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2018 DIGILAW 1697 (GAU)

Margherita S. S. Ltd. v. State of Assam

2018-12-04

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Heard Mr. B. Kaushik, learned counsel for the petitioners. Also heard Mr. S.R Barua, appearing for the respondent Nos. 1 to 4 and Mr. B.D Das, learned senior counsel assisted by Mr. D. Kalita for the respondent No. 6. 2. The petitioners are Co-operative societies and authorized agents in Tinsukia District, who are distributing PDS articles to retail agents, under the Assam Public Distribution of Articles Order 1982. 3. The petitioners have challenged clause 7(11) & 7(12) of the Targeted Public Distribution System (Control) Order 2015 (hereinafter referred to as Control Order 2015), issued on 20.03.2015, whereby provision has been made for distribution of PDS articles from the FCI godown to the godown of the intermediaries and door-step delivery of food grains, to the fair price shops by Transporters/carriage Contractors. 4. The learned counsel for the petitioners submits that when carriage Contractors are engaged, they should be made liable for transit loss. However, as no scheme has been made by the Government, so as to save the petitioners from the loss made by the carriage Contractors, the decision of the State respondents to appoint carriage Contractors for distribution of the PDF articles could cause loss to the petitioners. He accordingly submits that as the petitioners do not have any protection with regard to any loss or damage that may be caused to the PDS articles, due to the transportation of the said articles by the carriage Contractors, the E-Tender notice dated NIL, October 2017 calling for selection/appointment of Transporters/carriage Contractors. Also clause 7(11) & 7(12) of the Control Order 2015 should be set aside. 5. Mr. B.D. Das, learned counsel for the respondent No. 6 submits that the decision of the State Government to engage private parties as carriage Contractors/Transporters for transportation of the PDS articles for door-step delivery to fair price shops has already been decided by this Court in a bunch of cases, the lead case being WP(C) No. 6647/2015. Subsequent to the above, WP(C) No. 6700/2017 had also been filed, wherein a challenge had been made by the petitioners herein to clause 7 (11) & clause 7 (12) of the Targeted Public Distribution System (Control) Order 2001, which is the subject matter of challenge in the present case also. However, WP(C) No. 6700/2017 was dismissed by this Court vide Order dated 30.07.2018. However, WP(C) No. 6700/2017 was dismissed by this Court vide Order dated 30.07.2018. He also submits that the other prayer of the present writ petitioners with regard to the challenge made to the notice inviting E-Tender for selection/appointment of Transporters/carriage Contractors cannot be allowed, inasmuch as, in WP(C) No. 4238/2018, this Court had allowed the tendering process for selection and appointment of Transporters/carriage Contractors vide Order dated 30.07.2018. Accordingly, orders have been issued by the State respondents appointing Transporters/carriage Contractors, including the respondent No. 6. 6. Mr. B. Kaushik, at this stage submits that there has been an appeal filed against the Judgment & Order dated 21.09.2017 passed in WP(C) No. 6647/2015 etc., vide Writ Appeal No. 12/2018. The Division Bench has thereafter, vide Order dated 16.07.2018, passed in WA No. 12/2018 directed that as the appellants were continuing to lift and distribute food-grains, the parties were to maintain status quo in respect of the existing system of distribution of PDS commodities, in so far as the transportation is concerned, till a final decision on the appeal was made. The petitioners counsel has also prayed for a similar status quo order. 7. The learned counsel for the respondent Nos. 1 to 4 reiterates the submission made by the counsel for the respondent No. 6. 8. I have heard the learned counsels for the parties. 9. In the bunch of cases, i.e., WP(C) No. 6647/2015 etc., which included the petitioners’ writ petition bearing WP(C) No. 6645/2015, the issue that was to be decided was “whether or not the decision of the State Government to engage private parties as Transporters for transportation of the PDS articles for door-step delivery to the fair price shops was in consonance with the Control Order 2015, issued under Section 3 of the Essential Commodities Act, 1955.” 10. This Court dismissed of the bunch of writ petitions, i.e., WP(C) No. 6647/2015 etc., vide Order dated 21.09.2017, the operative portion of which is quoted below:- “28. From the submissions advanced by the learned counsels for the parties it appears to this Court that prior to the implementation of the NFSA many of the WSCS/GPSS used to make their own transportation arrangements for operating the PDS networks. From the submissions advanced by the learned counsels for the parties it appears to this Court that prior to the implementation of the NFSA many of the WSCS/GPSS used to make their own transportation arrangements for operating the PDS networks. Since it is not the case of the writ petitioners that their PDS licence under the Order of 1982 has been withdrawn or varied in any manner, hence, it is not clear from the materials on record as to how the new system has interdicted with their legitimate sources of income in the PDS business. Rather, from the materials on record, this Court is of the view that the new system of transportation would bring more transparency to the whole process besides ensuring that the WSCS/GPSS do not end up incurring any additional expenditure on account of transportation cost. 29. Having regard to the materials placed on record, it is apparent that the WSCS/GPSS/FPS are operating on a very narrow profit margin but that is an issue which will have to be addressed by the concerned government on the basis of facts and figures brought before it by the aggrieved parties and the said issue cannot be the subject matter of the present proceeding. It may be the case that the introduction of the new transport system has in some way diminished the profitability of the business from the writ petitioners point of view but unless a clear case of violation of any statutory right is made out, this Court would not interfere in the matter in exercise of powers of judicial review under Article 226 of the Constitution, more so, when there is no specific challenge to clauses 7 (11) and (12) of the Order of 2015 based on pleaded facts and particulars. 30. For the reasons stated herein above, this Court is of the opinion that there is no merit in these writ petitions and the same are accordingly dismissed. There would be no order as to cost.” A perusal of the above shows that the Policy decision of the Government to engage Transporters/carriage Contractors for transportation PDS materials was not interfered with by this Court. 11. Some of the writ petitioners, being aggrieved by the Judgment & Order dated 21.09.2015 passed in WP(C) No. 6647/2015 etc., filed W.A No. 12/2018. 11. Some of the writ petitioners, being aggrieved by the Judgment & Order dated 21.09.2015 passed in WP(C) No. 6647/2015 etc., filed W.A No. 12/2018. However, the petitioners herein did not file any appeal against the Judgment & Order dated 21.09.2017 passed in WP(C) No. 6647/2015 and WP(C) No. 6645/2015. 12. Subsequent to the Judgment & Order dated 21.09.2017 passed in WP(C) No. 6647/2015 etc., all the petitioners herein filed WP(C) No. 6700/2015, wherein clause 7(11) & 7(12) of the Control Order 2015 was challenged. The other prayer made in WP(C) No. 6700/2017 was to allow the petitioners to lift the food grains as per clause 7 (1) of the Control Order 2015 and transport the said food grain allotted in their favour to the mandated destination/fair price shops. WP(C) No. 6700/2017 was dismissed vide Order dated 30.07.2018, the operative portion of which is reproduced below:- “5. Today, when the matter is called upon, Court has been informed that the issue raised in this writ petition has been decided by this Court in Lahowal Samabay Samity Limited Vs. State of Assam reported in 2017 (5) GLT 122. 6. In Lahowal Samabay Samity Limited (supra), the moot question that arose for consideration was whether or not the decision of the State Government to engage private parties as transporters for transportation of PDS articles for door-step delivery to the fair price shops was in consonance with the Targeted Public Distribution System (Control) Order, 2001, issued under Section 3 of the Essential Commodities Act, 1955. After hearing the matter, a Single Bench of this Court dismissed the writ petitions by holding that there was no merit in the challenge to the aforesaid provisions. 7. In view thereof, this writ petition is also dismissed by upholding the validity of the aforesaid provisions. 8. Writ petition is accordingly dismissed.” 13. Thereafter, the State respondents issued the impugned Notice Inviting E-Tender dated NIL, October 2017 for selection and appointment of Transporters/carriage Contractors for Tinsukia District. The petitioners have now filed the present writ petition, i.e., WP(C) No. 7255/2017, with a prayer for setting aside clause 7 (11) & 7 (12) of the Control Order 2015 and for setting aside the E-Tender notice. 14. The petitioners have now filed the present writ petition, i.e., WP(C) No. 7255/2017, with a prayer for setting aside clause 7 (11) & 7 (12) of the Control Order 2015 and for setting aside the E-Tender notice. 14. As this Court, vide Order dated 30.07.2018, passed in WP(C) No. 6700/2017 had dismissed the challenge made by the petitioners with regard to the clause 7 (11) & 7 (12) of the Control Order 2015, the prayer of the writ petitioners for setting aside the above 2 (two) clauses of the Control Order 2015 in this writ petition is not sustainable, as the same is barred by constructive res-judicata. Accordingly, the same is also rejected in this writ petition. 15. In respect of the petitioners challenge to the impugned E-Tender notice dated NIL, October 2017, for selection/appointment of Transporters/carriage Contractors for lifting of food grains under the National Food Security Act, 2013, as this Court vide Order dated 30.07.2018, passed in WP(C) No. 4238/2018, had allowed the State respondents to finalise the tenders for selection/appointment of Transporters/carriage Contractors of food grains under the National Food Security Act, 2013, in relation to the Control Order 2015, the other prayer of the writ petitioners for setting aside the impugned E-Tender notice is also not sustainable. The same is also rejected. Further, the dismissal of the petitioners earlier writ petition, i.e., WP(C) No. 6645/2015 on 21.09.2017, having not been put to challenge, the petitioners prayer for issuance of a status quo order, as had been given in WA No. 12/2018 cannot be given. 16. In view of the reasons stated above, this Court finds no merit in the writ petition. The same is accordingly dismissed.