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2008 DIGILAW 699 (ORI)

PAWAN KUMAR AGARWAL v. UNION OF INDIA (UOI)

2008-08-14

M.M.DAS

body2008
JUDGMENT : M.M. Das, J. - This writ petition has been filed by Sri Pawan Kumar Agrawal, proprietor of M/s. Annapurna Rice Mill and the Jeypore Chamber of Commerce and Industry, Jeypore with a prayer for issuance of a direction to the opposite-parties to pay Rs. 1052.37 paise per quintal for common raw rice and Rs. 1036.91 paise per quintal for common par boiled rice per quintal, which is supplied by the Petitioner to the opposite parties under the levy rice scheme including cost of new 50 kg gunny bags for the Central Pool during the Kharif marketing season 2004-05 instead of Rs. 965.70 paise and Rs. 952.10 paise per quintal respectively for the aforesaid type of rice, as has been directed by the opposite party No. 3 vide Annexure-1 dated 20.10.2004 and further to quash the said, direction under Annexure-1 to the writ petition. The Petitioner No. 2 is stated to be a representative body of rice millers in the district of Koraput, which agitates the grievance of the rice millers of Koraput District before the State Government and District -Administration and also takes necessary steps to,protect the interest of the consumers in the District 2. It is the case of the Petitioners that the Union Government: enacted Food Corporation Act, 1964 to provide remunerative price to the farmers for their product in order to protect such farmers from being exploited and harassed by unscrupulous businessmen. As per the said Act, the Food Corporation of India (hereinafter referred to as 'the FCI') has been established. Minimum support price of paddy is being fixed by the Central Government as per the provisions of Section 13 of the aforesaid Act, every year with arrangement that in the event the price of paddy goes down in the open market, the F.C.I takes up the responsibility of procuring paddy from the farmers, paying, them the minimum support price. As neither the F.C.I. nor the State Government Agencies are in a position to procure the entire paddy produced by the farmers for want of infrastructure, the millers are being required by the State Government to procure paddy on their behalf by paying the minimum support price for the paddy to the farmers. As neither the F.C.I. nor the State Government Agencies are in a position to procure the entire paddy produced by the farmers for want of infrastructure, the millers are being required by the State Government to procure paddy on their behalf by paying the minimum support price for the paddy to the farmers. The Petitioners have alleged that under such circumstances, the millers are being compelled to participate in the procurement process to help the administration but are getting less price than the Government agencies for the rice produced after milling, the difference being Rs. 84.71 paise and Rs. 86.67 paise for common boiled rice and raw rice respectively, which is approximately 8% of the total price. Each year a Food and Procurement Policy is issued by the Government of India as well as the State Government fixing the minimum support price and also fixing the target of procurement. 3. The Food and Procurement Policy for the year 2004-05 was issued by the Government of India commencing from 01.10.2004 and ending with 30.09.2005. The said policy, inter alia, provided that the FCI would procure rice through the miller agents in all the districts as per district-wise target indicated in the policy and the millers will procure paddy from the farmers on payment of the minimum support price fixed by the Government in the policy. After procuring such paddy the millers were required to deliver 75% of the procured stock in shape of rice to the.F.C.I. The Petitioner No. 1 being 'a miller has been appointed as a miller agent fori the district of Koraput and supplying 75% of the procured stock in shape of rice to the F.C.I. during the Kharif year 2004-05. 4. It is the grievance of the Petitioners that during the Kharif year 2002-03, the minimum support price of paddy was Rs. 530/- per quintal and the price of levy rice was fixed at Rs. 988.30 paise for common raw rice and Rs. 974.70 paise for boiled rice per quintal including gunny bags and transportation charges. Similarly for the Kharif year 2003-04, the minimum support price of paddy was fixed at Rs. 550/- per quintal and the price of common raw rice and boiled rice was fixed at Rs. 965.70 paise and Rs. 952.10 paise per quintal respectively. Under Anneuxre-l for the Kharif 2004-05, the minimum support price for paddy was fixed at Rs. Similarly for the Kharif year 2003-04, the minimum support price of paddy was fixed at Rs. 550/- per quintal and the price of common raw rice and boiled rice was fixed at Rs. 965.70 paise and Rs. 952.10 paise per quintal respectively. Under Anneuxre-l for the Kharif 2004-05, the minimum support price for paddy was fixed at Rs. 560/- per quintal and the price of levy rice was fixed at Rs. 965.70 for raw rice and Rs. 952.10 paise for common boiled rice per quintal. The Petitioners have enclosed a chart under Anneuxre-1 series showing that the prices of levy rice fixed at Rs. 965.70 paise for raw rice and Rs. 952.10 paise for common boiled rice differ from the prices fixed for the said type of rice in respect of Government Agencies, which were Rs. 1052.37 paise and Rs. 1036.91 paise respectively. It has been contended by the learned Counsel for the Petitioner that in the case of Custom Mill Rice Scheme, the price fixed is Rs. 1052.37 paise for common raw rice and Rs. 1036.91 paise for common boiled rice per quintal as stated in the letter issued by the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution dated 03.11.2004 addressed to the Secretary, Food & Civil Supplies Department, Government of Orissa under Annexure-3. 5. Mr. Lal, learned Counsel for the Petitioner urges that the, action,of the opposite parties in fixing two different prices in case of Miller Agencies and the Government Agencies and also fixing different prices in case of custom.milling for levy rice, on the face of it, is arbitrary and discriminatory in view of the fact that both the Government Agencies as well as the Miller Agencies pay the same minimum support price for procuring the paddy from the farmers. He, therefore, submits that this action on the part of the opposite parties is clearly violative of Article 14 of the Constitution of India and, therefore, the said action of fixing the different rates under Annexure-1 series is liable to be quashed. 6. Separate counter affidavits have been filed by opposite party Nos. 3 to 5 and opposite party No. 2. 6. Separate counter affidavits have been filed by opposite party Nos. 3 to 5 and opposite party No. 2. The counter affidavits filed by the opposite parties in W.P.(C) No. 3784 of 2005, which is an analogous matter, where similar allegations and facts are involved, were also referred to by the opposite parties in this case. The case of the opposite parties is that the private millers and the Government agencies belong to two different classes for the reason that the private agencies are required to sell 75% of the total quantity of rice produced from the paddy procured to the FCI and they utilize the hash, bran and 'khuda' and also the balance 25% in open market thereby getting more amounts towards sale of the same, whereas in case of Government agencies, they get the paddy mille through such custom millers where the entire rice produced, is sold to the "FCI. "The Custom Millers also, therefore, do not get the benefit of !selling 25% of the rice produced in open market. The opposite parties have, inter alia, stated in their counter affidavit that supply of levy rice by millers is a statutory obligation and is not being done by the millers to help the administration. The millers are, also making profit by supply of levy rice for the Central Pool. It has been further stated that the Petitioners have not produced any materials to show that the millers of Orissa have suffered losses by supplying levy rice in the Kharif season 2003-04. The other grounds taken are that the policy is uniformly followed for all the States of the country. 7. On considering the submissions made above, the only question requires to be addressed is as to whether the opposite parties while fixing to different sets of prices for the levy rice for private agencies and Government agencies, the same amounts to an act of discrimination & violates the right of the Petitioners guaranteed under Article 14 of the Constitution. As has been made out by the opposite parties, though both the Government agencies as well as the private millers are to meet the target of supply of levy rice to the Central Pool, but in the case of private agencies, they are required to sell 75% of the rice milled 'from the paddy procured by them from the farmers on payment of,the 'minimum' support price. There is no difference in the minimum support price in case of the Government and Private agencies. In case of Custom Milling, also the Custom Millers are to sell the entire rice, which is milled from the paddy procured by them by paying the minimum support price to the farmers. The letter under Annexure-l issued by the Commissioner-cumSecretary, Government of Orissa, Food Supplies and Consumer:Welfare Department is placed in detail before this Court by the Petitioners in support of their contention that the same discriminates the Private Agencies with regard to fixation of price for sale of levy rice. 8. Mr Lal, learned Counsel for the Petitioners vehemently argues that in Annexure-5 to the writ petition, different components of price of levy rice in the year 2004-05 and 2005-06 has been mentioned and in Paragraph-13 of the writ petition, the Petitioners have alleged about the discrimination made between the private millers, Government Agencies and the custom millers. Comparative charts have also been given under Annexures - 6 and 7. Learned Counsel for the opposite parties, however, contend that these are matters relating to disputed question of facts, which should not be gone into in an application under Article 226 of the Constitution. However on perusal of the comparative charts provided under Annexures - 6 and 7, prima facie, it appears that the opposite parties, while fixing the price of the two categories of levy rice for Government Agencies and Private Agencies, the costing made in the comparative charts, have not been taken into account. 9. Coming to the question of discrimination, as alleged to have been meted out towards the Petitioner, it can be safely observed that Article 14 guarantees a similarity of treatment and not identical treatment. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. However, it is naive to state that it is a well settled principle that the guarantee of equal protection of law and equality before the law does not prohibit reasonable classification. Principle of equality does not absolutely prevent the State from making differentiations between the same classes as the State has a power of making classification on a basis of rational distinction relevant to the particular subject dealt with. Principle of equality does not absolutely prevent the State from making differentiations between the same classes as the State has a power of making classification on a basis of rational distinction relevant to the particular subject dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled which are that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and that, that differentia must have a rational relation to the object stated to be achieved. What is necessary is that there must be nexus between the basis of classification and the object to be achieved. 10. In the instant case though prima faice, it appears that the private millers and the government agencies are a homogenous class with regard to sale of levy rice, as the private agencies are to give 75% of the rice produced from the procured paddy as levy rice, whereas the Government Agencies are to give 100% of the rice produced from the procured paddy as levy rice, they can be classified into two categories, founded on intelligible differentia. But however, since the opposite-parties appeared to have not taken into consideration the various cost factors as mentioned by the Petitioners in the comparative chart under Annexures- 6 and 7 the Petitioners are entitled to a direction to the opposite parties to consider the said facts as given in the comparative charts under Annexures 6 and 7 and take a final decision with regard to the amount to be paid to the private agencies towards the raw rice and par-boiled rice for be Kharif, year in question as well as for subsequent Kharif years. 11. In view of the above conclusion, the opposite parties are directed to take a fresh decision and fix the price for the above two types rice to be paid to the private agencies by taking into consideration the comparative charts annexed to this writ petition as Annexures - 6 and 7. Such decision shall be taken within a period of one month from the date of communication of this order. Such decision shall be taken within a period of one month from the date of communication of this order. In the event, it is decided that the Petitioners are entitled to more amounts than what has been fixed by the opposite parties as cost per quintal of rice of the two types, such amounts shall be paid to them within a period of one month from the date of taking such decision. The Writ petition is accordingly disposed of with the aforesaid directions and observations, but in the circumstances without cost.