Ganpat Dharma Mengal And Ors vs Tehsildar Office Murbad And Ors
2021 Latest Caselaw 15633 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                WRIT PETITION NO. 7174             OF 2021

Ganpat Dharma Mengal & others.                      ..Petitioners.
        Versus
Tehsildar Office, Murbad and Others.                ..Respondents.

Kranti L.C. i/b Kaustubh Gidh and Dipika Shani for the Petitioner.
Mrs. A. S. Purav, AGP for the Respondent-State.

                                  CORAM : PRASANNA B. VARALE &
                                          MADHAV J. JAMDAR, JJ.

Date : October 29, 2021.

P. C. :

1. It is disheartening situation for us when we the fortunates

are eagerly awaiting as the festive season is approaching and the festival

of lights would spread joy and happiness in the society throughout the

State or the whole nation, here are the few petitioners who are the

members of the marginalised section in general and tribals in particular

who have approached this Court on a grievance that they are deprived of

the basic requirement of human life, i.e., food, only on account that the

State machinery is not technically equipped to give them the benefits

flowing from the scheme formulated and floated by the Union of India

and to be implemented and executed by the respective States. The

reason, as we have stated, for deprival of distribution of foodgrain to

these petitioners is that their Aadhaar Card is not linked with the system

and secondly in view of the Government circular dated 13 th October 2016

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for receiving the benefits of public distribution system, it is a

prerequisite that Aadhaar card of each member of the family who is

enlisted in the ration card must have been linked in the RCMS system /

portal.

2. The Petitioners are the residents of the tribal area of

Thane district, namely taluka Murbad. It would be necessary for us to

refer to certain facts such as that the Union of India formulated the

scheme, namely, the National Food Security Act, 2013 with a laudable

object as it is stated in the Act 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.

Section 3 of the said Act deals with the provisions for food security. It

would be necessary to refer to certain provisions of this section and it

reads thus :

"3(1) Right to receive foodgrains at subsidised prices by persons belonging to eligible households under Targeted Public Distribution System :

(1) Every person belonging to priority households, identified under sub-section (1) of section 10, shall 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:

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Provided that the 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:

Provided further that if annual allocation of foodgrains to any State under the Act is less than the average annual off take of foodgrains for last three years under normal Targeted Public Distribution System, the same shall be protected at prices as may be determined by the Central Government and the State shall be allocated foodgrains as specified in Schedule IV.

Explanation.--For the purpose of this section, the "Antyodaya Anna" Yojana means, the scheme by the said name launched by the Central Government on the 25th day of December, 2000; and as modified from time to time.

(2) The entitlements of the persons belonging to the eligible households referred to in sub-section (1) at subsidised prices shall extend up to seventy-five per cent. of the rural population and up to fifty per cent. of the urban population.

(3) Subject to sub-section (1), the State Government may provide to the persons belonging to eligible households, wheat flour in lieu of the entitled quantity of foodgrains in accordance with such guidelines as may be specified by the Central Government."

3. Now, on the basis of the said Act, the State of Maharashtra

issued Government Resolution dated 13 th October 2016 under the

caption "Furnishing of District-wise Updated Target And Action to be

taken therefor under the National Food Security Act, 2013". The decision

of the State Government further states that

१) लाभा नि व करता ा लक्ष्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठी नि र्धाारिरत सावजनि क निवतरण व्यवस्थेचा लाभ घेण्यासाठी व्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीवस् ेचा लाभ घेण्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीासाठी

प्रत्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीेक शि!र्धाापनि#कार्धाारकांचे "आर्धाार सिस ींग करणे अनिवार्य करण व्यवस्थेचा लाभ घेण्यासाठीे अनि वाय निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठी" रानि*ल.

२) वी लाभार्थ्यांय निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीा-ची नि व करता ा कोण व्यवस्थेचा लाभ घेण्यासाठीत्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीा*ी परिरस्थिस् तीत नि0. ३०.०९.२०१६ नंतरच्या ंतरच्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीा

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शि!र्धाापनि#कांचा निवचार करण्य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीात य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीेऊ नये य निर्धारित सार्वजनिक वितरण व्यवस्थेचा लाभ घेण्यासाठीे.

4. Now, these particular requirements in the GR dated 13th

October 2016 are clearly in contrast and stark opposition to the

notification issued by the Central Government dated 8 th February 2017.

This notification clearly states that for identification of the beneficiary,

Aadhaar Card is one of the criteria and the perusal of notification shows

that for identifying the beneficiary the Aadhaar card is not the sole

criteria. There is another document on which the beneficiary can rely

upon to receive the benefits of the scheme and that is "ration card"

issued by the State of Union Territory Administration, Food Department.

5. Clause (5) of the notification further makes it very clear

that notwithstanding anything in above paragraphs, any member of

eligible household listed in the Ration Card shall be entitled to receive

the entire quantity of entitled subsidised food grains or Cash Transfer of

Food Subsidy under NFSA, if any one member of the household in the

Ration Card fulfils the identification conditions mentioned in above

clauses, in case Aadhaar number is not yet assigned to all such members

of the household.

6. It would be useful for our purpose to refer to relevant and

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very important observations of the Hon'ble the Apex Court in the matter

of K. S. Puttaswamy v/s. Union of India (2019) 1 SCC 1 popularly known as

"Aadhaar Card Judgment". The apex Court in this judgment observed

that dignity is an integral element of natural law and an inalienable

constitutional construct. To lead a dignified life is a constitutional

assurance to an individual. Even the scheme floated under the National

Food Security Act aims at an object to provide the foodgrain to the

weaker section of the society in conformity with the object which we

have already stated and referred to.

. It would be again useful for us to refer to the further

observations of the Hon'ble Apex Court and it reads those "the

experience of living with chronic hunger; recurring uncertainty about the

availability of food; debt bondage; low and highly underpaid work; self-

denial; and sacrifice of other survival needs, being discriminated against

are instances of the loss of dignity for the marginalised." The Apex

Court also observed that the beneficial schemes are not charity or doles.

The Apex Court further observed in clear and unambiguous words that

technology shall not be a rider for implementation of the scheme and

reads thus "Our quest for technology should be oblivious to the country's

real problems; social exclusion, impoverishment and marginalisation.

The Aadhar project suffers from crucial design flaws which impact upon

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its structural probity. Structural design in delivering welfare

entitlements must be compliant with structural due process, to be in

accord with Articles 14 and 21."

. Then it is further observed by the Hon'ble the Apex Court

that the deployment of technology must factor in the available of

technological resources in every part of the design of the coverage area

and the prevailing levels of literacy and awareness. Above all, the design

of the project will be compliant with structural due process only if it is

responsive to deficiencies, accountable to the beneficiaries and places

the burden of ensuring that the benefits reach the marginalised on the

State and its agencies.

7. On the backdrop of the scheme under the Food Security

Act, its object, the judgment of the Hon'ble Apex Court if we peruse the

communication dated 17th September 2021 whereby it was informed that

the Petitioner - Ganpat, who is at serial no.1, would not be entitled to

receive foodgrains. Though Ganpat is having Aadhaar as well as ration

card, as the Aadhaar card is not linked with the portal or system.

The copy of ration card wherein the name of Petitioner No.

2 Prakash is mentioned is placed on record at page no.149 and the name

of Petitioner No.2 finds place in communication dated 11 th October 2021,

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placed on record at Exhibit-R1 page-160 at serial no.1. By communication

dated 11th October 2021, the similar ground is assigned for non

distribution of the foodgrain, i.e., Aadhaar Card not being linked with the

portal. The Petitioners have approached the authority, particularly the

Tahsildar and Executive Magistrate of Murbad through an Association ,

namely, Shramik Mukti Sanghtana raising the grievance of not receiving

the foodgrains and the President of said association informed vide the

communication dated 17th September 2021 Exhibit Q-1 page no.150 that

availing the benefits under the public distribution system, the linking of

Aadhaar with portal of each member enlisted in the ration card is a

prerequisite and then it is informed that the names of the members who

have approach to Tahsildar through the organisation, their Aadhaar cards

are not linked up in RCMS system, as such the authorities are unable to

distribute the foodgrain to them.

8. It would not be out of place to state that there are as many

as 85 persons who have approached the Tahsildar, Murbad raising the

grievance of non receiving the foodgrains under the public distribution

system and the list of those persons is placed on record at page no.151,

duly signed by the Tahsildar, Murbad.

9. Our attention was invited to the various representations

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submitted to the district authorities requesting them to distribute the

foodgrains under the public distribution system taking recourse to the

national food security act. We may refer to one of such representation

dated 20th August 2021, which is placed at page no. 170. It clearly states

that these are the tribal persons. They are the beneficiaries of scheme

framed by the central government and the state government and they

are expecting the regular distribution of foodgrains to them and

particularly for the festival season.

10. Assuming the importance of issue, we requested the

learned AGP to seek instructions and make statement before us.

Learned AGP, on instructions, submitted that the reason for non

distribution of foodgrains to some persons is that their Aadhaar card is

linked to a different place than the residence of these persons. Now, the

practice being followed for linking of Aaadhar card is the ration-card

holder goes to the ration-shop and requests the shop-owner to link his

ration card or aadhaar card in the system. Taking the case of the

Petitioners and alike, these are the tribal persons and majority of these

persons are not literate as such they rely on the action taken by the

respective ration shop owner and in such case if a mistake is committed

by shop owner, the same cannot be the reason for denial of food grains

to the ration card holder under the benevolent schemes.

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11. At the cost of repetition, we state that the policy under the

National Food Security Act refers to the Aadhaar Card as one of the

mode for identifying the person and further the notification dated 8 th

February 2017 makes the position very clear in clause 5.

12. It may not be out of place to mention that the same

notification dated 8th February 2017 is issued in pursuance of the

provisions of section 7 of the Aadhaar (Targeted Delivery of Financial and

Other Subsidies, Benefits and Services) Act, 2016.

13. Though the grievance is raised by three petitioners before

this Court, it can be safely said that the persons enlisted in the list at

page no. 151 to 158 (duly signed by Tahsildar, Murbad) and the persons

enlisted in the list at page no.173 to 187 are similarly circumstanced with

the Petitioners. As we are unable to find any logic, reason or rational for

denying the benefits of distribution of foodgrains to the Petitioners and

alike persons raising certain technical ground by the Respondent

authorities, by way of interim direction we direct the Respondent nos. 1,

2 and 3 to distribute the foodgrains to the Petitioners and similarly

circumstanced persons - the tribal beneficiaries of Murbad taluka under

the public distribution scheme as well as the provisions of the National

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Food Security Act and the Pradhan Mantri Garib Kalyan Anna Yojana.

The Respondents are at liberty to verify the rationcards of the

Petitioners and the similarly circumstanced tribal persons. We further

direct Respondent Nos.1 and 2 to distribute the foodgrains to the tribal

persons before 4th November 2021 and Respondent No.3- Collector

Thane shall implement, supervise the distribution and shall assure that

the order of this Court is duly complied with within the stipulated period.

14. All concerned to act upon an authenticated copy of this

order issued by the Registry of this Court. Learned AGP to forthwith

communicate this order to Respondent Nos. 1, 2 and 3. learned AGP may

communicate the order orally and need not wait for the authenticated

copy of the order.

15. Stand over to 1st December 2021 for further consideration.

Learned AGP is permitted to file reply before the next date.

          [Madhav J. Jamdar, J.]              [Prasanna B. Varale, J.]




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