpractices committed by a fair price shop dealer stand ousted in view of the provisions of The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015?
8. The conflict of statutes has engaged the attention of courts for long. The line of authorities is consistent and the law is clear. The courts will not readily presume any conflict between two statutes. On the contrary, the presumption will be that the legislature was conscious of the preceding legislation in issue. The enquiry of the courts will examine, if the statutes, which are allegedly in conflict, can be implemented simultaneously and a head on collision can be avoided. A harmonious construction of the enactments will be preferred to an interpretation which creates a head on collision. However, if in spite of such exercise, the conflict becomes inevitable and the reconciliation of the statutory schemes becomes impossible, the court will decide which enactment has to yield. These principles of law shall now be fortified by judicial authorities on point.
9. The issue of conflict between the Sick Industrial Companies (Special provision) Act, 1985 and the State Financial Corporation Act, 1951 was considered in the case of Maharashtra Tubes Ltd. Vs. State Industrial & Investment Corporation of Maharashtra and another, reported at (1993) 2 SCC 144. The Hon'ble Supreme Court in Maharashtra Tubes Ltd. (supra) first provided the direction and line of the enquiry to examine such issues. The Hon'ble Supreme Court exhaustively examined the objects and the scheme of both the enactments to determine the issue of a perceived conflict between the said statutes. After surveying the schemes of both the enactments, the Hon'ble Supreme Court in Maharashtra Tubes Ltd. (supra) held thus:
"5. From the relevant provisions of the 1951 Act it is clear that the purpose of constituting Stall level Financial Corporations was to augment industrialisation by extending financial assistance to certain industrial concerns. The Corporation is authorised to grant loans to industrial concerns and/or to guarantee loans raised by such concerns, even to underwrite the issue of stocks, shares, debentures, etc., floated by such concerns. Such loans etc., are repayable within a stated period. The enactment has undergone amendments from time to time with a view to enlarging the functions and powers of the Financial Corporations. The said Act was amended in 1956 (Act 56 of 1956) inter alia to extend its benefit to industrial concerns engaged in small scale and cottage industries and to widen the powers of management vested in the Corporation in regard to concerns taken over by the Corporation. Experience gained over a period of time necessitated a further amendment in 1962 (Act 6 of 1962) to provide for extending the benefit of financial assistance to hotel and transport industries and to meet the growing need of the industry occasioned by the rising tempo of industrialisation to enable the Corporations to guarantee loans raised from Scheduled Banks, State Co-operative Banks, etc. and to retain underwritten shares beyond seven years and to convert loans/debentures into share capital. A further amendment was made in 1972 (Act 77 of 1972) as it was felt that technical entrepreneurs and units situate in backward areas should also be granted soft term loans and such other benefits. At the same time certain constraints on the 5 Corporations were removed to ensure their smooth working. It is clear from the foregoing discussion that the primary object of this statute is to extend financial assistance to industrial concerns with a view to hasten the pace of industrialisation and with that in view the Financial Corporations have been statutorily enjoined or charged with the duty to provide credit facilities to industrial concerns. Undoubtedly Financial Corporations have been empowered by Section 29 to take over management of defaulting industrial concerns for realisation of its dues. Similarly, Section 31(1) also prescribes a special remedy for enforcement of Corporation claims through the judicial machinery by sale etc. of pledged/mortgaged/hypothecated or assigned property of the defaulting industrial concern. It is thus clear from the provisions of this law that its primary objective is to provide an impetus to industrialisation by providing through a statutory corporation financial assistance to industrial concerns and incidental power to take over is given and summary procedures have been laid down by Section 29 and 31 for the realisation of its dues from defaulting industrial concerns. The power conferred by Section 29 and the remedy provided in Section 31(1) is not the underlying object and purpose of the statute, the real objective of the law is to create an instrumentality through which financial assistance can be extended to deserving entrepreneurs. This is the main purpose, scope and object of this special law.
6. On the other hand the 1985 Act was enacted, as its preamble manifests, with a view to timely detection of sick or potentially sick companies owning industrial undertakings, the identification of the nature of sickness through experts in relevant fields with a view to devising suitable remedial measures through appropriate schemes and their expeditious implementation. Here the emphasis is to prevent sickness and in cases of sick undertakings to prepare schemes for their rehabilitation by providing financial assistance by way of loans, advances or guarantees or by providing reliefs, concessions or sacrifices from Central or State Government, scheduled banks, etc. The basic idea is to revive sick units, if necessary, by extending further financial assistance after a thorough examination of the units by experts and only when the unit is found to be more capable of rehabilitation, that the option of winding up may be resorted to.
It is for that reason that Section 22(1) provides that during the pendency of (i) an inquiry under Section 16 or (ii) preparation or consideration of a scheme under Section 17 or (iii) an appeal under Section 25, no proceedings for winding up of the concerned industrial company or for execution, distress or the like shall lie or be proceeded with in relation to the properties of that concern unless BIFR/Appellate Authority has consented thereto. The underlying idea is that every such action should be frozen unless expressly permitted by the specified authority until the investigation for the revival of the industrial undertaking is finally determined. It is thus crystal clear that the main thrust of this special legislation is at revival or rehabilitation of the sick industrial undertaking and it is only when it is realised that the same is not feasible that the option of winding up of the unit can be resorted to.
7. It will be seen from the above discussion that both the 1951 Act and the 1985 Act are special statues, each having a different objective, the emphasis in the case of the former being on giving of financial assistance to entrepreneurs for setting up industries while in the case of the latter it being to revive or rehabilitate industries which have on account of economic or other related reasons gone sick. No doubt the latter Act also contemplates giving of financial assistance for revival or rehabilitation of a sick industrial undertaking but that is by way of a remedy or as measure at revival of the sick unit."
10. A Full Bench of the Bombay High Court while examining a similar issue of inconsistency between the two enactments in the case of Shivram Dodanna Shetty Vs. Sharmila Shivram Shetty, reported at AIR 2017 Bom 1 (FB) laid down the law as follows:
"22. The principle of law of interpretation further lays down that in a given case both the enactments could be special statutes dealing with different situations and there could be non obstante provision in both the special statutes. In such a situation, the conflict between two enactments need to be resolved, considering the purpose and object of the Act.
23. It is settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed, then the later must be adopted. On such interpretation, the objects of both the enactments would be fulfilled and there would be no conflict."
11. Similarly, the Hon'ble Supreme Court in the case of Bank of India Vs. Ketan Parekh and others, reported at (2008) 8 SCC 148, speaking to the issue of a purported conflict between the Special Court (Trial of Offence Relating to Transactions in Securities) Act, 1992 and Recovery of Debts Due to Banks and Financial Institutions Act, 1993, examined the purposes of the Acts to see whether both the Acts could be read harmoniously. The Hon'ble Supreme Court in the case of Bank of India (supra) spoke as under:
"19. There is another reason to come to this conclusion that in fact this Act was specially meant to deal with the fraudulenttransactions which has taken place from 1st of April, 1991 to 6th of June, 1992. Therefore, this Act has special purpose to deal with the scam which has taken place in securities transactions during this period. The special purpose behind this Act is more than apparent from the Statement of Objects and Reasons and the Statement of Objects and Reasons amply clarifies this position.
20. The Statement of Objects and Reasons reads as under :
" Statement of Objects and Reasons.- (1) In the course of the investigations by the Reserve Bank of 17 India, large scale irregularities and malpractices were noticed in transactions in both the Government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers.
(2) To deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore confidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court (Trial of Offences Relating to Transactions in Securities) Ordinance , 1992, was promulgated on the 6th June, 1992. The Ordinance provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of offences relating to transactions in securities and disposal of properties attached. It also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders.
Therefore, this Act has a special task before it and that task has to be dealt with in the parameters laid down by this Act.
21. The Act of 1993 was of comparatively general in nature pertaining to recovery of debts due to the Banks and Financial Institutions. The idea was that all the suits pertaining to recoveries of Banks and Financial Institutions spreading over the Civil Courts and this has resulted into great strain on the Banks and Financial Institutions. Therefore, in order to meet that contingency this Act was promulgated. The preamble in this Act clearly reads as under :
" An Act to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith or incidental thereto. "
Therefore, the purpose of the Act of 1993 was to expedite the recovery of the debts due to the banks and financial institutions.
22. Incidentally, the purpose of both the Acts has separate area of operation. Application was filed by the Bank before the Debts Recovery Tribunal for recovery of its debts against the same person i.e. Ketan Parekh and temporary injunction was issued to disclose the assets and during the pendency of these Original Applications the jurisdiction of the Tribunal was challenged. Therefore, the issue came up specially before the High Court. The effect of Act of 1992 has special purpose and incidentally the subject matter appears to be the same under both the Acts but the Act of 1992 clearly lays down the specific purpose i.e. the scam which has taken place relating to the transactions in securities from 1.4.1991 to 6.6.1992 to deal with such scam only. Section 9-A which has come subsequently in the Act of 1992 i.e. on 25.1.1994 deals with the over-riding effect on the Act of 1993. Therefore, the Act of 1992 has the over-riding effect over the Act of 1993."
12. Finally, it was found in the Bank of India (supra) that in other areas both the enactments could be read harmoniously and no irreconcilable conflict arose between the two enactments. The Hon'ble Supreme Court held as under:
"29. Apart from this, in the present case both the Acts can be read harmoniously. Whatever dues are due to the Banks or the Financial Institutions can be claimed under Section 11 (2) of the Act of 1992 which specially empowers that the liabilities can be adjusted out of the securities of the person notified in the manner provided under Section 11(2)(b). Therefore, in the present case, the Bank can certainly make an application before the Special Court under Section 11(2)(b) of the Act of 1992 for discharge of their liabilities against the securities of the notified person."
13. The legal propositions distilled from judicial authorities in point in the preceding paragraphs in point in the preceding pragraphs shall structure and guide the line of enquiry in the succeeding paragraphs.
14. The discussion into the perceived conflict of the statutes shall be sequenced thus. The purpose and objects of the enactments shall be ascertained first. The respective schemes of the two enactments shall be examined next. Finally, the jurisdiction of the authorities to take out the order assailed in the writ petition shall be determined.
Essential Commodities Act-Purpose and Intendment (Control Order-Purpose and Intendment)-
15. The U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, (hereinafter referred to as 'the Control Order 2016') was made in exercise of powers vested in the State Government by virtue of Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Essential Commodities Act 1955').
16. The Essential Commodities Act, 1955 was promulgated by the Parliament with the avowed object to provide in the interests of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities. The Essential Commodities Act, 1955 is berthed in the IXth Schedule to the Constitution of India. By reason of the enactment being placed in the IXth Schedule of the Constitution, it is immune to challenge on the ground that its provisions violate the fundamental rights guaranteed by Part-III of the Constitution. The immunity so created in favour of the enactment shows the importance attached by the legislature to the enactment and the purpose it serves. Section 3 of the Essential Commodities Act, 1955 is a pivotal provision of the Act and relevant to the controversy, speaks thus:
"Section 3. POWERS TO CONTROL PRODUCTION, SUPPLY, DISTRIBUTION, ETC. OF ESSENTIAL COMMODITIES.
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, 2[or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide--
(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
[(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
Explanation 1 .--An order made under this clause in relation to food-grains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.
Explanation 2. --For the purposes of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;
(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs 1[***] which, in the opinion of the authority making the order, are, or, if unregulated, are likely to be, detrimental to the public interest;
(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(i) for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;
[(ii) for the grant or issue of licences, permits or other documents, the charging of fees therefor, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order;] [(j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination,--
(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be, committed and any packages, coverings or receptacles in which such articles are found;
(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act;
(iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents.
(3) Where any person sells any essential commodity in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to him the price therefor as hereinafter provided--
(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.
[(3A) (i) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices, or preventing the hoarding, of any food-stuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the food-stuff shall be sold in the locality in compliance with an order made with reference to clause (f) of sub-section (2) shall be regulated in accordance with the provisions of this sub-section.
(ii) Any notification issued under this sub-section shall remain in force for such period not exceeding three months as may be specified in the notification.
(iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the seller as the price therefor--
(a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;
(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;
(c) where neither clause (a) nor clause (b) applies, the price calculated with reference to average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification.
(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality; and the average market rate so determined shall be final and shall not be called in question in any court.] [(3B) Where any person is required, by an order made with reference to clause (f) of sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of foodgrains, edible oilseeds or edible oils in relation to which no notification has been issued under sub-section (3A), or such notification having been issued, has ceased to be in force, there shall be paid to the person concerned, notwithstanding anything to the contrary contained in sub-section (3), an amount equal to the procurement price of such foodgrains, edible oilseeds or edible oils, as the case may be, specified by the State Government, with the previous approval of the Central Government having regard to--
(a) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils;
(b) the general crop prospects;
(c) the need for making such grade or variety of foodgrains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and
(d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of foodgrains, edible oilseeds or edible oils.
[(3C) Where any producer is required by an order made with reference to clause (f) of sub-section (2) to sell any kind of sugar (whether to the Central Government or a State Government or to an officer or agent of such Government or to any other person or class of persons) and either no notification in respect of such sugar has been issued under sub-section (3A) or any such notification, having been issued, has ceased to remain in force by efflux of time, then, notwithstanding anything contained in sub-section (3), there shall be paid to that producer an amount therefor which shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to--
(a) the fair and remunerative price, if any, determined by he Central Government as the price of sugarcane to be taken into account under this section;
(b) the manufacturing cost of sugar;
(c) the duty or tax, if any, paid or payable thereon; and
(d) a reasonable return on the capital employed in the business of manufacturing of sugar:
Provided that the Central Government may determine different prices, from time to time, for different areas of factories or varieties of sugar:
Provided further that where any provisional determination or price of levy sugar has been done in respect of sugar produced up to the Sugar Season 2008-2009, the final determination of price ma be undertaken in accordance with the provisions of this sub-section as it stood immediately before the 1st day of October, 2009.
Explanation. --For the purposes of this sub-section, "producer" means a person carrying on the business of manufacturing sugar.] (3D) The Central Government may direct that no producer, importer or exporter shall sell or otherwise dispose of or deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced, whether such godowns are situated within the premises of the factory or outside or from the warehouses of the importers or exporters, as the case may be, except under and in accordance with the direction issued by the Government:
provided that this sub-section shall not affect the pledging of such sugar by any producer or importer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), so, however, that no such bank shall sell the sugar pledged to it except under and in accordance with a direction issued by the Central Government.
(3E) The Central Government may, from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers, to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction.
Explanation. --For the purposes of sub-section (3D) and this sub-section,--
(a) "producer" means a person carrying on the business of manufacturing sugar;
(b) "recognised dealer" means a person carrying on the business of purchasing, selling or distributing sugar;
(c) "sugar" includes plantation white sugar, raw sugar and refined sugar, whether indigenously produced or imported.
(4) If the Central Government is of opinion that it is necessary so to do for maintaining or increasing the production and supply of an essential commodity, it may, by order, authorise any person (hereinafter referred to as an authorized controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order such functions of control as may be provided therein and so long as such order is in force with respect to any undertaking or part thereof,--
(a) the authorized controller shall exercise his functions in accordance with any instructions given to him by the Central Government, so, however, that he shall not have any power to give any direction inconsistent with the provisions of any enactment or any instrument determining the functions of the persons in-charge of the management of the undertaking, except in so far as may be specifically provided by the order; and
(b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller under the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions.
12[***] (5) An order made under this section shall,--
(a) in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette; and
(b) in the case of an order directed to a specified individual be served on such individual--
(i) by delivering or tendering it to that individual, or
(ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighbourhood.
(6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made."
17. The Hon'ble Supreme Court while interpreting the purpose and scope of Section 3 of the Essential Commodities Act, in Prag Ice and Oil Mills and another Vs. Union of India, reported at 1978 (3) SCC 459 stated:
"The dominant purpose of these provisions is to ensure the availability of essential commodities to the consumers at a fair price."
18. The object of promulgating the U.P. Scheduled under the Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 (hereinafter referred to as 'the Control Order, 2016) was created when the State Government formed the opinion that it was necessary and expedient to do so for maintaining the supply of foodgrains and other essential commodities and for securing their equitable distribution and availability at fair prices. The Essential Commodities Act, 1955 and the U.P. Control Order, 2016 form the legal backbone of the public distribution system at large and the targeted public distribution system in particular.
19. At the dawn of independence the historical memories of repeated famines under foreign rule were still fresh in minds of the founding fathers. The advent of independence and the promulgation of the constitution did not wish away the problem of feeding the hungry millions in India. The magnitude of the problem humbled the conscience of the founding fathers, depth of the anguish steeled their resolved. Good intentions are not a substitute for farsighted legislation and efficient administration.
20. By bringing The National Food Security Act, 2013 into existence, one promise made to the hungry millions by the founding fathers was redeemed. The statements of objects and reasons of the bill on the back of which the National Food Security Act, 2013 was enacted is instructive and an eloquent exposition of the intention of the legislature. The same is being extracted hereunder:
"Article 47 of the Constitution, inter alia , provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, to which India is a signatory, also cast responsibilities on all State parties to recognise the right of everyone to adequate food. Eradicating extreme poverty and hunger is one of the goals under the Millennium Development Goals of the United Nations.
2. In pursuance of the constitutional and the international conventions obligations, providing food security has been focus of the Government's planning and policy. Food security means availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices. Attainment of self-sufficiency in foodgrains production at the national level has been one of the major achievements of the country. In order to address the issue of food security at the household level, the Government is implementing the Targeted Public Distribution System under which subsidised foodgrains are provided to the Below Poverty Line, including Antyodaya Anna Yojana, and Above Poverty Line households. While the Below Poverty Line households under the Targeted Public Distribution System receive thirty-five kilograms foodgrains per family per month, the allocation to Above Poverty Line households depends upon availability of foodgrains in the Central pool. Allocations for other food based welfare schemes for women and children, natural disasters, etc., are also being made at subsidised rates.
3. Ensuring food security of the people, however, continues to be a challenge. The nutritional status of the population, and especially of women and children, also needs to be improved to enhance the quality of human resource of the country. The proposed legislation marks a paradigm shift in addressing the problem of food security--from the current welfare approach to a right based approach. Besides expanding coverage of the Targeted Public Distribution System, the proposed legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices. It will also confer legal rights on women and children to receive meal free of charge.
4. In view of the foregoing, the National Food Security Bill, 2011 was introduced in the Lok Sabha on 22nd December, 2011. Subsequently, the said Bill was referred to the Department Related Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution for examination and Report. The Standing Committee presented its Report to the Speaker, Lok Sabha on 17th January, 2013. The recommendations of the Standing Committee were examined on priority; and accordingly the Government gave notice in the Lok Sabha in the Budget Session for consideration and passing of the said Bill along with official amendments. However, Parliament was adjourned sine die on 8th May, 2013 and thereafter both the Houses were prorogued.
5. In view of the time that has already lapsed in passing of the National Food Security Bill, 2011 since its announcement by the then President of India in her address to the Joint Session of Parliament on 4th June, 2009, and further delay in getting it passed through Parliament, the Government was of the considered view that it will not be appropriate to further delay the reaching of the proposed benefits of the Bill to the people of the country.
6. As both the Houses of Parliament were not in Session and immediate action was required to be taken to ensure that the benefits of the proposed legislation reach the people at the earliest, the President promulgated the National Food Security Ordinance, 2013 on 5th July, 2013.
7. It is, now proposed to replace the National Food Security Ordinance, 2013 with the National Food Security Bill, 2013, to--
(a ) provide for food and nutritional security, in human life cycle approach, by ensuring access to adequa e quantity of quality food at affordable prices to people to live a life with dignity;
(b ) entitle every person belonging to priority households, to receive every month from the State Government, under the Targeted Public Distribution System, five kilograms of foodgrains per person per month, at subsidised prices specified in Schedule I to the proposed legislation. The households covered under Antyodaya Anna Yojana shall be entitled to receive thirty-five kilograms of foodgrains per household per month at the prices specified in Schedule I.The said entitlements at subsidised prices shall extend up to seventy-five per cent. of the rural population and up to fifty per cent. of the urban population;
(c ) entitle every pregnant woman and lactating mother to meal, free of charge, during pregnancy and six months after child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and to provide to such women maternity benefit of not less than rupees six thousand in such instalments as may be prescribed by the Central Government;
(d ) entitle every child up to the age of fourteen years--(i ) age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six months to six years; and (ii ) one mid day meal, free of charge, everyday, except on school holidays, in all schools run by local bodies, Government and Government aided schools, to children up to class VIII or within the age group of six to fourteen years, whichever is applicable, so as to meet the nutritional standards specified in Schedule II;
(e ) require the State Government to identify and provide meals through the local anganwadi, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule II; and implement schemes covering entitlements of women and children in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may be prescribed by the Central Government;
(f ) entitle the eligible persons under Chapter II of the proposed legislation, to receive such food security allowance from the concerned State Government to be paid to each person, in case of non-supply of the entitled quantities of foodgrains or meals, within the time and manner prescribed by the Central Government;
(g ) provide subsidised foodgrains under the Targeted Public Distribution System to specified percentage of rural and urban population, at the all India level and empower the Central Government to determine the State-wise percentage coverage;
(h ) enable the State Government to prescribe guidelines for identification of priority households, for the purposes of their entitlement under the proposed legislation and identify such households and the households to be covered under the Antyodaya Anna Yojana, in accordance with guidelines applicable to the scheme;
(i ) progressively undertake necessary reforms by the Central and State Governments in the Targeted Public Distribution System in consonance with the role envisaged for them in the proposed legislation;
(j ) treat the eldest woman who is not less than eighteen years of age, in every eligible household, to be head of the household for the purpose of issue of ration cards;
(k ) impose obligation upon the State Governments to put in place an internal grievance redressal mechanism which may include call centres, help lines, designation 20 of nodal officers, or such other mechanism as may be prescribed by the respective Governments; and for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled foodgrains or meals under Chapter II of the proposed legislation, a District Grievance Redressal Officer, with requisite staff, to be appointed by the State Government for each District, to enforce these entitlements and investigate and redress grievances;
(l ) make provision for State Food Commission to be constituted by every State Government for the purpose of monitoring and review of implementation of the proposed legislation;
(m ) impose obligation upon the Central Government to ensure regular supply of foodgrains for persons belonging to eligible households and allocate the required quantity of foodgrains to the State Governments under the Targeted Public Distribution System from the central pool as per the entitlements and at prices specified in Schedule I to the proposed legislation;
(n ) make provision for implementation and monitoring by the State Government of the schemes of various Ministries and Departments of the Central Government in accordance with guidelines issued by the Central Government for each scheme, and their own schemes, for ensuring food security to the targeted beneficiaries in their State; and make the local authorities responsible, for the proper implementation of the proposed legislation in their respective areas;
(o ) conduct or cause to be conducted by every local authority, or any other authority or body, as may be authorised by the State Government, periodic social audits on the functioning of fair price shops, Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government;
(p ) impose penalty upon any public servant or authority found guilty, by the State Commission at the time of deciding any complaint or appeal, of failing to provide the relief recommended by the District Grievance Redressal Officer, without reasonable cause, or wilfully ignoring such recommendation, not exceeding five thousand rupees after giving an opportunity of being heard.
8. The notes on clauses explain in detail the various provisions contained in the replacement Bill.
9. The Bill seeks to achieve the above objectives."
21. The State Government considering the gravity of the legislation and the urgency of the situation it sought to address, by notification in the official gazette published in the Uttar Pradesh State Food Security Rules, 2015 to carry out the provisions of The National Food Security Act of 2013. The Uttar Pradesh State Food Security Rules, 2015 were promulgated in exercise of powers conferred by Section 40 of the National Food Security Act, 2013.
22. A perusal of the aims and objects of the two sets of enactments namely, Control Order, 2016 on the one side and The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 on the other shows that the overarching purpose being served by both the sets of enactments is congruent. Both the sets of enactments seek to ensure food security for the most deprived sections of society. However, distinction between the two sets of enactment is at times apparent but also nuanced. The Control Order, 2016 covers the full field of the public distribution system, which includes the targeted public distribution system.
23. The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 vests rights in eligible persons to receive their entitlements under the said enactments. The entitlements are distributed through the targeted public distribution system.
24. At the conceptual level the aims and objects of the two enactments are complementary and not contradictory. It has to be seen after traversing the provisions of the said enactments and the scheme of the said legislations whether both the sets of enactments can co-habit the field and together serve the high legislative purpose or whether the enactments are in irreconcilable conflict where a head on collision is inevitable and one has to yield to the other.
Beneficiaries, Rights and Entitlements & Identifications of beneficiaries
25. The defining feature of The National Food Security Act, 2013 is the rights created in favour of the beneficiary population and specific provisions for their entitlements. The second distinguishing aspect of The National Food Security Act, 2013 is the identification of the segments of the citizenry for whose benefit the enactment was created.
26. The provisions relevant to these features are detailed hereunder. Section 2 of The National Food Security Act, 2013 contains the definitions which are extracted hereunder:
"Section 2(1) "anganwadi" means a child care and development center set up under the Integrated Child Development Services Scheme of the Central Government to render services covered under section 4, clause (a) of sub-section (1) of section 5 and section 6;
(3) "eligible households" means households covered under the priority households and the Antyodaya Anna Yojana referred to in sub-section (1) of section 3;
(4) "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 (10 of 1955), to the ration card holders under the Targeted Public Distribution System;
(6) "food security" means the supply of the entitled quantity of foodgrains and meal specified under Chapter II;
(7) "food security allowance" means the amount of money to be paid by the concerned State Government to the entitled persons under section 8;
(9) "meal" means hot cooked or pre-cooked and heated before its service meal or take home ration, as may be prescribed by the Central Government;
(14) "priority households" means households identified as such under section 10;(15) "prescribed" means prescribed by rules made under this Act;(16) (16) "ration card" means a document issued under an order or authority of the State Government for the purchase of essential commodities from the fair price shops under the Targeted Public Distribution System;
(17) "rural area" means any area in a State except those areas covered by any urban local body or a cantonment board established or constituted under any law for the time being in force;
(23) "Targeted Public Distribution System" means the system for distribution of essential commodities to the ration card holders through fair price shops;
(25) the words and expressions not defined here but defined in the Essential Commodities Act, 1955 (10 of 1955), or any other relevant Act shall have the meaning respectively assigned to them in those Acts."
27. Chapter II of The National Food Security Act, 2013 makes provisions for food security. The provisions create the rights to receive foodgrains at subsidised prices by persons belonging to eligible households under the targeted public distribution system. Nutrition support is assured to every pregnant woman and lactating mothers and also to children. Children, who are suffering from malnutrition, are to be specifically provided for by the State Government. The State Government is under obligation to implement the entitlements under Sections 3, 4, 5, 6 and 7 of the Act. The relevant provisions of the Chapters II are reproduced below:
PROVISIONS FOR FOOD SECURITY "Section 3. Right to receive foodgrains at subsidised prices by persons belonging to eligible households under Targeted Public Distribution System.--(1) Every person belonging to priority households, identified under sub-section (1) of section 10, shall be entitled to receive five kilograms of foodgrains per person per month at subsidised prices specified in Schedule I from the State Government under the Targeted Public Distribution System:
Provided that the households covered under Antyodaya Anna Yojana shall, to such extent as may be specified by the Central Government for each State in the said scheme, be entitled to thirty-five kilograms of foodgrains per household per month at the prices specified in Schedule I:
Provided further that if annual allocation of foodgrains to any State under the Act is less than the average annual off take of foodgrains for last three years under normal Targeted Public Distribution System, the same shall be protected at prices as may be determined by the Central Government and the State shall be allocated foodgrains as specified in Schedule IV.
Explanation.-- For the purpose of this section, the "Antyodaya Anna Yojana" means, the scheme by the said name launched by the Central Government on the 25th day of December, 2000; and as modified from time to time.
(2) The entitlements of the persons belonging to the eligible households referred to in sub-section (1) at subsidised prices shall extend up to seventy-five per cent. of the rural population and up to fifty per cent. of the urban population.
(3) Subject to sub-section (1), the State Government may provide to the persons belonging to eligible households, wheat flour in lieu of the entitled quantity of foodgrains in accordance with such guidelines as may be specified by the Central Government.
Section 4. Nutritional support to pregnant women and lactating mothers.--Subject to such schemes as may be framed by the Central Government, every pregnant woman and lactating mother shall be entitled to--
(a) meal, free of charge, during pregnancy and six months after the child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and
(b) maternity benefit of not less than rupees six thousand, in such instalments as may be prescribed by the Central Government:
Provided that all pregnant women and lactating mothers in regular employment with the Central Government or State Governments or Public Sector Undertakings or those who are in receipt of similar benefits under any law for the time being in force shall not be entitled to benefits specified in clause (b).
Section 5. Nutritional support to children.--(1) Subject to the provisions contained in clause (b), every child up to the age of fourteen years shall have the following entitlements for his nutritional needs, namely-
(a) in the case of children in the age group of six months to six years, age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II:
Provided that for children below the age of six months, exclusive breast feeding shall be promoted;
(b) in the case of children, up to class VIII or within the age group of six to fourteen years, whichever is applicable, one mid-day meal, free of charge, everyday, except on school holidays, in all schools run by local bodies, Government and Government aided schools, so as to meet the nutritional standards specified in Schedule II.
(2) Every school, referred to in clause (b) of sub-section (1), and anganwadi shall have facilities for cooking meals, drinking water and sanitation:
Provided that in urban areas facilities of centralised kitchens for cooking meals may be used, wherever required, as per the guidelines issued by the Central Government.
Section 6. Prevention and management of child malnutrition.--The State Government shall, through the local anganwadi, identify and provide meals, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule II.
Section 7. Implementation of Schemes for realisation of entitlements.--The State Governments shall implement schemes covering entitlements under sections 4, 5 and section 6 in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may be prescribed by the Central Government."
28. The identification of eligible households is provided for under Chapter 4 of The National Food Security Act, 2013. The relevant provisions Chapter 4 are hereunder:
IDENTIFICATION OF ELIGIBLE HOUSEHOLDS "Section 9. Coverage of population under Targeted Public Distribution System.-- The percentage coverage under the Targeted Public Distribution System in rural and urban areas for each State shall, subject to sub-section (2) of section 3, be determined by the Central Government and the total number of persons to be covered in such rural and urban areas of the State shall be calculated on the basis of the population estimates as per the census of which the relevant figures have been published.
Section 10. State Government to prepare guidelines and to identify priority households.-- (1) The State Government shall, within the number of persons determined under section 9 for the rural and urban areas, identify--
(a) the households to be covered under the Antyodaya Anna Yojana to the extent specified under sub-section (1) of section 3, in accordance with the guidelines applicable to the said scheme;
(b) the remaining households as priority households to be covered under the Targeted Public Distribution System, in accordance with such guidelines as the State Government may specify:
Provided that the State Government may, as soon as possible, but within such period not exceeding three hundred and sixty-five days, after the commencement of the Act, identify the eligible households in accordance with the guidelines framed under this sub-section:
Provided further that the State Government shall continue to receive the allocation of foodgrains from the Central Government under the existing Targeted Public Distribution System, till the identification of such households is complete.
(2) The State Government shall update the list of eligible households, within the number of persons determined under section 9 for the rural and urban areas, in accordance with the guidelines framed under sub-section (1).
Section 11. Publication and display of list of eligible households.--The State Government shall place the list of the identified eligible households in the public domain and display it prominently."
Chapter 6 empowers the women. The provisions of Chapter 6 are as follows:
WOMEN EMPOWERMENT "Section 13. Women of eighteen years of age or above to be head of household for purpose of issue of ration cards.--(1) The eldest woman who is not less than eighteen years of age, in every eligible household, shall be head of the household for the purpose of issue of ration cards.
(2) Where a household at any time does not have a woman or a woman of eighteen years of age or above, but has a female member below the age of eighteen years, then, the eldest male member of the household shall be the head of the household for the purpose of issue of ration card and the female member, on attaining the age of eighteen years, shall become the head of the household for such ration cards in place of such male member."
Chapter 12 makes provisions for advancement food security.
PROVISIONS FOR ADVANCING FOOD SECURITY "Section 30. Food security for people living in remote, hilly and tribal areas.--The Central Government and the State Governments shall, while implementing the provisions of this Act and the schemes for meeting specified entitlements, give special focus to the needs of the vulnerable groups especially in remote areas and other areas which are difficult to access, hilly and tribal areas for ensuring their food security.
Section 31. Steps to further advance food and nutritional security.--The Central Government, the State Governments and local authorities shall, for the purpose of advancing food and nutritional security, strive to progressively realise the objectives specified in Schedule III.
Section 32 under Chapter 13 is relevant:
"Section 32. Other welfare schemes.--(1) The provisions of this Act shall not preclude the Central Government or the State Government from continuing or formulating other food based welfare schemes.
(2) Notwithstanding anything contained in this Act, the State Government may, continue with or formulate food or nutrition based plans or schemes providing for benefits higher than the benefits provided under this Act, from its own resources."
29. The corresponding U.P. State Food Security Rules, 2015 created by the State Government in regard to the rights, entitlements and identification of the eligible persons need to be considered. Rule 3 of the Uttar Pradesh State Food Security Rules, 2015 is extracted hereunder:
"Rule-3. Identification of eligible households. - (1) The State Government shall, as soon as possible, identify-
(a) the households to be covered under the Antyodaya Anna Yojana; and
(b) the priority households;
in accordance with such guidelines including exclusion and inclusion criteria as may be notified by the State Government:
Provided that such guidelines shall be consistent with the Act.
(2) The State Government may, at such intervals or any other time, as it may deem fit, reidentify the eligible households.
(3) The State Government may, if it deems fit, by notification, amend the guidelines from time to time prescribed under these rules and require fresh survey conducted for the identification of eligible households."
30. The scheme of the Control Order, 2016 would help to understand the combined operation of the enactments. The relevant provisions of the Control Order, 2016 for the purposes of discussion under the aforesaid head being Order 2(c)(d)(e)(m)(p)(r)(u)(2) and Order 3 are extracted below:
"Order 2(c) "allocation month" means the month for which foodgrains are allocated by Central Government and the State Governments for distribution under the Targeted Public Distribution System;
(d) "Antyodaya Anna Yojana" means the scheme by the said name launched by the Central Government on the 25th day of December, 2000 and as modified from time to time;
(e) "Antyodaya households" means those households identified by the State Government to receive foodgrains under the Antyodaya Anna Yojana;
(m) "Eligible households" means all those households who have been identified for the purpose under The National Food Security Act of 2013;
(p) "Family" means group of following persons,-
Head of the family, Husband/wife, including legally adopted children, Adult children, who are fully dependent on the head of the family, Unmarried, legally separated and widow daughters, and Fully dependent mother/Father of the head of the family;
(r) "Food Security Act" means the National Food Security Act, 2013 (20 of 2013);
(u) "Rules" means Uttar Pradesh Food Security Rules, 2015;
(l) "designated authority" means any officer not below the rank of Supply Inspector of the Food and Civil Supplies Department in the State but for rural areas it also includes Assistant Development Officer (Panchayat) or any officer authorized by the State Government;
(j) "local authority" includes a Panchayat, municipal corporation or a Cantonment Board;
2(2) Words and expressions not defined in this Order but defined in the Act, or the Food Security Act, shall have the meaning respectively assigned to them in the said Acts."
Order 3. Identification of eligible households. - (1) The State Government shall, as soon as possible, identify-
(a) the households to be covered under the Antyodaya Anna Yojana; and
(b) the priority households;
in accordance with such guidelines including exclusion and inclusion criteria as may be notified by the State Government:
Provided that such guidelines shall be consistent with the Act.
(2) The State Government may, at such intervals or any other time, as it may deem fit, reidentify the eligible households.
(3) The State Government may, if it deems fit, by notification, amend the guidelines from time to time and require fresh survey conducted for the identification of eligible households.
(4) The State-wise percentage coverage of eligible households under the Food Security Act in rural and urban areas respectively for receiving subsidised foodgrains under the Targeted Public Distribution System shall be as in column 4 of Annex-I. (5) The State-wise ceiling on coverage of number of persons belonging to eligible households for receiving subsidised foodgrains under the Targeted Public Distribution System, indicated in column 5 of Annex-I, shall be under the two categories refer to in sub-clause (i).
(6) The State-wise number of Antyodaya households shall not exceed the accepted number of Antyodaya households in the State, as specified by the Competent Authority from time to time. (Emphasis) (7) The State Government shall prepare and notify the guidelines for identification of priority households in the rural and urban areas, with special focus on coverage of all the vulnerable or needy sections of the society, and display the guidelines in the public domain including on the State web portal.
(8) For the purpose of allocation of subsidised foodgrains under Targeted Public Distribution System by the Central Government, there shall be no increase in the State-wise number of persons covered under Targeted Public Distribution System till the data from the next population Census.
(9) The list of eligible households shall be drawn up by the designated authority in respect of area under their jurisdiction.(Emphasis) (10) The State Government shall get the provisional list of eligible households displayed in the public domain including the office of the local authority and on the State web portal, showing the category-wise lists of eligible households and their members.
(11) The State Government shall use the list of persons as compiled during Census of India by the Registrar General and Census Commissioner or voters list notified by Election Commission of India or Socio Economic and Caste Census data or any other authentic source of data to cross-check and verify the list of eligible households and their members.
(12) The State Government shall prescribe the detailed procedure for finalisation of the list of eligible households covering, inter-alia, aspects like the process of drawing up of draft list, putting the draft list in the public domain including reading out of the list in meetings of the Gram Sabha or equivalent body in urban areas, inviting objections, disposal of objections, appeals and so on.
(13) The head of the local authority and the designated authority shall jointly verify and certify the final list of eligible households and the local authority shall pass a resolution adopting the final list of the eligible households.
(14) The final list of the eligible households shall be displayed in the public domain including office of the local authority and on the State web portal, showing the category-wise names of eligible households and their members.
(15) The State Government shall regularly review the list of the eligible households for the purpose of deletion of ineligible households or inclusion of eligible households.
(16) During the review, the State Government shall take into account, inter-alia, the increase in the number of eligible households or their members due to migration in to the State, birth, marriage, change in social and economic status and the decrease in the number of eligible households or their members due to migration outside the State, death, marriage, change in social or economic status:
Provided that the total number of eligible households after the review shall not exceed the ceilings prescribed in sub-clause (4) and (5)."
31. The identification of eligible households by the State Government is thus contemplated under Sections 9 and 11 of the Food Security Act of 2013 and the U.P. Food Security Rules, 2015. The task of identification of eligible households is executed through the process provided under the Control Order, 2016, by the authorities created thereunder. The designated authority under the Control Order 2016, draws up the list of the eligible households for both the enactments. This is one of many features of the two sets of enactments, which attest the fact that the said enactments, complement each other in purpose and implement the common aim in concert.
Purpose of Control Order-
32. Ofcourse, it needs to be added that the ambit of the Control Order 2016, is wider. It also provides for the beneficial schemes which do not fall under the National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015. Section 32 of the said Food Security Act reads thus:
"Section 32. Other welfare schemes.--(1) The provisions of this Act shall not preclude the Central Government or the State Government from continuing or formulating other food based welfare schemes.
(2) Notwithstanding anything contained in this Act, the State Government may, continue with or formulate food or nutrition based plans or schemes providing for benefits higher than the benefits provided under this Act, from its own resources."
Fair Price Shop-
33. The fair price shop dealer is the pivot on which the public distribution system in general and the targeted public distribution system in particular runs. The fair price shop dealer is the agency to receive, store, distribute and sell foodgrains to the eligible segments of the population. The first and the most fruitful interface of the beneficiaries with the public distribution system as well as targeted public distribution system is with the fair price shop dealer. The fair price shop dealer is the sole agency to transmit the benefits of the welfare schemes under the National Food Security Act, 2013 read with the Uttar Pradesh State Food Security Rules, 2015 to the beneficiaries. The fair price shop dealer maintains the documentation of the public distribution system. It is safe to conclude that the fair price shop dealer is critical or rather indispensable for achieving the purpose of The National Food Security Act, 2013 read with the Uttar Pradesh State Food Security Rules, 2015 and to implement the mandate of the U.P. Control Order, 2016.
34. The appointment of fair price shop dealer is governed and regulated by Order 7 of the Control Order, 2016. The Order 7 of the Control Order, 2016 is also supplemented by various government orders holding the field. For ease of reference, Order 7 of the said Control Order is extracted hereunder:
" Order 7. Appointment and regulation of fair price shops:- With a view to affecting fair distribution of Scheduled Commodities the State Government may issue directions to set-up such number of fair price shops in an area as it deems fit.
2. (i) A fair price shop shall be run through such person and in such manner as the Collector subject to the directions of the State Government, may order.
(ii) A person appointed to run a fair price shop under sub-clause (1) shall act as the agent of the State Government."
(iii)A person appointed to run a fair price shop under sub-clause (1) shall sign an agreement, as directed by the State Government regarding running of the fair price shop as per the draft appended to this order before the competent authority prior to the coming with effect of the said appointment.
3. The Food Commissioner shall ensure that the number of ration card-holders attached to a fair price shop are reasonable, the fair price shop is so located that the consumer or ration card-holder does not have to face difficulty to reach fair price shop and that proper coverage is ensured in hilly, tribal and such other areas difficult to access.
4. 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.
5. The State Government shall put in place a mechanism to ensure the release affair price shop owner's. margin without any delay.
(6). The State Government shall allow sale of commodities other than the food grains distributed under the Targeted Public Distribution System at the fair price shop to improve the viability of the fair price shop operations."
35. The fair price shop dealer appointed under Order 7 of Control Order of 2016 acts as an agent of State Government. The contract is executed between the State Government and the fair price shop dealer which is relatable to Order 7(2)(ii)(iii). The privity of contract of fair price shop dealership is between the dealer and the State Government.
36. The operations of the fair price shops are regulated and governed by Order 8 of the Control Order, 2016. Order 8 provides for action against the fair price dealer including suspension and termination for violation of terms of the licence and any irregularity by the dealer. The Order 8 being relevant to the controversy is reproduced below:
Order 8. Operation of fair price shops.-1. The fair price shop owner shall disburse foodgrains to the ration card holder as per his entitlement under the Targeted Public Distribution System.
2. The ration card holder may draw his full entitlement of food grains in more than one installment.
3. The fair price shop owner shall not retain the ration cards after the supply of the foodgrains.
4. The licence issued by the State Government to the fair price shop owner shall lay down the-duties and responsibilities of the fair price shop owner, which shall include, inter alia, i. Sale of foodgrains as per the entitlement of ration card holders under the Targeted Public Distribution System at the prescribed retail issue price;
ii. display of information on a notice board at a prominent place in the shop on daily basis regarding,-
a. entitlement of food grains, b. scale of issue, c. retail issue prices, i d. timings of opening and closing of the fair price shop including lunch break, if any, e. stock of food grains received during the month,· f. opening and closing stock of food grains, g. the mechanism including authority for redressal of grievances with respect to quality and quantity of food grains under the Targeted Public Distribution System and h. toll-free helpline number;
iii. maintenance of the records of ration card holders, e.g. stock register, issue or sale register shall be in the form prescribed by the State Government including in the electronic format in a progressive manner;
iv. display of samples of food grains being supplied through the fair price shop;
v. production of books and records relating to the allotment and distribution of food grains to the inspecting agency and furnishing of such information as may be called for by the designated authority;
vi. accounts of the actual distribution of food grains and the balance stock at the end of the month,at the fair price shop, shall be sent to the designated authority of the State Government with a copy to the local authority;
vii. opening and closing of the fair price shop as per the prescribed timings displayed on the notice board.
5. Any ration card holder desirous of obtaining extracts from the records of a fair price shop owner may make a written request to the owner along with the deposit of the fees specified by the State Government. The fair price shop owner shall provide such extracts of records to the ration card holder within fourteen days from the date of receipt of a request and the fee specified by the State Government:
Provided that the State Government may prescribe the period for which the records are to be kept for providing it to the ration card holder by the fair price shop owner.
6. The State Government shall prescribe the procedure to be followed by the designated authority in cases where the fair price shop owner does not provide the records in the manner referred in sub clause.
(5) to the ration card holder in the stipulated period and the designated authority in each case shall ensure that the records are provided to the ration card holder without any undue delay.
7. The designated authority shall take prompt action in respect qfviolation of any condition of licence including any irregularity committed by the fair price shop owner, which may include suspension or cancellation of the fair price shop owner's licence or registration of criminal case against the offender.
8. The State Government shall prescribe the maximum period within which proceedings relating to enquiry into irregularities committed by the fair price shop owner shall be concluded, resulting in any action as under sub-clause (7).
9. In case of suspension or cancellation of the licence, the State Government shall make alternative arrangements for ensuring uninterrupted supply of foodgrains to the eligible households.
Provided that in case of cancellation of the licence of the fair price shop owner, new licence shall be issued within a month of cancellation.
10. The State Government shall furnish complete information on action taken against a fair price shop owner under this clause annually to the Central Government in the format at Annexure-IV."
37. The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 do not contain any provision for appointment of fair price shop dealer. No specific provisions are made for action in respect of irregularities and violation of any condition of licence like suspension and termination of the fair price shop dealer in the National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015. However, The National Food Security Act, 2013 contemplates the existence of fair price shop dealer and also the distribution of essential commodities through its agency. Relevant provisions of The National Food Security Act, 2013 in this regard are extracted hereunder:
"Section 2(4) "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 (10 of 1955), to the ration card holders under the Targeted Public Distribution System;
2(23) "Targeted Public Distribution System" means the system for distribution of essential commodities to the ration card holders through fair price shops;
2(25) the words and expressions not defined here but defined in the Essential Commodities Act, 1955 (10 of 1955), or any other relevant Act shall have the meaning respectively assigned to them in those Acts."
38. A conjoint reading of both sets of enactments namely, U.P. Control Order 2016 on one side and The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 on the other establishes that the appointment and termination of fair price shop dealers lies in the exclusively in domain of the Control Order, 2016 and the authorities created thereunder, on the one side. On the other hand the importance of the fair price shop to achieving the common objects of both the sets of enactments is a given in both the sets of statutory enactments.
39. The provisions of The National Food Security Act, 2013 and U.P. State Food Security Rules, 2015 clearly acknowledge the role of the Control Order, 2016 in matters relating to appointment, suspension, enquiry and termination of the fair price dealer. There is no legal framework of appointment and termination of the fair price shop dealer outside of the Control Order, 2016 and the authorities created thereunder. In the absence of the provisions of the Control Order 2016, the public distribution system and the targeted public distribution system in particular will not be energized since the appointment, suspension and termination of the fair price shop dealer are made only under the U.P. Control Order, 2016. In such situation an interpretation to stymie the role of the U.P. Control Order 2016 will derail, the public distribution system and disrupt the targeted public distribution system. This in turn will frustrate the purpose and intent of The National Food Security Act, 2013. In the light of the preceding discussion, it is safe to conclude that the Control Order 2016, is a critical component to achieve the intendment of The National Food Security Act, 2013 and not an impediment in this process.
(Staffing Pattern or authorities under the enactments) Implementation of the Enactments by the authorities created under the enactments.
40. The U.P. Control Order, 2016 provides for administration of the public distribution system and the targeted public distribution system by authorities created thereunder. The provisions of the Control Order, 2016, which create and provide for the authorities to run and administer the public distribution system and targeted public distribution system are extracted below:
"Order 2(b) "Agent" means a person or a co-operative society or a corporation of the State Government authorized to run a Fair Price Shop under the provision of this Order;
(g) "authorized agent" means the Food and Civil Supply Department of State Government or a body corporate or a company owned by it or a co-operative authorized by the State Government;
(h) "Collector" includes District Magistrate and an officer authorized in written by him to perform all or any of his functions under this order;
(i) "Commissioner" means Commissioner Food and Civil Supplies Department of Uttar Pradesh;
(j) "Competent Authority" means Collector and includes Additional District Magistrate (Civil supplies), District Supply Officer and Sub-Divisional Magistrate or Area Rationing Officer;
(k) "Corporation" means the Food Corporation of India constituted under the Food Corporations Act, 1964 (37 of 1964);
(l) "designated authority" means any officer not below the rank of Supply Inspector of the Food and Civil Supplies Department in the State but for rural areas it also includes Assistant Development Officer (Panchayat) or any officer authorized by the State Government;
(q) "Food officer" means the Additional Food Commissioner, Joint Food Commissioner, Deputy Food Commissioner, District Magistrate, Additional District Magistrate (civil supplies), District Supply Officer, Sub-Divisional Magistrate, Area Rationing Officer or any other officer authorized by the State Government in this behalf;
(s) "local authority" includes a Panchayat, municipal corporation or a Cantonment Board;
(x) "State" means the State of Uttar Pradesh;
(y) "State Government" means the Government of Uttar Pradesh."
41. A perusal of the above provisions shows that the Control Order 2016, is implemented and the public distribution system and targeted public distribution system are administered through a vast network of officials and authorities. The authorities under the U.P. Control Order, 2016 are officials of the State Government. The officials of the Food and Civil Supplies Department, U.P. are part of the administrative machinery to implement the Control Order 2016, and administer the public distribution system and targeted public distribution system. The officials under the Control Order, 2016 are professional administrators. Some of the superior officials are generalists, but the other positions are staffed by specialists of the Food and Civil Supplies Department. This combination of generalist administrators and specialist officials of the Food and Civil Supplies Department bring rich experience and professional knowledge to the statutory tasks entrusted to them. The vast network of officials starts from initial level of administration namely, Sub-Divisonal Magistrate and moves up the hierarchy of State administration. The staffing pattern adequately covers every level of governance of the public distribution system and targeted public distribution system from the village panchayat upwards. The administrative machinery created under the Control Order, 2016 is elaborate and comprehensive. It is adequately equipped to deal with the task of running the public distribution system and targeted public distribution system on a daily basis.
42. The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 on the contrary do not have an elaborate administrative machinery or a vast staffing pattern on the lines of the U.P. Control Order, 2016.
Authorities under the National Food Security Act, 2013-
43. The authorities created under the aforesaid provisions are Grievance Redressal Officer, State Food Commission and Vigilance Committee. The authorities charged with the duty to implement the provisions of The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 are not equipped to run the targeted public distribution system administration on a day to day basis.
44. The roles of the aforesaid authorities under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 are clearly delineated and distinct from the functions assigned to the authorities under the U.P. Control Orders, 2016. The authorities under The National Food Security Act, 2013 are neither vested with the statutory powers nor charged with the statutory duty of a day to day management of the targeted public distribution system. The authorities under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 do not have jurisdiction over the public distribution system at large. The jurisdiction of the other authorities under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 is limited to the targeted public distribution system, which is inextricably woven into the public distribution system. The authorities under the two sets of enactments have clearly delineated roles and separate functions.
Functions and Jurisdiction of the authorities under the enactment-
45. The provisions of Chapter VII and IX of the National Food Security Act, 2013 lie at the heart of the implementation scheme of the said enactment. The scope of these provisions is relevant to the controversy.
46. Chapter VII comes under the heading "Grievance Redressal Mechanism". The heading gives a clue to the legislative intent and assists in understanding role and functions of the authorities created by the provisions in the chapter. The provisions of Chapter VII being essential to the controversy are extracted hereunder:
GRIEVANCE REDRESSAL MECHANISM "Section 14. Internal grievance redressal mechanism.--Every State Government shall put in place an internal grievance redressal mechanism which may include call centres, help lines, designation of nodal officers, or such other mechanism as may be prescribed.
Section 15. District Grievance Redressal Officer.--(1) The State Government shall appoint or designate, for each district, an officer to be the District Grievance Redressal Officer for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled foodgrains or meals under Chapter II, and to enforce the entitlements under this Act.
(2) The qualifications for appointment as District Grievance Redressal Officer and its powers shall be such as may be prescribed by the State Government.
(3) The method and terms and conditions of appointment of the District Grievance Redressal Officer shall be such as may be prescribed by the State Government.
(4) The State Government shall provide for the salary and allowances of the District Grievance Redressal Officer and other staff and such other expenditure as may be considered necessary for their proper functioning.
(5) The officer referred to in sub-section (1) shall hear complaints regarding non-distribution of entitled foodgrains or meals, and matters relating thereto, and take necessary action for their redressal in such manner and within such time as may be prescribed by the State Government.
(6) Any complainant or the officer or authority against whom any order has been passed by officer referred to in sub-section (1), who is not satisfied with the redressal of grievance may file an appeal against such order before the State Commission.
(7) Every appeal under sub-section (6) shall be filed in such manner and within such time as may be prescribed by the State Government.
Section 16. State Food Commission.--(1) Every State Government shall, by notification, constitute a State Food Commission for the purpose of monitoring and review of implementation of this Act.
(2) The State Commission shall consist of--
(a) a Chairperson;
(b) five other Members; and
(c) a Member-Secretary, who shall be an officer of the State Government not below the rank of Joint Secretary to that Government:
Provided that there shall be at least two women, whether Chairperson, Member or Member-Secretary:
Provided further that there shall be one person belonging to the Scheduled Castes and one person belonging to the Scheduled Tribes, whether Chairperson, Member or Member-Secretary.
(3) The Chairperson and other Members shall be appointed from amongst persons--
(a) who are or have been member of the All India Services or any other civil services of the Union or State or holding a civil post under the Union or State having knowledge and experience in matters relating to food security, policy making and administration in the field of agriculture, civil supplies, nutrition, health or any allied field; or
(b) of eminence in public life with wide knowledge and experience in agriculture, law, human rights, social service, management, nutrition, health, food policy or public administration; or
(c) who have a proven record of work relating to the improvement of the food and nutrition rights of the poor.
(4) The Chairperson and every other Member shall hold office for a term not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment:
Provided that no person shall hold office as the Chairperson or other Member after he has attained the age of sixty-five years.
(5) The method of appointment and other terms and conditions subject to which the Chairperson, other Members and Member-Secretary of the State Commission may be appointed, and time, place and procedure of meetings of the State Commission (including the quorum at such meetings) and its powers, shall be such as may be prescribed by the State Government.
(6) The State Commission shall undertake the following functions, namely:--
(a) monitor and evaluate the implementation of this Act, in relation to the State;
(b) either suo motu or on receipt of complaint inquire into violations of entitlements provided under Chapter II;
(c) give advice to the State Government on effective implementation of this Act;
(d) give advice to the State Government, their agencies, autonomous bodies as well as non-governmental organisations involved in delivery of relevant services, for the effective implementation of food and nutrition related schemes, to enable individuals to fully access their entitlements specified in this Act;
(e) hear appeals against orders of the District Grievance Redressal Officer;
(f) prepare annual reports which shall be laid before the State Legislature by the State Government.
(7) The State Government shall make available to the State Commission, such administrative and technical staff, as it may consider necessary for proper functioning of the State Commission.
(8) The method of appointment of the staff under sub-section (7), their salaries, allowances and conditions of service shall be such, as may be prescribed by the State Government.
(9) The State Government may remove from office the Chairperson or any Member who--
(a) is, or at any time has been, adjudged as an insolvent; or
(b) has become physically or mentally incapable of acting as a member; or
(c) has been convicted of an offence which, in the opinion of the State Government, involves moral turpitude; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a member; or
(e) has so abused his position as to render his continuation in office detrimental to the public interest.
(10) No such Chairperson or Member shall be removed under clause (d) or clause (e) of sub-section (9) unless he has been given a reasonable opportunity of being heard in the matter.
Section 17. Salary and allowances of Chairperson, Member, Member-Secretary and other staff of State Commission.--The State Government shall provide for salary and allowances of Chairperson, other Members, Member-Secretary, support staff, and other administrative expenses required for proper functioning of the State Commission.
Section 18. Designation of any Commission or body to function as State Commission.--The State Government may, if considers it necessary, by notification, designate any statutory commission or a body to exercise the powers and perform the functions of the State Commission referred to in section 16.
Section 19. Joint State Food Commission.--Notwithstanding anything contained in sub-section (1) of section 16, two or more States may have a Joint State Food Commission for the purposes of this Act with the approval of the Central Government.
Section 20. Powers relating to inquiries.--(1) The State Commission shall, while inquiring into any matter referred to in clauses (b) and (e) of sub-section (6) of section 16, have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908) and, in particular, in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office; and
(e) issuing commissions for the examination of witnesses or documents.
(2) The State Commission shall have the power to forward any case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case has been forwarded to him under section 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 21. Vacancies, etc., not to invalidate proceedings of State Commission.--No act or proceeding of the State Commission shall be invalid merely by reason of--
(a) any vacancy in, or any defect in the constitution of, the State Commission; or
(b) any defect in the appointment of a person as the Chairperson or a Member of the State Commission; or
(c) any irregularity in the procedure of the State Commission not affecting the merits of the case."
Section 29. Setting up of Vigilance Committees.--(1) For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system, every State Government shall set up Vigilance Committees as specified in the Public Distribution System (Control) Order, 2001, made under the Essential Commodities Act, 1955 (10 of 1955), as amended from time to time, at the State, District, Block and fair price shop levels consisting of such persons, as may be prescribed by the State Government giving due representation to the local authorities, the Scheduled Castes, the Scheduled Tribes, women and destitute persons or persons with disability.
(2) The Vigilance Committees shall perform the following functions, namely:--
(a) regularly supervise the implementation of all schemes under this Act;
(b) inform the District Grievance Redressal Officer, in writing, of any violation of the provisions of this Act; and
(c) inform the District Grievance Redressal Officer, in writing, of any malpractice or misappropriation of funds found by it."
47. The authorities contemplated under The National Food Security Act, 2013 have been specifically designated and identified under the Uttar Pradesh State Food Security Rules, 2015. The relevant provisions of Rules 4, 5, 6, 8 and 9 of the said Rules, which describe the authorities and the nature of their roles, are as follows:
"Rule 4. District Grievance Redressal Officer.-(1) The State Government may appoint or designate, the following officers as the District Grievance Redressal Officer:
An Additional District Magistrate, who is not engaged in the supply or distribution of food grain under the Act.
(2) District Redressal Grievance Officer shall perform such functions as prescribed under section 15 of the Act.
(3) The State Government shall appoint the employees mentioned in Schedule A appended to these rules to assist District Grievance Redressal Officer to perform the functions thereof.
(4) The Collector of the District shall be the Appointing Authority for employees appointed under sub-rule (3)."
Rule 5. Hearing before District Grievance Redressal Officer.-(1) The District Grievance Redressal Officer shall notify the days and time for receiving the complaints under the Act. The District Grievance Redressal Officer may also nominate an appropriate officer/employee to receive complaints/grievances on his behalf.
(2) District Grievance Redressal Officer shall conduct such enquiry as per sub-rule (4), and if he finds complaint to carry substance, may give directions and relief referred to in sub-rule (3) for compliance with the entitlements granted under the Act.
(3) The directions and relief to be provided by the District Grievance Redressal Officer under sub-rule (2) shall be as follows:
(a) the entitlements within such period not exceeding thirty days;
(b) payment of food security allowance within such period not exceeding thirty days;
(c) supervision by an appropriate person/representing such provision or payment, as the case may be, under clauses (a) and (b)
(d) any other directions as he/she may deems fit;
Provided that such direction shall not be include payment of penalty by any public servant:
Provided further that such direction shall not be inconsistent with the Act.
(4) The District Grievance Redressal Officer shall;
(a) ascertain that there is prima-facie substance in the complaint to proceed in the matter;
(b) reject the complaint if he finds that the Complaint does not have any substance.
(c) issue a notice to all parties fixing date, time and place for hearing, if he is satisfied that there is prima-facie ground to proceed in the matter;
(d) hear the parties and take such evidence as may dismiss the complaint if the complainant or his representative is absent on the fixed date;
(e) adjourn the proceedings at the request of the parties or suo-motu to some other date with or without cost;
(f) decide the complaint after the enquiry.
Rule 6. Timely disposal of the complaints.-The District Grievance Redressal Officer shall hear complaints regarding nondistribution of entitled foodgrains or meals, and matters relating thereof, and take necessary action for their redressal within 90 days.
Rule 8. Other Internal System of Grievance Redressal mechanism.-In addition to the internal system of grievance redressal machanism for disposal of the complaints the State Government shall provide as early as possible a web-based grievance redressal portal.
Rule 9. Vigilance Committees.-(1) The State Government may constitute, as soon as may be after the commencement of these rules and time thereafter as it may deem fit, constitute vigilance committees as Fair Price Shop, Block District and State level.
(2) The vigilance committee(s) shall consist of following members and be in existence for two years from its constitution-
(a) At State Level-
(i) the Food Commissioner, Uttar Pradesh-Chairperson;
(ii) one officer of Special Secretary rank in the Department of Food and Civil Supplies to be nominated by the Secretary/Principal Secretary;
(iii) the Director Mid Day Meal;
(iv) the Director Integrated Child Development Scheme;
(v) the Special Secretary, Uttar Pradesh Government in Medical Health and Family Welfare Department nominated by the Principal Secretary;
(vi) the Additional Commissioner Civil Supplies shall be the convenor;
(vii) Chief Marketing Officer/Regional Food Marketing Officer (H.Q.)-Member;
(viii) the Chairperson of one urban or rural local body of Uttar Pradesh nominated by the State Government;
(ix) two persons having an established record of working in the field related to food, food safety, public distribution system or nutrition of not less than five years to be nominated by the State Government.
(b) At District Level-
(i) the Collector-Chairperson;
(ii) two District level officers to be nominated by the Collector;
(iii) the Basic Shiksha Adhikari, District Programme Officer of Integrated Child Development Scheme and the Chief Medical Officer;
(iv) the District Supply Officer shall be the convenor;
(v) the Chairperson of one urban or local body in the district, nominated by the Divisional Commissioner;
(vi) District Food Marketing Officer-Member;
(vii) any two persons living in the district having an established record of working in the field related to food, food safety, public distribution system or nutrition of not less than two years to be nominated by the Divisional Commissioner;
(c) At Block level-
(i) the Sub-Divisional Magistrate of the Sub-Divisional in which the Block is situated-Chairman;
(ii) the Block Pramukh of the Block;
(iii) the Block Development Officer of the Block;
(iv) an Officer nominated by the Sub Divisional Magistrate;
(v) Area Marketing Officer/Marketing Officer-Member;
(vi) the Block Education Officer, the Child Development Programme Officer of the Integrated Child Development Scheme and the Medical Officer-in-charge if the Community Health Centre;
(vii) the Area Rationing Officer/Supply Inspector Shall be the convenor;
(viii) tow persons living in the Gram Panchayat situated in the concerned Kshetra Panchayat to be nominated by the Collector.
(d) At Fair Price Shop level-
(i) the Gram Pradhan of the Panchayat;
(ii) senior most member of the Administrative Committee of Gram Sabha-Member;
(iii) the Head Master of a primary school nominated by Block Education Officer, Anganwadi Worker of Integrated Child Development Scheme, Accredited Social Health Activities (sic Activist).
(iv) Gram Panchayat Secretary/Gram Vikas Adhikari shall be Member-Convenor.
(v) three members of the Gram Sabha (i.e., the person living in the area of Gram Panchayat to be nominated by the Block Development Officer:
Provided that in every Vigilance Committee constituted in this sub-rule the representation of the members belonging to the Scheduled Castes, the Scheduled Tribes, women and destitute persons or person with disability shall be ensured.
(3) The vigilance committees shall meet at least once in every quarter of a calender year."
48. We shall turn to the implementing provisions of the U.P. Control order, 2016. The provisions of Order IX and Order X are as under:
"Monitoring.-1. The State Government shall ensure regular inspections of fair price shops not less than once in three months by the designated authority. The State Government shall issue orders specifying the inspection schedule, list of check points and the authority responsible for ensuring compliance with the said orders.
2. The State Government shall ensure that stocks of foodgrains under the Targeted Public Distribution System, as issued from the Corporation godowns, are not replaced or tampered with during storage, transit or any other stage till delivery to the ration ca_rd holder.
3. Any authority or any pers~n authorised by it in this behalf or any other person, who is engaged in the distribution and handling of foodgrains under the Targeted Public Distribution System, shall not indulge in substitution or adulteration or diversion or theft of stocks at any stage till delivery to the ration card holder.
Explanation.-For the purpose of this clause, i. "diversion" means unauthorised movement or delivery offoodgrains released from godowns but not reaching the intended beneficiaries under the Targeted Public Distribution System.
ii. "substitution" means replacement offoodgrains released from godowns with the same articles of inferior quality for :listribution to the intended beneficiaries under the Targeted Public Distribution System.
4. The State Government shall set up vigilance committees for the Targeted Public Distribution System at the State, District, Block and fair price shop levels as per the provisions of the Food Security Act to perform functions as specified in the said Act.
5. Meetings of the vigilance committees shall be held at least once every quarter at all levels and the date and periodicity of the meeting shall be notified by the State Government and given wide publicity.
6. The State Government shall send a report annually to the Central Government on the functioning of vigilance committees in the format at Annexure-V.
7. The number of meetings held by the vigilance committees shall be displayed on the State web portal and the action taken on issues discussed in meetings of vigilance committees shall be reviewed in the next meeting.
8. The State Government shall notify an internal grievance redressal mechanism which shall include toll free call centres and use of State web portal.
9. The State Government shall give wide publicity to the up-to-date details of the Grievance Redressal Officer such as name, telephone number including mobile number, office address and the grievance redressal mechanism.
10. The State Government shall appoint District Grievance Redressal Officers as per the provisions of the Food Security Act for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled food grains under Targeted Public Distribution System.
11. An appeal against the order of the District Grievance Redressal Officer shall be preferred before the State Food Commission constituted under section 16 of the Food Security Act, 2013.
12. The State Government shall furnish a report on quarterly basis to the Central Government regarding the handling of grievances in the format at Annexure- VI.
13. The State Government shall issue and adopt a Citizen's Charter as stipulated under law or based on the model Citizen's Charter issued by the Central Government.
14. The State Government shall prescribe a system of periodic reporting, including through electronic platform, at various levels within the State regarding the functioning of fair price shops.
15. The State Government shall ensure monitoring of the end-to-end operations of the Targeted Public Distribution System through the electronic platform.
Explanation.-For the purpose of this sub-clause "end-to-end operations" shall include activities relating to digitisation of beneficiary, ration cards, and other databases; computerisation of supply chain management; setting up of transparency portal, grievance redressal mechanism and fair price shop automation.
16. The State Government shall take necessary steps to educate the ration card holders regarding their rights and privileges by the use of electronic and print media as well as display boards outside the fair price shops.
Transparency and accountability.-1. All Targeted Public Distribution System related records shall be placed in the public domain and kept open for inspection to the public in the manner as may be prescribed by the State Government.
2. Every local authority, or any or her authority or body, as may be authorised by the St-ate Government, shall conduct or cause to be conducted, periodic social audits on the functioning of Targeted Pubic Distribution System, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.
3. The State Government may, if it considers necessary, conduct or cause to be conducted social audit through independent agencies having experience in conduct of such audits."
49. The full reading of the aforesaid provisions in both sets of enactments, discloses the legislative intent of the congruence in purpose and distinction in functions. A reference to order 9 (1)(2)(3) of the Control Order, 2016 (quoted earlier) goes to show that the authorities under the Control Order, 2016 shall supervise the day to day implementation of the Control Order, 2016 and administer the targeted distribution system in particular. The supervisory, adjudicatory and advisory roles of the authorities created under The National Food Security Act, 2013 read with Rules is distinct from the executive and administrative functions of the authorities under the Control Order, 2016. This feature does not undermine the role of the authorities in The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015, but underlines the distinction in the roles and functions of the authorities under two sets of the enactments. This will be seen in more detail in the succeeding paragraphs. The authorities created under the Control Order, 2016 constitute the framework of on day to day administration of the targeted public distribution system and the implementation of the Control Order, 2016. Thus functions of routine nature come under the responsibility of these authorities. The functions ascribed to the authorities under the provisions ensure transparency and efficiency in the operations of the public distribution system and targeted public distribution system.
50. The nature, functions and jurisdiction of the authorities under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 shall now be examined. As seen earlier primarily the authorities created under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 are Grievance Redressal Officer, Food Commission and Vigilance Committee.
The Grievance Redressal Officer:-
51. The proceedings before the grievance redressal officer are triggered by the complaints of aggrieved persons relating to denial of entitled foodgrains or meals or to enforce the entitlements under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015. The jurisdiction of the grievance redressal officer is adjudicatory in nature. The jurisdiction is invoked by the complaint by an aggrieved party. The functions of the grievance redressal officer are not administrative or executive in character. The grievance redressal officer has lawful authority to take necessary actions to redress the complaints. The proceedings before the grievance redressal officer and the orders passed by the grievance redressal officers are not final.
52. Dissatisfied parties including the officers and the authorities, besides the complainant can take the order passed by the grievance redressal officer in appeal before the State Food Commission. The involvement of the grievance redressal officer in the targeted public distribution system, is episodic and on a complaint to complaint basis. The day to day administration of the targeted public distribution system does not lie within the jurisdiction of the grievance redressal officer. The existence and function of the Grievance Redressal Officer to conduct an enquiry into complaints of card-holders does not preclude the authorities under the Control Order, 2016 to conduct an enquiry on complaints of malpractices in distribution of essential commodities. The scope of both the enquiries is different. The enquiry by the authorities under the Control Order follows in the course of performance of their administrative functions to ensure the efficacy of day-to-day operations of the targeted public distribution system. In the case, at hand, there is no conflict between the finding arrived or the recommendations made by the Grievance Redressal Officer and the Authority under the Control Order, 2016. This is one important factual aspect of the controversy on which the discussion turns.
State Food Commission:-
53. The State Food Commission monitors and evaluates the implementation of the National Food Security Act in the State. The State Food Commission has powers to enquire into the violations under The National Food Security Act, 2013. The State Food Commission has powers of the Civil Court to assist and aid the inquiry being made by it under Section 16 of The National Food Security Act, 2013.
54. There are two noteworthy aspects which need to be highlighted at this stage. The role of the State Food Commission is adjudicatory in nature like grievance redressal officer but also advisory in character unlike that of the grievance redressal officer. The executive functions for day to day administration are also not the domain of the State Food Commission. The threads of the second point have to be picked up from the earlier discussion on the staffing pattern of the State Food Commission. The public distribution system and the targeted public distribution system is a huge network which covers the whole State. The composition of the State Food Commission shows that it does not possess the vast administrative staff, the expertise and the resources to run and administer the targeted distribution system on a daily basis. Further, The National Food Security Act, 2013 does not vest the State Food Commission with the authority to run and administer the targeted public distribution system on daily basis. The day to day administration of the targeted pubic distribution system is in the nature of executive function. The executive functions are not series of adjudicatory decisions.
55. The Vigilance Committees set up under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 is charged with the duty to supervise the implementation of all schemes under the Act, inform the District Grievance Redressal Officer of violations of the provisions of the Food Security Act and of any other malpractice or misappropriation of funds found by it. The composition of the Vigilance Committee and the staffing pattern of the Vigilance Committee also shows that it is not equipped to handle the day to day administration of the targeted public distribution system. But there is another important aspect to this discussion.
Authorities: Incorporation of authorities created under the National Food Security Act, 2013 in the Control Order, 2016-
56. Various authorities created under The National Food Security Act, 2013 have been co-opted in the scheme of the Control Order, 2016. The Vigilance Committee created by The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 has been incorporated in the Control Order of 2016. The functioning of the Vigilance Committee has been harmonized in the scheme of the Control Order of 2016 in a manner to ensure that the Vigilance Committee discharges its duties under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 without working at cross purposes with the authorities of the Control Order, 2016. Similarly, the Grievance Redressal Officer and the State Food Commission created under The National Food Security Act, 2013 have been incorporated in the provisions of the Control Order, 2016.
57. A perusal of the relevant statutory provisions will enable us to cement this narrative. Section 29 of The National Food Security Act, 2013 & Rule 9(3) of the U.P. State Food Security Rules, 2015 and Order IX(4)(5)(6)(7) of the Control Order, 2016 are extracted hereunder:
"Section 29. Setting up of Vigilance Committees.--(1) For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system, every State Government shall set up Vigilance Committees as specified in the Public Distribution System (Control) Order, 2001, made under the Essential Commodities Act, 1955 (10 of 1955), as amended from time to time, at the State, District, Block and fair price shop levels consisting of such persons, as may be prescribed by the State Government giving due representation to the local authorities, the Scheduled Castes, the Scheduled Tribes, women and destitute persons or persons with disability.
(2) The Vigilance Committees shall perform the following functions, namely:--
(a) regularly supervise the implementation of all schemes under this Act;
(b) inform the District Grievance Redressal Officer, in writing, of any violation of the provisions of this Act; and
(c) inform the District Grievance Redressal Officer, in writing, of any malpractice or misappropriation of funds found by it.
Rule 9(3). The vigilance committees shall meet at least once in every quarter of a calender year.
Order IX(4). The State Government shall set up vigilance committees for the Targeted Public Distribution System at the State, District, Block and fair price shop levels as per the provisions of the Food Security Act to perform functions as specified in the said Act.
5. Meetings of the vigilance committees shall be held at least once every quarter at all levels and the date and periodicity of the meeting shall be notified by the State Government and given wide publicity.
6. The State Government shall send a report annually to the Central Government on the functioning of vigilance committees in the format at Annexure-V.
7. The number of meetings held by the vigilance committees shall be displayed on the State web portal and the action taken on issues discussed in meetings of vigilance committees shall be reviewed in the next meeting."
58. In a similar fashion the Grievance Redressal Officer under The National Food Security Act, 2013 has also been incorporated in the Control Order, 2016 and its functions and have been co-opted by the Control Order of 2016 to advance the common purpose of the enactments. The relevant provisions in this regard which bear out the above observations are set out hereinafter. Order IX (9)(10)(11) is extracted below:
"Order 9. The Food Commissioner shall give wide publicity to the up-to-date details of the Grievance Redressal Officer such as name, telephone number including mobile number, office address and the grievance redressal mechanism.
Order 10. The State Government may appoint or designate, officers as the District Grievance Redressal Officer; as provided in the Uttar Pradesh State Food Security Rules, 2015.
Order 11. An appeal against the order of the District Grievance Redressal Officer shall be preferred before the State Food Commission constituted under section 16 of the Uttar Pradesh Food Commission Rules, 2015."
59. The provisions of both the sets of enactments shows that the authorities created thereunder, perform complementary functions to achieve the larger common aim. The whole purpose of co-opting authorities, incorporation of various provisions of The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 in the Control Order, 2016 is to avoid multiplicity of authorities performing the same function and to avert a conflict of jurisdiction.
Search and Seizure-
60. The distinct functions of authorities under the Control Order, 2016 and the responsibility of the authorities created thereunder and that of The National Food Security Act, 2013 read with the Uttar Pradesh State Food Security Rules, 2015 is also borne out from the provisions relating to search and seizure. The power of search and seizure is vested by Order XII in the competent authority under the Control Order, 2016. It is apposite to reproduce the provisions. Order 12 is extracted hereunder:-
"Order 12. Power of search and seizure:- (1) The Commissioner, the food officer, the competent authority and designated officer may within his jurisdiction with such assistance if any, as he thinks fit_
(a) require the owner, occupier or any other person in charge of any place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this order has been or is being, or is about to be made, to produce any book, account or other documents showing transaction relating to such contravention;
(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order has been or is being or is about to be made;
(c) examine and seize any books of accounts and documents which in the opinion of such officer may be useful for or relevant to any proceeding under this order and return such books of accounts and documents to be person from whom they were seized after copies thereof or extracts therefrom as may be considered necessary and certified by the person to be correct have been taken.
(2). The provisions of section I 00 of the Code of Criminal Procedure 1973, relating to search and seizure shall so far as may be, apply to search and seizure under this Order."
61. There is no comparable provision under the The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015.
62. The power of search and seizure is an essential requirement for an efficient administration of public distribution system and targeted public distribution system. It is a fundamental tenet of good administration the power should vest where the responsibility resides. In other words power and responsibility should co-exist in one authority. Power without responsibility are the assets of a feudal order. Responsibility without power is the recipe for anarchy.
63. Power of search and seizure is vested in the authorities under the Control Order, 2016. These authorities are responsible for the implementation of the targeted distribution on a day to day basis. This power enables the authorities under the Control Order 2016, to have a day to day & transaction to transaction oversight on the targeted public distribution system. It enables the said authorities to cast an uninterrupted vigilance on the targeted public distribution system in general and fair price shop dealer in particular.
Enquiries-
64. The enquiry conducted by the authorities under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 and the Control Order, 2016 have to be seen in the light of their functions the nature of the jurisdiction exercised and the powers conferred upon the authorities under the respective enactments. The inquiries conducted by such authorities can overlap but the purposes of the enquiries may vary. However, the emphasis of the enquiries by the respective authorities would certainly differ.
Penalty-
65. Another provision of relevance relates to the penalties. The provisions relating to penalties under The National Food Security Act, 2013, being Sections 33 and 34 of the said Act are extracted hereunder:
"Section 33. Penalties.--Any public servant or authority found guilty, by the State Commission at the time of deciding any complaint or appeal, of failing to provide the relief recommended by the District Grievance Redressal Officer, without reasonable cause, or wilfully ignoring such recommendation, shall be liable to penalty not exceeding five thousand rupees:
Provided that the public servant or the public authority, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed.
Section 34. Power to adjudicate.--(1) For the purpose of adjudging penalty under section 33, the State Commission shall authorise any of its member to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard for the purpose of imposing any penalty.
(2) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to provide the relief recommended by the District Grievance Redressal Officer, without reasonable cause, or wilfully ignored such recommendation, he may impose such penalty as he thinks fit in accordance with the provisions of section 33."
66. The provision for penalty contemplated under the Control Order, 2016 is much more stringent in scope and penal in consequence. Order XI contemplates imposition of punishment for violation of the provisions of the Control Order, 2016. Order 11 of the said control order reads thus:
"Order 11. Penalty.- If any person contravenes any of the provisions of this Order he shall be liable to punishment under Section 7 of the Act."
67. The consequences of violation of provisions of The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 are tested by the authorities created under the said Act. The penalties are in the nature of fines. The violation of the Control Order, 2016 read with Section 3/7 of the Essential Commodities Act envisages imposition of punishment after criminal prosecution before the trial court. The punishment may extent to imprisonment upto 7 years. Fine is imposed after adjudication.
Ration Cards-
68. Another evidence of the schemes of The National Food Security Act, 2013, U.P. State Food Security Rules, 2016 and the Control Order, 2016, being part of a composite legislative structure is seen from the provisions relating to ration cards. Section 2(16) of The National Food Security Act, 2013 defines ration cards which is extracted below:
Section 2(16). "ration card" means a document issued under an order or authority of the State Government for the purchase of essential commodities from the fair price shops under the Targeted Public Distribution System.
69. Ration cards are issued under Order IV of the Control Order, 2016. The said provision of Order IV is extracted hereunder:
"Order 4. Ration Cards. - (1) The State Government shall issue ration cards to the eligible households as mentioned in the final list specified under sub-clause (12) of clause 3:
Provided that while issuing ration cards to the eligible households, the State Government shall ensure that the coverage of the number of eligible households is not merely done with a view to exhaust the State-wise ceiling of number of eligible households.
(2) The State Government shall issue a ration card only to a citizen of India who is resident of that State and who fulfills the conditions for getting a ration card as may be prescribed by the State Government:
Provided that the State Government may also issue a ration card to a household or a person residing in that State by virtue of the household or person being granted the status of a refugee and is allowed the entitlement of benefits on humanitarian grounds by the Central Government.
(3) The State Government shall ensure that a ration card, whether paper based or a smart card, is issued for use under the Targeted Public Distribution System or schemes mentioned in the Food Security Act or a specific scheme of the State Government for distribution of essential commodities.
(4) While issuing a smart card, the State Government shall ensure that a point of sale electronic device for reading the smart card is installed at the fair price shop.
(5) The State Government shall issue separate and distinct ration cards to the Antyodaya households and the priority households.
(6) Ration card shall not be used as a document of identity or proof of residence.
(7) The State Government shall prescribe a suitable form of application for new ration card and modification in the existing ration card.
(8) Any modification referred to in sub-clause (7) may be on account of shifting of residence, birth or death, change in category of beneficiary, corrections in the details mentioned in the card or any other such reason.
(9) The form referred to in sub-clause (7) may include requisite details including Aadhaar number, bank account details, and mobile telephone number.
(10) The Food Commissioner shall retain all the information under this clause in the software prepared by National Informatics Centre or as per the fields and standards prescribed by the Central Government.
(11) The Food Commissioner shall maintain the ration card data in the digitised database and ensure that issue of a new ration card and modification in the existing ration card is undertaken through the software programme so that the database is automatically updated.
(12) The State Government shall designate the authority and office for receiving, registering, acknowledging and processing of application for issuance of ration card or modification in the ration card.
(13) The State Government may also prescribe the procedure for receiving the application through online mechanism including the use of e-service centres, kiosks.
(14) The designated authority shall issue a ration card to an eligible applicant within a reasonable time not exceeding one month of the date of receipt of the application after necessary checks and verification.
(15) The designated authority shall issue a ration card in replacement of existing ration card only when the existing ration card is lost or becomes unfit for use on account of being damaged or mutilated or is exhausted fully or where there are requests for modification in the ration cards.
(16) The details of the services relating to the ration cards and timeframe for delivery of services shall be notified by the State Government and displayed in the public domain including on the State web portal.
(17) The list of the ration card holders shall be displayed in the public domain including in the office of the local authority and on the State web portal, showing the category-wise names of the eligible households and their members.
(18) The Food Commissioner shall make all endeavours to eliminate bogus or ineligible ration cards as a continuous exercise.
(19) The Food Commissioner shall organize an annual special drive before the end of every financial year for the elimination of bogus or ineligible ration cards.
(20) The State Government shall submit a report of ration cards deleted or cancelled on quarterly basis to the Central Government in the format at Annex-II.
(21) The State Government may issue directions under this order to specify manner in which ration cards are to be issue from time to time."
70. The possession of a ration card is an important requirement for obtaining the benefits and entitlements created under The National Food Security Act, 2013. The ration card itself is issued only under the Control Order, 2016.
Logistics-
71. The provisions of Order V and Order VI of the Control Order, 2016 also bear relevance to the controversy. Orders 5 and 6 relate to day to day functioning and management of logistics of the targeted public distribution system. The provisions relating to lifting of foodgrains and distribution of foodgrains are Order V and VI:
"Order 5. Lifting of foodgrains by States. - (1) The State Government shall lift foodgrains from the designated depots of the Corporation through its authorised agency.
(2) The State Government shall, on getting allocation of foodgrains from the Central Government, issue allocation orders authorising their agencies to lift foodgrains from the Corporation and such order among others shall specify-
(i) number of cards and units;
(ii) balance in hand; and
(iii) allocation made for each month in respect of a fair price shop.
(3) While making allocation to the fair price shop, the designated authority shall take into account the balance stock, if any, lying undistributed with the fair price shop owner for the subsequent allocations.
(4) The designated authority shall ensure that one copy of the allocation order made to the fair price shop is delivered to the local authority, vigilance committees, and any other body nominated by the State Government for monitoring the functioning of the fair price shop.
(5) The Food Commissioner shall ensure that the allocation order depicting the stocks of foodgrains allotted during the month to the fair price shops is displayed on the public domain including on the State web portal.
(6) Before taking delivery of foodgrains from the Corporation, an officer of the State Government not below the rank of Food and Civil Supplies Inspector and an officer of the Corporation shall jointly inspect the stocks of foodgrains intended for issue to ensure that the stocks conform to the prescribed quality specifications.
(7) After the joint inspection, the Corporation shall issue to the State Government, before dispatch of foodgrains from godown, one stack-wise sealed sample jointly drawn for display at the fair price shop and a duplicate sealed sample drawn shall be kept with the Corporation for future reference:
Provided that in case the authorised agency of the State Government takes delivery of foodgrains from the Corporation and stores the foodgrains in an intermediate godown before delivering them to the fair price shop dealers, the authorised agency shall follow the procedure under this sub-clause at that intermediate godown:
Provided further that where decentralised procurement of foodgrains is in operation in the States, the authorised agency of the State Government shall follow the procedure under this sub-clause.
(8) The quantity of the samples to be drawn, retention period of the samples and disposal of the samples shall be as per the instructions issued by the Central Government from time to time.
(9) The Food Commissioner shall ensure the lifting of foodgrains from the Corporation by the last day of the month preceding the allocation month.
(10) The extension of time for lifting of foodgrains from the Corporation may be considered by the Central Government or the Corporation only in very rare and deserving cases as per the instructions issued by the Central Government.
(11) The Food Commissioner shall devise suitable mechanism for transportation of foodgrains from the Corporation godown to the intermediate godown and the door-step delivery of the foodgrains to the fair price shop:
Provided that the State Government may also transport foodgrains directly to the fair price shop from the Corporation godown and ensure its door-step delivery to the fair price shop.
(12) A report on quarterly basis shall be furnished by the State Government to the Central Government regarding door-step delivery in the format at Annex-III.
(13) The necessary checks shall be exercised by the State Government to ensure that full quantity and the same quality of foodgrains as lifted by them reaches their godowns and in turn at the fair price shop.
Order 6. Distribution of foodgrains by States. - (1) The allocation of foodgrains made by the Central Government under the Targeted Public Distribution System to the State Government shall be used for distribution as per the provisions of the Food Security Act and not for any other purpose.
(2) A utilisation certificate shall be furnished every year by the State Government in the format as at Annex-IV.
(3) The Food Commissioner shall ensure, through the authorised agency, physical delivery of foodgrains to the fair price shop by end of the month preceding the allocation month and in any case not later than the first week of the allocation month.
(4) The Competent Authority shall obtain a monthly certificate, including through electronic platform, confirming delivery of allocated foodgrains to the fair price shop and their distribution to eligible households during the allocation month from the desginated officer and compilation of such all certificates of the Districts shall be made available to Commissioner through Joint Commissioner/Deputy Commissioner (Food) concerned.
(5) The monthly certificate shall be jointly given by the following:-
(i) the fair price shop owner;
(ii) two or more member, one being necessarily women, of the vigilance committee;
(iii) the designated officer."
72. It is noteworthy that no provisions for lifting a foodgrains and distribution of foodgrains by the statutes are made in The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015. The logistics of running the targeted public distribution system is clearly in the domain of the Control Order, 2016. In this manner also, the scheme of the Control Order, 2016 reinforces the objects of the National Food Security Act, 2013.
Accountability-
73. The provisions relating to an accountability which ensure transparency in functioning and efficiency in distribution are provided under Chapter II of The National Food Security Act, 2013. The relevant provisions are reproduced hereunder:
TRANSPARENCY AND ACCOUNTABILITY "Section 27. Disclosure of records of Targeted Public Distribution System.--All Targeted Public Distribution System related records shall be placed in the public domain and kept open for inspection to the public, in such manner as may be prescribed by the State Government.
Section 28. Conduct of social audit.--(1) Every local authority, or any other authority or body, as may be authorised by the State Government, shall conduct or cause to be conducted, periodic social audits on the functioning of fair price shops, Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.
(2) The Central Government may, if it considers necessary, conduct or cause to be conducted social audit through independent agencies having experience in conduct of such audits.
Section 29. Setting up of Vigilance Committees.--(1) For ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries in such system, every State Government shall set up Vigilance Committees as specified in the Public Distribution System (Control) Order, 2001, made under the Essential Commodities Act, 1955 (10 of 1955), as amended from time to time, at the State, District, Block and fair price shop levels consisting of such persons, as may be prescribed by the State Government giving due representation to the local authorities, the Scheduled Castes, the Scheduled Tribes, women and destitute persons or persons with disability.
(2) The Vigilance Committees shall perform the following functions, namely:--
(a) regularly supervise the implementation of all schemes under this Act;
(b) inform the District Grievance Redressal Officer, in writing, of any violation of the provisions of this Act; and
(c) inform the District Grievance Redressal Officer, in writing, of any malpractice or misappropriation of funds found by it."
74. A similar system of transparency and accountability has been adopted by the Control Order, 2016. The provisions Order X are reproduced hereunder:
"Order 10. Transparency and accountability.-1. All Targeted Public Distribution System related records shall be placed in the public domain and kept open for inspection to the public in the manner as may be prescribed by the State Government.
2. Every local authority, or any or her authority or body, as may be authorised by the St-ate Government, shall conduct or cause to be conducted, periodic social audits on the functioning of Targeted Pubic Distribution System, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.
3. The State Government may, if it considers necessary, conduct or cause to be conducted social audit through independent agencies having experience in conduct of such audits."
75. By adopting the similar standards and schemes of accountability in the Control Order of 2016 and The National Food Security Act, 2013, the enactments have been harmonized.
Conclusions-
76. The overarching purpose of both the sets of legislation is congruent. It is to achieve efficiency and transparency in the functioning of the targeted public distribution system, to ensure accountability and probity of the agencies and officials administering and above all to effectuate the rights of the beneficiary population. The schemes of both sets of enactments are well integrated to achieve the purpose set out by the legislature. The legislature was conscious that congruence in the schemes of both the sets of legislations could produce a possibility of conflict. The legislature went the whole length to obviate the possibility of such conflict. The provisions of the enactments have been harmonized in detail.
77. The schemes of the both the sets of enactments discussed in the earlier part of the judgement in detail shall now be referred to in outline to sum up the discussion and establish the coherence in the legislative structure.
78. The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 envisage the pre-existence of the Control Order, 2016 also contemplate co-existence with the U.P. Control Order, 2016. The U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 was promulgated in the year 2016, subsequent to The National Food Security Act, 2013 and the U.P. State Food Security Rules, 2015. The State Government was conscious of the preceding legislations namely, The National Food Security Act, 2013 and the Food Security Rules, 2016 in point.
79. The schemes of the enactments show that the Control Order, 2016 is well integrated into the scheme of the The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 to subserve the high purpose the legislation has set out to achieve. The beneficiaries of the enactments are common. The rights created by The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015 are also brought to fruition by the Control Order, 2016. The Control order 2016 incorporates the provisions of The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015 and co-opts the authorities created The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015. The Control Order, 2016 has aligned functioning of the authorities created under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015, in its regime.
80. Cross references of provisions clearly contemplate a joint existence, and parallel functioning and co-habitation of the same field. Similar conclusions can be drawn from the provisions relating to eligible households, ration cards, Antyodaya Schemes, Fair Price Shops, Identification of the eligible households, system of accountability creation of authorities like Vigilance Committee, State Food Commission, Grievance Redressal Officer and also reference made in the Control Order, 2016 to the appellate authority created under The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015.
81. There is no head on collision between the aforesaid enactments. In fact both the enactments are not in discord but serve a complementary purpose. Certain consequence of the actions and scope of the inquires undertaken by the authorities under the respective enactments may over lap. However, the aforesaid over lap is only collateral consequence. The overlap of the same and the consequences of the inquiries under the enactments are only incidental and do not create a situation where the conflict of jurisdiction is created. Both the enactments can be construed harmoniously and their purposes can be achieved simultaneously.
82. In the absence of the provisions of the Control Order, 2016 there is no legal frame work to manage and supervise the distribution and sale of the essential commodities. In short the public distribution system would face a break down bereft of the legal frame work created by the Control Order.
83. A conjoint reading of both the sets of enactments shows that both the legislations are integral to each other and indispensable to achieve the common legislative purpose. One enactment is incomplete without other. The enactments have a symbiotic relationship. The schemes of both the enactments are intermeshed and the mix cannot be unscrambled. Together both the sets of enactments namely, The National Food Security Act, 2013 and the Uttar Pradesh State Food Security Rules, 2015, and Control Order, 2016 constitute the composite legal framework and provide a common statutory backbone to create an effective targeted public distribution system and effectuate the rights of the eligible beneficiaries. The authorities under both the enactments reinforce each other and perform complementary functions. They do not work at cross purposes. The legislative schemes ensure that the authorities exist in concord and act in concert. The legislative intent is to harmonize the enactments and avoid conflict. The courts by interpretation cannot produce discord which will frustrate the objects of the legislation. The existence of a non obstante clause in section of The National Food Security Act, 2013 is noticed. But the same cannot be invoked in the facts of this case, as there are no contrary provisions of the Control Order, 2016 in issue. Neither of the legislation can be stymied in their functioning without risk of defeating the common noble purpose created by the legislature. The intent of the legislature is too pious, failure is not an option.
84. The Control Order, 2016 is not in conflict with the provisions of The National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015. The Control Order, 2016 is not superseded by the National Food Security Act, 2013 read with U.P. State Food Security Rules, 2015.
Facts-
85. In the light of the above legal narrative, the facts of the controversy shall now be discussed. The enquiry undertaken against the petitioner in pursuance of the show cause notice dated 16.03.2018 issued by the respondent No.2 is in issue in the instant writ petition.
86. The show cause notice dated 16.03.2018 and the enquiry proceedings in pursuance thereof, are clearly relatable to Order VIII of the Control Order, 2016 read with the terms of the contract between the dealer and the State Government as well as the Government Orders holding the field.
87. There is no conflict of jurisdiction between the authorities conducting the enquiry in pursuance of the show cause notice under the Control Order, 2016 and the authorities under The National Food Security Act, 2013. In such view of the facts and the position of law stated in the preceding parts of the judgment, no infirmity can be found in the show cause notice dated 16.3.2018. The show cause notice dated 16.03.2018 was in legitimate exercise of power vested in the authority by law. It was not in excess of jurisdiction. The challenge to the jurisdiction of the authorities to undertake such proceedings is misconceived.
88. The writ petition lacks merit and is dismissed.
Order Date :- 02.11.2018 Pravin/Ashish Tripathi