Calcutta High Court (Appellete Side)
Sekh Abdul Majed vs State Of West Bengal & Ors on 28 September, 2022
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate side
PRESENT:
HON'BLE JUSTICE CHITTA RANJAN DASH
AND
HON'BLE JUSTICE ANIRUDDHA ROY
FMA 764 OF 2022
Sekh Abdul Majed
vs.
State of West Bengal & Ors.
With
MAT 910 OF 2022
with
I.A. No. CAN 1 of 2022
Sk. Manowar Ali & Ors.
Vs.
State of West Bengal & Ors.
For the Appellant : Mr. Debajyoti Datta, Adv.
in FMA 764 of 2022 Mr. Shamit Sanyal, Adv.
Ms. Priyakshi Banerjee, Adv.
Mr. Sabyasachi Roy, Adv.
For the Appellant : Mr. Joydip Kar, Sr., Adv.
in MAT 910 of 2022 Mr. Debabrata Saha Roy, Adv.
Mr. Pingal Bhattacharyya, Adv.
Mr. Subhankar Das, Adv.
Mr. Neil Basu, Adv.
For the State : Mr. S.N. Mookherjee, learned
Advocate General
Mr. Anirban Ray, learned G. P.
Mr. Sanjay Basu, Adv.
Mr. Sirsanya Bandyopadhyay, Adv.
Mr. Arka Kumar Nag, Adv.
Mr. Piyush Agarwal, Adv.
2
Ms. Utsha Dasgupta, Adv.
For the Respondent : Mr. Ajay Chaubey, Adv.
Nos. 5, 6, 7 and 8 Ms. Neha Gupta, Adv.
Heard on : 04.08.2022, 08.08.2022,
23.08.2022 and 30.08.2022.
Judgment on : 28.09.2022.
CHITTA RANJAN DASH, J.:-
1. There are two appeals - one is FMA 764 of 2022 arising out of WPA No.
17375 of 2021 (Sk. Abdul Majed & Ors. Vs. The State of West Bengal & Ors.) and
another MAT 910 of 2022 arising out of WPA 18630 of 2021 (Sk. Manowar Ali &
Ors. Vs. The State of West Bengal & Ors.).
2. Both the aforesaid appeal having involved common question of fact and law,
they are taken up together for disposal by this common Judgement.
BACKGROUND
FACTS
3. In third amendment of the Constitution of India in Entry 33 of List-III
(Concurrent List) of Schedule-VII Trade and Commerce in X X (b) foodstuffs inter
alia other items were included. Thereafter the Central Government enacted
Essential Commodities Act, 1955 ('EC Act' for short) giving the same due
protection under Article 31B of the Constitution of India. Section 3 of 'EC Act'
vested power in the Central Government to provide for regulating or prohibiting
the production supply and distribution of essential commodities and trade and
commerce therein by issuance of requisite order. Section 5 of the 'EC Act'
empowers the Central Government by notified order to delegate its power to the
State Governments to make requisite order and issue notification under Section 3
of the Act.
3.1. In exercise of the power conferred under Section 3 of the 'EC Act' Central
Government issued Public Distribution System (Control) Order, 2001 ('Central
Control Order, 2001' for short) for regulating, controlling and monitoring Public
Distribution System ('PDS' for short) in all over India. While skipping the history,
it is relevant to mention here that State of West Bengal framed West Bengal Public
Distribution (Maintenance and Control) Order, 2013 for rural areas of West Bengal
('Rural Control Order, 2013' for short) in exercise of power conferred under
Section 3 of the 'EC Act' read with 'Central Control Order 2001'. Few days
thereafter in exercise of the same power under Section 3 of 'EC Act' read with
'Central Control Order, 2001', State of West Bengal issued West Bengal Urban
Public Distribution System (Maintenance and Control) Order, 2013 ('Urban
Control Order, 2013' for short). In 'Central Control Order, 2001', 'Rural Control
Order, 2013' and 'Urban Control Order 2013' there are four types of ration card
holders (i) Above Poverty Line (APL), (ii) Below Poverty Line (BPL), (iii) Antyodaya
Anna Yojana (AAY) and (iv) Annapurna Yojana. Both the aforesaid Control Order of
2013 were issued by the State Government in the month of August, 2013.
3.2. In the month of September, 2013, Central Government enacted National
Food Security Act, 2013 ('NFS Act' for short) for maintaining, controlling and
monitoring Targeted Public Distribution System ('TPDS' for short). After
enactment of the 'NFS Act' the beneficiaries under the Scheme were confined to
two only viz. (i) Priority House Holds and (ii) Antyodaya Anna Yojana.
In the month of March, 2015, the Central Government invoking power under
Section 3 of the 'EC Act' promulgated Targeted Public Distribution System
(Control) Order, 2015 ('Central Control Order, 2015' for short). Under Clause 9
of the 'Central Control Order, 2015', Central Government has delegated powers to
the State Governments to issue requisite order under Section 3 of the 'EC Act' but
such order should not be inconsistent with the 'Central Control Order, 2015' and
'NFS Act'.
In the month of August, 2015, the Central Government in exercise of power
conferred by Section 39(ii)(e) read with Section 22(4)(d) of the 'NFS Act' after
consultation with the State Governments enacted the Food Security (Assistance to
State Governments) Rules, 2015 ('2015 Rules' for short) in Rule 7 of the '2015
Rules' there is prescription regarding the share of Central Government and State
Government in the expenditure to be borne for supply of foodstuffs under the 'NFS
Act'.
3.3. In the month of November 9, 2021, the Governor of West Bengal by
amendment to 'Rural Control Order, 2013' in exercise of power conferred by
Section 3 of the 'EC Act' inserted Clause 19(A) after Clause 19 fixing liability on the
Fair Price Shop ('FPS' for short) dealers to deliver public distribution commodities
at the door step of the ration card holders. Similarly the 'Urban Control Order,
2013' was also amended by inserting Clause 18 fixing liability on the FPS dealers
to deliver ration at the doorstep of ration card holders. On November 16, 2021 the
Governor of West Bengal in pursuance of provisions under Section 12 and 32 of
the 'NFS Act' made 'West Bengal Duare Ration Scheme, 2021' ('Duare Ration
Scheme' for short) in addition to 'Rural Control Order, 2013' and 'Urban Control
Order, 2013'. "Duare Ration" which are Bengali terms in English means "door
step delivery of ration".
THE CONTROVERSY
4. In WPA No. 17375 of 2021 and in WPA No. 18630 of 2021 the aforesaid
'Duare Ration Scheme' was brought under challenge on the ground of
repugnancy with the parent Act i.e. 'NFS Act'. In WPA No. 18630 of 2021, the
amendment brought in 2013 Control Order (both rural and urban) vide
Notification dated 9th November, 2021 in inserting Clause 19(A) and Clause 18
respectively in the said Control Order, was also challenged on the ground that
after coming into force of 'Central Control Order, 2015' and repeal of 'Central
Control Order, 2001', the 2013 Control Order both for rural and urban area have
become non-existent and non-est in the eye of law.
FINDINGS BY HON'BLE SINGLE JUDGES
5. After hearing learned Counsel for the parties Hon'ble Single Judge in WPA
No. 17375 of 2021 in paragraph 24 (vi) held thus :-
"(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."
Hon'ble Single Judge in WPA No. 18630 of 2021 held thus :-
"......Section 24 (2) (b) of the NFSA obliges the
State Government to ensure actual delivery of supply
of food grains to the entitled persons at the prices
specified in Schedule-I. Therefore, the State
Government wishes to travel the extra mile to deliver
the food grains at the doorsteps of the beneficiaries,
such an endeavour cannot be said to fall foul of any
provisions of NFSA, the rules framed thereunder or the
orders issued under the ECA, 1955...."
5.1. It is found from the order that on the face of challenge to the 'Duare Ration
Scheme' on the ground of repugnancy with 'NFS Act', Hon'ble Single Judges in
each case (though by different Benches) have precisely read down the provisions of
'NFS Act' with the provision of 'Duare Ration Scheme' to reach their conclusion
to hold that both the Act and the Scheme can co-exist and this Scheme has only
covered "extra mile" or "defined end point of the Central Government Order".
SUBMISSIONS IN THE APPEAL
6. In the appeal, however, learned Counsel for the appellants i.e. Mr. Datta,
learned Counsel for the appellant in FMA No. 764 of 2022 and Mr. Kar, learned
Senior Counsel appearing for the appellant in MAT No. 910 of 2022 have taken a
new plea altogether which is a pure question of law and can be raised even in
appeal. Their argument is that in making the 'Duare Ration Scheme' which is
admittedly an executive legislation, the State Government has exceeded the extent
of delegation and therefore, the 'Duare Ration Scheme' is a nullity in the eye of
law. So far as the insertion of Clause 19(A) in 'Rural Control Order, 2013' and
Clause 18 in 'Urban Control Order, 2013' by amendment dated 9 th November,
2021 is concerned, it is submitted that '2013 Control Order' being non-existent
after issuance of 'Central Control Order, 2015' repealing the 'Central Control
Order, 2001', no amendment to a non-existent order could have been made.
Having heard learned Counsel for the appellants and learned Advocate General
and learned Counsel for the Central Government, we find that following questions
arise for our consideration :-
(i) In making the "Duare Scheme" whether the
State Government has exceeded the limit of
delegation.
(ii) Whether Notification of 1978 (page 69, Vol.-I of
the paper book) as contended by Mr. Dutta,
learned Counsel has any effect so far as the
"Duare Ration Scheme" is concerned.
(iii) Whether both the State Control Order of 2013
for urban and rural area is non-existent in view
of coming into effect of 'Central Control Order,
2015'.
(iv) Whether both the Control Orders of 2013 are
saved by either Section 24 of the General
Clauses Act or by provisions contained in
'NFSA' or 'Central Control Order, 2015'.
(v) Whether the State Government without any
requisite delegation in the parent Act or order
can travel extra mile in the name of welfare.
(vi) Whether the "Duare Scheme" or for that
matter amendment to Clause 19(A) and 18 of
the 2013 Control Order (both rural and urban)
are nullity for the aforesaid reasons.
DECISION WITH REASONS
7. So far as the first question that arises for our consideration is concerned, we
propose to go through the law cited by both Mr. Kar, learned Senior Counsel and
Mr. Datta, learned Counsel on the point.
In the case of District Collector, Chittoor & Ors. Vs. Chittoor District
Groundnut Traders' Association, Chittoor & Ors. [1989 (2) SCC 58], Hon'ble
Supreme Court in paragraph 4 of the Judgement has held thus :-
"...... A delegate is not entitled to exercise
powers in excess or in contravention of the delegated
powers. If any order is issued or framed in excess of
the powers delegated to the authorities, such order
would be illegal and void."
Hon'ble Supreme Court in the case of Hukam Chand ETC vs. Union of
India & Ors. [1972 (2) SCC 601] in paragraph 8 has held thus :-
"........The underlying principle is that unlike
Sovereign Legislature which has power to enact laws
with retrospective operation, authority vested with the
power of making subordinate legislation has to act
within the limits of its power and cannot transgress
the same. The initial difference between subordinate
legislation and the statute law lies in the fact that a
subordinate law-making body is bound by the terms
by its delegated or derived authority and that Court of
law, as a general rule, will not give effect to the rules,
thus made, unless satisfied that all the conditions
precedent to the validity of the rules have been fulfilled
(see Craies on Statute Law, p. 297, Sixth Edition).
In the case of Union of India & Ors. Vs. S. Srinivasan [2012 (7) SCC 683]
in paragraph 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 has held thus :-
"21. At this stage, it is apposite to state about
the rule-making powers of a delegating authority. If a
rule goes beyond the rule-making power conferred by
the statute, the same has to be declared ultra vires. If
a rule supplants any provision for which power has
not been conferred, it becomes ultra vires. The basic
test is to determine and consider the source of
power which is relatable to the rule. Similarly, a
rule must be in accord with the parent statute as
it cannot travel beyond it.
22. In this context, we may refer with profit to
the decision in General Officer Commanding-in-
Chief v. Subhash Chandra Yadav [(1988) 2 SCC 351 :
1988 SCC (L&S) 542 : (1988) 7 ATC 296 : AIR 1988
SC 876] wherein it has been held as follows : (SCC p.
357, para 14)
"14. ... before a rule can have the effect of a
statutory provision, two conditions must be fulfilled,
namely, (1) it must conform to the provisions of
the statute under which it is framed; and (2) it
must also come within the scope and purview of
the rule-making power of the authority framing
the rule. If either of these two conditions is not
fulfilled, the rule so framed would be void."
23. In Delhi Admn. v. Siri Ram [(2000) 5 SCC
451 : AIR 2000 SC 2143] it has been ruled that it is a
well-recognised principle that the conferment of
rule-making power by an Act does not enable the
rule-making authority to make a rule which
travels beyond the scope of the enabling Act or
which is inconsistent therewith or repugnant
thereto.
24. In Sukhdev Singh v. Bhagatram Sardar
Singh Raghuvanshi [(1975) 1 SCC 421 : 1975 SCC
(L&S) 101 : AIR 1975 SC 1331] the Constitution
Bench has held that : (SCC p. 433, para 18)
"18. ... statutory bodies cannot use the
power to make rules and regulations to enlarge
the powers beyond the scope intended by the
legislature. Rules and regulations made by reason of
the specific power conferred by the statute to make
rules and regulations establish the pattern of conduct
to be followed".
25. In State of Karnataka v. H. Ganesh
Kamath [(1983) 2 SCC 402 : 1983 SCC (Cri) 514 : AIR
1983 SC 550] it has been stated that : (SCC p. 410,
para 7)
"7. ... It is a well-settled principle of
interpretation of statutes that the conferment of
rule-making power by an Act does not enable the
rule-making authority to make a rule which
travels beyond the scope of the enabling Act or
which is inconsistent therewith or repugnant
thereto."
26. In Kunj Behari Lal Butail v. State of
H.P. [(2000) 3 SCC 40 : AIR 2000 SC 1069] it has
been ruled thus : (SCC p. 46, para 13)
"13. It is very common for the legislature to
provide for a general rule-making power to carry out
the purpose of the Act. When such a power is given, it
may be permissible to find out the object of the
enactment and then see if the rules framed satisfy
the test of having been so framed as to fall within the
scope of such general power conferred. If the rule-
making power is not expressed in such a usual
general form then it shall have to be seen if the
rules made are protected by the limits prescribed
by the parent Act."
27. In St. Johns Teachers Training
Institute v. National Council for Teacher
Education [(2003) 3 SCC 321 : AIR 2003 SC 1533] it
has been observed that : (SCC p. 331, para 10)
"10. A regulation is a rule or order prescribed
by a superior for the management of some business
and implies a rule for general course of action. Rules
and regulations are all comprised in delegated
legislations. The power to make subordinate
legislation is derived from the enabling Act and it
is fundamental that the delegate on whom such a
power is conferred has to act within the limits of
authority conferred by the Act. Rules cannot be
made to supplant the provisions of the enabling
Act but to supplement it. What is permitted is the
delegation of ancillary or subordinate legislative
functions, or, what is fictionally called, a power to
fill up details."
28. In Global Energy Ltd. v. Central Electricity
Regulatory Commission [(2009) 15 SCC 570] this
Court was dealing with the validity of clauses (b) and
(f) of Regulation 6-A of the Central Electricity
Regulatory Commission (Procedure, Terms and
Conditions for Grant of Trading Licence and Other
Related Matters) Regulations, 2004. In that context,
this Court expressed thus : (SCC p. 579, para 25)
"25. It is now a well-settled principle of law that
the rule-making power 'for carrying out the purpose
of the Act' is a general delegation. Such a general
delegation may not be held to be laying down any
guidelines. Thus, by reason of such a provision
alone, the regulation-making power cannot be
exercised so as to bring into existence substantive
rights or obligations or disabilities which are not
contemplated in terms of the provisions of the
said Act."
29. In the said case, while discussing further
about the discretionary power, delegated legislation
and the requirement of law, the Bench observed thus
: (Global Energy Ltd. case [(2009) 15 SCC 570] , SCC
p. 589, para 73)
"73. The image of law which flows from this
framework is its neutrality and objectivity : the ability
of law to put sphere of general decision-making
outside the discretionary power of those wielding
governmental power. Law has to provide a basic level
of 'legal security' by assuring that law is knowable,
dependable and shielded from excessive
manipulation. In the context of rule-making,
delegated legislation should establish the structural
conditions within which those processes can function
effectively. The question which needs to be asked is
whether delegated legislation promotes rational and
accountable policy implementation. While we say so,
we are not oblivious of the contours of the judicial
review of the legislative Acts. But, we have made all
endeavours to keep ourselves confined within the
well-known parameters."
30. In this context, it would be apposite to refer
to a passage from State of T.N. v. P.
Krishnamurthy [(2006) 4 SCC 517] wherein it has
been held thus : (SCC p. 529, para 16)
"16. The court considering the validity of a
subordinate legislation, will have to consider the
nature, object and scheme of the enabling Act, and
also the area over which power has been delegated
under the Act and then decide whether the
subordinate legislation conforms to the parent
statute. Where a rule is directly inconsistent with
a mandatory provision of the statute, then, of
course, the task of the court is simple and easy.
But where the contention is that the
inconsistency or non-conformity of the rule is not
with reference to any specific provision of the
enabling Act, but with the object and scheme of
the parent Act, the court should proceed with
caution before declaring invalidity."
31. In Pratap Chandra Mehta v. State Bar
Council of M.P. [(2011) 9 SCC 573] , while discussing
about the conferment of extensive meaning, it has
been opined that : (SCC p. 604, para 58)
"58. ... The Court would be justified in giving
the provision a purposive construction to perpetuate
the object of the Act, while ensuring that such rules
framed are within the field circumscribed by the
parent Act. It is also clear that it may not always
be absolutely necessary to spell out guidelines for
delegated legislation, when discretion is vested in
such delegatee bodies. In such cases, the language
of the rule framed as well as the purpose sought
to be achieved, would be the relevant factors to be
considered by the Court."
Hon'ble Supreme Court in the case of State of T.N. & Anr. Vs. P.
Krishnamurthy & Ors. [2006 (4) SCC 517] in paragraph 15 has held thus : -
"15. There is a presumption in favour of
constitutionality or validity of a subordinate legislation
and the burden is upon him who attacks it to show that it
is invalid. It is also well recognised that a subordinate
legislation can be challenged under any of the following
grounds:
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed under
the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which
it is made or exceeding the limits of authority
conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an
extent where the court might well say that the legislature
never intended to give authority to make such rules)."
(emphasis supplied by us)
With the position of law as aforesaid which is also an admitted position of
law according to learned Advocate General we shall proceed to weigh the argument
advanced by learned Counsel for the parties.
8. Mr. Kar, learned Senior Counsel appearing for the appellant in one of the
appeal elaborated on Sections 3 and 5 of the 'EC Act', making of 'Central Order
2001', making of Control Order 2013 by the State Government for both rural and
urban area separately by two different orders in 2013, enactment of 'NFS Act' and
making of 'Central Order, 2015'. Taking us through different provisions of 'NFS
Act' it is submitted by Mr. Kar that after introduction of the aforesaid Act the
beneficiaries have been limited to two groups only and those are Antyodaya House
Holds and Priority House Holds. The 'NFS Act' prescribes for lifting of foodstuff
from the godown and deliver the same at the door step of FPS dealer. Here,
however, going beyond the mandate of the parent statute the impugned 'Duare
Ration Scheme' has been framed. Relying on the aforesaid decision Mr. Kar
would submit that the State in making the 'Duare Ration Scheme' which is a
piece of executive legislation has transgressed the limits of delegation by the
parent Act i.e. 'NFS Act'.
8.1. Mr. Datta, learned Counsel appearing for the appellant in one of the appeal
taking us through Section 12 and Section 32 of 'NFS Act' submits that the framing
of 'Duare Ration Scheme' is beyond the delegated power of the State vis-a-vis the
parents statute i.e. 'NFS Act'.
8.2. Learned Advocate General taking us through Article 47, 51 of the
Constitution of India, different Clauses of statement of object and reasons of the
'NFS Act', the preamble of the said Act Section 2(3), 3 and 10, Section 2(2) and
2(10) Section 3 read with Schedule I and Schedule IV Section 22 (4) Section 12
and 24 Section 14 to 16 Section 27 to 29 and decision of Hon'ble Supreme Court
reported in Swaraj Abhiyan Vs. Union of India & Ors. [(2016) 7 SCC 498] at
paragraph 128 giving direction to the States to give effect to the provisions of the
'NFS Act' in pursuance of their constitutional obligation to ensure Food Security,
submits that the State in framing the 'Duare Ration Scheme' did not transgress
the sphere of delegation made by the 'NFS Act'.
8.3. Learned Advocate General has also relied on the Judgement of Hon'ble Delhi
High Court in the case of Delhi Sarkari Ration Dealers Sangh Delhi Vs.
Commissioner Food and Supplies Govt. Of NCT of Delhi & Ors. (2022 SCC
Online Del 1485) to buttress his submission but it is fairly admitted by him that
similar scheme framed by the NCT Delhi was struck down on the ground that it
had completely done away with the existing Fair Price Shop owners which is
clearly a part of legislative framework under 'NFS Act'. It is further submitted by
him that so far as the State of West Bengal and Andra Pradesh are concerned they
have retained the network of existing Fair Price Shop owners and they have taken
additional responsibility of providing foodstuffs at the door step of the beneficiary
not free by the Fair Price Shop owners but on payment of adequate compensation
to them for such additional work to be taken up by them.
8.4. Ld. Counsel appearing for the Central Government respondent nos. 5, 6, 7
and 8 taking us through the provision of Section 3 and 5 of the 'EC Act', provision
of 'Central Control Order, 2001', 2013 Control Order for rural area and 2013
Control Order for urban area, different provision of 'NFS Act' and 'Central Control
Order, 2015' submits that the "Duare Ration Scheme" framed by the State
Government clearly transgress the limit of delegation and to buttress his
submission it is submitted by him that the scheme framed by Government of NCT,
Delhi by Notification dated 20.02.2021 was not permitted by the Central
Government for implementation on the ground that the Scheme was named
Mukhyo Mantri Ghar Ghar Ration Yojona. Provisions were there in that Scheme
also for door step delivery of ration.
9. After hearing the learned Counsel for the parties we shall refer to relevant
points raised by learned Counsels with reference to the provision of the 'NFS Act'.
The 'NFS Act' has been enacted with a view to implement the directive in
Article 47 of the Constitution of India, the universal declaration of human rights
and International covenant on economics, social and cultural rights to which India
is a signatory. It is also an admitted fact that the 'NFS Act' makes 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. Now the receipt of entitled quantities of quality food grains at
highly subsidised prices is a legal right of eligible beneficiaries.
9.1. Ld. Advocate General has laid much emphasis on the statement of object
and reasons of 'NFS Act' but we are of the view that with the underlying object and
reasons the statute having been enacted by the sovereign parliament it would
suffice to refer to the relevant provisions contained in the statute so far as
interpretation to the extent as to whether the "Duare Ration Scheme" has
transgressed the sphere of delegation made in the parent statute.
9.2. Let us see first the definitions in the 'NFS Act' relied on by learned Counsel
for the parties. Relevant definitions are reproduced below :-
Section 2(2) defined "central pool" and it reads as follows:
'(2) 'central pool' means the stock of food grains
which is,-- (i) procured by the Central Government and
the State Governments through minimum support price
operations; (ii) maintained for allocations under the
Targeted Public Distribution System, other welfare
schemes, including calamity relief and such other
schemes; (iii) kept as reserves for schemes referred to
in sub-clause (ii)'
Section 2(3) defines 'eligible households' which reads thus:
'(3) "eligible households" means households
covered under the priority households and the
Antyodaya Anna Yojana referred to in sub-section (1)
of section 3'
Section 2(4) defines 'Fair Price Shop' which reads thus:
'(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 (10 of 1955), to the ration card
holders under the Targeted Public Distribution System'
Section 2(12) defines 'other welfare schemes' which reads thus:
'(12) "other welfare schemes" means such
Government schemes, in addition to the Targeted
Public Distribution System, under which foodgrains or
meals are supplied as part of the schemes'
Section 2(14) defines priority households which reads thus:
'(14) "priority households" means households
identified as such under section 10'
Section 2(16) defines 'ration card' which reads thus:
'(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'
Section 2(23) defines 'Targeted Public Distribution System':
'(23) "Targeted Public Distribution System"
means the system for distribution of essential
commodities to the ration card holders through fair
price shops'.
9.3. From the aforesaid definitions it is clear that the Act covers two types of
beneficiaries i.e. Priority House Hold and Antyodaya Anna Yojana. Fair Price Shop
means the existing Fair Shop who have been issued license to distribute essential
commodities. Ration card is a document issued under an order or authority of the
State Government for the purchase of essential commodities from the Fair Price
Shop under the Targeted Public Distribution System. Targeted Public Distribution
System is system for distribution of essential commodities to ration card holders
through Fair Price Shop.
9.4. Mr. Kar, learned Senior Counsel appearing for the appellant in one of the
appeals and Mr. Datta, learned Counsel appearing for the appellant in another
appeal lays stress on the word 'from' the Fair Price Shops in Section 2(16) and
learned Advocate General lays stress on the word 'through' Fair Price Shops in
Section 2(23). It is argued by Mr. Kar, and Mr. Datta that the beneficiaries have to
lift their entitled foodstuffs from the Fair Price Shop. Learned Advocate General on
the other hand submits that the State can go further for distribution of essential
commodities to the ration card holders through Fair Price Shop and the word
'through' cannot be limited to putting liability on the ration card holder to come to
Fair Price Shop to lift his entitlement.
9.5. It is common to find in a statute "Definitions" of certain words and
expressions used elsewhere in the body of the statute. The object of such definition
is to avoid the necessity of frequent repetitions in describing all the subject matter
to which the word or expression so defined is intended to apply. The legislature
has power to define a word even artificially. So the definition of a word in the
definition Section may either be restrictive of its ordinary meaning or it may be
extensive of the same. When a word is defined to "mean" such and such, the
definition is prima facie restrictive and exhaustive.
9.6. In the definition section of 'NFS Act' we find that the definitions are
restrictive and exhaustive by use of words means. In view of such fact the use of
word 'from the Fair Price Shop' in Section 2(16) and 'through Fair Price Shop' in
Section 2(23) makes no difference as urged by the learned Counsel for the parties.
Even if we view the matter literally or grammatically the word 'through' has been
used in Section 2(23) as a preposition which is nothing but a function word to
indicate means, agency or intermediacy. If we understand the word literally also
the Fair Price Shop is only an agency or means or intermediate stage to pass on
the foodstuff to the beneficiaries at the subsidised rate as defined in Section 2(23).
The word 'through' in Section 2(23) therefore does not in any way extend the
sphere of function of a Fair Price Shop as urged by learned Advocate General.
9.7. "Duare Ration Scheme" by the State having been made in pursuance of
provisions under Sections 12 and 32 of 'NFS Act'. It is apposite to reproduce those
provisions for ready reference :-
12. Reforms in Targeted Public Distribution System.--
(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, cooperatives, 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
32. Other welfare schemes.-- (1) The provisions of this
Act shall not preclude the Central Government or the
State Government from continuing or formulating other
food based welfare schemes.
(2) Notwithstanding anything contained in this Act, the
State Government may, continue with or formulate
food or nutrition based plans or schemes providing for
benefits higher than the benefits provided under this
Act, from its own resources.
10. From cursory reading of Section 12, it is clear that the Section provides for
reforms in the Targeted Public Distribution System. It provides that the Central
Government and the State Government shall endeavour to progressively undertake
necessary reforms in the Targeted Public Distribution System in consonance with
the rule envisaged for them in the Act. Section 32 provides that the State
Government may continue or formulate other food based welfare scheme. It is also
provided in sub-Section 2 of Section 32 that the State government may continue
with or formulate food or nutrition based plans or schemes providing for benefits
higher than the benefits provided under this Act from its own resources.
11. Relying on Section 12(2)(a), Mr. Kar learned Senior Counsel appearing for
the appellant in one of the appeals and Mr. Datta, learned Counsel appearing for
the appellant in one of the appeals submits that the Act in clear term provides for
doorstep delivery of food grains to the Targeted Public Distribution System outlet
i.e. Fair Price Shops.
Taking us through provisions of Section 32 as reproduced supra, learned
Advocate General submits that the State Government is not precluded by the Act
from continuing or formulating other food based welfare scheme and further sub-
Section 2 authorise the State Government to continue with or formulate food or
nutrition based plans and schemes providing for benefits higher than the benefits
provided under this Act, from its own resources starting with a non-obstante
clause. The "Duare Ration Scheme" therefore cannot be said to have
transgressed the delegated power made by the Act. In order to properly appreciate
the argument advanced by learned Counsel for the parties, it is beneficial to
reproduce Section 24 of the Act here. Section 24 of the Act reads thus :-
24. Implementation and monitoring of schemes
for ensuring food security.--(1) The State Government
shall be responsible for implementation and monitoring
of the schemes of various Ministries and Departments
of the Central Government in accordance with
guidelines issued by the Central Government for each
scheme, and their own schemes, for ensuring food
security to the targeted beneficiaries in their State.
(2) Under the Targeted Public Distribution System, it
shall be the duty of the State Government to--
(a) take delivery of foodgrains from the
designated depots of the Central Government in
the State, at the prices specified in Schedule I,
organise intra-State allocations for delivery of
the allocated foodgrains through their
authorised agencies at the door-step of each
fair price shop; and
(b) ensure actual delivery or supply of the
foodgrains to the entitled persons at the
prices specified in Schedule I.
(3) For foodgrain requirements in respect of
entitlements under sections 4, 5 and section 6, it shall
be the responsibility of the State Government to take
delivery of foodgrains from the designated depots of
the Central Government in the State, at the prices
specified in Schedule I for persons belonging to eligible
households and ensure actual delivery of entitled
benefits, as specified in the aforesaid sections.
(4) In case of non-supply of the entitled quantities of
foodgrains or meals to entitled persons under Chapter
II, the State Government shall be responsible for
payment of food security allowance specified in section
8.
(5) For efficient operations of the Targeted Public
Distribution System, every State Government shall,--
(a) create and maintain scientific storage
facilities at the State, District and Block levels,
being sufficient to accommodate foodgrains
required under the Targeted Public Distribution
System and other food based welfare schemes;
(b) suitably strengthen capacities of their Food
and Civil Supplies Corporations and other
designated agencies;
(c) establish institutionalised licensing
arrangements for fair price shops in accordance
with the relevant provisions of the Public
Distribution System (Control) Order, 2001 made
under the Essential Commodities Act, 1955 (10
of 1955), as amended from time.
12. Furthermore we have to understand the meaning of words 'benefits'
occurring in sub-Section 2 of Section 32 and 'welfare scheme' occurring in sub-
Section 1 of Section 32. So far as 'welfare scheme' is concerned, it has been
defined in sub-Section 2(12) to mean such Government schemes, in addition to the
Targeted Public Distribution System, under which food grains or meals are
supplied as part of the scheme. Sub-Section 1 of Section 32 if read in conjunction
with Section 2(12), it would mean Government's scheme under which food grains
or meals are supplied as part of the schemes and it is in addition to the Targeted
Public Distribution System. So sub-Section 32(1) in our view does not give any
authority to the State Government to travel beyond the role assigned to it in
Section 24 read with Section 12 of the Act.
13. Coming to the word 'benefits' occurring in sub-Section 2 of Section 32, it is
nothing but the benefits spoken of in Sections 3, 4, 5 and 6 of Chapter II. Sub-
Section 2 authorises the State Government to continue with or formulate food or
nutrition based plans or schemes providing for benefits higher than the benefits
provided in 'NFS Act' from its own resources, notwithstanding anything contained
in this Act. If sub-Section 2 of Section 32 is read with Sections 12 and 24, it would
be clear that this sub-Section also does not authorise the State to travel to an
extent not delegated to it to tread.
14. Section 12(2)(a) on the other hand in specific term provides for doorstep
delivery of food grains to the Targeted Public Distribution System outlets and in
sub-Section 1 of Section 12, it is clearly mentioned that the Central and State
Government shall endeavour to progressively undertake necessary reforms in the
Targeted Public Distribution System in consonance with the role envisaged for
them in this Act. Other reforms have been enumerated in Section 12 with which
we are not concerned in the present lis. Section 24(2)(a) specifically provides that it
is the duty of the State Government to take delivery of food grains from the
designated depots of the Central Government in the State, at the prices specified
in Schedule-I, organise intra-State allocations for delivery of the allocated food
grains through their authorised agency at the doorstep of each Fair Price Shop.
Sub-Section 2(b) vests an obligation on the State Government to ensure actual
delivery or supply of the food grains to the entitled person at the prices specified in
Schedule-I. In sub-Section 3 of Section 24, the State Government has been obliged
to take delivery of food grains from the designated depots of the Central
Government in the State, at the prices specified in Schedule-I for persons
belonging to eligible households and ensure actual delivery of entitled benefits as
specified in the aforesaid Sections.
15. Though much stress is laid on the words 'ensure actual delivery' in sub-
Section 2(b) and sub-Section 3 of Section 24 which according to learned Advocate
General covers the entire "Duare Ration Scheme" it would suffice to say that the
phrase 'actual delivery or supply' in Section 24(2)(b) and sub-Section 3 of Section
24 has been qualified by the phrase as specified in the aforesaid Sections. So in
our view, therefore, the aforesaid facts "actual delivery or supply" as occurring
in Section 24(2)(b) and sub-Section 3 of Section 24 does not extend to supply of
foodstuffs to the beneficiaries at their doorstep through the agency of Fair Price
Shops.
16. Many more Sections have been placed before us by the Counsel for either
parties to buttress their submissions but those are not of any additional benefit as
we found on perusal of them and they have no potency to alter our view as taken
supra.
17. Hon'ble Single Judges in reaching their conclusion in the writ petitions,
orders passed in which are under challenge before us, have not properly construed
the "benefits" spoken of supra, the meaning of "welfare scheme" that the State can
undertake and the role assigned to the State Government in different Sections of
the Act and Their Lordships in their individual capacity in different Bench having
proceeded on wrong premises have arrived at wrong conclusions.
18. Ld. Advocate General with all the vehemence at his command submits that
the "Duare Ration Scheme" made by the State does not in any way supplant the
provisions of the enabling Act but it supplement the enabling Act when the State
Government has proceeded further or farther for the welfare of the poor and needy
people.
19. Ld. Advocate General may be right in his submission but as discussed supra
role having been defined in the Act itself for the State Government, the State
Government has no authority to bring into existence obligation on the part of the
Fair Price Shop dealers to do the additional work though for adequate
compensation as provided in the "Duare Ration Scheme".
The outer limit of delivery of the State having been fixed in the enabling Act,
the State on the pretext of welfare or to supplement the enabling Act cannot
transgress that outer limit. The sovereign parliament in their wisdom have fixed
the outer limit of delivery of foodstuffs after due regard to the aims and objectives
of the Act. Various provisions have been made, which are essentially "machinery
provisions" for proper monitoring, check on pilferage and reach out of the benefits
to actual beneficiaries. The wisdom of the legislature cannot be questioned as to
why fair price shop was chosen by the Act as outer limit of delivery and why they
did not explore little further to fix it at the doorstep of the beneficiaries. We cannot
hold that the distance from the fair price shop to the doorstep of the beneficiaries
is an unexplored distance or an extra mile only. The legislature has not covered
this extra mile or unexplored distance in it's wisdom that legislative wisdom can
neither be questioned in "Judicial Review" nor the gap can be filled up by exercise
of plenary power under Article 226 of the Constitution of India.
20. We are, therefore, constrained to hold that the State Government has
transgressed the limit of delegation by obliging the Fair Price Shop dealers to
distribute the rations to the beneficiaries at their doorstep in absence of any
authority to that effect in the enabling Act i.e. 'NFS Act'. If the 'NFS Act' is
amended by the wisdom of the Union Legislature i.e. Parliament for doorstep
delivery of food grains to the beneficiaries or invest any such power to the State
Government then only such a scheme can be made by the State and that can be
said to be in sync with the enabling Act.
21. Accordingly, we hold that the State Government in making the "Duare
Ration Scheme" has exceeded the limit of delegation by the enabling Act.
22. Question Nos. (i) and (v) as framed in paragraph 6 supra are answered
accordingly.
23. In view of our finding supra question no.(ii) has no relevance.
24. Now, coming to question nos. 3 and 4 framed supra in paragraph 6, it is
found that the Governor by invoking power under Section 3 of the 'EC Act' has
amended the 'Rural Control Order, 2013' and 'Urban Control Order, 2013' obliging
the Fair Price Shop dealers therein to distribute the entitlement i.e. the ration at
the doorstep of the beneficiaries. The amendment is impugned on the ground
already delineated supra.
25. The main thrust of argument by Mr. Kar, learned Senior Counsel is that
after coming into force of the 'Central Government Control Order, 2015', the 'Rural
Control Order, 2013' and 'Urban Control Order, 2013' have become non-existent
as the 'Central Control Order, 2001' has been repealed by the 'Central Control
Order, 2015' hitting at the very root of existence of 'Rural Control Order, 2013' and
'Urban Control Order, 2013'.
From reading of 'Central Control Order, 2015', it is however found that it
has been made in exercise of power conferred by Section 3 of the 'EC Act' and in
supersession of the 'Central Control Order, 2001'. In Clause 2 of 'Central Control
Order, 2015', it is specifically provided that provision of the 'Central Control Order,
2001' shall continue to have effect as against the corresponding provisions of this
order in any State which has not implemented the 'Food Security Act' or is
implementing the said Act only in part.
Ld. Advocate General submits that taking into consideration the mechanism
which has been provided in the 'NFS Act' and the 'Central Control Order, 2015'
like monitoring etc. the 'NFS Act' has not yet been implemented in full in the State.
It is submitted by Mr. Kar, learned Senior Counsel appearing for the appellants
that the 'NFS Act' has been implemented in full force in the State and thereafter
only the "Duare Ration Scheme" was made.
26. When learned Advocate General being the highest officer of the State and
supposed to be in know of the facts is submitting that 'NFS Act' has not yet been
implemented in full in the State, in absence of positive averments in the pleadings
in the writ petition by the petitioner-appellant, we cannot simply deny the
assertion made by learned Advocate General. Clause 2 of 'Central Control Order,
2015' clearly negated the contention raised by Mr. Kar, learned Senior Counsel
appearing for the appellant and it cannot be held that 'Rural Control Order, 2013'
and 'Urban Control Order, 2013' are non-existent in view of supersession of
'Central Control Order, 2001'. In view of such fact the amendment carried out by
the State Government in both the aforesaid Control Order of 2013 cannot be held
to be invalid.
In view of our discussion supra question no. (vi) framed in paragraph 6
supra is also answered accordingly.
27. In view of our discussion supra we are constrained to hold, in fine, that
"Duare Ration Scheme" is ultra vires the 'National Food Security Act, 2013' and
is therefore a nullity in the eye of law.
28. Orders passed in WPA No. 17375 of 2021 and in WPA No. 18630 of 2021 are
hereby set aside.
29. Both the appeals are accordingly disposed of.
30. In view of the order in the appeal, the I.A., being numbered CAN 1 of 2022
also stands disposed of.
31. There shall be no order, however, as to cost.
32. Pronounced in open Court on this day i.e. 28 th day of September, 2022.
33. Urgent Photostat certified copy of this Judgement, if applied for, be given to
the parties on completion of usual formalities.
I agree.
(Aniruddha Roy, J.) (Chitta Ranjan Dash, J.)
