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2000 DIGILAW 46 (GAU)

State of Assam v. All Assam Modern Chaki Mills

2000-02-04

BRIJESH KUMAR, D.N.CHOWDHURY

body2000
Brijesh Kumar, C.J.— The above noted bunch of appeals have been preferred by the State of Assam against the judgment and order dated 2.4.1998 (1998 (3) GLJ 46), passed by the learned Single Judge in different civil rules, involving same question for consideration, which were disposed of by a common judgment. For the said reason, the above noted appeals are also being disposed of by this order. 2. We have heard Shri PG Baruah, learned Advocate General for the State of Assam and Shri D. Baruah, learned counsel appearing for the respondents in WA No. 206 of 1998. In other appeals, none is present for the respondents. 3. The main grievance which was raised by different petitioners in the civil rules was against different circulars and notifications issued by the State Govt. for distribution of whole wheat in place of Atta to be distributed to the consumers under Public Distribution System (PDS) and to discontinue custom milling of PDS wheat by Roller Flour Mills, which scheme was not extended beyond 31.10.97. 4. Civil Rule No.287 of 1998 was filed by Assam Roller Flour Mills Association, Guwahati, Civil Rule No. 318 of 1998 was filed by All Assam Modern Chaki Mills Association, Guwahati, Civil Rule No. 1088 of 1998 and Civil Rule No. 1089 of 1998 were filed by some consumers under the PDS Scheme and Civil Rule No. 1426 of 1998 was filed by some owners of chaki mills. 5. The learned Single Judge, by means of judgment and order dated 2.4.98 held that the decision to distribute whole wheat in place of Atta to the consumers and to discontinue custom filling depriving the flour mill owners and chaki mill owners of the work of grinding wheat, is arbitrary and against the public interest; hence, bad in law. It is also held that the defence taken by the State that the said steps were taken in pursuance of a policy decision of the State Govt. is not correct and, in fact, there has not been any policy decision by the State. While quashing the impugned Annexures in different civil rules, it was directed that the State of Assam shall formulate necessary guideline and it may also write to the Central Govt. in same terms as written by the State of Orissa within 15 days from the date of receipt of the order and the Central Govt. While quashing the impugned Annexures in different civil rules, it was directed that the State of Assam shall formulate necessary guideline and it may also write to the Central Govt. in same terms as written by the State of Orissa within 15 days from the date of receipt of the order and the Central Govt. would issue necessary instructions with regard to that petition within 15 days. In the meanwhile, earlier practice before the impugned orders were issued, shall hold the field. 6. The different notifications or WT messages which have been impugned in different writ petitions may be indicated briefly. Notification dated 11.12.97 as impugned in the petitions, was issued by the Govt. of India, Department of Food a and Civil Supplies, relating to custom milling of PDS wheat by roller flour mills for conversion into Maida, Suji and Atta. According to the said notification, the scheme of custom milling which was earlier extended upto 31.10.97, was not to be extended any further and the said scheme was withdrawn/discontinued with immediate effect. 7. The WT message dated 12.1.98 is addressed to the Food Corporation of India, Guwahati by the Director, Food and Civil Supplies Govt. of Assam, indicating that Govt. of India have directed not to extend scheme of custom milling of PDS wheat by roller flour mills beyond 31.10.97. Hence, Deputy Commissioners and Sub Divisional Officers would not deposit value of allotted wheat to roller flour mills for January, 1998, until further orders.-The FCI was directed not to accept the value of allotted wheat and release to roller flour mills against allocation made for January, 1998. 8. The WT Message dated 19.1.98 was addressed to all Deputy Commissioners and Sub Divisional Officers in Assam. According to this WT message, only whole wheat and not Atta, was to be distributed to consumers under TPDS with effect from January, 1998. The other details are regarding lifting of whole wheat from FCI by Wholesale Consumer Co-operative Societies/Stated for distribution through fair price shops. Quantity of wheat allotted for different Sub Divisions for January, 1998, was also indicated. The maximum price of wheat and the scale of distribution of wheat per family per month against Family Identity Card had also been indicated. 9. Quantity of wheat allotted for different Sub Divisions for January, 1998, was also indicated. The maximum price of wheat and the scale of distribution of wheat per family per month against Family Identity Card had also been indicated. 9. The WT message dated 9.3.98, which has been impugned in Civil Rule No. 1426 of 1998 by some owners of chaki mills, is also to the same effect, but it relates to March, 1998. 10. An affidavit-in-opposition seems to have been filed on behalf of the State. However, as indicated in the judgment, none could be filed on behalf of Union of India due to shortage of time and the learned counsel for the Central Govt. was allowed to make submissions on the basis of the instructions received. 11. It has been observed by the learned Single Judge, on the basis of the arguments advanced on behalf of the petitioners, that the benefits of Public Distribution System (PDS) is mainly taken by the common man and the lower strata of the people; affluent people hardly make use of the same. Conversion of whole wheat into Atta has not been easy, particularly, in this part of the country - number of chakis being small, therefore, the whole wheat used to be assigned to roller flour mills for its conversion into Atta. For all these reasons, the order also indicated that it was Atta which was to be distributed, and not wheat. Custom milling was given to the roller flour mills with certain conditions and guidelines. Looking to the requirement of distributing Atta instead of whole wheat, the scheme under which roller flour mills were assigned custom milling, as provided by notification of Govt. of India, dated 22.8.90, was extended by order dated 4.11.96. As indicated earlier, custom milling was not extended any further beyond January, 1998 under notification of the Central Govt.. The learned Single Judge observed that though custom milling was withdrawn or not extended, but the Central Govt. did not withdraw the right of the chaki mills to convert whole wheat into Atta. Ignoring this aspect of the matter, the State Govt. wrongly sent the WT message and issued a letter providing that chaki mill owners also shall not convert PDS wheat into Atta. 12. did not withdraw the right of the chaki mills to convert whole wheat into Atta. Ignoring this aspect of the matter, the State Govt. wrongly sent the WT message and issued a letter providing that chaki mill owners also shall not convert PDS wheat into Atta. 12. The argument as raised on behalf of the State, as also raised in this appeal, is that it is the policy decision of the State Govt. to change the item of distribution through PDS from Atta to whole wheat. It being a policy decision, it was exclusively within the domain of the State to take such a decision in the public interest. Hence, there will be little scope of judicial review in such matters. 13. On behalf of the consumers, it seems to have been vehemently urged that it will not be beneficial for the ordinary consumer to get whole wheat, as the number of chakis in the State is far too less and it would be highly inconvenient to convert the wheat into Atta by the consumers, who had to travel long distances for the purpose in search of a chaki. 14. Yet another submission which seems to have been advanced on behalf of the petitioners/respondents was that even if it was a policy decision of the State Govt., it was wholly unreasonable and against public interest. It was also submitted that a policy decision which is against the public interest, can be interfered within exercise of power of judicial review under Article 226 of the Constitution. 15. On behalf of the roller flour mills, it was also submitted that number of chakis in the State being insufficient, roller flour mills were assigned the work of converting whole wheat into Atta. In case custom milling is stopped, it will hit hard the roller flour mill owners and the chaki owners, which were established mainly for the purpose of conversion of whole wheat into Atta for PDS scheme. 16. On behalf of the Central Govt., it appears to have been submitted that on objective consideration of facts and circumstances, the State Govt. requested the Central Govt. for allowing it to distribute whole wheat instead of Atta, which was accepted by the Central Govt.. It also seems to have been submitted that chaki mills had their existence independent of the PDS scheme. 17. requested the Central Govt. for allowing it to distribute whole wheat instead of Atta, which was accepted by the Central Govt.. It also seems to have been submitted that chaki mills had their existence independent of the PDS scheme. 17. The learned Single Judge by indicating the number of chakis, modern chaki mills and roller flour mills in different districts of Assam, expressed the view that it will be next to impossible for the consumers to get the whole wheat converted into Atta and the flour mills and chaki mills which were established or installed for the purpose of grinding the wheat, would go without business. It was, therefore, found that a scheme under which the benefit will not reach to the consumers, or the flour mill owners would lose their business, would hardly be a policy in the public interest, rather, it would be against it. Thus; any policy decision of the State if taken runs contrary to the public interest, cannot be upheld. It has also been held that the decision of the State Govt. for distribution of whole wheat in place of Atta, cannot be said to be a policy decision of the Govt., as it is necessary that before a policy decision is taken, there must be initiation and discussion and a decision before it may be taken and implemented. The Court felt that no material was placed before it to indicate that the said process was gone through. Only one document which is said to have been placed before the Court through an additional affidavit, was minutes of a meeting of State Consumer Protection Council. The minutes have been quoted in the order of the learned Single Judge and it shows that in the meeting the question of distribution of whole wheat in place of Atta was raised and discussed. It was suggested that if wheat is distributed, it may generate some self-employment as many may establish their chakis where the consumers could get the wheat converted into Atta; and it will also stop black marketing of the PDS wheat for milling directly by the Govt.. It was suggested that if wheat is distributed, it may generate some self-employment as many may establish their chakis where the consumers could get the wheat converted into Atta; and it will also stop black marketing of the PDS wheat for milling directly by the Govt.. During the discussion it also appears that the Minister concerned had expressed the view that the black marketing was for the reason that the whole Atta was not being lifted from the mills by the GPSS retail outlets/fair price shops and the same thing may perhaps happen even if wheat was allotted to the fair price shops/retail agents. However, it was indicated in the minutes that the matter would be examined and the suggestion of the members for distribution of whole wheat to the consumers instead of Atta. 18. It has been observed that before taking a policy decision, some amount of discussion must be made and the authority competent must apply its mind before giving the seal of approval to the policy. It is also observed that the Assam Rules of Executive Business, 1968, provides as to how a policy decision is to be taken. On the above considerations, it was held that the decision impugned in the writ petitions cannot be said to be policy decision of the State Govt.. Besides the fact that specific procedure as laid down under the Assam Rules of Executive Business, 1968, have not been indicated, nor as to in what manner the same has been flouted, we also doubt if any specific plea was raised by the petitioners about flouting of Rules of Executive Business. In any case, though it may be true that policy decision of the State Govt. must be taken after due consideration of facts and circumstances of the case and in the public interest, it must be a conscious decision to achieve any specific end as may be desirable in a given situation. It is also true that it may not be a decision of any one for every one. But, it may be difficult to specify the amount of discussion which must always take place before finalising any policy. There may be certain issues where the discussion may not be required at all. The things may be so obvious that the authority competent may feel satisfied about taking a decision. It may all depend upon the facts and . But, it may be difficult to specify the amount of discussion which must always take place before finalising any policy. There may be certain issues where the discussion may not be required at all. The things may be so obvious that the authority competent may feel satisfied about taking a decision. It may all depend upon the facts and . circumstances of each matter. There may be cases where some lengthy exchange of ideas and discussions may be necessary. 19. In the present case, it appears that the subject in question was raised and came to be discussed in the meeting of the Consumer Protection Council. The Minister also seems to be participating in the meeting. The suggestions which came for consideration were about providing more self employment avenues by introducing distribution of whole wheat in place of Atta, and the other to plug the scope of black marketing of Atta by the intermediaries. The Minister's view, as indicated in the minutes of discussion seems to be that black marketing may be for the reason that Atta was not being lifted from the roller flour mills by the GPSS and the owners of fair price shops, etc. In our view, the above fact was also indicative of the fact that Atta was not being required, or those concerned were indulging in black marketing of the same. According to the views of some as expressed in the meeting, those who may require Atta may take wheat and get it converted by chakis, and this may also give a chance for self employment and chakis may come up for the purpose. The matter was further to be looked into. The minutes do not indicate that the suggestion was readily accepted by the Minister. One thing which is evident from the above fact is that on the question of distribution of wheat or Atta to users thereof, the question-was receiving the attention of the authorities and it was raised before the appropriate forum. It was nothing which may have been whimsically decided for no reason whatsoever. It will not be easy to find as to whether the decision was taken short of required discussion or not. It will be difficult to fix any parameters on the amount of discussion. 20. Even if it is accepted that the State Govt. It was nothing which may have been whimsically decided for no reason whatsoever. It will not be easy to find as to whether the decision was taken short of required discussion or not. It will be difficult to fix any parameters on the amount of discussion. 20. Even if it is accepted that the State Govt. failed to bring full facts before the Court regarding further discussion and process of decision which may have taken place before issuing the relevant notifications and Govt. orders, in any case it can be said to be an administrative decision, this also seems to have been argued on behalf of the State Govt. before the learned Single Judge. An administrative decision on a particular subject which had come up for consideration before an appropriate forum, namely, the Consumer Protection Council, could very well also be interfered with, provided it is to be found that it was against the public interest and arbitrary. The learned Single Judge has found the decision to be arbitrary on the ground that it would be impossible for a common consumer to get the wheat converted into Atta, since number of chakis in the State was insufficient and it would be very difficult to go to far off places for the purpose of grinding of wheat; and the other reason disclosed was that roller flour mills which were established for the purpose of converting PDS wheat into Atta, would be rendered jobless and that the industry will starve. In our view, however, the above position as found is not made out in the facts and circumstances of the present case. There is no doubt about the fact that the question under consideration before the State or the authority competent was about plugging the black marketing of the essential commodity, and the other suggestion before the authority was about generation of one more avenue of self employment. It was a conscious decision taken by the Govt. in consideration of the above facts. Generally speaking, it is a rice consuming area. Majority may not need wheat or Atta. Whatever in convenience would be caused by supplying wheat instead of Atta, can better be assessed by the State. The places where inconvenience may be felt to be acute, it is quite obvious, looking to the need and necessity, new chakis may come up. Hence, the idea of generating self employment may materialise. Majority may not need wheat or Atta. Whatever in convenience would be caused by supplying wheat instead of Atta, can better be assessed by the State. The places where inconvenience may be felt to be acute, it is quite obvious, looking to the need and necessity, new chakis may come up. Hence, the idea of generating self employment may materialise. In the minutes of the meeting held, as referred to above, it is indicated that even Atta was not being lifted by many of the fair price shops or their suppliers; but, by such mention in the minutes of the meeting, we do not intend to draw any definite conclusion on that point. All that it indicates is that the amount of inconvenience which has been expressed on behalf of the petitioners may not actually be the such as sought to be shown. The State would be in a better position to assess the situation. Plugging of the holes giving occasion for black marketing of essential commodity was also under consideration by the authorities. Hence, to brand the decision outright arbitrary and irrational, may not be in consonance with the facts and circumstances and the question under consideration by the State Govt.. One fact which heavily militates against the alleged arbitrariness oh the part of the authorities is that by way of experiment, the scheme was being introduced only in a few of the districts. The learned Single Judge has quoted some of the paragraphs of the State's affidavit filed in some other petition. In paragraph 10, as quoted in the judgment, it is indicated that the State Govt. has introduced the scheme of allotment of wheat instead of Atta on an experimental basis in five towns. It was indicated' in the paragraph quoted that according to the reports received, 50% of wheat was being lifted by the dealers and the distribution of the same was also going on to the consumers and the scheme was to be implemented only in phases. The fact which has been brought on the record of this case and as also quoted in the judgment, conclusively shows that Govt. was not thrusting any scheme irrespective of its results and effect on the consumers. Partial implementation of this scheme on experimental basis shows the cautious approach taken by the State Govt. in implementing the decision of distribution of wheat in place of Atta. was not thrusting any scheme irrespective of its results and effect on the consumers. Partial implementation of this scheme on experimental basis shows the cautious approach taken by the State Govt. in implementing the decision of distribution of wheat in place of Atta. It shows that care was taken that consumers may not be unreasonably affected. The cautious approach to implement the scheme on experimental basis only in few districts, runs contrary to the allegations of arbitrariness and whimsical implementation of the scheme. In our view, the State Govt. must have a right to undertake such experiments in search of proper and appropriate steps which may prove to be more conducive to the general good of the people and against mal-practices adopted by the middlemen, or by those for whom the benefit is actually not meant. From the questions raised and discussed in the meeting of the Consumers Protection Council, it is quite evident that prime consideration was about plugging the holes of black marketing in essential commodity and generation of self employment which implies resultant benefit to the common man, for whom such schemes are floated. In no circumstances it may be said that the State can be deprived of making such test? and experiments to achieve a cause for the benefit of the people. It can rather well be said that the whole thing was still in the stage of consideration, namely, to implement or not to implement the scheme, which was a matter to be decided only after seeing the results of the experiment made. Merely some statistics as to how many chakis or roller flour mills are available in a particular area may not be a safe guide to come to a decision that the policy was totally whimsical or arbitrary. Existing number of flour mills or chakis may have relation to their requirement or need in a particular area. Nor, it can be said that if more chakis are required due to distribution of wheat, new chakis will not come up providing an avenue of self-employment. 21. We, however, feel, in such facts and circumstances of the case, to dwell upon the question as to whether it was a policy decision or an administrative decision, would not be very material and may be mere academic exercise in futility. 21. We, however, feel, in such facts and circumstances of the case, to dwell upon the question as to whether it was a policy decision or an administrative decision, would not be very material and may be mere academic exercise in futility. We are further of the view that to restrict the administrative powers of the State to frame a scheme and to undertake an experiment on partial basis, would neither be permissible under the law, nor conducive to the administrative functioning of the State. It must have a right to test a scheme first and be guided by its results. It may not be possible for the Courts while exercising jurisdiction under Article 226 of the Constitution to say that the State may not be permitted even to test the scheme which has been framed and promulgated with bona fide objects not to allow black marketing or undue enrichment of the intermediaries. The ultimate aim was to benefit the consumers and, if possible, to generate self employment. It is nobody's case that the scheme has been promulgated with malafide intentions or for any oblique reasons. To us, it appears that it has been done bonafide. 22. So far roller flour mills are concerned, Public Distribution Scheme, or as to which item of the essential commodity, and in what manner it is to be distributed, it has to be for the benefit of the consumers of the essential commodity. The mere fact that it may adversely affect the roller flour mill owners, would not be a due consideration to hold the scheme to be arbitrary, whimsical or unreasonable. As a matter of fact, we may mention here that Shri D. Baruah, learned counsel appearing for the roller flour mills Association in Civil Rule No. 287 of 1998, out of which Writ Appeal No. 212 of 1998 arises, has cleanly submitted before us that the petitioners are not very much interested in the matter now since the difference of prices of wheat is insignificant, between the open market and through PDS. Perhaps, unguardedly, the real interest of the petitioners/ respondents has come to the force in opposing the scheme for distribution of wheat in place of Atta. 23. So far consumers are concerned, none has appeared on their behalf in these appeals. Perhaps, unguardedly, the real interest of the petitioners/ respondents has come to the force in opposing the scheme for distribution of wheat in place of Atta. 23. So far consumers are concerned, none has appeared on their behalf in these appeals. If there would be some loss of business to the roller flour mills, it may result in gain to those who may have to start chaki, if the demand would be there for the purposes of grinding wheat for the consumers. 24. Shri PG Baruah, learned Advocate General, appearing for the appellant submits, placing reliance upon a case reported in AIR 1996 SC 1627 , State of Andhra Pradesh & others vs. M/s McDowell & Co, that even in case of an administrative action, the judicial review is limited to only three grounds, namely, unreasonableness, illegality and procedural impropriety. It is submitted that in the present case, the scheme cannot be struck down on any of the three grounds, we feel, rightly, in view of the discussion we have already held above. So far the consideration of hardship on account of distribution of wheat in place of Atta through PDS, it is submitted that it may not be possible to strike down an administrative decision of Govt. on that ground. In support of this contention, he has placed reliance upon a case reported in (1997) 5 SCC 301 , State of Himachal Pradesh & another vs. Smti Jafli Devi. 25. The learned Single Judge has referred to a decision, relied on behalf of the petitioners/respondents before him, namely, (1994) 2 SCC 729 , State of UP vs. UP University Colleges Pensioners Association, where it has been held that if the decision of the State is unreasonable or against the public interest, the Court can interfere with such a policy. We have discussed this aspect of the matter in detail in the earlier part of this judgment and, in our view, the State Govt. laid down the policy under the scheme to achieve certain objects which are more conducive to the public interest. It is also evident that the State Govt. tried to be reasonable and rational and there was nothing arbitrary in its action as it had decided to implement the scheme by way of experiment only in a few of the districts. laid down the policy under the scheme to achieve certain objects which are more conducive to the public interest. It is also evident that the State Govt. tried to be reasonable and rational and there was nothing arbitrary in its action as it had decided to implement the scheme by way of experiment only in a few of the districts. This cautious approach on the part of the State cuts the very root of the argument of a arbitrariness on the part of the State Govt.. In our view, the State must have some play in its administrative functioning so as to assess the real administrative requirement of any particular problem or subject. If that play is taken out, it would be impossible to function. In some given circumstances, method of trial and error may work well to take any final administrative decision in an area which apparently requires changes to eliminate the evil of black marketing or unlawful profiteering. To thwart any such bona fide attempt on the part of the State would obviously be a premature interference amounting to locking the joints for any kind of free movement for arriving at a proper and correct conclusion and assessment of situation. 26. Learned Single Judge has finally held that the WT message dated 19.1.98 was bad and the same was quashed. The State was directed to formulate necessary guideline and the Govt. may also write to the Central Govt. in terms of the letter written by the State of Orissa within 15 days and the Central Govt. may take a decision within 15 days thereafter regarding the distribution of Atta in place of wheat. In the meantime, the earlier practice would hold good, otherwise it would mean that source of livelihood of roller flour mills shall be taken away arbitrarily, and a hope and trust has been expressed that roller flour mills shall adhere to the scope of the scheme and shall not do any misdeed and in case that is found, the authorities may take action against them. 27. In regard to the above, it may be indicated that so far roller flour mill owners are concerned, as indicated earlier, it has been submitted that now it does not make any difference to them since the difference in prices of PDS wheat and in the open market is insignificant. 27. In regard to the above, it may be indicated that so far roller flour mill owners are concerned, as indicated earlier, it has been submitted that now it does not make any difference to them since the difference in prices of PDS wheat and in the open market is insignificant. So long Atta will be required; if at all - flour mills - may be chaki or otherwise may have to grind it. It may be from one source or the other - it is immaterial. In case it results into a competition between the roller flour mills and the number of small chakis, if they come up .generating more self employment, it cannot be said to be against the good for the general public at large. The State of Assam may write to the Central Govt. for allowing it to continue to distribute Atta in place of wheat through PDS right now, or after the result of the experiment is studied - it is a matter which should only be left to the State Govt. and any interference at this stage would be placing unnecessary restrictions on the administrative functioning of the State. 28. In view of the discussion held above, in our view, the judgment under appeal is not sustainable. All the appeals are, therefore, allowed, the impugned judgment is set aside and the Civil Rule Nos 287 of 1998, 318 of 1998,1088 of 1998,1089 of 1998 and 1426 of 1998, are dismissed. We would, however, like to provide that the State Govt., on carrying out the experiment, shall take into account the experience gained and would thereafter decide upon taking any appropriate step as may be thought proper and necessary for full-fledged implementation of the scheme, or to write to the Central Govt. to allow it to distribute Atta in place of wheat. No order as to costs.