Punjab-Haryana High Court
Gurdev Dutt Sharma vs Union Of India (Uoi) And Ors. on 24 August, 2005
Equivalent citations: AIR2006P&H64, (2006)142PLR479, AIR 2006 PUNJAB AND HARYANA 64, (2005) 4 RECCIVR 377, (2006) 1 PUN LR 479, (2006) 2 EFR 129
Author: Hemant Gupta
Bench: D.K. Jain, Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The present writ petition, ostensibly in public interest, is to seek quashing of order dated 26.11.1999, Annexure P-15, whereby Government of India has concurred to the proposal of the State Government subject to modification, to amend Sub-clauses (4) and (6) of Clause 7 of the Punjab Rice Procurement (Levy) Order, 1983 (hereinafter to be referred as the "Levy Order"). The facts leading to the said challenge are that:
The State of Punjab contribute major portion of foodgrains to the Central Pool maintained by the Government of India for their equitable distribution in the deficient States in the country. The Food and Supplies Department, Punjab, has quality control staff to make sure that the stocks of foodgrains procured are of fair average quality and in any case are within the specifications laid down and not contrary to the provisions of the Prevention of Food Adulteration Act. To maintain quality control, the staff of the department draws samples of the foodgrains offered to the State Government for contribution to the Central Pool and accept the same only on its having been found to conform to the specifications laid down under the Statutory Rules.
In terms of the provisions of Section 3 read with Section 5 of the Essential Commodities Act, 1955, the State Government with the prior concurrence of the Central Government has issued the Punjab Rice Procurement (Levy) Order, 1983. In terms of such Levy Order as amended would show that a licensed miller is required to sell a specified percentage if his rice produce to the Government which should conform to the specifications laid down under the Levy Order. The percentage of the stocks to be offered to the Central Government are notified each year. The procurement is done only after the samples are dawn in the manner prescribed under Clause 7(4) of the Levy Order and accepted only after it is declared fit on analysis by the Quality Control Staff in the Foodgrains Laboratory. It has been pleaded that the Food Corporation of India initiated a move to close down the Food Grains Laboratories run by the Punjab Government for analysis of rice in terms of Clause 7(4) Levy Order. As per Levy Order, three samples of rice are contemplated to be taken jointly by the authorised representatives of the State Government and the Food Corporation of India in the presence of licensed miller or licensed dealer or his authorised agent. One of the samples is required to be sent to the Foodgrains Laboratory established by the Government to be analysed jointly by the government analyst and authorised analyst of the Food Corporation of India in the said laboratory. By virtue of amendment sought in the Levy Order, joint sampling of rice by the authorised representative of the Government and its analysis by the Government analyst and that of Food Corporation of India is done away with in terms of the concurrence received from the Government of India.
Earlier on 16.9.1998, Punjab Government issued an office order abolishing all the Foodgrains Laboratories established by the Food and Supplies Department, Punjab, at the various centres in the State of Punjab. The said order was passed after considering the demand of Rice Millers and recording a note that the Food grains Laboratories run in the field by the Department of Food & Supplies are very well known fountains of corruption and practically serve no purpose since sole responsibility of accepting rice of the prescribed quality rests with the Food Corporation of India, who is the custodian of Central Pool. After issuance of such order, the State Government sought approval of the Central Government in amending the Levy Order proposing to substitute Sub-clauses (1) to (8) of Clause 7 of the Levy Order including the clause for drawing of sample and its analysis by Food Corporation of India alone.
The Central Government did not accept the proposed amendment vide its communication dated 4.12.1998, Annexure P-10. The State Government vide communication dated 21.1.1999, Annexure P-II, communicated to the Government of India that the approval of the Central Government to seek amendment in the Levy Order is not as per the proposal of amendment sent by the State Government and no reason has been given for changing the procedure of analysis recommended by the State Government. The State Government sought reconsideration of the decision. In response thereto, the Government of India vide its communication dated 24.2.1999, Annexure P-12, proposed amendment in the Levy Order so as to draw samples in the presence of the authorised representatives of the Food Corporation of India, in the presence of licensed millers/dealers or agents and the Purchase Officer or his authorised representative. However, the sample was to be analysed in the Foodgrains Analytical Laboratory of Food Corporation of India. The Government of India again vide communication dated 21.9.1999, Annexure P-13, in pursuance of communication dated 12.2.1999 of the Secretary, Food & Supplies Department, Government of Punjab, and communication dated 24.2.1999 from the Chief Minister of Punjab, superseded its earlier order dated 24.2.1999 still remaining the drawing of sample in the presence of the Purchase Officer or its authorised representative but analysis in the Foodgrains Analytical Laboratory of Food Corporation of India. Subsequently, vide letter dated 26.11.1999, Annexure P-15, the Government of India has concurred with the proposed amendment whereby sample is required to be drawn by the authorised representative of the Food Corporation of India and to be analysed by its Foodgrains Analytical Laboratory.
2. It may be noticed that in the meanwhile the Rice Millers Association field a Civil Writ Petition No. 16268 of 1998 challenging the decision dated 16.9.1998 abolishing the Foodgrains Laboratories set up by Food & Supplies Department in the State of Punjab. It was contended that in terms of Levy Order, the Government is required to establish Foodgrains Laboratories for the purpose of analysis to be carried out by the Foodgrains Laboratories of the State Government and the Food Corporation of India. The grievance, thus, raised was that although it is mandatory under the Levy Order to take samples and get the same analysed from the Foodgrains Laboratories but now there would be no Foodgrains Laboratories after the abolition of the same and, thus, the rice millers would face harassment and difficulty.
3. It was the stand of the State Government in the said writ petition that no useful purpose was being served by the State Government Foodgrains Laboratories and a conscience decision was taken to shut down these laboratories. The State Government is fully empowered to issue executive instructions with a view to improve the government work. It was pleaded that the concurrence of the Government of India for amending the Levy Order was being obtained. The said writ petition was dismissed in view of the concurrence given by the Government of India vide communication dated 4.12.1998 which contemplated analysis in the Foodgrains Analytical Laboratory of Food Corporation of India and not in the Foodgrains Laboratories established by the Punjab Government. It was found that once the Government of India has accorded concurrence, amendment in the procurement order is a procedural formality.
4. In the written statement filed on behalf of State of Punjab, it was stated that under the unamended Levy Order, the rice used to be got analysed in the State Government run laboratories as well as Food Corporation of India laboratory. The procedure being duplicate sometimes caused delay in the acceptance of rice and did not serve any useful purpose. It was pleaded that the State run Foodgrains Laboratories have been abolished so as to avoid duplicacy and bring efficiency in delivery of rice which rice millers had been demanding for quite sometime. On the other hand, on behalf of Food Corporation of India, it was pleaded that every depot of Food Corporation of India has a well equipped laboratory for testing and in the Mandies, the staff is equipped with an analysis kit. It was pointed out that there only 43 laboratories established by the Food and Supplies Department in the entire Punjab region. In the said region, there are 188 deposits of Food Corporation of India and the laboratories established by the Corporation are better technically equipped. It was further pleaded that the technical staff deputed in the laboratories maintained by the Food Corporation of India are professionally better qualified and also imparted departmental training from time to time to cope up with the future advancement. In Food Corporation of India, there is a full-fledged quality control division which is abreast with all the latest advancement in the field of technology and it is also well equipped to meet any exigencies. Sill further, except rice no other samples of either wheat or paddy are sent to the District Food & Supplies Controller Labs. Still further, Food Corporation of India was constituted under the Food Corporations Act, 1964, and comprises of 20 regions all over India. Except Punjab and Haryana region, no other region used to get its samples analysed from the Laboratories maintained by the State Government. The Haryana region has also done away with State Government Laboratories earlier. Thus, it was pleaded that analysis by the State Government run Laboratories has been rightly abolished.
5. Learned Counsel for the petitioner have vehemently argued that the establishment of Foodgrains Laboratories by the Government of Punjab was part of an act of mechanism of checks and balances so as to accept food-grains which conform to the specifications under the Levy Order. It is contended that with the abolition of State run Food-grains Laboratories, there is no check on the auction so the officials of the Food Corporation of India to classify the rice in another category than what is contemplated under the Levy Order which would result into payment of higher price and consequently loss to the tune of crores of rupees to the Corporation. Still further, it is argued that the Government of India has insisted on drawing of joint samples in the earlier communication but there is nothing on the record to show which made the Government of India to change the process of drawing of samples and analysis vide communication dated 26.11.1999, Annexure P-15. Reliance is also placed on Supreme Court judgment reported as Ashok Lanka and Anr. v. Rishi Dixit and Ors. , that the economic policies of the State are not beyond the pale of judicial review. It is contended that the concurrence of the Government of India is without any basis and is wholly arbitrary.
6. On the other hand, learned Counsel for the respondents vehemently argued that apart from the fact that public interest litigation at the instance of the petitioner is not maintainable, the writ petition is, in fact, an abuse of process of law. It is pointed out that the State Government has decided to abolish the Foodgrains Laboratories established only to analyse the samples of rice so as to avoid duplicate work without any ostensible benefit. It is argued that the Food Corporation of India is the purchaser of the rice and as a purchaser is not only making payment of the rice but also has a right to accept rice as per specifications through analysis conducted by the staff employed by the Corporation. It is contended that acceptance office tested by the Foodgrains Analystical Laboratory established by the Corporation alone is a policy decision taken by the State Government with the concurrence of the Central Government as an exercise of delegated legislation Such policy decision cannot be said to be mala fide, unreasonable, arbitrary or unfair and, thus, such decision cannot be interfered with in exercise of the power of this Court in judicial review. Reliance is placed upon decision of the Supreme ; Court reported as Ugar Sugar Works Ltd v. Delhi Administration and Ors. .
7. Levy Order has been promulgated by the State of Punjab with the concurrence of the Central Government. Such Levy Order initially contemplated drawing of samples in the presence of the representative of the Food Corporation of India as well as that of Government of Punjab and its analysis in the laboratories established by the Government of Punjab as well as Food Corporation of India. The State Government in exercise of its power of delegated legislation has decided to amend Levy Order to do away with the process of setting the samples drawn in the presence of the officials of the Government of Punjab and its analysis in its laboratories so as to avoid duplicacy of work without any oustensible benefit. The decision to abolish Foodgrain Laboratories run by the State Government cannot be said to be arbitrary, unreasonable and unfair. The only argument raised is that mechanism of checks and balances is required to be maintained. The argument raised that it will give free hand to the officials of the Food Corporation of India to classify the rice in better categories causing loss to the exchequer is based upon conjunctures and apprehensions. It is for the State Government to consider the extent of control required and its efficacy. Any act of indiscipline or misconduct in acceptance of rice as to that of a different category than the norms in the Levy Order has to be taken care of by the management of the Corporation. Mere possibility of abuse of the process is not a ground to invalidate the Levy Order. The provisions of law can be said to be bad on the mere possibility of misuse but it will be individual act of indiscipline which will call for appropriate steps at the hands of the management but such provisions of law cannot be said to be unreasonable or arbitrary.
8. The validity of a statute is not dependent upon possibility of abuse. It was held by I a Constitution Bench of Hon'ble Supreme Court in the judgment reported as Collector of Customs v. Nathella Sampathu Chetty , as under:-
33. Before considering these submissions it is necessary to mention one point suggested in answer by the learned Solicitor-General which has apparently found favour with the learned Judges of the Division Bench of the Bombay High Court in Pukhraj Champalal Jain v. D.R. Kohli. The point was this: The Central Board of Revenue had issued certain administrative instructions as regards the manner in which the Customs Officers should regulate their procedure before the goods are adjudged to be confiscated under the provisions of the Sea Customs Act. These are set out at p.12450 of the Report in 61 Bombay Law Reporter and need no be repeated here. The learned Solicitor General's argument was that as the section was being administered subject to these safeguards, the provision must be held to be a reasonable restriction with Clause (6) of the Article 19 of the Constitution. We are clearly of the opinion that the argument about the relevance of this matter is incorrect and must be rejected. This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void. (Emphasis supplied). Commending on a passage in the judgment of the Court of Appeal of Northern Ireland which stated:
If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably.
and treating this as a ground for holding the statute in valid Viscount Simonds observed in Belfast Corporation v. D.D. Cars Ltd.4 960 A.C. 490 at pp.520-521:
It appears to met that the short answer to this contention (and I hope its shortness will not be regarded as disrespect) is that the validity of a measure is not to be determined by its application to particular cases....If it is not so exercised (i.e. if the powers are abused) it is open to challenge and there is no need for express provision for its challenge in the statute.
The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by it being administered in a reasonable manner. The constitutional validity of the statute would have to be, determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirement set out in Part-Ill of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws.
9. The said judgment was quoted with approval in People's Union for Civil Liberties v. Union of India , wherein it was held to the following effect:-
22. Another issue that the petitioners have raised at the threshold is the alleged misuse of TADA and the large number of acquittals of the accused charged under TADA. Here we would like to point out that this Court cannot go into and examine the "need" of POTA. It is a matter of policy. Once legislation is passed the Government has an obligation to exercise all available options to prevent terrorism within the bounds of the Constitution. Moreover, we would like to point out that this Court has repeatedly held that mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional.
10. The argument, that there is no explanation on record to justify the change of stand of the Government of India leading to the impugned concurrence, is again not tenable. The earlier administrative decisions do not preclude the authority to change its decision. The State Government has insisted against the drawing of Joint samples and analysis. The Levy Control Order has been promulgated by the State Government. The amendment as sought by the State Government has been finally concurred to by Central Government. We do not find any illegality in the action of the Central Government to accept the proposals of the State Government to seek amendments in Levy Order.
11. The action of the State Government in amending the Levy Control Order is in exercise of Rule making power of the State. Such decision is mater of policy. We do not find any reason to hold such amendment as arbitrary or unreasonable.
12. Therefore, we do not find any ground to interfere with the concurrence of the Central Government approving the amendment in Levy Order as sought by the Government of Punjab, in exercise of writ jurisdiction under Article 226 of the Constitution.
13. Dismissed with no order as to costs.