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2014 DIGILAW 116 (KAR)

Vasappa Venkappa Hebasur v. State of Karnataka

2014-02-05

ARAVIND KUMAR

body2014
ORDER Aravind Kumar, J. 1. Heard Shri V.R. Datar, learned counsel appearing for the petitioners on behalf of Shri Sadiq N. Goodwala in W.P. Nos. 85862-85928/2013 and W.P. Nos. 85929-86054/2013 and Shri Sadiq N. Goodwala, learned counsel appearing for the petitioners in W.P. Nos. 59349-59414/2013 and learned HCGP appearing for respondents. Perused the case papers. 2. Circular dated 09.12.2013 issued by 2nd respondent has been called in question in these writ petitions, whereunder State has directed that ration card holders who have obtained the same prior to 2010 shall remain with the kerosene vendors and those ration card holders who have been issued after 2010 shall stand transferred to the fair price depot or shop. It has also been notified in the said circular that such of those fair price shops who do not have licence for kerosene vending they shall be issued with such licence by concerned authorities. 3. Petitioners are the licence holders who are vending kerosene from past 20 to 30 years. They have obtained licence to vend kerosene which is an essential commodity as defined under the Essential Commodities Act. Pursuant to Essential Commodities Licensing Order, 1986 (hereinafter referred to as 1986 Control Order' for short), petitioners have been issued with licence to deal in kerosene as retailers namely for carrying on business of purchase, sale and storage for sale of the commodities specified under the licence, namely kerosene which licence has been renewed from time to time by the respondents - authorities. These petitioners are self-employed persons, who are said to be dependent on said business for their livelihood. These kerosene dealers were required to be located within 500 meters of the fair price depot which undisputedly came to be modified and they were called upon to shift there business, adjacent to the fair price depot, if it is not so, or at least in the immediate vicinity of fair price depot or shop, to ensure least inconvenience is caused to the consumers. Undisputedly, these petitioners have complied with the directions issued by the respondent - authorities in this regard. As such, they are said to be vending kerosene to ration card holders who are buying the food grains from the respective adjacent fair price depot or shop. 4. Undisputedly, these petitioners have complied with the directions issued by the respondent - authorities in this regard. As such, they are said to be vending kerosene to ration card holders who are buying the food grains from the respective adjacent fair price depot or shop. 4. 2nd respondent has issued a circular on 09.12.2013 - Annexure-B, whereunder ration card holders issued prior to 2010 would remain with existing kerosene vendors namely the petitioners and similarly placed persons and those ration card holders who have been issued with ration cards, subsequent to 2010, shall be transferred to the fair price depots or shops for the purposes of convenience of customers or the buyers. The said circular would also indicate that such of those fair price shops which do not possess licence to vend kerosene shall be issued with the licence by the concerned authorities. Thus, it could be seen from the circular that only those ration card holders who have issued, subsequent to 2010 and who have been purchasing the kerosene from the petitioners would be unable to purchase their kerosene from the petitioners or in other words, petitioners and similarly placed persons will not be able to vend or sell kerosene to the card holders who have obtained the ration cards subsequent to 2010. 5. The contention of learned advocates appearing for the petitioners are as under: "(i) Impugned circular is discriminatory, in as much as, there cannot be any differentiation between the card holders who have obtained prior to 2010 and who have obtained subsequent to 2010 and by virtue of the same, State is making hostile discrimination between a particular class and as such, circular is hit by Article 14of Constitution of India. (ii) Impugned circular does not indicate as to the purpose and the intent which the State intends to achieve by discriminating between pre 2010 ration card holders and post 2010 ration card holders. (ii) Impugned circular does not indicate as to the purpose and the intent which the State intends to achieve by discriminating between pre 2010 ration card holders and post 2010 ration card holders. (iii) The exercise of the power by 2nd respondent by issuing the impugned circular is without jurisdiction since grant or refusal of kerosene distribution licence is conditional and is subject to compliance of Karnataka Kerosene Dealers Licensing Order, 1969 and Karnataka Essential Commodities Licensing Order, 1986 and direction issued under the impugned circular directing concerned authorities to grant licence to fair price depot or shops is in conflict with the scheme or grant of licence for kerosene distributor under both these control orders. iv) 2nd respondent is not empowered to issue impugned circular, directing grant of licence to fair price depots or shops to distribute kerosene as the competent Licensing Authority would be the one vested with such power under the control orders, namely 1969 and 1986 control orders. The grant or refusal of kerosene distribution licence is conditional and is subject to compliance of 1986 order and 1969 order and hence, 2nd respondent has no power to direct that all fair price depot or shops be granted licence to distribute kerosene and issuance of such direction by the impugned circular is in conflict with the scheme of grant of licence for kerosene distribution. Hence, Annexure - B is liable to be quashed." 6. Per contra, learned HCGP appearing for the respondents would support the impugned circular by contending that by virtue of excluding the ration card holders issued subsequent to 2010 from purchasing kerosene from petitioners or similarly placed persons it would in no way affect the businesses of petitioners, in as much as licences of petitioners or similarly placed persons are not being cancelled and these two types of ration card holders are different class, by themselves namely ration card holders who have issued earlier to 2010 and ration card holders who have been issued subsequent to 2010 and they form different class and as such, it cannot be said that there is hostile discrimination between them. As such, the impugned circular cannot be construed as one which makes discrimination between two classes of ration card holders. As such, the impugned circular cannot be construed as one which makes discrimination between two classes of ration card holders. He would also submit that by virtue of the impugned circular, card holders would have the benefit of buying or purchasing food grains and kerosene at one place or it would cause least inconvenience to them, in as much as they would be now able to purchase the stocks, namely the kerosene from the fair price depots or shops itself and as such, by no stretch of imagination, it can be construed that there is discrimination between two classes of card holders. Hence, he would support the impugned circular and pray for dismissal of writ petitions. 7. Having heard the learned advocates appearing for the parties and on perusal of the impugned circular as also the case papers, it would indicate that petitioners have been carrying on the business of vending kerosene from past 20 to 30 years. At no point of time, there has been any complaint against these petitioners from any quarter with regard to the manner, mode and method of vending kerosene by them. Respondents have nowhere contended that on account of any such complaint having been received against the petitioners, the impugned circular has been issued. It is also not in dispute that as on date the kerosene is not being sold at the fair price depot or shops, but same is being sold by the licence holders who have been attached to the nearest fair price depot or shops to vend kerosene to the ration card holders. 8. By virtue of power vested under Section 3 of the Essential Commodities Act, 1955, 1986 Control Order, has been made under which order, the Licensing Authority is empowered to grant licence to an applicant for distribution of fair price commodities. Accordingly, under clause 4(2) of 1986 Control Order, licence has been granted to the petitioners to conduct business in purchase, sale and storage of kerosene. Likewise, exercising the power under Section 3 of the Essential Commodities Act, 1955, 1st respondent has made Karnataka Kerosene Dealers Licensing Order, 1969 and under Clause 4 of the said order, issuance of licence has been provided for dealing in purchase, sale and storage of kerosene. Likewise, exercising the power under Section 3 of the Essential Commodities Act, 1955, 1st respondent has made Karnataka Kerosene Dealers Licensing Order, 1969 and under Clause 4 of the said order, issuance of licence has been provided for dealing in purchase, sale and storage of kerosene. It is not in dispute that existing fair price depot or shops have been issued with licence either under the Karnataka Essential Commodities Licensing Order, 1986 or the Karnataka Kerosene Dealers Licensing Order, 1969 to purchase, sale and storage or deal with the kerosene as on date. Hence, without obtaining separate licence under the said control orders they would not be in a position to vend kerosene. 9. In view of the prime thrust of arguments of the learned advocates appearing for the petitioners being that there is hostile discrimination between post 2010 card holders and pre 2010 card holders let me examine at the first instance, as to whether such classification amounts to hostile discrimination or is it a permissible discrimination between two classes of card holders. At the outset, it requires to be noticed that both pre 2010 card holders and post 2010 card holders stand on same footing and rights conferred to them under the ration cards issued to them are same. In other words, by virtue of grant of said ration cards either prior to 2010 or subsequent to 2010, they continue to draw or purchase or lift stocks from the fair price depots in the same manner without any difference and only those ration card holders who do not possess LPG - Liquid Purified Gas cylinders, are permitted to purchase kerosene from the Kerosene Dealers at a subsidised price. Thus, it can be seen that there cannot be any differentiation between pre 2010 ration card holders and post 2010 ration card holders. It has to be further examined by scrutiny of impugned circular, as to whether reading or perusal of the same, would indicate that no person of fair mind would have issued this circular or whether there is reasonable classification amongst these two types of ration card holders. 10. It has to be further examined by scrutiny of impugned circular, as to whether reading or perusal of the same, would indicate that no person of fair mind would have issued this circular or whether there is reasonable classification amongst these two types of ration card holders. 10. There cannot be any dispute with regard to the proposition that judicial review of Administrative Act is an essential part of rule of law and for this proposition, the judgment of the Hon'ble Apex Court in the case of State of Bihar and others, v. Subhash Singh, reported in AIR 1997 SC 1390 can be looked up, whereunder, it has been held that judicial review of administrative actions as also that of legislative action of the State would be susceptible to judicial review. The Acts of the State or public authorities, in exercise of their legislative or executive power, would be amenable to the judicial review. It has been held by their Lordships in Subhash Singh's case referred to supra as under: "3. The Constitution of India is the supreme law of the land, having flown from "We, the people of India, i.e., Bharat, having solemnly resolved to constitute India into a sovereign, socialist, secular democratic republic. The sovereign power is distributed among the Legislature, the Executive and the Judiciary with checks and balances but not in water tight rigid mould. In our democracy governed by the rule of law, the Judiciary has expressly been entrusted with the power of judicial review as sentinel in qui vive. Basically judicial review of administrative actions as also of legislation is exercised against the action of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review. The State, therefore, is subject to etat de droit, i.e. the State is submitted to the law which implies that all actions of the State or its authorities and officials must be carried out subject to the Constitution and within the limits set by the law, i.e., constitutionalism. In other words, the State is to obey the law. The more the administrative action in our welfare State expands widely touching the individuals, the more is the scope of judicial review of State action. Judicial review of administrative action is, therefore, an essential part of rule of law. In other words, the State is to obey the law. The more the administrative action in our welfare State expands widely touching the individuals, the more is the scope of judicial review of State action. Judicial review of administrative action is, therefore, an essential part of rule of law. The judicial control on administrative action, thus, affords the courts to determine not only the constitutionality of the law but also the procedural part of administrative action as a part of judicial review. The constitution has devised permanent bureaucracy as part of the political executive. By operation of Article 53 read with Articles 73 and 74 as well as Article 154 read with Articles 163 and 166, the business of the State is carried on in accordance with the rules of business issued by the President/the Governor, as the case may be, or the rules made for the subordinate officers in that behalf. The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of "full faith and credit" applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. The hierarchical responsibility for the decision is their in- built discipline. But the head of the Department/designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law.” 11. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law.” 11. As already noticed herein above, if the impugned circular of the executive when read in a holistic manner, does give an impression that no person with fair mind would have passed such an executive order or issued circular, it would not stand the test of Article 14of Constitution of India. In this regard, the judgment of the Hon'ble Apex Court reported in the case of M/s. Shri Sitaram Sugar Co. Ltd. and another v. Union of India and others reported in AIR 1990 SC 1277 can be noticed with benefit, whereunder, it has been held that Courts would not substitute its judgment to that of the legislature or its agent, as those matters are within their province and it does not supplant the "feel of the expert" by its own views and if the Courts find that the said legislative Act would satisfy the test of reasonableness, it stops at it. It has been held by the Hon'ble Apex Court in the said judgment as under: "57. Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either. The Court does not supplant the "feel of the expert" by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in M/s. Gupta Sugar Works, (supra): "the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination." 58. Price fixation is not within the province of the courts. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination." 58. Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi Valley Barge Line Company v. United States of America, 292 US 282-290, 78 Lawed 1260, 1265: "The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to form..... It is not the province of a court to absorb this function to itself..... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body". 12. When there is a challenge to the executive action, on the ground that it is offending Article 14 of Constitution of India, this Court will have to examine in the background of Article 14 which mandates that State should not deny any person equality before the law or equal protection of the laws. Since the Act of the State which is the repository of the power and if such Acts either legislative or administrative or quasi judicial if being in conflict with the Constitution or Governing Act or the general principles of law of the land or if it is so arbitrary or unreasonable that no fair minded authority could ever have made it, then the conclusion will have to necessarily drawn that it is hit by Article 14 of the Constitution of India. Even executive Acts which violates equality can be set aside and in this regard, the law laid down by the Apex Court in the cases of; Indian Express Newspapers (Bombay) Private Ltd. and others etc. Even executive Acts which violates equality can be set aside and in this regard, the law laid down by the Apex Court in the cases of; Indian Express Newspapers (Bombay) Private Ltd. and others etc. etc., v. Union of India and others, Bennett, Coleman & Company Ltd. and others, v. Union of India and others, The Statesman Ltd. and others v. Union of India and others, Kasturi and Sons Ltd. and another v. Union of India and others, Ananda Basar Patrika Ltd. and another v. Union of India and others, reported in AIR 1986 SC 515 can be looked up whereunder it has been held as follows: 71. We shall assume for purposes of these cases that the power to grant exemption under section 25 of the Customs Act, 1962 is a legislative power and a notification issued by the Government thereunder amounts to a piece of subordinate legislation. Even then the notification is liable to be questioned on the ground that it is an unreasonable one. The decision of this Court in Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr. 1968 (3) SCR 251 : ( AIR 1968 SC 1232 ) has laid down the above principle. In that case Wanchoo, C.J. while upholding certain taxes levied by the Corporation of Delhi under section 150 of the Delhi Municipal Corporation Act, 1957 observed thus: "Finally there is -another check on the power of the Corporation which is inherent in the matter of exercise of power by subordinate public representative bodies such as municipal boards. In such cases if the act of such a body in the exercise of the power conferred on it by the law is unreasonable, the courts can hold that such exercise is void for the unreasonableness. This principle was laid down as far back as 1898 in Kruse v. Johnson [1898] 2 Q.B.D. 91" 13. In determining the validity of legislative or executive Act, the test that requires to be followed is that the classification must not be arbitrary, it must be rational and such: "i) Classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; ii) Differentia must have a rational relation to the object sought to be achieve by the law under challenge. In other words, the general principle that equal protection of the laws meaning the right to equal treatment should be found or discerned from the impugned legislative act or executive action." 14. It can also be gain said that even when the executive Act by a notification or circular attempts to make a reasonable classification, it must stand the test of such reasonable classification, as otherwise it would fall to the ground and for this proposition, the judgment of the Hon'ble Apex Court in the case of John Vallamattom and another v. Union of India reported in AIR 2003 SC 2902 can be looked up, whereunder, it has been held that equality clause enshrined in Article 14 of the Constitution of India being of wide import, would guarantee equality before law or equal protection of the laws and such classification which is sought to be made by the executive Act or legislative Act it should be reasonable, one based on intelligible differentia having nexus with the object sought to be achieved. It has been held by the Hon'ble Apex Court as under: "19. The equality clause enshrined in Article 14 of the Constitution of India is of wide import. It guarantees equality before the law or the equal protection of the laws within the territory of India. The restriction imposed by reason of a statute, however, can be upheld in the event it be held that the person to whom the same applies, forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved." 15. In order to pass the test of permissible classification, two conditions as already noticed herein above, must be fulfilled i.e., (i) intelligible differentia ; and (ii) differentia must have rational nexus to object. However, that does not mean that the intelligible differentia would mean that the classification should be scientifically perfect and logically complete. By virtue of such differentia, the object sought to be achieved if established then, it would stand the test of reasonable classification. Thus, when an act is challenged as denying equal protection, the question for determination by Court would not be whether it has resulted in inequality, but whether there is some difference which bears a just and reasonable relation to the object which is sought to be achieved. Thus, when an act is challenged as denying equal protection, the question for determination by Court would not be whether it has resulted in inequality, but whether there is some difference which bears a just and reasonable relation to the object which is sought to be achieved. Mere differentiation or inequality of treatment or inequality of burden does not per se amount to discrimination within the prohibition of the equal protection clause. Thus, when there is a challenge or attack of the legislative Act or legislative intent or executive Act, as offending against the guarantee enshrined under Article 14 of the Constitution of India, the foremost duty of the Court would be to examine the purpose and the policy of such impugned Act and then discover whether the classification made by law has a reasonable relation to the object which the legislature or the executive intends to achieve. Non arbitrariness is concomitant of rule of law. The concept of equality cannot be understood and mean to allow the legislative or executive to commit one wrong to undo the other wrong. In other words, it has been held by the Hon'ble Apex Court that negative equality cannot be claimed to strengthen a case. It has been held in the case of Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority, reported in AIR 2006 SC 1142 to the following effect. "8. So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellants. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality." 16. It has been held by the Hon'ble Apex Court that every State action in order to survive the test of Article 14 must establish that such Act is not susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution of India. In the case of A.P. Aggarwal v. Government of National Capital Territory of Delhi and another reported in AIR 2000 SC 205 , it has been held as under: "12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us." 17. In the background of contours laid down by the Apex Court, the facts on hand and the impugned circular dated 09.12.2013, Annexure - B requires to be examined. Though statement of objections have not been filed, in the instant case, Shri K.S. Patil, learned HCGP appearing for the State has valiantly attempted to defend the impugned circular which is an executive Act of the State, whereunder, ration card holders issued prior to 2010 have been allowed to be retained by the petitioners i.e., licenced kerosene dealers and those ration card holders who have been issued subsequent to 2010 have been directed to purchase kerosene from the fair price depot or shops, henceforth on the ground that it would be convenient to the card holders. Thus, it would indicate this is an executive Act by virtue of which the procedure adopted to hitherto is being modified or changed or substituted by the impugned circular. Even in the matter of procedure also Article 14 would come into play and forbids the State from making any discrimination. 18. Thus, it would indicate this is an executive Act by virtue of which the procedure adopted to hitherto is being modified or changed or substituted by the impugned circular. Even in the matter of procedure also Article 14 would come into play and forbids the State from making any discrimination. 18. In this regard, it has been held by the Hon'ble Apex Court in the case of The State of West Bengal v. Anwar Ali Sarkar and another reported in AIR 1952 SC 75 that a rule of procedure laid down by law comes within the purview of Article14 as any rule of substantive law. It has been held as under: "45. As regards the first point, it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. Article 21 of the Constitution only guarantees that "no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law." The word "law" in the Article means a State made law; A.K. Gopalan v. State of Madras (1950 SCR 88), but it must be a valid and binding law having regard not merely to the competency of the legislature and the subject it relates to, but it must not also infringe any of the fundamental rights guaranteed under Part III of the Constitution. A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination; Weaver -Constitution Law, p.407. The two cases referred to by the learned Attorney-General in this connection do not really support his contention. In Hayes v. Missouri (1887) 120 u/s. 68; 30 Law Ed 578; the subject-matter of complaint was a provision of the revised statutes of Missouri which allowed the State, in capital cases, fifteen peremptory challenges in cities having a population of 100,000 inhabitants in place of eight in other parts of the State. This was held to be a valid exercise of legislative discretion not contravening the equality clause in the Fourteenth Amendment. This was held to be a valid exercise of legislative discretion not contravening the equality clause in the Fourteenth Amendment. It was said that the power of the Legislature to prescribe the number of challenges was limited by the necessity of having impartial jury. With a view to secure that end, the legislature could take into consideration the conditions of different communities and the strength of population in a particular city; and if all the persons within particular territorial limits are given equal rights in like cases, there could not be any question of discrimination. The other case relied upon by the learned Attorney- General is the case of Brown v. The State of New Jersey (1899) 175 u/s. 172; 44 Law Ed. 119. In this case the question was whether the provision of the State Constitution relating to struck jury in murder cases was in conflict with the equal protection clause. The grievance made was that the procedure of struck jury denies the defendant the same number of peremptory challenges as he would have had in a trial before an ordinary jury. It was held by the Supreme Court that the equal protection clause was not violated by this provision. "It is true", thus observes Mr. Justice Brewer, "that here there is no territorial distribution but in all cases in which a struck jury is ordered the same number of challenges is permitted and similarly in all cases in which the trial is by an ordinary jury either party, State or defendant, may apply for a struck jury and the matter is one which is determined by the court in the exercise of a sound discretion...... That in a given case the discretion of the court in awarding a trial by a struck jury was improperly exercised may perhaps present a matter for consideration in appeal but it amounts to nothing more". Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application could be granted by the court if it thought proper having regard to the circumstances of each individual case. Thus it was held that the procedure of struck jury did not involve any discrimination between one person and another. Each party was at liberty to apply for a struck jury if he so chose and the application could be granted by the court if it thought proper having regard to the circumstances of each individual case. The procedure would be identical in respect of all persons when it was allowed and all parties would have equal opportunities of availing themselves of this procedure if they so liked. That a judicial discretion has to be exercised on the basis of the facts of each case in the matter of granting the application for a struck jury does not really involve discrimination. These decisions, in my opinion, have no bearing on the present case. 46. I am not at all impressed by the argument of the learned Attorney-General that to enable the respondents to invoke the protection of article 14 of the Constitution it has got to be shown that the legislation complained of is a piece of "hostile" legislation. The expressions "discriminatory" and "hostile" are found to be used by American Judges often simultaneously and almost as synonymous expressions in connection with discussions on the equal protection clause. If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as "hostile" in the sense that it affects injuriously the interests of that person or class. Of course, if one's interests are not at all affected by a particular piece of legislation, he may have no right to complain. But if it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, I do not think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. For the same reason I cannot agree with the learned Attorney-General that in cases like these, we should enquire as to what was the dominant intention of the legislature in enacting the law and that the operation of article 14 would be excluded if it is proved that the legislature had no intention to discriminate, though discrimination was the necessary consequence of the Act. When discrimination is alleged against officials in carrying out the law, a question of intention may be material in ascertaining whether the officer acted mala fide or not. Sunday Lake Iron Company v. Wake-field, (1918) 247 under Section 350; but no question of intention can arise when discrimination follows or arises on the express terms of the law itself." 19. If the legislative intent or the executive Act were to stand dual test as observed hereinabove and such act is upheld by application of the dual test, the procedural aspect would loose its relevance for the reason that for the purposes of Article 14 of the Constitution of India, unequals cannot complain of inequality as held by the Apex Court in In Re The Special Courts Bill, (1978 AIR 1979 SC 478 ) which reads as under: "Once a classification is upheld by the application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of Art. 14unequals cannot complain of unequal treatment." 20. It can be further noticed that Article 14 would also be applicable to procedural law or the matter relating to the procedure to be adopted by executive by applying the same principles and when facts on hand is examined, in this background it would clearly indicate by the impugned Circular, State intends to discriminate between two types of card holders who undisputedly stand on the same footing. The card holders who have been issued ration card prior to 2010 as well as those ration card holders who have been issued subsequent to 2010 undisputedly stand on the same footing. Their rights and liability flow from ration card which is one and the same. The card holders who have been issued ration card prior to 2010 as well as those ration card holders who have been issued subsequent to 2010 undisputedly stand on the same footing. Their rights and liability flow from ration card which is one and the same. Both the ration card holders i.e., pre-2010 and post-2010 would draw their respective stocks of essential commodities from the fair price depot or shops which have been allotted to them and there is no difference whatsoever between them except those ration card holders who are possessing the ration card as LPG holders and they would not be entitled to purchase kerosene at a subsidised price by virtue of ration cards being held by them. Even, in the matter of purchase of kerosene by those ration card holders either pre-2010 cardholders or post-2010 holders there is no difference. Their entitlement under the respective ration cards for drawing kerosene is the same. 21. In the light of these factual aspects, impugned Circular when examined as to whether it would meet the test of reasonable or differential treatment so as to hold that it would pass the dual test, the answer will have to be necessarily in the negative inasmuch as the object which is sought to be achieved by the impugned Circular as explained in the very Circular itself would indicate is to ensure that least inconvenience is caused to the ration cardholders. Undisputedly, as on date, these ration cardholders are not drawing or purchasing their entitlement of kerosene from the fair price depot or shops but on the other hand they are purchasing the kerosene at a subsidised price from the license holders whose shops are abutting to the fair price depot or shops namely from the shops of petitioners herein. These petitioners were granted licenses under the Karnataka Essential Commodities Licensing Order, 1986 and they have been carrying on their business in kerosene vending by virtue of such license having been granted to them and supplying to the ration card holders allotted to them. Initially, these shops belonging to the petitioners were not in the vicinity of fair price depot and they were located far away from the fair price depot or shops. Initially, these shops belonging to the petitioners were not in the vicinity of fair price depot and they were located far away from the fair price depot or shops. Hence, State felt that consumer namely the ration card holder would find difficult and it would cause inconvenience to them to purchase the essential commodities like food grains in a fair price depot or shops and then to purchase kerosene from another shop and as such to harmonise these two activities and to cater to the needs of the ration card holders respondent - Authorities directed that kerosene vendors should either locate their shops abutting the fair price depot or shops or in the alternate they should establish their shops for vending kerosene within close proximity or vicinity of the existing fair price depot or shops. It is also not in dispute that in compliance of such direction issued by the respondent-authorities, petitioners have established their kerosene vending shops or business either adjacement to the existing fair price depot or shops or it is located within the vicinity of existing FDPs or shops. 22. It is also not the case of the State that there has been any complaint or grievance by the ration card holders at any point of time till date complaining that by virtue of existing system or procedure of purchasing the food grains at one shop and kerosene at adjacent shop is causing them inconvenience or hardship. No such material has been placed before this Court in this regard by the State. The State in its wisdom having computerised issuance of ration card in the year 2010 have thought fit to make a differentiation between pre-2010 ration card holders and post-2010 ration card holders and while undertaking such an exercise, impugned Circular has been issued which would clearly indicate that it does not stand the dual test namely there is no intelligible differentia between two card holders and these two types of card holders cannot be distinguished one from another. These two class of ration card holders namely pre-2010 card holders and post-2010 card holders cannot form a distinct class or a separate class unto themselves. These two class of ration card holders namely pre-2010 card holders and post-2010 card holders cannot form a distinct class or a separate class unto themselves. Even assuming for a moment that it would pass the first test, impugned Circular by no stretch of imagination can be held to pass second test namely by differential treatment to two types of card holders impugned circular would not seek to achieve the object which is sought to be propounded under the impugned Circular inasmuch as the ration card holders of both the groups as on date are purchasing food grains from the existing fair price depot or shops and also purchasing kerosene from the existing kerosene dealers who are located either adjacent to the fair price depot or shops or from the kerosene dealers whose shops are located in the vicinity of said fair price depot and shops. Hence, impugned Circular does not pass the second test. 23. Yet one another intriguing factor which requires to be noticed in the instant case is that petitioners have been issued with the license to vend, store, supply and sell kerosene by virtue of license granted to them under the provisions of the Karnataka Essential Commodities Licensing Order, 1986, whereas the license issued to the fair price depots or shops is under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992. By an executive act namely by issuance of impugned Circular, the 2nd respondent who is not the Licensing authority to issue or grant license cannot direct or order for permission being granted to the existing fair price depot or shops to vend the kerosene. In other words, existing fair price depot or shops will have to apply separately and independently seeking for issuance of license as provided under the Karnataka Kerosene Dealers Licensing Order, 1969 or under the Essential Commodities Licensing Order, 1986 and only on fulfillment of the criteria prescribed there under such a license can be granted. In the absence of such license to the existing fair price depot or shops by an executive act i.e., by impugned Circular FDP's cannot be permitted to carry on business in vending of kerosene by 2nd respondent. 24. In the absence of such license to the existing fair price depot or shops by an executive act i.e., by impugned Circular FDP's cannot be permitted to carry on business in vending of kerosene by 2nd respondent. 24. For the reasons a fore stated, I am of the considered view that impugned Circular dated 09.12.2013 Annexure-B has to be necessarily held as ultra vires of the Constitution of India by the reason of the fact that the same being in conflict with Article 14 of the Constitution of India. Hence, the following: ORDER "(i) Writ petitions are hereby allowed. (ii) Impugned Circular dated 09.12.2013 Annexure-B is hereby quashed. (iii) Rule made absolute. (iv) No order as to costs." Learned High Court Government Pleader is permitted to file memo of appearance within six weeks from today if same has not been filed.