Seikh Abdul Majed & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 6581 Cal

                     IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                             APPELLATE SIDE

Present:
The Hon'ble Justice Moushumi Bhattacharya

                            WPA 17375 of 2021
                          Seikh Abdul Majed & Ors.
                                     vs
                       The State of West Bengal & Ors.
                                    With
                            WPA 17757 of 2021
                         Abdul Kader Mondal & Ors.
                                     vs
                            State of West Bengal

For the Petitioner             : Mr. Saktinath Mukherjee, Sr. Adv..
                                Mr. Shyamal Sarkar, Sr. Adv.
                                Mr. Ram Anand Agarwal, Adv.

                                Mr. Kumar Gupta, Adv.

                                Mr. Rajesh Gupta, Adv.

                                Ms. Nibedita Pal, Adv.

                                Mr. Ananda Gopal Mukherjee, Adv.


For the State                  : Mr. S.N. Mookherjee, Learned Advocate General.

                                Mr. Anirban Ray, Learned Govt. Pleader.

                                Mr. Tapan Mukherjee, Adv.

                                Mr. Sirsanya Bandyopadhyay, Adv.

                                Mr. Pinaki Dhole, Adv.

                                Mr. Arka Nag, Adv.

                                Mr. Avishek Prasad, Adv.
                                           2


                                 Mr. Piyush Agarwal, Adv.

                                 Ms. Usha Dasgupta, Adv.


For the U.O.I.                 : Mr. Ajay Chaubey, Adv.

                                 Ms. Shakshi Rathi, Adv.


Last Heard on                  : 15.12.2021.


Judgment on                    : 23.12.2021.

Moushumi Bhattacharya, J.

1. The challenge in these Writ Petitions is to a Scheme notified by the

Department of Food and Supplies of the Government of West Bengal, for

reaching ration to the doorstep of the consumer; named as the "West Bengal

Duare Ration Scheme, 2021". The words "Duare Ration" in Bengali translate

to "ration at the doorstep" in English.

2. The petitioners are fair price shop dealers who seek a declaration

that the Scheme is ultra vires the Constitution of India and for a writ of

Mandamus on the State and the Director, Food Supplies Department,

Government of West Bengal, to cancel the Scheme. The underlying ground

of the challenge is essentially that the State cannot frame any Scheme in

relation to distribution of ration items which is already occupied by a

Central Government Order passed under the Essential Commodities Act,

1955 and the National Food Security Act, 2013.

3. Although the relief in the Writ Petition is in relation to Guidelines

framed by the State for piloting the Duare Ration Scheme of 23rd September,

2021, the challenge was subsequently extended to the Duare Ration Scheme

notified by the Government of West Bengal on 16th November, 2021 upon

the Learned Advocate General producing a copy of the Scheme during the

course of hearing. The petitioners thereafter extended the challenge to the

Scheme by way of a Supplementary Affidavit followed by a response filed by

the State. Counsel have restricted the challenge only to the question of law.

4. A preliminary objection taken by the learned Advocate General and

the learned Government Pleader on behalf of the State respondents is that

the grounds of challenge in the present writ petition were substantially

argued in an earlier Writ Petition filed by a group of fair price shop dealers

and covered in a Judgment dated 15th September, 2021 in WPA No. 14013

of 2021 (Mrityunjoy Garang & Ors. vs. State of West Bengal & Ors.) by which

the Writ Petition was dismissed. This Court is informed that the Judgment

was unsuccessfully challenged before the Division Bench and the Supreme

Court in the Special Leave Petition by the fair price shop owners referred the

matter to the Division Bench. It should be clarified that counsel appearing

for the parties invited the Court to only consider the matter on the point of

law without going into the practical aspects of implementation of the

Scheme. On the request of counsel the decision only addresses the legal

arguments advanced on behalf of the parties.

5. Mr. Saktinath Mukherjee, learned Senior Counsel appearing for the

petitioners outlines the challenge in the writ petition on the premise of an

earlier Order of a superior legislature occupying the field on the date when

the State Scheme was notified. The Order in this case is the Targeted Public

Distribution System (Control) Order, 2015 notified by the Ministry of

Consumer Affairs, Food and Public Distribution of the Central Government

issued in exercise of the powers conferred by section 3 of the Essential

Commodities Act, 1955. Counsel submits that the Duare Ration Scheme of

the State cannot be permitted to operate in a field which is already occupied

by the Central Government.

6. The arguments advanced on behalf of the petitioners and the State

will be stated in detail with reference to the decisions cited in the following

part of this judgment.

7. The decisions cited by learned counsel in support of their respective

arguments may be divided into two categories; i) finality of orders and ii) the

concept of occupying the field.

8. The decisions with regard to finality of orders are in the background

of the Judgment passed by a learned Single Judge of this Court in WPA No.

14013 of 2021 (Mrityunjoy Garang & Ors. vs. State of West Bengal & Ors.)

dated 15th September, 2021 by which the Writ Petition filed by a group of

Fair Price Shop owners aggrieved by the Duare Ration Scheme was

dismissed. The position of the State Respondents is that the issues urged in

the present writ petition were decided by the co-ordinate Bench in the said

Judgment. Learned Counsel appearing for the petitioners disputes the said

position by contending that writ petitioners before this Court were not

parties in Mrityunjoy Garang and the question of an earlier order occupying

the field was not argued in the earlier proceedings.

9. This Court is of the view that in Mrityunjoy Garang, the challenge

was to a pilot project in the form of certain guidelines framed by the

Government of West Bengal for the implementation of the Duare Ration

Scheme. Although the arguments made on behalf of the parties in that

matter were also on the provisions of the Essential Commodities Act, 1955

and the National Food Security Act, 2013 but were confined to the

Guidelines for August and September 2021. The challenge in this Writ

Petition was later expanded to include the "West Bengal Duare Ration

Scheme, 2021" which came into force with effect from 16th November, 2021,

subsequent to the Judgment in Mrityunjoy Garang. The Scheme notified on

16th November, 2021, admittedly does not form part of the proceedings

which are presently before the Appeal Court pursuant to the order of the

Supreme Court dated 8th October, 2021. The decisions with regard to finality

of a decree and order or when such finality would be destroyed by reason of

an appeal from the order are hence not relevant and are therefore not being

discussed.

10. This Court proceeds on the basis that the present writ petition,

read with the Supplementary Affidavit and other pleadings, embodies a fresh

challenge to the Duare Ration Scheme, of the State Government as notified

on 16th November, 2021.

11. In respect of the second issue i.e. the concept of a legislation

'occupying the field', the position of the parties is this; the petitioners claim

that the State Government is not permitted to frame a Scheme for delivering

ration at the doorstep of the consumer when a Central Order under the

Essential Commodities Act is already occupying the field. The Order

concerned is that of the Ministry of Consumers Affairs, Food and Public

Distribution dated 20th March, 2015 issued under Section 3 of the Essential

Commodities Act.

12. The petitioners have relied on several decisions in support of the

proposition that a central legislation is superior and that the intention of the

Parliament to cover the whole field is a relevant factor for deciding the

question of conflict between the two order/ schemes. Learned Counsel for

the petitioners place emphasis on the concept of 'competent legislation with

a superior efficacy' evincing an intention to cover the whole field in relation

to a particular legislation. The State on the other hand, urges co-existence of

both the Orders without any prospect of a conflict.

13. The Supreme Court in Thirumuruga Kirupananda Variyar

Thavathiru Sundara Swamigal Medical Educational & Charitable Trust vs.

State of Tamil Nadu And Ors.; (1996) 3 SCC 15 and Animal Welfare Board of

India vs. A Nagaraja And Ors.; (2014) 7 SCC 547, held that repugnancy

between two statutes may also arise if a competent legislature with a

superior efficacy expressly or impliedly evinces by its legislation and

intention to cover the whole field. In West Uttar Pradesh Sugar Mills

Association And Ors. vs. State of Uttar Pradesh And Ors.; (2020) 9 SCC 548, a

five-Judge Bench of the Supreme Court explained that repugnancy would

arise if both the legislations fell under the Concurrent list of the Seventh

Schedule under Article 254 of the Constitution. The Supreme Court further

clarified that under Article 254, there must be a repugnancy between a

Central and a State Act (Rajiv Sarin vs. State of Uttarakhand (2011) 8 SCC

708.

14. The Union of India, which supports the case of the petitioners,

states that a statutory corporation can only act under a statute and not

otherwise: Scotts (P) Ltd. & Ors. vs. Corporation of Calcutta & Ors.; 79 CWN

883 and Kolkata Municipal Corporation & Ors. vs. Asian Leather Limited &

Anr., Mayor in Council, Kolkata Municipal Corporation & Ors; 2007 (3) CHN

476.

15. The test of whether the Duare Ration Scheme notified by the State

Government on 16th November, 2021 encroaches upon the field which is

already occupied by the Order dated 20th March, 2015 of the Government of

India must result from a comparison of the Order and the Scheme together

with their dominant purpose and objects. The 2015 Order of the Central

Government was notified in exercise of the powers conferred under Section 3

the 1955 Act, under which the Central Government is empowered to provide

for regulating the production, supply and distribution of essential

commodities if it considers necessary to do so. The Order of 20th March,

2015 has been named as the Targeted Public Distribution System (Control)

Order, 2015 and aims to make foodgrains available from the Central pools to

the State Government for distribution under the Targeted Public

Distribution Scheme to eligible households at such scales and prices as

specified under the Food Security Act, 2013. The dominant purpose of the

Order would be expressed by Clause 8 which provides for allocation of

foodgrains by the Central Government under the Targeted Public

Distribution Scheme to the State Government for distribution under the

Food Security Act; Clauses 9 and 10 provide for regulation of Fair Price

Shops. Clauses 7, 8 and 9 bring the State Government within the ambit of

the Order in relation to allocation and distribution of foodgrains and

essential commodities and for devising a suitable mechanism for

transportation of foodgrains. The State Government has also been given the

power to issue an Order under Section 3 of the 1955 Act, subject to the said

Order not being inconsistent with the 2015 Order for regulating the

distribution of essential commodities (Clause 9). Clause 17 empowers the

Central Government to give necessary directions to the State Government

for execution of the Order.

16. The underlying object of the Order, is for regulating the operations

of Fair Price Shops, defined under Section 2(4) of the National Food Security

Act, with the assistance of the State Government and regulating disbursal of

foodgrains under the Targeted Public Distribution System by requiring the

Fair Price Shops to follow certain requirements outlined in Clause 10. The

2015 Order regulates the distribution and allocation of foodgrains by the

Central Government to the Fair Price Shops for distribution to the ration

card holders from the Fair Price Shops. Clause 7(11) of the Order charts the

movement of foodgrains in the following manner;

"Clause 7. Lifitng of foodgrains by States.−

(11). The State Government shall devise suitable mechanism for transportation of foodgrains from the Corporation godown to the intermediate godown and the door-step delivery of the foodgrains to the fair price shop:

Provided that the State Government may also transport foodgrains directly to the fair price shop from the Corporation godown and ensure its door-step delivery to the fair price shop."

17. It is clear from the above that the delivery of the foodgrains to the

Fair Price Shops starts from the Food Corporation of India godown and ends

at the Fair Price Shops. The expression 'door-step' delivery used in Clause

7(11) signifies the doorstep of the Fair Price Shops which is reiterated by the

proviso to the sub-clause. The Order does not contain any Clause which

contemplates delivery of the foodgrains or essential commodities to the

doorstep of the consumer from the Fair Price Shops.

18. In contrast, the Duare Ration Scheme of the Government of West

Bengal clarifies in Clause 2(e) that the Scheme entails the fair price shop

dealer being under an obligation to deliver ration at the doorstep of the

ration card holder. Clause 4 reiterates the features of the Scheme and

highlights that the Scheme ensures 'doorstep delivery of ration' under the

National Food Security Act and Rajya Khadya Suraksha Yojana and that the

fair price shop dealers shall visit different neighbourhoods, villages and

hamlets divided in small clusters for delivering of ration items to the

targeted beneficiaries. The dealers have been given the option to engage

workers for this purpose and make their own arrangements for

transportation of ration items by their own or hired vehicles depending on

the volume of work, the number of beneficiaries to be covered and the area

of coverage. The facilities outlined in Clause 5 provide that the beneficiaries

shall be delivered the ration items at their doorstep without any additional

financial burden on them. Clause 5(2) gives the option to the beneficiary to

lift the ration from the fair price shop on designated days if the ration items

cannot be received at his/her doorstep. "Beneficiary" has been defined in

Clause 2(a) to mean a ration card holder who has been granted a ration card

under the Control Orders of the State Public Distribution System, 2013.

Clause 6 continues in the strain namely, that ration item shall be delivered

at the doorstep of all beneficiaries under the National Food Security Act and

Rajya Khadya Suraksha Yojana on pre scheduled day of the month. The

objective of the Scheme to deliver ration items at the doorstep of the

beneficiaries' houses continues through Clauses 6, 7, 9 and 10 of the

Scheme where the dealer shall be provided with essential commodities for

distribution of ration items under the Duare Ration Scheme at such rate as

the State Government may specify.

19. The statutory bulwark of the State Duare Ration Scheme and the

Central Government Order is of the Essential Commodities Act, 1955 and

the National Food Security Act, 2013. Section 3 of the Essential

Commodities Act empowers the Central Government to regulate or prohibit

the production, supply and distribution of foodgrains and brings within its

fold, the power to regulate the storage, transport and distribution of any

essential commodity [3(2)(d)]. Section 5 preserves the delegation of powers

by the Central Government by making orders or issuing notifications under

Section 3 and Section 6 contemplates the overriding effect of orders made

under Section 3 of the Act. The Order of 20th March, 2015 and that of 9th

June, 1978 issued under Sections 3 and 5 of the Act, respectively, preserve

the power of the Central Government to regulate the transportation of any

foodstuff. The order of 9th June, 1978 provides that before making any order

relating to any matter with regard to distribution or disposal of foodstuffs to

places outside the State or for regulation of transport of any "foodstuffs", the

State Government shall first obtain the prior concurrence of the Central

Government. Doubtless, the provisions of the Essential Commodities Act

points to the Central Government retaining control over the production,

supply and distribution of an essential commodity.

20. The National Food Security Act, 2013, on the other hand, carves

out a wider and a defined space for the State Government to give effect to

the "Targeted Public Distribution System" as defined under Section 2 (23) of

the said Act. Sections 12, 24, 25, 30, 31 and 32 bear testimony to the

shared role of the Central and State Governments for implementing and

monitoring schemes for ensuring food security. Section 12- Reforms in

Targeted Public Distribution System- indicates that the State Government is

an equal partner in the matter of doorstep delivery of foodgrains to the

Targeted Public Distribution System outlets. The State Government is made

responsible under Section 24 for implementation and monitoring of the

schemes of the Central Government together with their "own schemes" for

ensuring food security to the targeted beneficiary. Section 32 proceeds to

grant an independent power to the State Government for continuing or

formulating other food or nutrition based welfare schemes. Section 32(2)

articulates the intention of Parliament in the matter of empowering the State

Government for formulating food or nutrition based schemes for providing

benefits from its own resources higher than those under the Act. Section 32

also makes it clear that the Act shall not preclude the Central or the State

Government from continuing or formulating other food based welfare

schemes while Section 36 mandates that the National Food Security Act

shall have overriding effect notwithstanding any other law inconsistent

thereto.

21. It can thus safely be assumed that Parliament did not intend to

exclude participation of the State Government in formulating welfare

schemes from its own resources in addition to or in excess of the benefits

contemplated by the National Food Security Act, 2013. This construction

would be in line with the Statement of Objects and Reasons of the 2013 Act

which is in furtherance of Article 47 of the Constitution of India- "Duty of the

State to raise the level of nutrition and the standard of living and to improve

public health"- to provide for nutritional security and ensuring access to

adequate quantity of quality food at affordable prices. The paradigm shift

from the Essential Commodities Act, 1955 to the National Food Security Act,

2013 marks the transition from a welfare to a right-based approach to the

problem of food security. While control over the supply and distribution

chain of essential commodities was retained by the Central Government in

the 1955 Act, the State Government was inducted as an equal partner to

address the issue of food security for implementing new and effective

schemes, under the 2013 Act.

22. The more significant aspect is none of the two legislations

contemplate doorstep delivery of foodgrains to the targeted beneficiary.

Section 12(2)(a) of the National Food Security Act 2013, contemplates

reforms including doorstep delivery of foodgrains to the Targeted Public

Distribution System outlets. The Targeted Public Distribution System

(Control) Order, 2015 issued under Section 3 of the Essential Commodities

Act, 1955 envisages transportation of foodgrains to the fair price shops.

Hence, the field covered by both the existing legislations, read with the

relevant Orders, is transportation of foodgrains from the Food Corporation of

India godowns to the doorstep of the fair price shops (words are underlined

for emphasis). The Duare Ration Scheme therefore stretches the boundaries

of the Central Government Order of 2015 and walks the metaphorical last

mile, so to speak. This court is unable to accept the contention of the

petitioners that the Duare Ration Scheme encroaches upon the space already

taken by the Order dated 20th March, 2015 of the Central Government.

23. The Supreme Court explored the concept of repugnancy under

Article 254 of the Constitution and held that repugnancy would arise only

when there is a direct and irreconcilable inconsistency between a Central

and a State Act and would result in a direct collision with each other (M.

Karunanidhi vs Union of India; (1979) 3 SCC 431). By the aforesaid

explanation the present case is evidently not one of repugnancy. Learned

Counsel for the petitioners also accepts this position but urges that since

the Duare Ration Scheme encroaches upon the earlier 2015 Order of the

Central Government which already covers the field, there is every possibility

of a direct conflict between the two.

24. The Court is unable to accept this position. The argument of the

State Scheme being emasculated or rendered inert by the Central

Government Order of 2015 presumes a direct and irreconcilable conflict in

the working of the two schemes. The presumption is also of a tussle for

space by the later Scheme in a field already covered by the Central Order

where it would be impossible for both to coexist or to obey one without

disobeying the other. The correctness of this presumption is however not

borne out from a careful reading of the two Schemes on the face of it. The

reasons for this view are as follows:

i) The Duare Ration Scheme of the State Government has been notified

under Sections 12 and 32 of the National Food Security Act, 2013 which

provide for an equal partnership of the Central and State Governments to

undertake necessary reforms in the Targeted Public Distribution System in

consonance with the role envisaged for both under the said Act. An overview

of several of the provisions of the 2013 Act strengthens this view as are:

 Section 12 (2) of the 2013 Act indicates a non-exhaustive list of

reforms which shall be undertaken by both the Central and the State

Governments including doorstep delivery of foodgrains to the Targeted

Public Distribution System Outlets.

 Section 24 carves out a defined space for the State Government in

relation to implementation and monitoring of schemes for ensuring food

security in the words "...and their own schemes..." in section 24(1). The duty

cast on the State Government is articulated in terms of specified delivery

areas which finds further definition in section 24(2) (b) which is reproduced

below;

"ensure actual delivery or supply of the foodgrains to the entitled persons at the prices specified in Schedule I."

 Section 24(2) (b) is the kernel - to use a contextual metaphor- of the

idea bearing fruition in the Duare Ration Scheme of November 2021 and

finds statutory support in the 2013 Act flowing from Article 47 of the

Constitution of India.

 The obligation on the State Government reverberates in section 31 of

the Act which widens the chain of command to include the Central, State

Governments as well as local authorities for the purpose of realizing the

object of food and nutritional security.

 Section 32(2) of the Act begins with a non-obstante clause and

empowers the State Government to continue with or formulate, from their

own resources, schemes providing for benefits higher than those provided

under the Act. The nomenclature of Section 32- Other Welfare Schemes-

makes the intention of Parliament clear, namely, that the burden of

discharging the goal of food security should be shouldered equally by the

Central and State Governments.

Having been notified under the specific provisions of the National Food

Security Act, the legislative competence of the State Government to

formulate the Scheme cannot be doubted.

ii) The provisions of the National Food Security Act, 2013, under which

the State Scheme has been notified, is a subsequent legislation which is

mandated to have overriding effect notwithstanding any inconsistency with

any other law for the time being in force; Section 36 of the Act.

iii) The implementation of the Duare Ration Scheme does not contain any

provision which contemplate a conflict, direct or otherwise, with any existing

order or scheme formulated by the Central Government. The object of the

Scheme is to regulate the distribution of ration items under the Targeted

Public Distribution System for the beneficiaries for providing ration at the

doorstep of the beneficiaries and has been described in Clause 2(e) as a

Scheme under which "fair price shop dealers shall deliver ration to the ration

card holder at his door-step".

Clause 6 delineates the functions of a dealer under the scheme

namely delivering ration items on the doorstep of all beneficiaries under the

National Food Security Act and Rajya Khadya Suraksha Yojona including

special packages on designated days. Hence, the Scheme charts the path

from the fair price shops to the doorstep of the ration card holder for

delivery of ration. The Scheme does not disturb or seek to disrupt the

existing mechanism of lifting or transportation of foodgrains from the

Corporation godowns to the intermediate godowns and finally to the

doorstep of the fair price shop; Clause 7(11) of the Central Government

Order of 20th March, 2015.

iv) The Scheme contemplates a workable and effective co-existence with

other schemes which are already in place and aims to provide additional

benefits to consumers by way of other welfare schemes under Section 32 of

the National Food Security Act.

v) Even if it is assumed that the Central Government Order of 20th

March, 2015 covered the field on the date of notification of the State

Government Scheme in November 2021, Clause 9 of the Central

Government Order empowers the State Government to make an Order under

Section 3 of the Essential Commodities Act which is not inconsistent with

the Order of 20th March, 2015.

vi) The argument that the Central Government Order covers the whole

field is unacceptable since the outer limits of that field extends to and ends

at the doorstep of the fair price shop. The Duare Ration Scheme covers the

additional, unexplored and exclusive space from the fair price shop to the

doorstep of the ration card holder. The Scheme is hence a field yet to be

covered as far as the defined end-point of the Central Government Order is

concerned.

vii) The argument of the Central Government being the 'competent

legislature with a superior efficacy' which has evinced an intention to cover

by its legislation the whole field (ref Thirumuruga Kirupananda and Animal

Welfare Board of India) must also be rejected on the following grounds. First,

the argument rests on the superior power of the competent legislature,

which is inconsistent with the stated purpose and provisions of the National

Food Security Act. Second, the concerned legislation must reflect the

intention of the superior legislative authority to cover the whole field which

subsequently becomes the disputed space in relation to the later legislation

of the subordinate legislative authority. Having already held that the

occupied/ covered field proposition is without substance in the facts of this

case, the argument is accordingly rejected.

25. The concept of occupying the field arises where the field occupied

leaves no space for any subsequent legislation to cover the same field. The

jostling for space pre-supposes a conflict between the two legislations, such

that the conflict cannot be reconciled in favour of one to the exclusion of the

other. The same conflict is also felt at the level of compliance where it is not

possible to obey one without disobeying the other. The concept is thus one

of encroachment of a common space by a later entrant resulting in an

eclipse of the field already covered. Rajiv Sarin made an exception in the

context of repugnancy where a provision in one legislation for giving effect to

its dominant purpose may partially cover the same area in a different

context or to achieve a different purpose. The present Scheme of the State

Government is in sync with the exception in Rajiv Sarin since the State

Government's purpose of the Scheme is to reach the benefit of the Targeted

Public Distribution System to the doorstep of the beneficiaries. The last leg

of the distribution journey hence does not admit of any clash or fight for

space with the Central Government Order.

26. Shorn of statutory interpretations, it appears that the Duare

Ration Scheme was born out of the restrictions imposed on the mobility of

ordinary citizens during the pandemic. It may be envisaged as an extension

of the across-the-board initiatives to deliver essentials at the doorstep of

consumers. The noticeable trend during the period of lockdown was the

exponential increase in online delivery of goods to consumers without the

consumers having to physically travel for purchasing such goods. The

Scheme can hence be seen as a step in the direction to help ordinary ration

card holders to tide over the difficulties in the wake of the pandemic. From

this perspective, the Duare Ration Scheme may be perceived as a reform in

the targeted public distribution system and a welfare scheme formulated for

reaching food and nutritional security as a necessity-driven measure to tide

over the extant existential challenge.

27. In view of the reasons as stated above, this Court finds no basis to

declare the West Bengal Duare Ration Scheme, 2021, ultra vires the

Constitution of India or to cancel the Guidelines preceding the said Scheme

on the grounds enumerated in the present writ petitions.

28. WPA 17375 of 2021 and WPA 17757 of 2021 are accordingly

dismissed without any order as to costs.

Urgent Photostat certified copy of this Judgment, if applied for, be

supplied to the parties upon compliance of all requisite formalities

(Moushumi Bhattacharya, J.)