Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15157 of 2011 ====================================================== Bihar Pradesh Jan Bitran Pranali Dukandar Sangh through its Chairman Dinesh Singh, son of late Sheo Prasad Singh, Resident of Alwalpur, P.S.- Gaurichak, Distt.- Patna. .... .... Petitioner 1. The State of Bihar Versus 2. The Chief Secretary, Government of Bihar, Main Secretariat, Patna 3. The Principal Secretary, Food and Consumer Protection Department, Govt. of Bihar, Main Secretariat, Patna. ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.15373 of 2011 ====================================================== Bijay Kumar Singh, son of late Shyam Sunder Prasad Singh, resident of Village-Mankurah, P.S.- Plaiganj, District- Patna, Chairman of Fair Price Dealers Association, Sub-Division, Paliganj, District- Patna. .... .... Petitioner 1. The State of Bihar Versus 2. The Chief Secretary, Government of Bihar, Main Secretariat, Patna. 3. The Principal Secretary, Food and Consumer Protection Department, Govt. of Bihar, Main Secretariat, Patna. ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.16192 of 2011 ======================================================
Legal Reasoning
1. Sunita Rajak D/o Sri Ram Bilash Rajak, Resident of Village-Gopalpur Tasera, P.S.- Musahri, Distt- Muzaffarpur 2. Bhola Mahto S/o Panchu Mahto, Resident of Madhopur, P.S.- Musarhi, Dsitt.- Muzaffarpur 2 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 2 / 11 3. Amarnath Patel S/o Late Guljar Patel, resident of Village-Dumari, , P.S.- Musahri, Distt- Muzaffarpur 4. Srikant Prasad Chourasia S/o late Sahdeo Chourasia, resident of Village- Shekpur, Ward No. 12, P.S.-Musahri, District-Muzaffarpur 5. Sanjay Kumar S/o Lalit Kumar Singh, resident of Village- Shekpur, P.S.- Ahiyapur, Distt.- Muzaffarpur 6. Radha Devi W/o Sri Ramshankar Sah, resident of Village-Mothaha Maal, P.S.- Minapur, Distt- Muzaffarpur 7. Munni Devi W/o Triveni Sah, resident of Village + P.S.- Mahanth Maniyari, Distt- Muzaffarpur 8. Akash Kumar S/o Sri Mahendra Choudhary resident of Village- Damoderpur, P.S.- Kanti, Dist.- Muzaffarpur 9. Amit Kumar Singh S/o Late Arvind Kumar Singh, resident of Village- Dadar Kolhua, P.S. -Ahiyapur Dist.-Muzaffarpur 10. Pradeep Kumar S/o Late Sakkal Sahani, resident of Village-Dadar Kalhua, P.S.-Ahiyapur, Dist- Muzaffarpur. .... .... Petitioners Versus 1. The State of Bihar through Principal Secretary, Department Food and Consumer Protection Affairs. 2. The District Magistrate, Muzaffarpur 3. The Sub Divisional Officer, East Muzaffarpur 4. The Sub- divisional Officer, West Muzaffarpur 5. The District Supply Officer, Muzaffarpur 6. The Additional District Officer, Muzaffarpur 7. The Block Supply Officer Mushari, Muzaffarpur ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.17426 of 2011 ====================================================== Gopal Jee Akela @ Gopal Akela, son of Chikuri, resident of Village- Nainijore, P.S.-Gulthani, Distt. Siwan. .... .... Petitioner Versus 1. The State of Bihar through Chief Secretary, Bihar, Patna 3 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 3 / 11 2. The Chief Secretary, Govt. of Bihar, Patna 3. Principal Secretary, Department of Food Supplies and Consumer Protection, Govt. of Bihar, Patna ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.17503 of 2011 ====================================================== Fair Price Dealers Association, Registered office Bhikhna Pahari, Patna 4 and Head office, Uran Tola, New Bypass Road, Anisabad, Patna-2, Registration No.-2525 of 1981 through its Joint Secretary, Krishna Kumar Singh, son of late Basudeo Singh, resident of Village-Chandpur Nanhakar P.S.-Desari, District-Vaishali. .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Main Secretariat, Patna. 2. The Principal Secretary, Food and Consumer Protection Department, Government of Bihar, Main Secretariat, Patna. ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.19793 of 2011 ====================================================== Fair Price Dealers Association through its General Secretary, Sudhanshu Kumar Tiwary, S/o Late Satya Narayan Tiwary, R/o Village - Amatha Khem, P.S.- Mirganj, Distt- Gopalganj .... .... Petitioner 1. The State of Bihar Versus 2. The Secretary, Food and Consumer Protection Department, Govt. of Bihar, Patna. 3. The S.D.O. Hathua, Distt. – Gopalganj. 4. The S.D.O. Gopalganj, Distt- Gopalganj. 5. The District Magistrate, Gopalganj. .... .... Respondents 4 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 4 / 11 ====================================================== With Civil Writ Jurisdiction Case No.20531 of 2011 ====================================================== Ashok Tiwari, son of late Baleshwar Tiwari, resident of Village-Jalalpur, P.S.-Jalalpur, Distt.-Sharan. .... .... Petitioner 1. The State of Bihar. Versus 2. The Chief Secretary, Government of Bihar, Main Secretariat, Patna. 3. The Principal Secretary, Food and Consumer Protection Department, Govt. of Bihar, Main Secretariat, Patna. 4. The Sub-Divisional Officer, Sadar, Saran. ====================================================== .... .... Respondents With Civil Writ Jurisdiction Case No.4371 of 2013 ====================================================== 1. Maqsood Alam, son of Late Mubarak Hussain, resident of Village-Lal Saraiya, Police Station-Majhaulia, District- West Champaran, Bettiah. 2. Raj Kumar Ram, son of Sh. Harilal Ram. 3. Bikram Yadav, son of late Chokat Yadav. Both are residents of Village-Goda Semra, Police Station-Majhaulia, District-West Champaran, Bettiah. .... .... Petitioners Versus 1. The State of Bihar through the Principal Secretary, Department of Food and Consumer Protection Affairs, Government of Bihar, Patna. 2. The Secretary, Co-operative Societies, Government of Bihar, Patna. 3. The District Magistrate, West Champaran, Bettiah. 4. The Sub-Divisional Officer, West Champaran, Bettiah. 5. The District Supply Officer, West Champaran, Bettiah. 6. The Block Supply Officer, Majhaulia, District- West Champaran, Bettiah. 7. The District Co-operative Officer, West Champaran, Bettiah. 8. The Chairman, Primary Agriculture Credit Society, Lal Saraiya, Block- Majhaulia, District- West Champaran, Bettiah. 5 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 5 / 11 9. Mr. Awadhesh Yadav, the Chairman Nandan Multi Trade Company Pvt. Ltd., having registered office at Lal Saraiya, Block-Majhaulia, District- West Champaran, Bettiah. ====================================================== .... .... Respondents Appearance : (In CWJC No.15157 of 2011) For the Petitioner : Mr. N.K. Agrawal, Sr. Advocate Mr. Dhananjaya Nath Tiwari, Advocate Mr. Sanjeev Kumar Mishra, Advocate Mr. Anujeet Sinha, Advocate For the Respondents : Mr. Lalit Kishor, PAAG with Mr. Piyush Lal and Mr. Vikash Kumar ACs to PAAG (In CWJC No.15373 of 2011) For the Petitioner : Mr. N.K. Agrawal, Sr. Advocate Mr. Dhananjaya Nath Tiwari, Advocate Mr. Rajendra Sharma, Advocate Mr. Sanjeev Kumar Mishra, Advocate For the Respondents : Mr. Lalit Kishor, PAAG with Mr. Piyush Lal and Mr. Vikash Kumar ACs to PAAG (In CWJC No.16192 of 2011) For the Petitioners : Mr. Basant Kumar Chaudhary, Sr. Advocate For the Respondents : Mr. Lalit Kishor, PAAG with Mr. Neeraj Kumar Gupta, Advocate Mr. Piyush Lal and Mr. Vikash Kumar ACs to PAAG (In CWJC No.17426 of 2011) For the Petitioner : Mr. Anand Kumar Ojha, Advocate For the Respondents : Mr. Lalit Kishor, PAAG with Mr. Anujeet Sinha, Advocate Mr. Piyush Lal and Mr. Vikash Kumar ACs to PAAG (In CWJC No.17503 of 2011) For the Petitioner : Mr. Shreekant Labh, Advocate 6 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 6 / 11 (In CWJC No.19793 of 2011) For the Petitioner : Mr. Vishwajeet Kumar Mishra, Advocate Mr. Anjani Parashar, Advocate Mr. Radha Mohan Pathak For the Respondents : Mr. Abhay Shankar Jha, SC-14 (In CWJC No.20531 of 2011) For the Petitioner : Mr. N.K. Agrawal, Sr. Advocate Mr. Dhananjaya Nath Tiwari, Advocate Mr. Sanjeev Kumar Mishra, Advocate Mr. R.K. Labh, Advocate For the Respondents-State: Mr. Mr. Anshuman Singh, G.P.-24 Mr. Siddhartha Shankar Pandey, Advocate (In CWJC No.4371 of 2013) For the Petitioner : Mr. Manoj Kumar, Advocate For the Respondents-State: Mrs. Namrta Mishra, G.A.-13 ====================================================== Mr. Alok Ranjan, A.C. to G.A.-13 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) 8. 20-12-2013. This group of writ petitions filed under Article 226 of the Constitution have been referred to the Division Bench under order dated 1st April 2013 made by the learned single Judge. The petitioners are the individuals or the association of individuals interested in running Fair Price Shop under the Public Distribution System. The petitioners seek to challenge the Government Notification dated 23rd June 2011 issued to amend the Public Distribution System (Control) Order, 2007 (hereinafter referred to as “the 2007 Order”). The petitioners have challenged the constitutional validity of the aforesaid Notification dated 23rd June 2011 on the ground that the same is made in contravention 7 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 7 / 11 of the Public Distribution System (Control) Order, 2001 (hereinafter referred to as “the 2001 Order”) issued by the Government of India and of Articles 14 and 19(1)(g) of the Constitution. The challenge mainly is against the exclusion of the individuals for grant of licence for Fair Price Shop under Public Distribution System. Some of the writ petitioners have also challenged the provisions for grant of the licence on compassionate ground to the dependant of a licensee, if the licensee dies before attaining the age of 55 years. Contention is that the said benefit should be extended to all licensees irrespective of their age at the time of their death. In other words, the cut off age of 55 years adopted by the State Government is arbitrary and has no nexus with the object sought to be achieved. The petitioners have also challenged the requirement of keeping the shop open for all the seven days as arbitrary and contrary to the provisions contained in the Shops and Establishment Act.
Decision
The writ petitioner in C.W.J.C. No. 15157 of 2011 has also challenged the criminal liability laid upon the Licensee of the Fair Price Shop. Learned counsel Mr. N.K.Agrawal has appeared for the said writ petitioner. He has submitted that he does not press the aforesaid challenge. Learned counsels Mr Basant Kumar Choudhary and Mr. N.K.Agrawal and the learned advocates Mr. Sanjeev Kumar Mishra, Mr. Anand Kumar Ojha and Mr. Manoj Kumar have appeared for the writ petitioners. Mr. Basant Kumar Choudhary has submitted that the 2001 Order has been issued by the Central Government in exercise of power conferred by Section 3 of the Essential Commodities Act, 1955. Paragraph 5 of the annexe to the 2001 Order enjoins the State Governments to issue Order to regulate sale and distribution of the essential commodities. It is 8 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 8 / 11 under the aforesaid mandate of the Government of India, the State of Bihar has issued the above referred 2007 Order. The 2007 Order, therefore, must coincide with the 2001 Order. Any contravention thereof would vitiate such provision. He has relied upon the definition of the words “Fair Price Shop” and the “Fair Price Shop Owner” occurring in paragraph 2(j) and 2(k) of the 2001 Order. He has submitted that the 2001 Order does not exclude individuals from grant of licence. He has further submitted that the exclusion of the individuals for grant of licence under the 2007 Order is arbitrary and discriminatory inasmuch as it has no nexus to the purpose of the Order or has no rationale behind such arbitrary discrimination. In support of his submissions Mr. Choudhary has relied upon the judgments of the Hon’ble Supreme Court in the matters of Academy of Nutrition Improvement and Others v. Union of India, {(2011) 8 SCC 274} and of Govind A. Mane and Others v. State of Maharashtra and Others, {(2000) 4 SCC 200}. Learned advocate Mr. Sanjeev Kumar Mishra has appeared for the writ petitioner in C.W.J.C. No. 20531 of 2011. He has relied upon the judgment of the Hon’ble Supreme Court in the matter of Shri Ram Krishna Dalmia v. Justice S.R.Tendolkar, (A.I.R. 1958 S.C. 538) and of Vithal Dass v. Rup Chand and Others, (A.I.R. 1967 S.C. 188). This judgment has no applicability to the matter at issue in the present Petitions. Learned Principal Additional Advocate General Mr. Lalit Kishore has appeared for the State Government. He has contested the writ petitions. He has submitted that the grant of licence under the 2007 Order is confined to certain societies or association of persons with a view to monitor the Public Distribution System closely and more efficiently. He has submitted that the impugned modification was required to be 9 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 9 / 11 made on account of the report of the Central Vigilance Commission submitted to the Hon’ble Supreme Court. He has also submitted that the impugned modification is in consonance with the National Food Security Act, 2013. He has submitted that the restrictions imposed under the impugned modification are with a view to making the system more effective and fall within the realm of reasonable restriction. The challenge to the validity of the said modifications is, therefore, not tenable. In support thereof he has relied upon the judgment of the Hon’ble Supreme Court in the matter of Sreenivasa General Traders and Others etc. v. State of Andhra Pradesh and Others etc., (A.I.R. 1983 S.C. 1246). It appears that in a Writ Petition (Civil) No.196 of 2001 filed in public interest by the Peoples’ Union for Civil Liberties, the Hon’ble Supreme Court is seized of and is monitoring the Public Distribution System. In the said proceeding the Union of India has filed a counter affidavit and has incorporated the recommendations/suggestions made by the Central Vigilance Commission, which read as under: “(i) Wherever FPS is operated by private individuals, they should be phased out gradually. (ii) FPSs should be run by CSCs. Till the Corporation is established, FPSs may be allocated to cooperatives, women self-help groups, Upbhokta Bhandar, etc. FPSs not to be run by private individuals. (iii) Where no infrastructure exists for operating FPS, the same should be built by State/Corporation on the lines of Mother Dairy outlet or ATM or Post Office. Land can be provided to the Corporation by the State or by the Panchayat.” Mr. Lalit Kishore has heavily relied upon the 10 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 10 / 11 suggestion, “Wherever FPS (Fair Price Shop) is operated by the private individuals, they should be phased out gradually.”. Mr. Lalit Kishore has submitted that the impugned modification was necessitated on account of the aforesaid suggestion made by the Central Vigilance Commission. We may note that the endeavour to justify the impugned amendment on the touchstone of the 2013 Act cannot be countenanced. The Constitutional validity of a legal provision cannot be examined in the light of the subsequent enactment. Before we consider the challenge to the impugned modifications, we may note the rationale behind such modifications indicated by the State Government. The State Government has filed a counter affidavit to contest the writ petitions. The only reason recorded in the counter affidavit is that the individual licensees are more susceptible to black-marketing. Therefore, in larger interest of public welfare the individuals have been excluded. We are not aware on what basis or for what reason the Central Vigilance Commission has made the above referred suggestions and what should be the justification for such suggestions. But to us, it appears that the impugned modification amounts to blacklisting the individuals on the allegation that the individuals are dishonest. Such omnibus allegation is not warranted. In our opinion, the very reason for which the individuals are excluded from grant of licence under the 2007 Order is untenable. The assertion that the individual licensees are more susceptible to black-marketing is not supported by any evidence. It is not the case of the State Government that the State Government had carried out a survey in respect of the 11 Patna High Court CWJC No.15157 of 2011 (8) dt. 20-12-2013 11 / 11 functioning of the Fair Price Shops. We find the statement irresponsible and highly objectionable. True, all is not well in respect of the Fair Price Shops. Licensees do indulge into black- marketing. But that is true for all the licensees, be them individuals, association of individuals or Co-operative Societies. We see no rationale or any justiciable reason in excluding the individuals from grant of licence. We do not see any merit in challenge to the other provisions referred to hereinabove. For the aforesaid reasons, we partially allow these writ petitions. Paragraph 3 of the impugned Notification dated 23rd June 2011 is quashed and set aside as being arbitrary, discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution. (R.M. Doshit, CJ) Ashwani Kumar Singh, J: I agree. N.A.F.R. Pawan-Sanjeet (Ashwani Kumar Singh, J)