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IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.36628 of 2021 Naba Kishor Panda ...... Petitioner -Versus- State of Odisha and others …... Opposite Parties For Petitioner : Mr. P.B. Bahali, Advocate On behalf of Mr. S.K. Tripathy, For Opp. Parties : Mr. S.N. Pattnaik, A.G.A Mr. B. Panigrahi, A.S.C ---------------- CORAM: JUSTICE SANJAY KUMAR MISHRA ________________________________________________________________ Date of Hearing: 23.02.2024 & Date of Judgment: 28.02.2024 ________________________________________________________________ S.K. Mishra, J. 1. The Petitioner, who is a handicapped person having 70% permanent disability in relation to his brain (mind mental), has preferred the Writ Petition challenging the order dated 04.08.2021 passed by the Collector, Cuttack, as at Annexure-7. A further prayer has been made to include him under the Antodaya Anna Yojana (AAY) Scheme under the National Food Security Act, 2013, shortly the Act, W.P.(C) No.36628 of 2021 Page 1 of 18 2013, in terms of Circular dated 22.08.2020 of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution Department (NFSA Division), New Delhi, which has been annexed to
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the Writ Petition as Annexure-8 series. 2. The brief background facts, which led to filing of the present Writ Petition, are that as per the guidelines for identification of eligible households to receive food grains at subsidized prices as per Section 10 of the National Food Security Act, 2013, shortly ‘Act, 2013’ (Annexure-1), the households to be included under the said scheme to avail rice, wheat, sugar and kerosene etc, there are certain exclusion criteria, which exclude households from such priority. The said exclusion criteria are: (i) Household having annual income of above Rs.50,000/-. (ii) If any member of a household owns a light Motor Vehicle (Four Wheeler). (iii) If any member of the household is an employee of State, Local Government or Government aided institutions excepting daily wagers or casual/ contract employees. (iv) If the household has electricity connection above 4KW, and (v) None of these exclusion criteria will be applicable in case of beneficiaries covered under Table 1, 5R No.17. For implementation of the said Scheme, the Opposite Parties surveyed the area and prepared a list of households for getting W.P.(C) No.36628 of 2021 Page 2 of 18 the benefits sponsored by the Government to the poor persons as per the law. The said list prepared by the Opposite Parties deliberately excluded the names of the deserving persons and included the names of undeserved rich persons to avail the Public Distribution System (PDS) commodities. The Petitioner, who is a resident of Tangi-Choudwar Block, under Banipada Gram Panchayat, in the district of Cuttack and is entitled to benefits under the Act, 2013, applied for the ration card along with relevant documents, he being a needy person of the locality and is eligible to be included in the list of beneficiaries in terms of the guidelines prescribed under the Act, 2013. Though the Petitioner is coming under the eligible list, unfortunately he has not received the appropriate ration card and was being depriving of getting commodities and all other benefits available under the PDS. Many others like the Petitioner have also been deprived of getting ration cards under the Act, 2013 violating the guidelines framed by the State Government. It has also been alleged in the Writ Petition that the Opposite Parties, being politically influenced, have issued ration cards in favour of rich and influential persons ignoring the poor and handicapped persons like the Petitioner, who is a deserving candidate to receive the ration card for getting the benefits sponsored by the Central Government as well as the State Government under the Act, W.P.(C) No.36628 of 2021 Page 3 of 18 2013 and the PDS Rules. Because of inaction of the Authority concerned, the Petitioner was being constrained to approach the Block Development Officer (BDO), Tangi-Choudwar, Cuttack, (Opposite Party No.3) to ventilate his grievance and submitted representations on 27.04.2016 and 25.05.2017 requesting therein to delete the name of rich persons from the PDS list and include his name in the said list and provide him the PDS commodities. However, the Opposite Party No.3 remained silent on the said representation. In view of such inaction of the Opposite Party No.3, the Petitioner was constrained to approach the Collector, Cuttack, (Opposite Party No.2) so also the Commissioner-Cum-Secretary, Food Supplies and Consumer Welfare Department, Government of Odisha, (Opposite Party No.1) by submitting representation dated 23.07.2020. Though the said Authorities received the said representation of the Petitioner, but did not act and dispose of the same for which, finding no other alternative remedy, the Petitioner along with others were being constrained to approach this Court in W.P.(C) No.19584 of 2020, which was disposed of on 30.11.2020 with the following observation: this Court grants the submissions made and “Considering without expressing any opinion on the merits of the case, the petitioners to file individual representations before opposite party No.2 within a period of two weeks from today. In the event, such representations are filed along with the copy of this order, the opposite liberty to W.P.(C) No.36628 of 2021 Page 4 of 18 party No.2 is directed to take a decision on the same in accordance with law within a period of eight weeks from the date of receipt of such representations. The petitioners be intimated about the result of such exercise.” After communication of the said order by the Petitioner, on being politically influenced, the Opposite Party No.3 submitted a report that the family of the Petitioner does not fulfil criteria under the Act, 2013 as there are building and mother of the Petitioner is getting family pension. However, it was indicated in the said report that the Petitioner, being a handicapped person with 70% disability, is entitled to Priority House Hold (PHH) Card. Accordingly, one PHH Card was issued in favour of the Petitioner as per auto inclusion criteria issued by the Food Supplies and Consumer Welfare Department Notification dated 03.09.2015. The Opposite Party No.2 also disposed of the representation of the Petitioner only allowing a PHH Card in his favour. However, he did not consider the case of the Petitioner under the AAY Scheme of Act, 2013, which is contrary to the Circular dated 22.08.2020 issued by the Ministry of Consumer Affairs, Food and Public Distribution Department (NFSA Division), New Delhi. Hence, the said order passed by the Opposite Party No.2 dated 04.08.2021 is illegal and deserves interference. W.P.(C) No.36628 of 2021 Page 5 of 18 3. In response to the said stand, the State-Opposite Party Nos. 2 to 4 have filed Counter Affidavit in support of the order passed by the Opposite Party No.2 dated 04.08.2021, which is impugned in the Writ Petition. Paragraphs 7 to 10 of the Counter Affidavit, which specifically deal with the issues involved in the present lis, are extracted below: “ 7. That in compliance to the above order the Collector, disposed of the representation observing that the family of the petitioner do not fulfil the eligibility criteria and as such are not entitled for the benefit claimed. However, Sri Naba Kishore Panda the petitioner being a physical handicapped person a priority house hold card has already issued in his favour as per auto inclusion criteria issued by the Food Supply and Consumer Welfare Department. The said order is under challenged before this Hon’ble Court. It is revealed 8. That in reply to the averments made in parapgrah-1 of the writ petition, it is humbly submitted that no illegality and arbitrary action has been made by the Collector, Cuttack in disposing of the petition of the petitioner by disqualifying him under NFSA as per the direction of the Hon’ble High Court in W.P.(C) No.19584 of 2020. the notification dtd.17.07.2014 published in Orissa Gazette dtd. 05.12.2014, a house hold having a person with disabilities of 40% or more will be in auto inclusion criteria to get the benefit under NFSA (National Food Security Act, 2013). But however the vide notification dtd.03.09.2015, wherefrom it is revealed that it is the individual having disabilities more than 40% will be entitled to get the benefit under the National Food Security Act, 2013. same was modified from W.P.(C) No.36628 of 2021 Page 6 of 18 from that the 9. That it is respectfully submitted that though the petitioner is a disable person but facts remains his mother is a family pension holder and getting more Rs.10,000/- as pension per month. Apart family members are residing in a Pucca house having more than three (3) rooms, this being the family conditions the petitioner he has only been extended with the benefit of NFSA as per the modified notification. So far as AAY benefit is concerned, it is submitted that as per the State Guideline under AAY benefit can only be extended to the poorest of the poor family. The Petitioner’s family not being covered under such guideline, benefit has not been extended but however as per the modified notification under the NFSA Act, the petitioner being disable person has got the individual benefit under the said scheme. 10. That the above facts are clearly elucidated in the order dtd.04.08.2021 of the Collector, Cuttack. The content of the petitioner that despite of having 70% of physical disability non consideration of his case of NFSA assistance by the Collector, Cuttack is neither illegal nor non application of mind. Rather disqualifying the petitioner’s family for NFSA bears credence on the basis of notification no.17708 dtd.03.09.2015 of the FS & CW Department of Government of Odisha which stipulates at para-3 that households having a person with disability 40% or more will get the individual benefit.” (Emphasis Supplied) 4. It may not be out of place to mention here that when the matter was heard by a coordinate Bench having assignment then, in view of the allegation made in the Writ Petition so also the stand taken by the State-Opposite Parties, vide order dated 23.03.2023 W.P.(C) No.36628 of 2021 Page 7 of 18 direction was given to the Secretary, District Legal Services Authority (DLSA), Cuttack, to cause an inquiry and furnish a report before this Court. Paragraphs 3 to 6 of the said order dated 23.03.2023 are extracted below: “ 3. After hearing of learned counsels for the parties, this Court deems it proper to call for a report with regard to the condition of living of the petitioner and with regard to the fact as to condition of the house where he is living at the moment and how many rooms is occupying at the moment. Further, circular and elaborate expressions be made with regard to the condition of the petitioner is living. the house and which 4. In such view of the matter, the Secretary of the District Legal Services Authority (DLS), Cuttack was directed to cause an inquiry and furnish a report before this Court by the next date. 5. Registry is directed to forward a copy of the order to the Secretary of the District Legal Services Authority forthwith. 6. The above report be submitted within a period of 10 days from the date of communication of the order.” (Emphasis Supplied) 5. On being so directed, the Secretary, District Legal Services Authority (DLSA), Cuttack, submitted Inquiry Report dated 10.04.2023, enclosing thereto copy of the ROR and Sketch Map so also photographs of various portion of the house of the Petitioner, W.P.(C) No.36628 of 2021 Page 8 of 18 which is at Flag 10 of the Writ Petition. The relevant paragraphs of the said report, which are germane to the present lis, are extracted below: “ On inquiry it is ascertained that the house in which the petitioner is residing presently is a pucca house constructed over an area of 1720 Sq. ft out of total area of 6960 Sq. ft under plot no.211/791/891 of khata no 136/125. The entire plot was covered with concrete boundary. I entered inside the house of the petitioner and it was found that petitioner and his son aged about 1l years, his old mother and his sister- in- law (w/o of younger brother) were present. That house is having 4 rooms used as bed room out of which one bed room is used by petitioner as his bed room. As informed other 3 rooms have been used by his other family members. In that house there is One kitchen room, two small room used as store rooms, one puja room, one common bath room, one common area which is used as dinning -cum- living room. In the backyard there is a huge utility space with asbestos roof and also two latrine bathrooms attached to the utility space. In the entrance there is an open space having wall and roof which is used as sitting area. All the rooms and the utility area are used by the petitioner and his family members jointly. The vacant land of the plot is used as garden having various trees like mangoes, Jack fruit etc. There is also another pucca room at the front side of the house having asbestos roof which is used for keeping vehicle and other articles. The flooring of the house is concrete. This house is having all necessary home appliances and furnitures such as T. V, Fridge, washing machine, Gas, Dining table, wooden beds, dressing tables, alana, table fans and celling fans, almirhas which are used by the family members jointly. This house is having proper electrification. The W.P.(C) No.36628 of 2021 Page 9 of 18 condition of the house is good and the rooms are also very spacious. From the inquiry it can be concluded that the petitioner is jointly occupying the entire house in question. By taking into consideration the entire house, its size and condition and the home appliances and other articles of the house used by the petitioner, it can be opined that the overall living condition of the petitioner is good. Some of the photographs of the house of in question are being attached with the report for better appreciation. (Emphasis Supplied) 6. Mr. Bahali, learned Proxy Counsel on behalf of Mr. S.K. Tripathy, learned Counsel for the Petitioner, reiterating the stand taken in the Writ Petition so also referring to the guidelines for identification of eligible households to receive food grains under the Act, 2013, submitted that in terms of the said guidelines so also the Circular of the Government of India dated 22.08.2020, disability being one of the criteria for inclusion of beneficiaries under the AAY households, the Petitioner ought to have been included as beneficiary under the said Scheme, instead of issuing a Priority Household Card in his favour. To substantiate his submission, Mr. Bahali cited the judgment of Delhi High Court dated 29.09.2020 passed in W.P.(C) No.3976 of 2020 (National Federation of the Blind vs. UOI and another). W.P.(C) No.36628 of 2021 Page 10 of 18 7. Though there is no such prayer in the Writ Petition, a query being made by the Court as to whether the petitioner is entitled to both the cards i.e. Priority House Hold (PHH) Card as well as card under Antodaya Anna Yojana (A.A.Y.) Scheme, Mr. Bahali submitted that benefits under the A.A.Y Scheme being more than the benefits under the Priority House Hold (PHH) Card, the prayer of the Petitioner is to include him under the A.A.Y. Scheme under the Act, 2013 as per Circular dated 22.08.2020, instead of including him as a Priority Household Card Holder bearing No.07130812264 as per the auto inclusion criteria in terms of the Circular dated 03.09.2015 of the Food Supplies and Consumer Welfare Department, Government of Odisha, Bhubaneswar. Per contra, Mr. Pattnaik, learned Addl. Government Advocate for the State-Opposite Parties submitted that in view of the exclusion clauses, as has been detailed in the Gazette Notification dated 17.07.2014 of the Food Supplies and Consumer Welfare Department, as at Annexure-A/3, which was subsequently modified vide Notification dated 03.09.2015, since the Petitioner, who is jointly staying with his brother so also other family members including his mother, who is getting a pension of more than Rs.10,000/- per month, in view of the exclusion criteria notified by the Food Supplies and Consumer Welfare Department, the Opposite Party No.2 was justified W.P.(C) No.36628 of 2021 Page 11 of 18 to pass the impugned order observing therein that a PHH household card has already been issued in favour of the Petitioner as per the auto inclusion criteria in terms of the Notification dated 03.09.2015. The Petitioner cannot be included under the AAY Scheme to get the PDS commodities. 8. At this juncture, it would be apt to reproduce below the relevant portion of the impugned order dated 04.08.2021, passed by the Opposite Party No.2. “Heard both of parties. The petitioner raises their demand for issue of a PDS ration card as they are eligible under the guide line of National Food Security Act 2013. Further Naba Kishore Panda being a physical handicapped person has been issued with a NFSA card on exemption ground. Complying to the demand of petitioner, the Chief Civil Supplies Officer expressed his views with a reply that, the matter has been enquired by the Block Development Officer, Tangi-Chodwar, it reveals from the enquiry that the above family do not fulfilled the eligible criteria to cover under NFSA on the ground that Sri Nabakishore Panda and Braja Kishore Panda (Husband of Rashmita Panda) are the sons of Late Ramachandra Panda, who was serving in Police Department & his wife has been availing family pension of more than Rs.10,000.00 (Ten Thousand) per month. Further the above family members are residing/staying in concrete house with more than 3 rooms. However, Sri Nabakishore Panda being 70% physically handicapped person, a Priority House Hold Card being no.07130812264 is already issued in favour of Sri Panda as per Auto inclusion issued by the Food Supplies & criteria vide Consumer Department Welfare W.P.(C) No.36628 of 2021 Page 12 of 18 Notification No.17708 dt.03.09.2015. Case is disposed of. Order pronounced in the open court to-day i.e. 04.08.2021. In view of the stand taken by the State, it would be apt (Emphasis Supplied) to extract below the eight exclusion criteria so also five Auto inclusion criteria, as detailed in Notification dated 17.07.2014. Eight (8) Exclusion Criteria: 1. Household having a member who owns motorized Three Wheeler (two or more)/ a Four Wheeler/ a Heavy Vehicle/ a Fishing Boat (which require registration). 2. Household having a member who owns mechanized agricultural equipment such as Tractors & Harvesters. 3. Households with any member working as a regular employee of Central Government, State Government, Public Sector Undertakings, Government aided autonomous bodies and local bodies (Incentive and honorarium based workers would not be considered under this criterion). Households having a member working in private sector with monthly salary of more than Rs.10,000/- in Rural areas and Rs.15,000/- in Urban areas shall also be excluded from NFSA. 4. Households with Enterprises (other than micro- enterprises) registered with the Government for manufacturing and services. 5. Households with any member in the family earning more than Rs.10,000/- per month in W.P.(C) No.36628 of 2021 Page 13 of 18 the Rural and Rs.15,000/- per month for Urban areas. 6. Households with any member paying Income Tax or Professional Tax. 7. Households having domestic electric connection with a load of 2. KW or more and/or consuming an average of 300 units of energy (KWH) per month. (average over one year). 8. Households having a member with monthly pension of more than Rs.10,000/- per month in Rural areas and Rs.15,000/- per month in urban areas. Five (5) Auto Inclusion Criteria: Household which fulfils any of the following five criteria would be covered as a beneficiary under NFSA, 2013. 1. Households without shelter. 2. Household with Destitute who is living on alms. 3. All households of Primitive Tribal Groups. 4. Households having a Widow pension holder or State under Central Government Government Scheme. 5. Household having a person with disabilities of 40% or more. (Emphasis Supplied) Pursuant to the said notification and subsequent Notification dated 10.08.2015, in exercise of power conferred by Sub-Section 1 of Section 10 of the National Food Security Act (NFSA), 2013, the Government of Odisha had been pleased to W.P.(C) No.36628 of 2021 Page 14 of 18 approve one more exclusion criteria in addition to eight exclusion criteria notified earlier for identification of Priority Households and Antyodaya Anna Yojana households to be covered under Targeted Public Distribution System under the Act, 2013. As per the new exclusion criteria, “households with three or more rooms with pucca walls and pucca roof” would be excluded from being a PDS beneficiary under NFSA, 2013, which is to be treated as the 9th exclusion criteria for identification of PDS beneficiary under the NFSA in the State. The said Notification dated 17.07.2014, as at Annexure- A/3, got further modified/amended vide Notification dated 03.09.2015, relevant portion of which is extracted below: Notification dated 03.09.2015 1. Sl No.1 of Eight Exclusion Criteria notified earlier which read as: “Household having a member who owns motorized Three Wheeler (Two or more)/a Four Wheeler/a Heavy Vehicle/a Fishing Boat (which require registration)” is modified as: “A household which own(s) motorized Three Wheeler (two or more)/ a Four Wheeler / a Heavy Vehicle/ a Trawler/Motor Boats (two or more)” 2. Sl No.4 of Five Auto Inclusion Criteria notified earlier which read as: W.P.(C) No.36628 of 2021 Page 15 of 18 “Households having a Widow pension holder under State Government Scheme” is modified as: Central Government or “Households having a Widow pension holder under Central Government or State Government Scheme If not otherwise ineligible as per the nine Exclusion Criteria” 3. notified earlier which read as: Sl No.5 of Five Auto Inclusion Criteria “Households having a person with disability of 40% or more” is modified as “individuals having disability of 40% or more” Explanation: This means household having such individual who are otherwise ineligible under none Exclusion Criteria cannot get benefit of NFSA. But such individuals in these households can get if they apply for same.” (Emphasis Supplied) 9. From the Notification dated 03.09.2015, which is appended to the Counter Affidavit filed by the State as Annexure B/3, it is amply clear that the five auto inclusion criteria notified earlier got modified vide the said Notification to the effect that house holders having a widow pension holder under the Central Government or State Government scheme, if not otherwise eligible as per nine exclusion criteria, to be included as beneficiary under the Act, 2013. It is further clear from the said Notification dated 3.09.2015 that “householder having a person with 40% disability or more”, is modified as “individuals having disability of 40% or more”. W.P.(C) No.36628 of 2021 Page 16 of 18 10. Since in terms of the Notification dated 3.09.2015, the Petitioner, being an individual, has already been included under the Act, 2013 and a ration card/priority house hold card bearing no.07130812264 has already been issued in his favour entitling him to get 5 k.g. of wheat per month, this Court is of the view that there is no infirmity or illegality in the order passed by the Opposite Party No.2 dated 04.08.2021, as at Annexure-7. This Court is of further view that, because of inquiry report submitted by the Secretary, District Legal Services Authority, Cuttack, the relevant portion of which have been extracted above, the Petitioner cannot have any claim for issuance of ration card under the AAY Scheme. 11. Apart from the same, a query being made by the Court, Mr. Bahali, learned Proxy Counsel on behalf of Mr. S.K. Tripathy, learned Counsel for the Petitioner fairly concedes before this Court that the Petitioner cannot have both the Priority House Hold Card so also Card under the A.A.Y. Scheme under the National Food Security Act, 2013, as per the circular dated 22.08.2020. Rather, Petitioner’s case is that since the benefits under the A.A.Y. Scheme is more beneficial than the benefits provided under the Priority House Hold Card, he should be issued with Ration Card under the A.A.Y. Scheme in lieu of Priority House Hold Card. To substantiate W.P.(C) No.36628 of 2021 Page 17 of 18 the submission made before this Court, a query being made, Mr. Bahali failed to demonstrate from the pleadings so also the prayer made in the Writ Petition that the Petitioner ought to have been issued with Ration Card under the A.A.Y. Scheme instead of Priority House Hold Card and the Provisions under the said Scheme permitting the Authority to do so. 12. Accordingly, the Writ Petition stands dismissed, being devoid of any merit. (S.K. MISHRA) Judge Orissa High Court, Cuttack Dated 28th February, 2024/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 01-Mar-2024 12:35:06 W.P.(C) No.36628 of 2021 Page 18 of 18