Bijay Borah, S/o. Late Tulan Borah v. State of Assam, Rep. by the Commissioner and Secretary to the Government of Assam, Department of Food, Civil Supplies and Consumer Affairs
2022-12-22
DEVASHIS BARUAH
body2022
DigiLaw.ai
JUDGMENT : Heard Mr. R.C. Borpatra Gohain, the learned senior counsel assisted by Mrs. S. Borpatra Gohain along with all other counsels appearing on behalf of all the petitioners in the writ petitions. I have also heard Mr. D. Saikia, the learned Advocate General, Assam assisted Mr. D. Nath, the learned Senior Government Advocate for the State respondents. 2. The issue involved in the batch of the writ petitions relates to as to whether the action of the State Government in tagging the fair price shops having 50 or less than 50 ration cards to the nearest fair price shops is within the parameters of the Constitutional mandate. The stand of the respondent State is based upon that such measures are being taken to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the National Food Security Act, 2013 (for short, the Act of 2013) and its implementation thereof. 3. For ascertaining as to whether the action of the respondent State is within the realm of the Constitutional mandate, it would be relevant to take note of the Act of 2013 and the Rules framed therein under as well as also the Essential Commodities Act, 1955 and the Orders issued in pursuance thereof on the basis of which the petitioners claim right upon the licences being issued to them. 4. Let this Court first take into consideration the Act of 2013. The Act of 2013 was enacted to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. It is beneficial to refer to the “Introduction” to the Act of 2013 to understand the scope and purpose of the said Act which is reproduced herein below:- “INTRODUCTION Eradicating extreme poverty and hunger is one of the goals under the Millennium Development Goals of the United Nations. It casts responsibilities on all State parties to recognize the right of everyone to adequate food. Food security means availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices. Providing adequate food has always been focus of the Government's planning and policy.
It casts responsibilities on all State parties to recognize the right of everyone to adequate food. Food security means availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices. Providing adequate food has always been focus of the Government's planning and policy. However, this legislation marks a paradigm shift in addressing the problem of food security from the current welfare approach to a right based approach. This legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidized prices. Besides, it also confers legal rights on women and children and other special groups such as destitute, homeless, disaster and emergency affected persons and persons living in starvation to receive meal free of charge or at affordable price.” 5. Article 47 of the Constitution of India inter-alia provides that the State shall raise the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, to which India is a signatory, also casts responsibilities on all State parties to recognize the right of everyone to adequate food. Eradicating extreme poverty and hunger is one of goals under the Millennium Development Goals of the United Nations. In the judgment of the Supreme Court in the case of Bandhua Mukti Morcha vs. Union of India and Others, reported in (2021) SCC Online SC 441, the Supreme Court observed that the right to life as guaranteed by Article 21 of the Constitution gives right to every human being to live a life of dignity with access to at least bare necessities of life. It was observed that to provide food security to impoverish persons is the bounden duty of all States and the Government and the Parliament with the above object to provide food and nutritional security in human life circle, had enacted the Act of 2013. The “Statement of Objects and Reasons” of the Act of 2013 at paragraph No.3 enshrines the reasons behind the said enactment. The said paragraph No.3 is reproduced herein below:- “3. Ensuring food security of the people, however, continues to be a challenge.
The “Statement of Objects and Reasons” of the Act of 2013 at paragraph No.3 enshrines the reasons behind the said enactment. The said paragraph No.3 is reproduced herein below:- “3. Ensuring food security of the people, however, continues to be a challenge. The nutritional status of the population, and especially of women and children, also needs to be improved to enhance the quality of human resource of the country. The proposed legislation marks a paradigm shift in addressing the problem of food security -from the current welfare approach to a right based approach. Besides expanding coverage of the Targeted Public Distribution System, the proposed legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices. It will also confer legal rights on women and children to receive meal free of charge.” 6. At this stage, this Court also feels it pertinent to take note of Paragraph No. 7 of the “Statement of Objects and Reason” and more particularly to certain sub-clauses of the said paragraph which are reproduced herein below : “(g) provide subsidized foodgrains under the Targeted Public Distribution System to specified percentage of rural and urban population, at the all India level and empower the Central Government to determine the State-wise percentage coverage; (h) enable the State Government to prescribe guidelines for identification of priority households, for the purposes of their entitlement under the proposed legislation and identify such households and the households to be covered under the Antyodaya Anna Yojana, in accordance with guidelines applicable to the scheme; (i) progressively undertake necessary reforms by the Central and State Governments in the Targeted Public Distribution System in consonance with the role envisaged for them in the proposed legislation; (o) conduct or cause to be conducted by every local authority, or any other authority to body, as may be authorized by the State government, periodic social audits on the functioning of fair price shops. Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.” 7. The said Act of 2013 defines various terms in Section 2.
Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action, in such manner as may be prescribed by the State Government.” 7. The said Act of 2013 defines various terms in Section 2. Relevant for the purpose of the instant case would be Section 2 (4) which defines “fair price shop”, Section 2 (5) which defines “foodgrains”, Section 2 (16) which defines “ration cards” and Section 2 (23) which defines “Targeted Public Distribution System”. The said definitions, being relevant, are reproduced herein below:- “(4) "fair price shop" means a shop which has been licensed to distribute essential commodities by an order issued under section 3 of the Essential Commodities Act, 1955, to the ration card holders under the Targeted Public Distribution System; (5) "foodgrains" means rice, wheat or coarse grains or any combination thereof conforming to such quality norms as may be determined, by order, by the Central Government from time to time; (16) "ration card" means a document issued under an order or authority of the State Government for the purchase of essential commodities from the fair price shops under the Targeted Public Distribution System; and (23) "Targeted Public Distribution System" means the system for distribution of essential commodities to the ration card holders through fair price shops.” 8. From the above quoted definitions, it would be seen that fair price shop has been defined as a shop which has been licensed to distribute essential commodities by an order issued under Section 3 of the Essential Commodities Act, 1955 (for short, the Act of 1955), to the ration card holders under the Targeted Public Distribution System. “Ration card” as would be seen in Section 2(16) has been defined as a document issued under an order or authority of the State Government for the purchase of essential commodities from the fair price shops under the Targeted Public Distribution System. The term “Targeted Public Distribution System” as quoted herein above has been defined in Section 2 (23) meaning the system for distribution of essential commodities to the ration card holders through fair price shops. 9.
The term “Targeted Public Distribution System” as quoted herein above has been defined in Section 2 (23) meaning the system for distribution of essential commodities to the ration card holders through fair price shops. 9. Section 3 of the Act of 2013 confers the rights upon every person belonging to priority households, identified under sub-Section (1) of Section 10, to be entitled to receive five kilograms of foodgrains per person per month at subsidised prices specified in Schedule-I from the State Government under the Targeted Public Distribution System. The proviso to Sub-Section (1) to Section 3 of the Act of 2013 stipulates that those households covered under Antyodaya Anna Yojana shall, to such extent as may be specified by the Central Government for each State in the said scheme, be entitled to thirty-five kilograms of foodgrains per household per month at the prices specified in Schedule-I. Section 9 of the Act of 2013 stipulates that the percentage coverage under the Targeted Public Distribution System in rural and urban areas for each State shall, subject to sub-section (2) of Section 3, be determined by the Central Government and the total number of persons to be covered in such rural and urban areas of the State shall be calculated on the basis of the population estimates as per the census of which the relevant figures have been published. By virtue of Section 10, the State Government had been statutorily mandated to prepare guidelines to indentify priority households. Section 12 of the Act of 2013 is very pertinent in the present context which stipulates the reforms to be carried out in the Targeted Public Distribution System. Taking into account the relevance of the said Section 12, it is reproduced herein below:- “12. (1) The Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in this Act.
Taking into account the relevance of the said Section 12, it is reproduced herein below:- “12. (1) The Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in this Act. (2) The reforms shall, inter alia, include— (a) doorstep delivery of foodgrains to the Targeted Public Distribution System outlets; (b) application of information and communication technology tools including end-to-end computerisation in order to ensure transparent recording of transactions at all levels, and to prevent diversion; (c) leveraging ''aadhaar'' for unique identification, with biometric information of entitled beneficiaries for proper targeting of benefits under this Act; (d) full transparency of records; (e) preference to public institutions or public bodies such as Panchayats, selfhelp groups, co-operatives, in licensing of fair price shops and management of fair price shops by women or their collectives; (f) diversification of commodities distributed under the Public Distribution System over a period of time; (g) support to local public distribution models and grains banks; (h) introducing schemes, such as, cash transfer, food coupons, or other schemes, to the targeted beneficiaries in order to ensure their foodgrain entitlements specified in Chapter II, in such area and manner as may be prescribed by the Central Government.” 10. A perusal of the above quoted Section would show that the Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in the Act of 2013. Sub-section (2) of Section 12 stipulates the various reforms.
A perusal of the above quoted Section would show that the Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in the Act of 2013. Sub-section (2) of Section 12 stipulates the various reforms. Amongst them, relevant to mention is the door-step delivery of foodgrains to the Targeted Public Distribution System outlets; application of information and communication technology tools including end-to-end computerisation in order to ensure transparent recording of transactions at all levels, and to prevent diversion; leveraging ''aadhaar'' for unique identification, with biometric information of entitled beneficiaries for proper targeting of benefits under the Act of 2013; full transparency of records; preference to public institutions or public bodies such as Panchayats, self-help groups, co-operatives, in licensing of fair price shops and management of fair price shops by women or their collectives; diversification of commodities distributed under the Public Distribution System over a period of time; support to local public distribution models and grains banks and introducing schemes, such as, cash transfer, food coupons, or other schemes, to the targeted beneficiaries in order to ensure their foodgrains entitlements specified in Chapter II, in such area and manner as may be prescribed by the Central Government. 11. The obligations of the Central Government and State Government as well as the local authorities for food security has been mentioned in Chapter Nos.-VIII, IX and X respectively. Section 27 of the Act of 2013 which falls in the Chapter “Transparency and Accountability” stipulates that all Targeted Public Distribution System related records shall be placed in the public domain and kept open for inspection to the public, in such manner as may be prescribed by the State Government. Section 36 of the Act of 2013 provides that the provisions of the said Act or the schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law. Section 39 empowers the Central Government to make Rules to carry out the provisions of this Act whereas Section 40 empowers the State Government to make Rules. 12.
Section 39 empowers the Central Government to make Rules to carry out the provisions of this Act whereas Section 40 empowers the State Government to make Rules. 12. In terms with the powers conferred upon the Central Government by virtue of Section 39 of the Act of 2013, the Central Government had made various Rules, namely, The Provisioning of Funds to State Governments for Short Supply of Foodgrains Rules, 2014; The Food Security Allowance Rules, 2015; The Cash Transfer of Food Subsidy Rules, 2015; The Mid-day Meal Rules 2015; The Food Security (Assistance to State Government) Rules, 2015, etc. 13. The Food Security Allowance Rules, 2015 would come into play in the case of non-supply of entitled quantities of foodgrains or meals to entitled persons under Chapter-II of the Act of 2013 and such persons shall be entitled to receive such Food Security Allowances from the concerned State Government to be paid to each person, within such time and manner as may be prescribed by the Central Government. Rule 3 of the said Food Security Allowance Rules, 2015 stipulates that the Central Government and the State Governments shall adhere to the time limits provided in the Public Distribution System (Control) Order, 2001 or any other order issued from time to time by Central Government, for allocation of foodgrains and making them available for distribution to the persons entitled under the Act of 2013. Rule 4 prescribes the manner when payment of food security allowance in cases of non-supply of foodgrains. Rule 5 stipulates how the verification of the status of supply is to be carried out. Relevant herein to mention that it is the requirement in terms with Rule 5 that the State Government shall use electronic methods, subject to availability of adequate infrastructure, for carrying out and recording the -(i) month-end verification of status of distribution of foodgrains; and (ii) reasons for non-distribution, if any, in respect of each fair price shop and place such details in the public domain. Therefore, in terms with Rule 5, there is a necessity on the part of the State Government to develop adequate infrastructure by using electronic methods for recording the details as mentioned in sub-rule (i) and (ii). This aspect can be related back to Section 12 (2) (b) of the Act of 2013, whereby reforms were to be carried out for application of information and technology tools. 14.
This aspect can be related back to Section 12 (2) (b) of the Act of 2013, whereby reforms were to be carried out for application of information and technology tools. 14. For the purpose of the instant writ petitions, the most pertinent Rules would be the Food Security (Assistance to State Government) Rules, 2015 (for short, referred to as the Assistance Rules, 2015). The said Rules have been made in terms with Section 22 (4) (d) of the Act of 2013. Rule 2 (d) defines the term “entitled persons and households” to mean persons or households identified by the State Government to receive subsidised foodgrains under Section 3 of the Act of 2013. Rule 2 (e) defines the term “handling” to mean loading and unloading of foodgrains involved in intra-State movement and the term “intra-State movement” has been defined in Rule 2 (f) to mean movement of foodgrains within a State from the designated depots and delivering it at the door-step of fair price shops and shall include all stages in this process. Rule 2 (g) defines the term “point of sale device” to mean a device to be installed and operated at fair price shops for identification of entitled persons and households for delivery of foodgrains, based on ‘Aadhaar number’ or other authentication tools, specified by the Central Government from time to time. Rule 2 (h) defines the terms “system integrator” to mean an agency engaged by the State Government to purchase, install and maintain the point of sale device at fair price shops in the State. 15. Rule 3 stipulates that the Central Government and the State Government shall adhere to the time limits provided in the Public Distribution System (Control) Order, 2015, as amended from time to time, or any other Order issued by the Central Government in this regard, for allocation of foodgrains and delivery upto the fair price shops. Rule 4 stipulates the duty of the Central Government to allocate foodgrains under the Targeted Public Distribution System from the Central Pool to the State Governments under the Act of 2013 and provide for its movement upto designated depots.
Rule 4 stipulates the duty of the Central Government to allocate foodgrains under the Targeted Public Distribution System from the Central Pool to the State Governments under the Act of 2013 and provide for its movement upto designated depots. The duty of the State Government is stipulated in Rule 5 whereby the State Government is under the obligation to take delivery of foodgrains under the Targeted Public Distribution System from the designated depots, and ensure its delivery through their authorised agencies upto the door-step of fair price shops and also to ensure its supply to entitled persons and households at the prices specified in Schedule I of the Act of 2013. Therefore, a conjoint reading of Rules 4 and 5 would clearly show that it is the duty of the Central Government to allocate foodgrains under the Targeted Public Distribution System from the Central pool to the State Government and provides its movement upto the designated depots and from the designated depots, the duty of the State Government starts to take delivery of the foodgrains and thereupon to ensure delivery through their authorized agencies upto the door-step of the fair price shops and to see to it that the foodgrains are supplied to entitled persons and households at the prices specified in Schedule I of the Act of 2013. 16. Rule 6 stipulates that the Central Government shall assist the State Government to meet the expenditure incurred by it on intra-State movement, handling of foodgrains and margins paid to the fair price shop dealers for distribution of foodgrains allocated for the entitled persons and households. Therefore, in terms with Rule 6, the Central Government shall provide assistance to the State Government to meet the expenditure incurred in the movement of the foodgrains within a State from the designated depots and delivering it at the door-step of the fair price shops as well as the handling of the foodgrains and margins paid to fair price shop dealers for distribution of foodgrains. 17. Rule 7 provides the manner of assistance. From a perusal of the said Rule 7, it transpires that the said assistance to be given by the Central Government would be on the basis of per quintal of foodgrains distributed. The Explanation to Rule 7 stipulates are General Category States and Union Territories and those States and Union Territories which fall within the Special Category.
From a perusal of the said Rule 7, it transpires that the said assistance to be given by the Central Government would be on the basis of per quintal of foodgrains distributed. The Explanation to Rule 7 stipulates are General Category States and Union Territories and those States and Union Territories which fall within the Special Category. Relevant to take note of that Assam falls within the ambit of Special Category State. Accordingly, in terms with Rule 7, the norms of expenditure (rate in rupees per quintal) is Rs.100/- of which the Central share would be 75% for the purpose of intra State movement and handlings. As regards the fair price shop dealers margin for the State of Assam, it is Rs.143/-per quintal and there would be a further additional margin for sale through the point of sale device of Rs.17 per quintal and the Central share in providing the said assistance would be 75%. Sub-Rule (2) to Rule 7 stipulates that the additional margin provided in Sub-Rule (1) is towards the cost of purchase, operation and maintenance of the point of sale device, its running expenses and incentive for its use. It has been further mentioned that any savings, if accrued could be utilized for purchase, operation or maintenance of electronic weighing scales and their integration with the point of sale device. Sub-rule (3) of Rule 7 stipulates that the additional margin shall be payable to the fair price shops which have installed a point of sale device and shall be limited to the transactions made through it. In terms with Sub-Rule (4) of Rule 7, the additional margin shall be released on the basis of a certificate issued from the State Government, supported by the documents indicating the number of fair price shops at which the point of sale devices have been installed and are functional; and the details of all transactions using the point of sale devices. In terms with Sub-Rule (5) of Rule 7, the State Government is under an obligation to furnish the details of all transactions made through the point of sale devices in public domain. From the above, it would be seen that an impetus have been given in consonance with the reforms to be carried out in terms with Section 12 (2) (b) & (d) of the Act of 2013. 18.
From the above, it would be seen that an impetus have been given in consonance with the reforms to be carried out in terms with Section 12 (2) (b) & (d) of the Act of 2013. 18. Sub-Rule (6) of Rule 7 is very pertinent for the purpose of the instant case, and as such, the same is reproduced herein under:- “(6) The State Government shall have the flexibility in choosing any of the following models for the installation of point of sale device, namely:- (a) the State Government may purchase, install and maintain the point of sale device. (b) the State Government may select a system integrator to purchase, install and maintain the point of sale device; (c) the fair price shop dealer may purchase, install and maintain the point of sale device.” 19. From a perusal of the said Sub-rule (6) of Rule 7 as quoted herein above it would transpire that the respective State Governments are given the flexibility in choosing any of the following models for the installation of point of sale device, namely, (a) the State Government may purchase, install and maintain the point of sale device. (b) the State Government may select a system integrator as defined in Rule 2 (h) to purchase, install and maintain the point of sale device and (c) the fair price shop dealer may purchase, install and maintain the point of sale device. 20. Rule 10 stipulates the manner in which the Central assistance would be released and Rule 12 mandates that the State Government and the Union Territories shall submit utilization certificate in the prescribed format to the Central Government as provided under the General Financial Rules, 2005. 21. Therefore, from the various provisions of the Act of 2013 and the Rules framed therein under it would transpire that there is a paradigm shift in addressing the problem of food security from the current welfare approach to the right based approach. The Act confers legal right on the eligible beneficiaries to get the foodgrains from the fair price shop at a highly subsidized price. The Act also envisages reforms necessary for distribution of foodgrains to the ration card holders.
The Act confers legal right on the eligible beneficiaries to get the foodgrains from the fair price shop at a highly subsidized price. The Act also envisages reforms necessary for distribution of foodgrains to the ration card holders. From a conjoint reading of the provisions of the Assistance Rules, 2015, as mentioned herein above, it would further show that while the Central Government’s obligation is to ensure that foodgrains under the Targeted Public Distribution System reaches the designated depots, the State Government’s duty and obligation is to take delivery of the foodgrains from the designated depots and to ensure its delivery through authorized agencies up to the doorstep of the fair price shops and further to monitor and ensure its supply to entitled persons and households at prices specified in Schedule-I of the Act of 2013. Similarly, in terms with Section 12 of the Act of 2013, both the Central and the State Governments have been put under the obligation to progressively undertake necessary reforms for application of information and communication technology tools including end-to-end computerization in order to ensure transparent recording of transactions at all levels, and to prevent diversion and the Assistance Rules of 2015 would further show that an additional margin is to be paid to the fair price shops who have installed a point of sale device as defined in Rule 2 (g) of the Assistance Rules, 2015. The point of sale device as defined in Rule 2 (g) is for the purpose of identification of entitled persons and households for delivery of foodgrains based on ‘Aadhaar card or other authentication tools, specified by the Central Government from time to time which is a step towards the obligation being cast upon both the Central and the State government in terms with Section 12 of the Act of 2013. It would also be seen from the provision of the Act of 2013 as well as the Assistance Rules, 2015 that all transactions are required to be in the public domain in order to have transparency and accountability. As also observed herein above, Rule 7 (6) gives an option to the State Government to adopt any of the models envisaged in Clauses (a), (b) and (c) for the purpose of purchase, installation and maintenance of the point of sale device. 22.
As also observed herein above, Rule 7 (6) gives an option to the State Government to adopt any of the models envisaged in Clauses (a), (b) and (c) for the purpose of purchase, installation and maintenance of the point of sale device. 22. In the above backdrop, let this Court further take into consideration the rights of the petitioners who have been issued licence in pursuance to the Assam Public Distribution of Articles Order, 1982 (for short referred to as the “Order of 1982”). The said Order of 1982 was made by the Governor of Assam in exercise of the power conferred under Section 3 of the Act of 1955. In terms with the said Order of 1982, the licencing authority as defined in Clause 2 (i) is empowered in terms with Clause 3 of the Order of 1982 to issue licences in Form-I to such appointed dealers as may be considered necessary from time to time specifying sub whole sellers or retailers and area of operation of each such appointed dealer. Relevant portion of Clause 3 of the said Order of 1982 is quoted herein below:- “3. The Licensing Authority may issue licences in form 1 to such appointed dealers as may be considered necessary from time to time specifying sub-wholesalers or retailers an areas of operation of each of such appointed dealers.” The above quoted Clause uses the expression “as may be considered necessary from time to time” meaning thereby that a discretion is conferred upon the licencing authority based upon necessity to appoint dealers. 23. Clause 15 stipulates when a licence can be cancelled. Sub-clause (1) of Clause 15 stipulates that if any licencee or his agent or servant or any other person acting on his behalf contrabands any of the terms and conditions of the licence, then without prejudice to any other action that may be taken under the Act of 1955, his licence may be cancelled or suspended by any order in writing of the licencing authority and an entry would be made in his licence relating to such suspension or cancellation. Sub-clause (2) of Clause 15 stipulates that no order of cancellation shall be made under Clause 15 unless the licencee has been given reasonable opportunity for stating his case against the proposed cancellation.
Sub-clause (2) of Clause 15 stipulates that no order of cancellation shall be made under Clause 15 unless the licencee has been given reasonable opportunity for stating his case against the proposed cancellation. But, during the pendency or in contemplation of proceedings of cancellation of a licence, the licence can be suspended for a period not exceeding 90 days without giving any opportunity to the licencee of stating his case. 24. On the basis of the said Order of 1982, licences are being issued to the appointed dealers. The licence also contains various terms and conditions. From a perusal of the terms and conditions of the licence it appears that there are various dos and don’ts which have been mentioned therein. But, pertinent herein to mention that the said licences are being issued for a particular specified period and is subject to renewal from time to time. 25. The Order of 1982 also includes the Proforma Form for making application for grant of wholesaler/sub-wholesaler/retailer licence as well as the Proforma Form for application for renewal of the licence. In the instant batch of writ petitions, the petitioners have enclosed their licences which have been issued in Form-I of the Order of 1982. It appears from the said licences that the same were initially issued were valid upto a particular period and have been renewed from time to time. 26. On the basis of the above preludes, let this Court, therefore, take into consideration the facts involved in the instant case. All the writ petitioners herein claim that they have been issued licences in terms with the Order of 1982 for supply of notified articles at the area of operation specifically mentioned in their licences. The said licences upon, being issued initially, have been renewed from time to time on yearly basis till 31.03.2022, and thereupon, in view of the decision taken by the Government of Assam to tag those fair price shop having 50 or less than 50 ration cards to the nearby fair price shops, their licences have not been extended and they have also not been allotted foodgrains for distribution, and as such, the above writ petitions have been filed.
The petitioners have challenged the policy decision of the respondent State Government to close down those fair price shops having 50 or less than 50 ration cards and to tag those ration cards to the nearby shops on the following grounds:- (a) The policy decision of the State Government has caused serious prejudice to the petitioners who have been sustaining their livelihood by running those fair price shops after obtaining licences from the competent authority.; (b) The said policy of the State Government has no reasonable nexus with the objects sought to be achieved in as much as the decision of the State Government has nothing to do with the One Nation, One Ration Card policy which was directed to be implemented all over India by the Supreme Court in its judgment and order dated 29.06.2021 passed in Bandhua Mukti Morcha (supra). (c) It is also the case of the petitioners that if it is on account of the point of sale device for which the State Government has resorted to the policy then in terms with sub-clause (c) of Rule 7 (6) of the Assistance Rules, 2015, the petitioners are ready and willing to purchase, install and maintain the EPOS devices, and as such, the said reason cannot be a reason for the purpose of depriving the petitioners of their livelihood. (d) It is the further case of the petitioners that the authorities, during the validity of the said licences cannot, by means of a policy decision, deprive the petitioners from their legitimate rights to run their fair price shops by contravening their statutory rights provided by the Order of 1982 and the licences issued on the basis thereon. In other words, the petitioners have a legitimate expectation that their licences would be renewed from time to time, if there is no violation to the provisions of the Act of 1955 or the Orders issued therein under or the terms of the licence. (e) It is also the case of the petitioners that the authorities, prior to adopting the policy or initiating steps for implementing the policy, have not given any opportunities and/or notice to the petitioners affording an opportunity, and thus, the impugned policy is violative of the principles of natural justice and directly infringes upon the fundamental rights guaranteed under Articles 14, 19 (1) (g) and 21 of the Constitution.
(f) It has also been mentioned that tagging of those ration cards which were initially tagged with the petitioners would, in fact, be in violation to the Act of 2013 taking into account that the tagging of such ration cards to the nearby shops having more than 50 ration cards would cause much difficulty to those beneficiaries as they may have to go to far flung distances in order to get their entitlements in terms with Section 3 of the Act of 2013, and as such, the said policy decision of the Government of Assam not only violates the mandate of Article 14 of the Constitution but also violates the provision of the Act of 2013. (g) It is also the case of the petitioners that there is no rationale behind discontinuating of the fair price shops having 50 or less ration cards, and as such, it violates Article 14 of the Constitution. 27. On the other hand, the respondent State had filed a common affidavit in WP(C) No.5470/2021 and as submitted by learned Advocate General, the said affidavit be taken into consideration as the common affidavit in respect to all the writ petitions. It appears from the records that on 28th December, 2021, the Deputy Secretary to the Government of Assam, Food, Civil Supplies and Consumer Affairs had filed an affidavit. In the said affidavit it has been mentioned that as per the decision of the Cabinet meetings held on 30.06.2021, the respondent No.2 was directed to take necessary steps for closing fair price shops having 50 or less than 50 ration cards excluding the fair price shops of such criteria belonging to Karbi Anglong, West Karbi Anglong and Dima Hasao districts by the communications dated 30.07.2021 and 06.08.2021. It was mentioned that the said Cabinet decision was taken to minimize the total project costs for implementation of the fair price shops automation which is necessary to implement the One Nation One Ration Card as per the direction of the Supreme Court in the case of Bandhua Mukti Morcha (supra) and the direction of the Government of India passed therein directing to complete the scheme within 31st of December, 2021. It was mentioned that the implementation of the One Nation One Ration Card is necessary keeping in view the ongoing pandemic situation across the country in the interest of the migrant labourers.
It was mentioned that the implementation of the One Nation One Ration Card is necessary keeping in view the ongoing pandemic situation across the country in the interest of the migrant labourers. Further it was stated that on implementation of the said scheme, a National Food Security Act ration card holders will get allotted their quota of foodgrains from any fair price shop anywhere in the country for which every fair price shop shall have to be equipped with the EPOS device. It was mentioned that the EPOS machines will help in eliminating bogus and duplicate beneficiaries by biometric authentication and will bring transparency to Public Distribution System. Further, it was mentioned that in view of the large number of fair price shops in Assam, the total project costs had become unviable. Therefore, to minimize the total project costs, the Cabinet has taken a decision to close the fair price shops having 50 or less than 50 ration cards. It was further stated that the fair price shops having less number of ration cards will get minimum profit margin which may not be the only source to secure them financially, for example, if one quintal of rice is distributed by a fair price shop to four ration card holders in a month, the owner of the fair price shop would get Rs.143/-in one month and in that manner, in case of a fair price shop having less than 50 ration cards, will get a small amount which cannot be the only source of his livelihood. On the other hand, for such cases, the Government’s investment in EPOS devices etc. becomes too high and an unreasonable burden is thrusted upon the Government’s Exchequer. Further, it was mentioned that Affordable Nutrition and Nourishment Assistance (ANNA) Scheme, the State Government is providing rice to the above categories free of cost. Therefore, keeping the interest of the migrant labourers, the Government had initiated the process to implement the aforesaid policy of One Nation One Ration Card and these beneficiaries would be eligible to get the allotted quota of rice from any fair price shops across the country. The State Government, therefore, was planning to complete the One Nation One Ration Card Scheme within 31.12.2021. 28.
The State Government, therefore, was planning to complete the One Nation One Ration Card Scheme within 31.12.2021. 28. It is the further case of the respondent State that the priority of the State Government as per the Act of 2013 is to provide foodgrains to the entitled and not to provide financial benefits etc. to the fair price shop owners in as much as the fair price shop owners are only the part of the distribution procedure of the foodgrains. It was mentioned that the State Government has not received any complaint from the beneficiaries from any quarters for the closing of the fair price shops and attaching them to the nearby fair price shops. It has also been mentioned that in the Cabinet meeting held of 19.10.2021, it was decided that the fair price shops having 50 or less than 50 ration cards which are being run by the widows and specially able persons shall continue their operation. It was further stated that no one can claim a right to run a fair price shop as an agent of the Government when the Government has undertaken a policy decision in the larger interest of the consumers in the light of the frustrating and unfortunate experiences gathered in the last two decades and therefore there is no discrimination. Further it was also mentioned that the policy decision was taken to minimize the total project costs for implementation of fair price shop automation which is necessary to implement the One Nation One ration Card in the larger interest. Further, issuing and revoking a licence is the part of the Government policy for smooth implementation of the Act of 2013. 29. Subsequent thereto, an additional affidavit was filed by the Joint Secretary to the Government of Assam, Food, Civil Supplies and Consumer Affairs Department on 30.03.2022. In the said additional affidavit so filed, the respondent State had enclosed the minutes of the Cabinet meeting dated 30.06.2021 wherein a decision was taken that the Food, Civil Supplies and Consumer Affairs Department was directed to verify the district-wise data on the number of Fair Price Shop Ration Card Holders against the fair price shops and close the fair price shops having 50 or less than 50 NFSA cards and thereafter tag those card holders to the nearby fair price shops.
However, the fair price shops under Karbi Anglong, West Karbi Anglong and Dima Hasao districts were excluded from the above exercise. It was further mentioned that there was a review to the said decision in the Cabinet meeting held on 19.10.2021 whereby it was held that widows and specially abled fair price shop owners having 50 or less than 50 NFSA ration cards could be allowed to continue their operation. To the said additional affidavit, the status of tagging of fair price shops having 50 or less than 50 ration cards submitted by the Director, Food, Civil and Consumer Affairs Department was enclosed as Annexure-E. In terms with report, it reveals as follows:- (i) Total fair price shops having 50 or less than 50 ration cards-2481 (ii) Owned by persons with disability/widow-222 (iii) Total fair price shops to be tagged-2259 (Excluding PWD/widows) (2481-222=2259) (iv) Already tagged-1944 (v) Yet to be tagged-315 (vi) Additional requisition received against PDW/widows-37. 30. In paragraph No.7 of the said additional affidavit it was mentioned that for implementation of the One Nation One Ration Card Scheme, it was required that every fair price shop will have to be equipped with EPOS device (point of sale device). In terms with Rule 7 (6) of the Assistance Rules of 2015, a State Level Apex Committee was formed to select one model amongst the three models and as per the decision of the State Level Apex Committee meeting dated 17.02.2018, the Government had adopted the system integrator business model for purchasing, installation and maintenance of EPOS device in the fair price shops. Accordingly, after observing all the procedures, system integrators have been selected through e-tendering and installation of the EPOS device in fair price shops through system integrator was going on and was likely to be completed within 31st of March, 2022 and as on the date of filing of the said additional affidavit, 32663 numbers of EPOS devices have been installed. Further, it is mentioned that the cost of implementation of the scheme for distribution of foodgrains under the Act of 2013 is not only limited to the installation of EPOS device but also bears other ancillary costs such as transportation etc.
Further, it is mentioned that the cost of implementation of the scheme for distribution of foodgrains under the Act of 2013 is not only limited to the installation of EPOS device but also bears other ancillary costs such as transportation etc. Further, it was mentioned that Clause 15 (2) of the Order of 1982 has no application in as much as the fair price shops having 50 or less than 50 ration cards are closed as per the State Cabinet decision to minimize the expenditure in connection with implementation of the policy adopted by the Government. It was again reiterated that the Department of the Government of Assam has not received any complaint from the ration card holders for tagging them with the nearest fair price shops. The minutes of the State Level Apex Committee meeting, on implementation of end-to-end computerization of TPVS operation project, was enclosed to the said additional affidavit wherefrom, it can be seen that of the three models available in terms with Rule 7 (6) of the Assistance Rules of 2015 were discussed and the system integrator business model was found more efficient and involved lesser financial obligation on the part of the State, and as such, the said model was duly accepted for implementation of FPS automation across the State. 31. The Joint Secretary to the Government of Assam, Food, Civil Supplies and Consumer Affairs Department had filed another additional affidavit on 25.04.2022 on account of a direction given by this Court on 05.04.2022 to bring on record the reasons for taking the policy decision to tag ration cards of fair price shops having 50 or less than 50 ration cards to the fair price shops having 51 or more ration cards.
In the said additional affidavit, it was mentioned that a meeting under the Chairmanship of the Chief Minister of Assam was held on 26.06.2021 wherein the situation arising out of the Government of India’s stand on fair price shop dealers margin and the question of recovery/adjustment from the fair price shop dealers margin were discussed and various decision were taken including the decision to collect district-wise data of fair price shops having less than 100 ration cards/50 ration cards/25 ration cards and the same was directed to be produced before the competent authority so that the criteria can be fixed to close the fair price shops having less than specified numbers of ration cards. 32. From the exercise carried out, it was found that there were 37398 numbers of fair price shops in the State and the number of fair price shops vis-à-vis the number of ration cards tagged therewith were as follows:- Sl. No. No. of Ration Cards No. of Fair Price Shops 1. 0 930 2. 1-24 581 3. 1-49 2371 4. 1-50 2481 5. 1-74 6455 6. 50-100 8576 7. 75-100 4492 33. It was stated in the said affidavit that in comparison to other States, in average, fair price shops in Assam had very less ration cards tagged with them. Further, in view of the implementation of the Act of 2013 and the Rules therein under, the State Government is to ensure door-step delivery of foodgrains to the fair price shops and the ensure delivery of foodgrains to the entitled persons. Accordingly, for the purpose of transportation of foodgrains, Tier-1 and Tier-2 contractors have been engaged under which foodgrains were to be transported from FCI godowns to GPSS godowns and from GPSS godowns to the fair price shops. After detail deliberation by taking into account the number of fair price shops having lesser ration cards, the transportation cost involved and the earning of the fair price shop owners etc., the State Cabinet took a decision to close all the fair price shops having 50 or less than 50 ration cards. It was mentioned that the Government had taken the said policy decision in the larger interest as well for administrative and logistic reason.
It was mentioned that the Government had taken the said policy decision in the larger interest as well for administrative and logistic reason. It was also mentioned that after the Cabinet Memorandum dated 30.06.2021, All Assam Fair Price Shops Dealers Association filed a representation before the Chief Minister, Assam ventilating various grievances, and therefore, a meeting under the Chairmanship of the Chief Minister of Assam and the officials of the Food, Civil Supplies and Consumer Affairs Department and the Office Bearer of the Association was held on 26.09.2021. In the said meeting, the members of All Assam Fair Price Shops Dealers Association requested the Chief Minister to restore the fair price shops licences of specially abled and widow category of fair price shop dealers (having 50 and less than 50 ration cards) who were affected after the Cabinet decision dated 30.06.2021. In the said meeting, the Chief Minister asked the members of the Association to prepare a list of all such among the 2481 fair price shops and asked the officials of the Department to restore the fair price shops of specially abled and widow category who were having 50 or less than 50 ration cards. Accordingly, a decision was taken on 19.10.2021 by the Cabinet thereby reviewing its earlier decision to close all fair price shops having 50 or less than 50 ration cards in respect to widows and specially able fair price shop owners and allowed them to continue their operation. 34. Another additional affidavit was filed by the Joint Secretary to the Government of Assam, Food, Civil Supplies and Consumer Affairs Department on 25.05.2022 in order to bring on record some additional documents which may be required for disposal of the case. It was mentioned in the said additional affidavit that the agency for digitalization of Public Distribution System (PDS) and the installation of EPOS devices in the State, Linkwell Tele-System Private Limited/Vision Technique vide the letter No.LWPS/ASPDS/004/2021-22 dated 09.08.2021 submitted a revised proposal. The revised proposal shows that the numbers of fair-price shops have decreased from 36596 to 33958 and the total project cost is revised to Rs.327.159 crores from the original purchase cost to Rs.387.99 crores. 35. It has also mentioned that in the State of Assam, the ratio of the number of ration cards tagged with the fair-price shops is very low in comparison to other States in the country.
35. It has also mentioned that in the State of Assam, the ratio of the number of ration cards tagged with the fair-price shops is very low in comparison to other States in the country. It was stated that the State-wise comparison of the ration cards and the beneficiaries count per fair price shop as on 07.04.2022 shows that in the State of Assam there are only 171 number of ration cards per fair price shop. Details as regards Statewise comparison of ration cards and beneficiaries count per fair price shop as on 07.04.2022 was enclosed as Annexure-II. The said details, being relevant herein, are mentioned herein below:- Statewise Comparison of RC & Beneficiary count per FPS as on 07.04.2022 Sl. No. State No. of FPS Total RC Total beneficiary Avg. No. of RC per FPS 1. Assam 34,450 58,86,408 2,50,21,082 171 2. Andhra Pradesh 37,713 89,37,078 2,68,16,789 237 3. Chattisgarh 13,316 51,23,775 1,99,70,685 385 4. Jharkhand 24,380 58,25,570 2,61,65,465 239 5. Karnataka 20,104 1,15,69,834 4,02,82,821 575 6. Madhya Pradesh 24,713 1,16,47,520 4,96,83,907 471 7. Punjub 18,381 40,68,391 1,57,73,905 221 8. Tamilnadu 34,773 1,10,75,637 3,51,73,496 319 9. Uttar Pradesh 79,457 3,61,70,309 14,97,08,470 455 10. West Bengal 20,568 5,63,23,911 6,01,75,012 2,738 36. It further appears from the records that the petitioners have filed replies to those additional affidavits so filed. 37. The learned counsel appearing on behalf of the petitioners submitted as follows:- (i) The policy decision of the State Government to discontinue the licences issued to the petitioners on the ground of 50 or less than 50 ration cards and to tag those ration cards to the nearby shops had no reasonable nexus with the with the objects sought to be achieved for which the said policy decision of the State Government is in violation to Article 14 of the Constitution. It was submitted that two conditions must be fulfilled for the purpose of making the said classification to be reasonable and permissible, i.e. the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left of the group and the differential must have a rational relation to the object sought to be achieved by the statute in question.
It was submitted that if the Government failed to support its action of classification of fair price shops having 50 or less than 50 ration cards with those fair price shops having 51 and above ration cards on the above principle the classification has to be held as arbitrary and discriminatory. In that regard reference was made to the judgment of the Supreme Court rendered in the case of Union of India and Others vs. N.S. Rathnam, reported in (2015) 10 SCC 681 . (ii) It was further submitted that arbitrariness in the action of the respondent State is apparent from the fact that the stand taken by the respondent State does not disclose due and proper application of mind on the basis of the reason disclosed in the affidavits filed by the State as well as the records so placed. The learned counsel for the petitioners further submitted that the Cabinet decision dated 30.06.2021 has not been placed on record as well as also the materials on the basis of which it has been stated in the affidavit that Cabinet took a decision of tagging those fair price shops having 50 or less ration cards to the nearby shops having more than 50 ration cards. On that basis it was submitted that as the respondent authorities have failed to place on record the reason as well as the materials in support thereof, the action of the respondent State suffers from arbitrariness and in that regard referred to paragraph No.23 of the judgment of the Supreme Court rendered in the case of East Coast Railway and Another vs. Mahadev Appa Rao and Others reported in (2010) 7 SCC 671. (iii) It was further submitted that violation to Article 14 of the Constitution by the respondent State by adopting the said policy is writ large on the ground that the said policy decision cannot satisfy the proportionality test which mandates the requirement of the means to be proportional to the object and in that regard referred to the judgment of the Supreme Court in the case of State of Tamil Nadu and Another vs. National South Indian River Interlinking Agriculturist Association, reported in (2021) SCC Online SCC 1114. (iv) It was further submitted that the petitioners herein have been issued licences on the basis of the Order of 1982.
(iv) It was further submitted that the petitioners herein have been issued licences on the basis of the Order of 1982. The said licences though valid for a particular period of time but are renewed unless the petitioners violate the provision of the Act of 1955 or the Orders issued thereinunder or the terms of the licences. It was submitted that as the petitioners in the instant case have not violated the Act of 1955 or the Order of 1982 or the terms and conditions of their licences they have a legitimate expectation that their licences would be renewed. But, in view of the policy decision of the Government, the same have not been renewed. It has been contended that the doctrine of legitimate expectation imposes in essence a duty upon the public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. It was further submitted that within the conspectus of fair dealing, the principle of legitimate expectation mandates that the reasonable opportunities ought to have been given to make representation by parties likely to be effected by any reason of change in the past policy. Under such circumstances, the petitioners ought to have been granted a liberty to make representation against the proposed change in the policy. That, however, having not been done and an unilateral decision was taken by the Government, the policy of the State Government is liable to be interfered with as it violates the doctrine of legitimate expectation. In that regard reference was made to the judgment of the Supreme Court in the case of Navjyoti Cooperative Group Housing Society vs. Union of India and Others, reported in (1992) 4 SCC 477 . In further continuation to the said submission, it was also submitted that a change in the policy can withstand the defeat of the substantive legitimate expectation only if it can pass the test of Wednesbury Reasonableness meaning thereby that the change in the policy cannot be irrational or perverse or one which no reasonable person could have made. In support of the said submission, the judgment of the Supreme Court rendered in the case of Punjab Communications Ltd. vs. Union of India and Others reported in (1999) 4 SCC 722 was referred to.
In support of the said submission, the judgment of the Supreme Court rendered in the case of Punjab Communications Ltd. vs. Union of India and Others reported in (1999) 4 SCC 722 was referred to. (v) The petitioners further contended that the Central Government in exercise of power under Section 3 of the Essential Commodities Act, 1955 has issued an order i.e. the Targeted Public Distribution System (Control) Order, 2015 on 28th of March, 2015. Clause 8 of the said Order stipulates how the distribution of foodgrains is to be carried out by the State. Clause 9 relates to licencing and regulation of fair price shops. Reference was drawn to sub-clause (5) of Clause 9 which stipulates that the licences to the fair price shop owners shall be issued keeping in view the viability of the fair price shops and sub-clause (6) of Clause 9 which stipulates that the State Government shall ensure that the number of ration card holders attached to a fair price shop are reasonable and the fair price shop is so located that the consumers or ration card holders do not have to face difficulty to reach the fair price shop and that proper coverage is ensured in hilly, desert, tribal and such other areas difficult to access. The learned counsel for the petitioners, therefore, submitted that in terms with Clause 9 which further mandates that the State Government shall issue an Order under Section 3 of the Act of 1955 which however has not yet been done in the State of Assam, necessitates the State Government to ensure that the number of ration card holders attached to a fair price shop are reasonable. Under such circumstances it was contended that instead of taking a policy decision of discontinuing those fair price shops having 50 or less than 50 ration cards, the State respondent ought to have tagged additional ration cards to those fair price shops having 50 or less than 50 ration cards thereby taking into account the viability of the fair price shops and also keeping in view the object sought to the achieved in the Act of 2013 to provide easy access to the priority households for the purpose of convenience of persons belonging to the priority households. 38.
38. On the other hand, the learned Advocate General representing the State of Assam submitted as follows:- (i) The learned Advocate General drawing the attention of this Court to the affidavit-in-opposition and the various additional affidavits filed by the State Government submitted that the policy decision taken by the State Government is not without any basis. Referring to the judgment of the Supreme Court in the case of Bandhua Mukti Morcha (supra), the learned Advocate General submitted that the Supreme Court had directed that the One Nation One Ration Card Scheme be implemented by not later than 31.07.2021. He submitted that for the purpose of implementation of the One Nation One Ration Card Scheme whereby NFSA ration card holders can avail benefits of the said ration cards from any fair price shop anywhere in the country, it was required that each fair price shop has to be equipped with EPOS device. The learned Advocate General submitted that the said EPOS machine would not only benefit the NFSA ration card holders to avail the benefit anywhere in the country but would also help in eliminating bogus and duplicate beneficiaries by biometric authentication and would bring transparency to public distribution system. The learned Advocate General further submitted that upon the State-wise comparison of the ration card holders and the beneficiary counts per fair price shop as on 07.04.2022 itself would show that in Assam average number of ration cards per fair price shop is 171 which is much less compared to the various other States and in that regard has drawn the attention to Annexure-2 of the additional affidavit filed on 25.05.2022. The learned Advocate General submitted that before taking the Cabinet decision on 30.06.2021, an exercise was conducted under the Chairmanship of the Chief Minister of Assam and the officials were directed to find out district-wise data of fair price shops having 100/50/25 ration cards. In doing so, it was found that there were 930 fair price shops having 0(zero) ration card. There were 581 fair price shops having ration cards ranging from 1 to 24 and there were 2371 fair price shops having ration cards ranging from 1 to 49. Further, it was found that there were 2481 fair price shops having ration cards ranging from 1 to 50.
There were 581 fair price shops having ration cards ranging from 1 to 24 and there were 2371 fair price shops having ration cards ranging from 1 to 49. Further, it was found that there were 2481 fair price shops having ration cards ranging from 1 to 50. Thereupon, the records would further shows that details were placed before the authority with the profit margin of the fair price shops and it was found that if one quintal of rice is distributed by a fair price shop to four ration card holders in a month, the licence of the fair price shop get Rs.143/- in one month against the distribution of one quintal of rice and the total financial benefit which a fair price shop can get is Rs.1787.50p, if the fair price shop had 50 ration cards. On the other hand, the Government’s investment in EPOS devices etc. as well as the expenses incurred on transportation, logistic etc. far exceeds and an additional unwarranted burden is effected upon the State Exchequer. Further drawing the attention to the letter dated 09.08.2021 issued by the Linkwell Telesystem Private Limited, the learned Advocate General submitted that in view of the lessening the fair price shops, the original purchase cost of Rs.387.99 crores have been reduced to Rs.327.159 crores thereby the State Government has been able to save Rs.60.831 crores only on the purchase, installation and maintenance of the EPOS devices. The learned Advocate General further submitted that additionally there is expenses on account of transportation, logistic etc. in as much as in terms with the Assistance Rules, 2005, it is the duty of the State Government to not only ensure delivery of the foodgrains through the authorized agents up to the door-step of the fair price shops but also to ensure and monitor its supply to entitled persons and households at prices specified in Schedule-I of the Act of 2013. On the basis of the above, therefore, the learned Advocate General submitted that the question of unreasonableness in the said policy decision or perversity or irrationality in the said policy decision of the State does not arise.
On the basis of the above, therefore, the learned Advocate General submitted that the question of unreasonableness in the said policy decision or perversity or irrationality in the said policy decision of the State does not arise. He further submitted that the policy decision as in the larger interest of the beneficiaries in the light of frustrating and unfortunate experiences gathered in the last two decades whereby foodgrains meant for the Targeted Public Distribution System are being sold in retail thereby not only affecting the Government Revenue but also depriving the beneficiaries. (ii) The learned Advocate General further submitted that the object behind the policy of the State is the implementation of the Act of 2013 which would not only include NFSA ration card holders to get allotted the quota of foodgrains from any fair price shops from anywhere in the country through the One Nation One Ration Card Scheme but would also help in eliminating bogus and duplicate beneficiaries by biometric authentication and will bring transparency to Public Distribution System which is in terms with the Statement and the Object of the Act of 2013 as well as the reforms to be carried out in terms with Section 12 of the Act of 2013. The learned Advocate General, therefore, submitted that the said policy decision of the Government is in consonance to the object sought to be achieved. (iii) On the question of proportionality test, the learned Advocate General submitted that the said proportionality test means that while regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures has to be taken by the authority so as to achieve the object of the policy as the case may be. In terms with the principle of proportionality, the Court can only see that the policy had maintained a proper balance between the adverse affect which the policy may have on the right, liberties or interests of the persons keeping in mind the purpose for which they were intended to serve.
In terms with the principle of proportionality, the Court can only see that the policy had maintained a proper balance between the adverse affect which the policy may have on the right, liberties or interests of the persons keeping in mind the purpose for which they were intended to serve. Referring to the judgment of the Supreme Court in the case of Om Kumar and Others vs. Union of India, reported in (2001) 2 SCC 386 , the learned Advocate General submitted that Supreme Court had duly recognized that the Executive are given an area of discretion or a range of choices and as to whether the choices may infringes the rights excessively or not can however be looked into by the Court. The learned Advocate General further submitted that it is the well established principle of law as have been settled by the Supreme Court in various judgments that no one could claim a right to run a fair price shop as an agent of the Government. All that right which the petitioners herein have is only a claim to be considered to be appointed as an agent of the Government to run a fair price shop. The learned Advocate General, therefore, submitted that the proportionality test cannot be applied in the instant case as there is no vested right upon the petitioners to continue as agents of the Government. In that regard he referred to two judgments of the Supreme Court rendered in the case of Sarkari Sastha Anaj Vikreta Sangh, Tahsil Bemetra and Others vs. State of Madhya Pradesh and Others, reported in (1981) 4 SCC 471 and Madhya Pradesh Ration Vikreta Sangh Society and Others vs. State of Madhya Pradesh, reported in (1981) 4 SCC 535 . The learned Advocate General also referring to the judgment of the Supreme Court in the case of National South Indian River Interlinking Agriculturist Association (supra) has drawn the attention to paragraph No. 33 of the said judgment and submitted that the Supreme Court has also observed that the Indian Courts do not apply the proportionality standard to classificatory provisions. He further submitted that the Government had taken the policy decision keeping in mind the least persons who would be effected and as such the policy decision cannot be said to fail the proportionality test.
He further submitted that the Government had taken the policy decision keeping in mind the least persons who would be effected and as such the policy decision cannot be said to fail the proportionality test. (iv) On the question of legitimate expectation, the learned Advocate General submitted that the action of the Government, in the present facts and circumstances to adopt the said policy, under no circumstances can be said to be arbitrary or unreasonable, and as such, the question of violation to the doctrine of legitimate expectation does not arise in the present facts and circumstances. The learned Advocate General further submitted that pursuant to the decision of the Cabinet held on 30.06.2021, the members of All Assam Fair Price Shops Dealers Association which is the representative Association of the fair price shop owners had filed their representation dated 26.09.2021 before the Chief Minister, Assam ventilating various grievances. Thereupon, a meeting under the Chairmanship of the Chief Minister of Assam and the officials of the Food, Civil Supplies and Consumer Affairs Department along with the Office Bearer of the Association was held on 26.09.2021. In the said meeting, the members of Association requested the Chief Minister to restore the fair price shop licences of specially abled and widow category of fair price shop dealers (having 50 and less than 50 ration cards) who were affected after the Cabinet decision dated 30.06.2021. The Chief Minister asked the members of the Association to prepare a list of all such among the 2481 fair price shops and asked the officials of the Department to restore the fair price shops of specially abled and widow category who are having 50 or less than 50 ration cards. Subsequent thereto, a decision was taken on 19.10.2021 reviewing its earlier decision. The learned Advocate General, therefore, submitted that the opportunity not being given thereby defeating the legitimate expectation to the petitioners’ does not arise in the facts and circumstances of the case. The learned Advocate General referred to the judgment of the Supreme Court rendered in the case of Kerala State Beverages (M and M) Corporation Limited vs. P.P. Suresh and Others, reported in (2019) 9 SCC 710 and placed reliance upon the paragraph Nos.19 & 20 as well as 25 of the said judgment.
The learned Advocate General referred to the judgment of the Supreme Court rendered in the case of Kerala State Beverages (M and M) Corporation Limited vs. P.P. Suresh and Others, reported in (2019) 9 SCC 710 and placed reliance upon the paragraph Nos.19 & 20 as well as 25 of the said judgment. (v) On the question of sub-clauses (5) & (6) of Clause 9 of the Targeted Public Distribution System (Control) Order, 2015, the learned Advocate General submitted that the said submission made by the learned counsel for the petitioners is totally misconceived in as much as the policy decision is in tune with the said sub-clauses of Clause 9. The learned Advocate General submitted that the viability of a fair price shop as well as the attachment of ration card holders to the fair price shops to be reasonable can only be done if the policy which has been adopted comes into force. (vi) The learned Advocate General further submitted that the instant writ petitions have been preferred by persons who are the licence holders of fair price shops and not the beneficiaries under the Act of 2013. The learned Advocate General submitted that none of the beneficiaries have approached the Government as regard any inconvenience and as such, the question of interference with the said policy at the behest of the said petitioners’ do not arise, more so, when the jurisdiction under Article 226 of the Constitution against the policy decision is very limited. (vii) On the question that the EPOS device in terms with Rule 7 (6) (c) of the Assistance Rules, 2015, the learned Advocate general submitted that as per Rule 7 (c) of the Assistance Rules, 2015, a discretion is conferred upon the State Government to adopt any of the models and the State Government on the basis of the State Level Apex Committee Meeting dated 17.02.2018 had decided to adopt the System Integrator Business Model and as such the question of the petitioners purchasing, installing and maintaining out their cost do not arise. 39. This Court having perused the materials on records and taking into consideration the respective submission of the parties broadly framed the following question of determination : (i) Whether the policy decision of the respondent State dated 30.06.2021 and 19.10.2021 is violative of Article 14 of the Constitution?
39. This Court having perused the materials on records and taking into consideration the respective submission of the parties broadly framed the following question of determination : (i) Whether the policy decision of the respondent State dated 30.06.2021 and 19.10.2021 is violative of Article 14 of the Constitution? (ii) Whether the policy decision of the State affects the right of legitimate expectation of the petitioners? (iii) Whether interference is required to the policy decision of the State in view of Clause 9 of the Target Public Distribution System (Control) Order, 2015? 40. Let this Court first take up for consideration the question for determination as to whether the policy decision of the respondent State dated 30.06.2021 and 19.10.2021 violates Article 14 of the Constitution. 41. Before proceeding further, this Court would like to recall the following observations of Lord Justice Lawton in the case of Laker Airways Ltd. vs. Department of Trade, reported in (1977) 2 All ER 182 wherein while considering the parameters of judicial review in matters involving policy decision of the Executive, it was observed as under:- “In the United Kingdom aviation policy is determined by ministers within the legal framework set out by Parliament. Judges have nothing to do with either policy-making or the carrying out of policy. Their function is to decide whether a minister has acted within the powers given to him by statute or the common law. If he is declared by a court, after due process of law, to have acted outside his powers, he must stop doing what he has done until such time as Parliament gives him the powers he wants. In a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play.” 42. The Supreme Court had also in various judgments dealt with the power of judicial review in respect to policy decisions. This Court finds it relevant to take note of the judgment of the Supreme Court in the case of Ugar Sugar Works Ltd. vs. Delhi Administration & Others, reported in (2001) 3 SCC 635 , and more particularly, to paragraph No.18 which categorically mandates that it is only in the case of arbitrariness, irrationality, perversity and malafide that a policy can be rendered unconstitutional.
The said paragraph being relevant is quoted herein below:- “18. The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State.” 43. This Court in the instant judgment had dealt with the Act of 2013 as well as the relevant Rules thereinunder as well as the Essential Commodities Act, 1955; the Order of 1982 as well as the licences issued in favour of the petitioners. 44. From the above, it would transpire that the Act of 2013 was enacted to provide for food, nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. The various provisions of the Act as referred to herein above, obligates both the Central Government and the State Government to provide to the persons belonging to priority households, certain quantity of foodgrains per person per month at subsidised prices specified in Schedule-I from the State Government under the Targeted Public Distribution System. 45. The Supreme Court in the case of Swaraj Abhiyan vs. Union of India and Another, reported in (2018) 12 SCC 170 observed that the Act of 2013 is a social welfare legislation and its provisions are mandatory.
45. The Supreme Court in the case of Swaraj Abhiyan vs. Union of India and Another, reported in (2018) 12 SCC 170 observed that the Act of 2013 is a social welfare legislation and its provisions are mandatory. Section 12 as has been already quoted herein above categorically mandates that the Central and State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in the Act of 2013. The reforms inter-alia have been mentioned in sub-section (2) of Section 12 which includes doorstep delivery of foodgrains to the Targeted Public Distribution System outlets; application of information and communication technology tools including end-to-end computerisation in order to ensure transparent recording of transactions at all levels, and to prevent diversion; leveraging ''aadhaar'' for unique identification, with biometric information of entitled beneficiaries for proper targeting of benefits under the said Act of 2013; full transparency of records, etc. 46. Section 27 of the Act of 2013 stipulates that all Targeted Public Distribution System related records shall be placed in the public domain and kept open for inspection to the public, in such manner as may be prescribed by the State Government. Therefore, it would be seen that in terms with Section 3 of the Act of 2013, both the Central and State Governments have been obligated to supply foodgrains at the subsidized rates stipulates in Schedule-I of the Act of 2013 and in doing so, both the Central and the State Governments have been further adjoined with the duty to see to it that it is the beneficiaries who receives the benefits under the Act of 2013 and for that purpose to apply information and technology tools including end-to-end computerisation in order to ensure transparent recording of transactions at all levels, and to prevent diversion. As already stated herein above, it appears from the provisions of the Act of 2013 that there is a shift in addressing the problem of food security from the welfare approach to the right based approach. In the anterior of this judgment, this Court has also taken into consideration that the various Rules framed by the Central Government under Section 39 of the Act of 2013.
In the anterior of this judgment, this Court has also taken into consideration that the various Rules framed by the Central Government under Section 39 of the Act of 2013. Reference has been made to the Assistance Rules, 2015 in detail which would show that the Central Government shall provide various forms of assistance to the State Government in the manner stipulated therein so that the State Government is in a position to take delivery of goods under the Targeted Public Distribution System from the designated depots, and ensure its delivery through their authorised agencies upto the door-step of fair price shops and further to ensure and monitor its supply to entitled persons and households at the prices specified in Schedule I of the Act of 2013. Rule 7 of the said Assistance Rules of 2015 as observed in detail earlier, stipulates the manner of assistance to be provided by the Central Government to the State Government and the margins to be paid to the fair price shop dealers for distribution of foodgrains. In the State of Assam, the margin to be paid to the fair price shop dealers for distribution of one quintal of foodgrains is Rs.143/-per quintal. Sub-rule (6) of Rule 7 confers the discretion upon the State Government to choose any of the following models for installation of point of sale device and the records herein would show that in the State Level Apex Committee meeting dated 17.02.2018, the Government of Assam had adopted the System Integrator Business Model for purchasing, installation and maintenance of EPOS device in the fair price shops. It is also pertinent to note that Rule 10 of the Assistance Rules, 2015 stipulates how and when the Central Assistance would be released. 47. The records would further show that in pursuance of the meeting under the Chairmanship of the Chief Minister of Assam held on 26.06.2021, there was a direction to collect district-wise data of fair price shops having less than 100 ration cards/50 ration cards/25 ration cards and the same was directed to be produced before the competent authority so that the criteria can be fixed to close the fair price shops having less than the specified numbers of ration cards.
Upon completing the said exercise, it was found that there were 930 fair price shops having 0(zero) ration cards, 581 fair price shops having ration cards ranging from 1 to 24, 2371 fair price shops having ration cards ranging from 1 to 49 and 2481 fair price shops having ration cards ranging from 1 to 50. Taking into account the Assistance Rules of 2005 which mandates that the fair price shop owners’ margin would be Rs.143/-per quintal of foodgrains distributed and as per the Act of 2013, one quintal of rice can be distributed against four ration cards, the Government of Assam has taken a decision that the income which would accrue upon the fair price shops having 50 or less than 50 ration cards does not commensurate with the cost involved upon the State Exchequer for the purpose of purchasing, installation and maintenance of the EPOS devices, transportation as well as the logistic etc for which the Government has taken a decision to close down those fair price shops having 50 or less than 50 ration cards. It is also relevant to note that it is also the specific case of the State Respondent that the policy decision was taken in the larger interest of the beneficiaries in the light of the frustrating and unfortunate experience gathered in the last two decades whereby foodgrains meant for Targeted Public Distribution System were being sold in retail markets. It may not be out of place to take note of the submission of the learned Advocate General in this regard that in terms with the cost involved as regards EPOS devices, transportation, logistic etc. for making available the foodgrains to the beneficiaries even fair price shop having 100 ration cards would not commensurate with the income accrued by a fair price shops having 100 ration cards. But the Government in order to effect the least had evolved the policy to discontinue those fair price shops having 50 or less than 50 ration cards. 48. In the backdrop of the above, let this Court take into consideration the submission as regards satisfaction of the proportionality test. This Court, at this stage, would also like to refer to a judgment of the Supreme Court rendered in the case of Om Kumar (supra) and more particularly to paragraph Nos.28 wherein the term ‘proportionality’ has been explained. Paragraph No.28 is reproduced herein below:- “28.
This Court, at this stage, would also like to refer to a judgment of the Supreme Court rendered in the case of Om Kumar (supra) and more particularly to paragraph Nos.28 wherein the term ‘proportionality’ has been explained. Paragraph No.28 is reproduced herein below:- “28. By “proportionality”, we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.” 49. In another judgment of the Supreme Court in the case of Keral State Beverages (M and M) Corporation Limited (supra) the Supreme Court observed that the proportionality test can be applied by the Court in reviewing a decision where challenge to the administrative action is on the ground that it was discriminatory and therefore violative of Article 14 of the Constitution. It was observed that the principle of Wednesbury has to be followed when an administrative action is challenged as been arbitrary and therefore violative of Article 14 of the Constitution. The Supreme Court further observed in the said judgment that interference with the administrative decision by applying the Wednesbury Principles is restricted only to decisions which are outrageous in their defiance of logic or accepted moral standard that no sensible person who applied his mind to the question to be decided would have arrived at. It was observed that proportionality involves ‘balancing test’ and ‘necessity test’. While the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives.
It was observed that proportionality involves ‘balancing test’ and ‘necessity test’. While the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives. In paragraph No.31 of the said judgment, the Supreme Court observed that when an administrative decision can be said to be proportionate. Paragraph No.31 of the said judgment is quoted herein below:- “31. An administrative decision can be said to be proportionate if: (a) The objective with which a decision is made to curtail fundamental rights is important; (b) The measures taken to achieve the objective have a rational connection with the objective; and (c) The means that impair the rights of individuals are no more than necessary.” 50. Applying the above test as observed by the Supreme Court to the facts of the instant case, it would be seen that the Government had carried out an exercise and had come to a finding that the cost involved in continuing with the fair price shops of having 50 or less than 50 ration cards do not commensurate with the cost involved in the purchase, installation and maintenance of the EPOS device apart from other transportation and logistic cost. It is under such circumstances, the policy decision has been taken to discontinue those fair price shops having 50 or less ration cards which in the present facts and also taking into account that it is within the realm of the State Government to decide, the said decision, in the opinion of this Court cannot be said to have excessively affected the fair price shop licencees, more so when the object of the Act of 2013 is only to facilitate the beneficiaries and not the fair price shop owners. This Court therefore holds that the policy decision satisfies the proportionality test and cannot be said to come under the mischief of the Wednesbury’s Principle of Reasonableness. 51. The next question which arises is as to whether the classification so done in respect to fair price shops having 50 or less than 50 ration cards thereby grouping them from others satisfies as permissible classification. Paragraph No.13 and the relevant portion of Paragraph No. 14 of the judgment in the case of N.S. Rathnam (supra) are quoted herein below:- “13.
Paragraph No.13 and the relevant portion of Paragraph No. 14 of the judgment in the case of N.S. Rathnam (supra) are quoted herein below:- “13. It is, thus, beyond any pale of doubt that the justiciability of particular notification can be tested on the touchstone of Article 14 of the Constitution. Article 14, which is treated as basic feature of the Constitution, ensures equality before the law or equal protection of laws. Equal protection means the right to equal treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed. Therefore, if the two persons or two sets of persons are similarly situated/placed, they have to be treated equally. At the same time, the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position. It would mean that the State has the power to classify persons for legitimate purposes. The legislature is competent to exercise its discretion and make classification. Thus, every classification is in some degree likely to produce some inequality but mere production of inequality is not enough. Article 14 would be treated as violated only when equal protection is denied even when the two persons belong to same class/category. Therefore, the person challenging the act of the State as violative of Article 14 has to show that there is no reasonable basis for the differentiation between the two classes created by the State. Article 14 prohibits class legislation and not reasonable classification. 14. What follows from the above is that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that, that differential must have a rational relation to the object sought to be achieved by the statute in question. If the Government fails to support its action of classification on the touchstone of the principle whether the classification is reasonable having an intelligible differentia and a rational basis germane to the purpose, the classification has to be held as arbitrary and discriminatory. In Sube Singh v. State of Haryana, this aspect is highlighted by the Court in the following manner: …………………………………………… 52.
In Sube Singh v. State of Haryana, this aspect is highlighted by the Court in the following manner: …………………………………………… 52. From the above judgment and applying the same to the facts of the instant case and also taking into account the reasons so stated in making the classification, this Court is of the opinion that the classification of those fair price shops having 50 or less than 50 ration cards with that of the others is founded on an intelligible differential taking into account that the fair price shops having 50 or less than 50 ration cards and the income accrued upon them do not commensurate to the expenses incurred by the State in carrying out distribution under the Targeted Public Distribution System. Further, the classification so made is based upon materials as would be apparent from the affidavit-in-opposition, the additional affidavits as well as the records placed. At this stage, it also relevant to mention that the policy decision is also based upon the frustrating and unfortunate experience gathered whereby foodgrains meant for Targeted Public Distribution System were being sold in retail market. The State Government has a duty and obligation in terms with the Act of 2013 to not only ensure the foodgrains reaches the fair price shop but also to ensure and monitor that the beneficiaries gets the foodgrains at the subsidized rate as stipulated in Schedule-I to the Act of 2013. Innumerable fair price shops would also cause difficulties for logistics and administrative reasons for which the State Government can very well decide to reduce the fair price shop without however affecting the rights of the beneficiaries. Under such circumstances, as there is intelligible differential which also has a reasonable nexus with the object sought to be achieved, i.e. implementation of the Act of 2013, this Court is of the opinion that the policy of the Government dated 30.06.2021 satisfies the test of reasonable classification under Article 14 of the Constitution. 53.
Under such circumstances, as there is intelligible differential which also has a reasonable nexus with the object sought to be achieved, i.e. implementation of the Act of 2013, this Court is of the opinion that the policy of the Government dated 30.06.2021 satisfies the test of reasonable classification under Article 14 of the Constitution. 53. Before concluding as regards the point of determination No.(i), this Court would also like to take into account two judgment of the Supreme Court in the case of Sarkari Sastha Anaj Vikreta Sangh, Tahsil Bemetra and Others (supra) and Madhya Pradesh Ration Vikreta Sangh Society and Others (supra) wherein the Supreme Court categorically observed that the fundamental rights of the traders like the petitioners therein who were carrying on fair price shops to carry on business and food stuffs was no way affected. It was observed that the petitioners therein could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. It was observed that no one could claim a right to run a fair price shop as an agent of the Government and all that a person could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. Paragraph No.11 in the case of Sarkari Sastha Anaj Vikreta Sangh, Tahsil Bemetra and Others (supra) being relevant is quoted herein below:- “11. Earlier, we have referred to the abuses which had grown up in the prevailing system of distribution of foodstuffs under the Madhya Pradesh Foodstuffs (Distribution) Control Order, 1960. The system had deteriorated and become completely unworkable and rotten to a breaking point. An absolute and thorough overhaul of the system had become compulsive if the population of Madhya Pradesh were to receive a regular supply of their rations. It was in those circumstances that the Government came to the conclusion that distribution of foodstuffs through cooperative societies (consumers’ cooperative societies), would be the best method of distribution by which the goods could be delivered i.e. rations could be supplied to the consumers. No one can doubt the positive and progressive role which cooperative societies are expected to and do play in the economy of our country and, most surely, in the fair and effective distribution of essential articles of food.
No one can doubt the positive and progressive role which cooperative societies are expected to and do play in the economy of our country and, most surely, in the fair and effective distribution of essential articles of food. There certainly was a reasonable classification and a nexus with the object intended to be achieved, which was a fair and assured supply of rations to the consumer. The fundamental right of traders like the petitioners to carry on business in foodstuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination.” 54. Again in the case of Madhya Pradesh Ration Vikreta Sangh Society and Others (supra), the Supreme Court reiterated the same position. The relevant portion of paragraph No.5 is quoted herein below:- “5. ……………………….. In the Sarkari Sasta Anaj Vikreta Sangh case1 the impugned scheme was also challenged on various other grounds but the Court negatived all the contentions raised and we need not refer to them as they are not really relevant for our purposes.
The relevant portion of paragraph No.5 is quoted herein below:- “5. ……………………….. In the Sarkari Sasta Anaj Vikreta Sangh case1 the impugned scheme was also challenged on various other grounds but the Court negatived all the contentions raised and we need not refer to them as they are not really relevant for our purposes. Suffice it to say, the Court pointed out that the Scheme had been framed by the State Government in exercise of its executive function under Article 162 of the Constitution; that under the Scheme the fair price shops were to be run by consumers’ cooperative societies; that the Scheme was framed by the State Government in public interest with a view to securing equitable distribution of foodgrains at fair prices to the consumers, that the rule of preference to cooperative societies does not create a monopoly in trade and is, therefore, not violative of the petitioners’ fundamental rights under Articles 14 and 19(1)(g) of the Constitution; and that no one had a fundamental right to be appointed a Government agent for running a fair price shop which was a matter of grant of privilege. The validity of the impugned scheme has, therefore, been upheld in all its aspects.” 55. Further to that, in a very recent judgment, the Supreme Court in the case of Gitashree Dutta (Devi) vs. State of West Bengal and Others, reported in (2022) SCC Online SC 691 has reiterated the same position in paragraph Nos.25 of the said judgment which is quoted herein below:- “25. This Court in Sarkari Sasta Anaj Vikreta Sangh v. State of M.P. has held that no person can claim a right to run a fair price shop as an agent of the government and he could only have a right to be considered for appointment. In this context, this Court observed as follows: “11. ……………… No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointment to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination.” 56.
If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate experience gathered in the last two decades, we do not see how we can possibly hold that there was any discrimination.” 56. The above judgments make it clear that no person can claim a right to run a fair price shop as an agent of the Government meaning thereby the petitioners herein also do not have a vested right to continue the fair price shop for eternity. It shall depend upon necessity and exigency of the State Government subject however to compliance with the Wednesbury principles. 57. The said aspect of the matter can also be looked into from another angle, i.e. the Order of 1982 on the basis of which the petitioners claim their rights to continue their licences. Clause 3 of the Order of 1982 which has already quoted herein above clearly shows that “the licencing authority may issue licence in Form-I to such appointed dealer as may be considered necessary from time to time” meaning thereby it is only upon the necessity such licences are to be issued. The present facts show that there is no necessity for the State Government to continue those fair price shops having 50 or less than 50 ration cards and under such circumstances, even on the basis of the Order of 1982, the fair price shop owners cannot claim to have vested right to continue with the fair price shops or seek renewal if the State Government does not have any necessity of the said fair price shops. 58. In the backdrop of the above, this Court therefore concludes that the policy decision of the Government to close fair price shops having 50 or less than 50 ration cards and to tag those ration cards to the nearby fair price shops having more than 50 ration cards is in consonance with Article 14 of the Constitution and it is further held that the petitioners do not have any vested right to continue with the fair price shops if there is no necessity of the State Government or the licencing authority as the case may be, to continue with the said fair price shops in the facts of the instant case. 59.
59. The second point of determination is on the question of legitimate expectation to the effect that the petitioners having been issued the licences and they having not violated any of the provisions of the Act of 1955 or the Order of 1982 or the terms of the licences issued in their favour have a legitimate expectation to have their licences renewed. 60. The judgment of the Supreme Court in the case of Kerala State Beverages (M and M) Corporation Limited (supra) also deals with the aspect of substantive legitimate expectation as well as procedural legitimate expectation. The Supreme Court in the said judgment observed that an expectation entertained by a person may not be found to be legitimate due to the existence of some contravening consideration of policy or law. It was observed that administrative policy may change with the changing circumstances including the change in the political complexion of the Government. The liberty to make such changes is something that is inherent in our Constitutional form of Government. Further to that it was observed that the decision maker’s freedom to change the policy in public interest cannot be fettered applying the principle of substantive legitimate expectation. It was observed that so long as the Government does not act in an arbitrary or in an unreasonable manner, the change a policy does not call for interference by judicial review on the ground of legitimate expectation of an individual or a group of individual being defeated. Paragraph Nos. 19 & 20 of the said judgment, being relevant, are quoted herein below:- “19. An expectation entertained by a person may not be found to be legitimate due to the existence of some countervailing consideration of policy or law. Administrative policies may change with changing circumstances, including changes in the political complexion of Governments. The liberty to make such changes is something that is inherent in our constitutional form of Government. 20. The decision-makers’ freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated.” 61.
So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated.” 61. Further to that in paragraph No.25 of the said judgment it was observed that principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. It was observed that the imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. The Supreme Court in the said judgment had observed that there is an exception to the said Rule. The exception is if an announcement is made by the Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. Paragraph No.25 of the said judgment, being relevant, is quoted herein below:- “25. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. If an announcement is made by the Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. In other words, in such cases, an opportunity to each individual to explain the circumstances of his case need not be given. In Union of India v. Hindustan Development Corpn. it was held that in cases involving an interest based on legitimate expectation, the Court will not interfere on grounds of procedural fairness and natural justice, if the deciding authority has been allotted a full range of choice and the decision is taken fairly and objectively.” 62.
In Union of India v. Hindustan Development Corpn. it was held that in cases involving an interest based on legitimate expectation, the Court will not interfere on grounds of procedural fairness and natural justice, if the deciding authority has been allotted a full range of choice and the decision is taken fairly and objectively.” 62. The Supreme Court in the case of Gitashree Dutta (Devi) (supra) had also taken into consideration the doctrine of legitimate expectation in so far as a policy introduced by the Government. Paragraph Nos.11, 12, 13 & 14 of the said judgment, being relevant are quoted herein below:- “11. However, the doctrine of legitimate expectation ordinarily would not have any application when the legislature has enacted the statute. Further, the legitimate expectation cannot prevail over a policy introduced by the Government, which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondent. When the decision of public body is in conformity with law or is in public interest, the plea of legitimate expectation cannot be sustained. In Punjab Communications Ltd. v. Union of India this Court held that policy decision creating the legitimate expectation which is normally binding on the decision maker, can be changed by the decision maker in overriding public interest. It was held as under: “37. The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision -maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way…….” 12. In Sethi Auto Service Station v. Delhi Development Authority, this Court after referring to various precedents observed as under: “32. An examination of the aforenoted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way.
However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. 33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited.” 13. In Union of India v. Lt. Col. P.K. Choudhary, this Court held that the legitimate expectation, as an argument, cannot prevail over the policy introduced by the Government which does not suffer from any perversity, unfairness or unreasonableness or which does not violate any fundamental or other enforceable rights vested in the respondents. 14. There is a necessary inter-play between the plea of legitimate expectation and Article 14. For a decision to be non-arbitrary, the reasonable/legitimate expectations of the claimant have to be considered. However, to decide whether the expectation of the claimant is reasonable or legitimate in the context, is a question of fact in each case.
14. There is a necessary inter-play between the plea of legitimate expectation and Article 14. For a decision to be non-arbitrary, the reasonable/legitimate expectations of the claimant have to be considered. However, to decide whether the expectation of the claimant is reasonable or legitimate in the context, is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. In Food Corporation of India v. Kamdhenu Cattle Feed Industries, this Court has pointed out as under: “8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” 63. This Court has already held while deciding the point of determination No.(i) that the policy decision of the respondent State does not suffer from perversity, unfairness or unreasonableness and also does not violate Article 14 of the Constitution. Under such circumstances, in view of the above law laid down by the Supreme Court the doctrine of legitimate expectation cannot prevail over a policy introduced by the Government.
Under such circumstances, in view of the above law laid down by the Supreme Court the doctrine of legitimate expectation cannot prevail over a policy introduced by the Government. It is also noteworthy at this stage to take note of that All Assam Fair Price Shop Dealers Association had filed a representation dated 26.09.2021 and pursuant to the said meeting held under the Chairmanship of the Chief Minister of Assam and the officials of the Food, Civil Supplies and Consumer Affairs Department and office bearers of the Association on 26.09.2021, a decision was taken that the said policy decision of the Government dated 30.06.2021 shall not apply to those fair price shops of the specially abled and widow category and in accordance therewith a decision was taken on 19.10.2021 by the Cabinet thereby reviewing it policy decision dated 30.06.2021. 64. From the above, therefore, it would be seen that the right of legitimate expectation of the petitioners cannot be stretched to such an extent to prevail over the Cabinet decision/policy of the Government of Assam dated 30.06.2021 as well as 19.10.2021. Under such circumstances, the second point of determination is also decided against the petitioners. 65. The third point of determination is in reference to sub-clauses (5) & (6) of Clause 9 of the Target Public Distribution System (Control) Order 2015. First and for most it is necessary to take note of that there is no pleadings as regard the said contention in the writ petitions. Be that as it may, a perusal of Sub-clauses (5) & (6) of Clause 9 of the said Order stipulate that licences to the fair price shop owners shall be issued keeping in view the viability of the fair price shops and the State Government shall ensure that the number of ration card holders attached to a fair price shops are reasonable. The figures so placed before this Court by the State Government to the effect that the fair price shops having 50 or less than 50 less cards is not a viable option and as submitted by the learned Advocate General it can only be made viable if the shops having 50 or less than 50 ration cards are tagged with those shops having 51 or more ration cards.
It is also relevant to take note of that to issue licences keeping in view the viability of the fair price shops as well as the number of ration cards holders attached to a fair price shop to be reasonable are administrative decisions falling within the domain of the Executive. The question how the Government complies with the requirement of Sub-Clauses (5) & (6) of Clause 9 of the Order of 2015 is purely an administrative decision. This Court in exercise of the powers under Article 226 of the Constitution only can look into the decision making process. There being no materials placed how the said decision making process is illegal or arbitrary or unreasonable as regards Sub-Clauses (5) and (6) of the Clause 9 of the Order of 2015, this Court cannot interfere with the same. At this stage, this Court may also gainfully refer to the judgment of the Supreme Court in the case of Bhagat Singh vs. State of Haryana, reported in (1988) 4 SCC 534 and more particularly paragraph No.13 which is reproduced herein below:- “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point.
If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” (Emphasis applied to the underlined portion). In view of the above, this Court is of the opinion that the policy decision dated 30.06.2021 and 19.10.2021 cannot be interfered with on account of Sub-Clauses (5) & (6) of Clause 9 of the Order of 2015. 66. This Court would also like to take into consideration the contention of the petitioners that in terms with Rule 7 (6) (c) of the Assistance Rules, 2015, the petitioners are willing to purchase, install and maintain the EPOS device and as such the EPOS device cannot be the reason for the policy decision. The said contention is misconceived in as much as the Assistance Rules, 2015 confers a discretion upon the State Government to adopt any of the models in Rule 7 (6) of the Assistance Rules, 2015. The State Government for economic and administrative reasons has approved the System Integrator model, this Court cannot interfere with such a decision and as such the said contention is turned down. 67. In the backdrop of the above observation, this Court does not find any ground to interfere with the policy decision of the Government dated 30.06.2021 as well 19.10.2021 for which the writ petitions stand dismissed. 68. Before concluding, this Court would also like to observe that various writ petitions were filed before this Court immediately after the first Cabinet decision dated 30.06.2021.
68. Before concluding, this Court would also like to observe that various writ petitions were filed before this Court immediately after the first Cabinet decision dated 30.06.2021. Amongst the various writ petitioners, there are some writ petitioners who are specially abled or are widows. Taking into account that the Government has already decided in its Cabinet meeting dated 19.10.2021 not to apply the said decision dated 30.06.2021 to those persons who are specially abled or are widows, this Court directs the State respondents to renew their licences of those petitioners belonging to the category of specially abled or widows, if not already done. 69. It is also to be taken note of that in some cases, the Licensing Authority had renewed the licences of the petitioners. Such renewal is contrary to the policy decision of the State Government and as such the renewal so granted would not confer any right upon such writ petitioners. Such writ petitions would definitely be entitled to the refund of the renewal fees. 70. With the above observations and directions, all the writ petitions stand dismissed. However this Court is not inclined to impose any costs. 71. The records so produced by the learned Senior Government Advocate are hereby returned.