Page No.# 1/16 vs The Union Of India And 3 Ors
2025 Latest Caselaw 2545 Gua

Gauhati High Court

Page No.# 1/16 vs The Union Of India And 3 Ors on 7 August, 2025

                                                                 Page No.# 1/16

GAHC010071942025




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : I.A.(Civil)/1557/2025


         LAIPULI GAON PANCHAYAT SAMABAI SAMITY LIMITED AND 15 ORS.
         REGISTERED OFFICE - LAIPULI
         BORDUBI ROAD
         P.O.- PANITOLA
         DIST- TINSUKIA
         ASSAM
         PIN-786183 REPRESENTED BY ITS CHAIRMAN
         SRI SAILEN KUMAR BORAH (AGE - 56 YEARS)

         2: MARGHERITA GAON PANCHAYAT SAMABAI SAMITY LIMITED
         REGISTERED OFFICE - MARGHERITA
          JAYA NAGAR VIA MARGHERITA
          P.O MAKUM PATHAR
          DISTRICT TINSUKIA
         ASSAM
          PIN-786187
          REPRESENTED BY ITS SECRETARY
          SMTI. SHILPI BORUAH (AGE - 42 YEARS)

         3: BORBIL GAON PANCHAYAT SAMABAI SAMITY LIMITED
         REGISTERED OFFICE - 1 NO. BORBIL
         NEAR L.P SCHOOL
         P.O DIGBOI
         DISTRICT TINSUKIA
         ASSAM
         PIN-786171
         REPRESENTED BY ITS SECRETARY
         SMTI. MONALISHA KONWAR (AGE- 41 YEARS)

         4: TIPUK GAON PANCHAYAT SAMABAI SAMITY LIMITED
         REGISTERED OFFICE - RUPAI SIDING
         DOOMDOOMA
         P.O RUPAI SIDING
         DISTRICT TINSUKIA
                                                      Page No.# 2/16

ASSAM
PIN- 786153
REPRESENTED BY ITS CHAIRMAN
SRI DHARMENDRA SONOWAL (AGE - 50 YEARS)

5: LEDO GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - LEDO BAZAR
P.O LEDO
DISTRICT TINSUKIA
ASSAM
PIN- 786153
REPRESENTED BY ITS SECRETARY
SRI PREM BAHADUR CHETRY (AGE - 32 YEARS)

6: KETETONG GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - KETETONG
P.O KETETONG
DISTRICT TINSUKIA
ASSAM
PIN-786181
REPRESENTED BY ITS SECRETARY
SRI DUMAI DUNIA (AGE - 52 YEARS)

7: GUIJAN GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - GUIJAN 5 NO.
P.O RONGAGORA
DISTRICT TINSUKIA
ASSAM
PIN-786147
REPRESENTED BY ITS SECRETARY
SRI MUNNA PAUL (AGE - 38 YEARS)

8: TINGRAI GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - TINGRAI BAZAR
NEAR TINGRAI HIGH SCHOOL
1 NO. AKHOMIA GAON
P.O TINGRAI BAZAR
DISTRICT TINSUKIA
ASSAM
PIN-786171
REPRESENTED BY ITS SECRETARY
SRI SWAPON NAG

9: BAZALTOLI GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - BAZALTOLI
P.O BORGURI
DISTRICT TINSUKIA
ASSAM
                                                     Page No.# 3/16

PIN-786125
REPRESENTED BY ITS SECRETARY
SRI UTPAL NEOG

10: KAKOPATHAR GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - KAKOPATHAR
NEAR FOREST OFFICE
P.O KAKOPATHAR
DISTRICT TINSUKIA
ASSAM
PIN-786152
REPRESENTED BY ITS SECRETARY
SRI SHAMBHU CHOUDHARY (AGE - 56 YEARS)

11: GABHORUBHETI GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - GABHORUBHETI
VILLAGE BISHNUPUR
P.O PHILOBARI
DISTRICT TINSUKIA
ASSAM
PIN-786160
REPRESENTED BY ITS SECRETARY
SRI BODRI CHETRY (AGE - 42 YEARS)

12: TALAP GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - BALI BAZAR
TALAP
P.O TALAP
DISTRICT TINSUKIA
ASSAM
PIN-786156
REPRESENTED BY ITS CHAIRMAN
MD. NASHIM ANSARI (AGE - 62 YEARS)

13: BAPUJI GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - HOGRIJAN
P.O BORDUBI
DISTRICT TINSUKIA
ASSAM
PIN- 786601
REPRESENTED BY ITS SECRETARY
SRI JYOTI BORDOLOI (AGE - 65 YEARS)

14: DANGORI GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - DANGORI
P.O DANGORI
DISTRICT TINSUKIA
ASSAM
                                                     Page No.# 4/16

PIN- 786156
REPRESENTED BY ITS SECRETARY
SRI PRONOB SONOWAL (AGE - 33 YEARS)

15: BURIDIHING GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - BIJULIBON
VILLAGE MOILAPUR
P.O CHIKARAJAN
DISTRICT TINSUKIA
ASSAM
PIN- 786150
REPRESENTED BY ITS CHAIRMAN
SRI PUSHPA MARAN (AGE - 48 YEARS)

16: TONGONA GAON PANCHAYAT SAMABAI SAMITY LIMITED
REGISTERED OFFICE - TONGONA BAZAR
P.O TONGONA BAZAR
DISTRICT TINSUKIA
ASSAM
PIN-786152
REPRESENTED BY ITS SECRETARY
SRI SUBORNA DOHOTIA (AGE - 44 YEARS)
VERSUS

THE UNION OF INDIA AND 3 ORS.
REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF FOOD AND
CONSUMERS AFFAIRS
SHASTRI BHAWAN
NEW DELHI
PIN-110001

2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER TO THE GOVT OF ASSAM
 FOOD
 PUBLIC DISTRIBUTION AND CONSUMER AFFAIRS DEPARTMENT
 DISPUR
 GUWAHATI
 PIN-781006

3:THE SECRETARY
FOOD
PUBLIC DISTRIBUTION AND CONSUMER AFFAIRS DEPARTMENT
DISPUR
GUWAHATI
PIN-781006

4:THE DISTRICT COMMISSIONER
TINSUKIA
                                                                              Page No.# 5/16

            FOOD
            CIVIL SUPPLIES AND CONSUMER AFFAIRS BRANCH
            DISTRICT- TINSUKIA
            ASSAM
            PIN-786123
            ------------
            Advocate for : MR. K N CHOUDHURY
            Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS.



                                 BEFORE
                HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

                                         ORDER

Date : 07.08.2025

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. T. Deuri, learned counsel for the applicants. Also heard S.S. Roy, learned CGC for the opposite party No. 1 and Mr. D. Nath, learned Senior Government Advocate, appearing for the opposite parties Nos. 2, 3 and 4.

2. As consented to by the learned counsel for the parties, the present interlocutory application is taken up for final consideration and is being disposed of by this order.

3. The applicants herein as petitioners had instituted WP(C) No. 1924/2025, assailing a Notice Inviting Tender (NIT) dated 26.03.2025 for selection and appointment of handling and transport contractor for transportation of food- grains under NFSA-2013 for the district of Tinsukia for the financial year 2025- 2026.

4. The contentions raised by the applicants, as petitioners, in the writ petition was that the engagement of a private contractor for transportation of food-

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grains is contrary to the provisions of the Targeted Public Distribution System (Control) Order, 2015 [hereinafter referred to as the Order of 2015], more particularly, paragraph 7(1) thereof, read with paragraph 2(g) of the Order of 2015.

5. A Coordinate Bench of this Court on considering the issues arising in the matter, vide order dated 07.04.2025, while issuing notice, was pleased to direct that the Notice Inviting Tender (NIT) dated 26.03.2025, be not acted upon till the next returnable date.

6. For the purpose of passing the said interim directions, this Court had noted the submissions of the learned Senior Counsel for the petitioner to the effect that the Notice Inviting Tender (NIT) itself was issued in violation of paragraph 2(g) of the Order of 2015. The applicants, have thereafter instituted the present interlocutory application, inter-alia, contending that the District Commissioner, Tinsukia, in pursuance to the interim order passed in the connected writ petition, had engaged a private transporter for transportation of the food-grains from the Godown of Food Corporation of India (hereinafter be referred to as FCI) to the Fair Price shops.

7. Mr. K.N. Choudhury, learned Senior counsel for the applicants by taking this Court through the order dated 07.04.2025 passed by a Coordinate Bench of Court in the connected writ petition, has submitted that this Court having arrived at a prima facie satisfaction that the NIT in question, issued for engagement of transporters, was so issued in clear violation of paragraph 2(g) of the Order of 2015, it was not permissible for the District Commissioner, Tinsukia, to perpetuate the illegality as contained in the said NIT, by engaging a Page No.# 7/16

private contractor for transportation of the food-grains involved, during the pendency of the said writ petition.

8. Mr. Choudhury by referring to the pleadings brought on record in the interlocutory application, has submitted that the Cooperative Societies were being permitted to make the transportation of the food-grains involved, from the FCI outlet to the Fair Price shops, however, the said practice was so stopped after the year 2015.

9. Mr. Choudhury has submitted that the applicants/petitioners along with the other similarly situated cooperative societies, had approached this Court by way of instituting writ petitions, assailing the action on the part of the authorities in restraining the Cooperative Societies from carrying out transportation of PDS articles.

10. A Coordinate Bench of this Court vide judgment and order dated 21.09.2017 passed in WP(C)/6647/2015 and other analogous matters, had held therein that in terms of the provisions of paragraph 2(g) of the Order of 2015, it is not permissible to engage a private party in the matter of lifting of food- grains. He has further highlighted that the Coordinate Bench of this Court in the said judgment had also noticed the provisions of paragraph 2(g) and the definition of "authorised agency" existing therein and held that the expression "authorised agency" does not include a private contractor.

11. Mr. Choudhury by referring to the provisions of paragraph 7 (1) of the said Order of 2015, has submitted that the same mandates the State Government to lift food-grains from the designated depots of the FCI, only through its Page No.# 8/16

authorised agency. The term "authorised agency" is defined under the provisions of paragraph 2(g) wherein it is contended that the said term would mean the concerned Department of the State Government or a body corporate or a company owned by it or a co-operative society.

8. Mr. Choudhury has submitted that the provisions of the Order of 2015 was so formulated invoking the provisions of Section 3 of the Essential Commodities Act, 1955 and paragraph 7(1) of the Order of 2015, having mandated that the State Government shall lift the food-grains only through its authorized agency and the definition of the term "authorised agency" as provided under paragraph 2(g) also being inclusive of a cooperative society, the tender process under challenge in the connected writ petition, being kept in abeyance by this Court, the District Commissioner ought to have permitted the applicant cooperative society to lift the food-grains from the designated depots of the FCI for transportation to the Fair Price shops.

9. Mr. Choudhury has submitted that the Coordinate Bench of this Court in the said judgment and order dated 21.09.2017 passed in WP(C)/6647/2015 and other writ petitions, had permitted the State Government to implement the steps as initiated by it for transportation of the food-grains in terms of the paragraph 7(11) of the Order of 2015. He has further submitted that in the said judgment and order, the Court was considering the issue arising before it from the stand point of a Cooperative Society. The Coordinate Bench in the said judgment had noticed that the provisions of the Assam Public District of Articles Order, 1982, only permits the Cooperative Societies for distribution of food- grains and not for transportation thereof.

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10. Mr. Choudhury has submitted that it is on the basis of such conclusion drawn by the Coordinate Bench that the steps are taken by the State respondents in terms of paragraph 7(11) of the Order of 2015 was so permitted to be continued.

Mr. Choudhury has further submitted that the said judgment and order dated 21.09.2017 passed by the a Coordinate Bench of this Court in WP(C)/6647/2015 and other writ petitions, was assailed by certain similarly situated Cooperative Societies and the Division Bench had permitted the applicant Cooperative Societies to continue to lift and distribute the food-grains from the designated depots.

11. Mr. Choudhury has fairly submitted that the petitioners/applicants herein had not preferred any appeal in the matter against the orders passed in the writ petitions instituted by it.

12. In the above premises, Mr. Choudhury submits that the ad-hoc arrangements made by the District Commissioner for having the food-grains transported by way of engaging a private contractor, would require an interference by this Court with a further direction to the District Commissioner, Tinsukia, to permit the applicant society to effect the transportation of the food- grains involved, pending disposal of the connected writ petition, i.e. WP(C)/1924/2025.

13. Per contra, Mr. D. Nath, learned Senior Government Advocate, appearing for the respondent Nos. 2 to 5, has submitted that the Coordinate Bench of this Court vide the judgment and order dated 29.01.2017 in WP(C)/6647/2015 and Page No.# 10/16

other writ petitions, having allowed the scheme formulated by the State respondents under paragraph 7(11) of the Order of 2015, for the purpose of transportation of food-grains from the designated depots of the FCI to the Fair Price shops, and the same having envisaged engagement of a private contractor for such transportation, there exists no error on the part of the District Commissioner, Tinsukia, in engaging a private contractor to carry out the transportation works, involved in the matter.

14. Mr. Nath has submitted that there being a clear finding recorded by the Coordinate Bench of this Court, vide the judgment and order dated 29.01.2017 passed in WP(C)/6647/2015 and other writ petitions, to the effect that the Cooperative Societies, in view of the scope and ambit of the license issued to them, were not entitled to carry out the transportation works, the prayer of the applicants for being authorized to carry out the transportation works, would not mandate an acceptance of this Court. Mr. Nath has further submitted that the State having formulated the policy under the provisions of paragraph 7(11), for the purpose of transportation of food grains and the same having been so done, keeping in view of the interest of the beneficiaries of the scheme, the same would not mandate an interference from this Court.

15. Mr. Nath has further submitted that the applicants/petitioners in the present writ petition has not demonstrated any right vested in them, to be authorised with the transportation works of the food-grains involved, in exclusion to the other modes that may be resorted to by the State in the matter.

16. Mr. Nath, has submitted that the applicants in the connected writ petition, had also prayed for an interim direction to allow it to transport food-grains, Page No.# 11/16

involved, from the designated depots of FCI to the Fair Price shops in Tinsukia District for the year 2025-2026, however, the same did not find favour with this Court and no directions came to so issued in this connection vide the said order dated 07.04.2025. Accordingly, he submits that the further interim prayer made by the applicants in WP(C)/1924/2025 for being permitted to transport food grains, must be deemed to have been rejected and as such it would not be permissible to consider the said prayer in the present interlocutory application.

17. In the above premises, Mr. Nath submits that the prayer made by the applicants for an interference with the system, put in place for transportation of food-grains involved by engaging private contractors, would not mandate an acceptance of this Court. He has further submitted that the prayer of the applicants for being permitted to transport the food-grains involved should also not mandate the acceptance of this Court.

18. I have also heard the learned counsel for the parties and have perused the materials of the record.

19. At the outset, it is noted that the present order is being passed in connection with the grievance raised in the present interlocutory application. The petitioners/applicants as noticed hereinabove, by raising the grievance with regard to violation of the provisions of Order of 2015, had approached this Court by way of the connected writ petition, assailing the Notice inviting Tender (NIT) dated 26.03.2025. The grievance of the applicants as can be culled out from the submissions of the learned Senior Counsel Mr. K.N. Choudhury for the applicants as well as the pleadings brought on record, is to the effect that the provisions of paragraph 7(1) of the Order of 2015, mandates that the State Page No.# 12/16

Government shall lift food-grains from the designated depots of the Corporation through its authorised agency and such transportation would be permissible to be made by an authorised agency of the State Government concerned.

20. The term "authorised agency" has been defined under paragraph 2(g) of the said Order of 2015, to mean a concerned Department of the State Government or a body corporate or a company owned by it or a cooperative soceity. It is to be noted that the Order of 2015 was so formulated by invoking the provisions of Section 3 of the Essential Commodities Act, 1955. The Order of 2015, more particularly, paragraph 7(1), while permitting the State Government concerned, to lift the food-grains, had also stipulated that such lifting can be only through its authorised agency. On a plain reading of definition of the term "authorised agency" as available in the Order of 2015, this Court is of the prima facie view that a private contractor is not included within the term "authorised agency".

21. The Coordinate Bench of this Court by the said judgment and order dated 29.01.2017 passed in WP(C)/6647/2015 and others, had also noticed that the definition of "authorised agency" as mentioned in paragraph 2(g) of the Order of 2015, and had drawn the following conclusions :

"24. It is not doubt true that clause 2(g) of the Order of 2015 does not envisage any private party in the matter of lifting of food grains. But what must be borne in mind is that under the NFSA, the Act of 1955 as well as the Order of 2015, it is the State Government which is the repository of the powers and authority to lift and distribute the food grains through the PDS networks. Therefore, the role of the Co-operative Societies/ GPSS and the FPS in the entire PDS scheme, in the State of Assam, has to essentially remain confined to the scope and ambit of the licences issued under the Order of 1982. Since the Order of 1982 does not confer any right upon the WSCS/ GPSS to transport the food grains hence, such a right cannot be recognised by this Court in favour of the petitioners.

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25. Coming to the next question pertaining to the interpretation of clause 2(g) of the Order of 2015, there can be no dispute about the fact that the definition of authorised agency does not include any private contractor. But, as has been mentioned above, it must be borne in mind that the ultimate authority and responsibility to lift the food grain and ensure its proper distribution though the FPS lies with the State Government and the WSCW/ GPSS are such agencies of the state through which the operation can be carried out. Therefore, the State Government must be given the freedom to adopt all such measures at its disposal so as to discharge its statutory obligations so long as they adopt a fair and transparent process."

22. A perusal of the said conclusions drawn by the Coordinate Bench of this Court, would go to reveal that the definition of "authorised agency" does not include a private contractor.

23. At this stage, it is to be noted that although the Coordinate Bench after having drawn the said conclusions, had proceeded to approve the scheme prepared by the State respondents for transportation of the food-grains under paragraph 7(11) of the Order of 2015, the said judgment is presently under consideration before the Division Bench of this Court in Writ Appeal No. 249/2018 and other analogous matters. This Court in the present order would not venture to examine as to whether the conclusions drawn by the Coordinate Bench is as per the provisions of the Order of 2015. The said consideration would be so required to be made by the Division Bench in the proceedings of WA No. 249/2018 and other analogous matters. The said consideration would also be permissible to be so made in WP(C)/1924/2025, when the same is taken up for final disposal.

24. This Court only notices that the order dated 07.04.2025 passed in WP(C)/1924/2025 has not been vacated till date and the State has also not filed any application for vacation of the same and the same continues to hold the field as on date.

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25. In view of the fact that the tender issued for engagement of a private contractor, having been kept in abeyance by a Coordinate Bench of this Court, in the connected writ petition on the ground that engagement of a private contractor for transportation of food-grains to be not permissible under the provisions of paragraph 2(g) of the Order of 2015, this Court holds that the District Commissioner, Tinsukia, could not have resorted to transportation of the food-grains by engaging a private contractor, which mode has already, in the interim, interfered by this Court by this Court, in the proceedings of the connected writ petition. Even if for the purpose of an ad-hoc arrangement, the District Commissioner, Tinsukia, in the considered view of this Court, could not have resorted to engage a private contractor for transportation of the food- grains, in violation of provisions of paragraph 7(1), read with paragraph 2(g) of the Order of 2015.

26. Accordingly, this Court is of the prima facie view that the engagement of a private contractor for transportation of the food-grains, pending disposal of the connected writ petition, being WP(C)/1924/2025, would not be sustainable and would call for an interference. This Court accordingly, interferes with the arrangements made by the District Commissioner, Tinsukia for transportation of the food-grains involved by way of engagement of a private contractor and restrains the District Commissioner, Tinsukia, to transport the food-grains, involved, by engaging a private contractor.

27. Having drawn the above conclusions, this Court would consider the prayer of the petitioners for being permitted to transport the food-grains involved, on the ground that the definition of "authorised agency" also include within its ambit a Cooperate Society. The said prayer of the petitioners/applicants at this Page No.# 15/16

stage, would not mandate a consideration inasmuch as, this Court vide order dated 07.04.2025 while staying the operation of the Notice Inviting Tender dated 26.03.2025, had not proceeded to further permit the applicant Cooperative Society, to transport the food-grains involved. This Court in the present interlocutory application, would not venture to permit the applicants society to transport the food-grains in question. The said issue would be considered in the connected writ petition at the time of its final disposal.

28. Accordingly, the prayer made by the applicants for being permitted to transport the food-grains involved, from the designated depots of the FCI to the Fair Price shops, stands rejected.

29. Having interfered with the ad-hoc arrangement made by the District Commissioner, Tinsukia, for transportation of the food-grains involved by way of engaging a private contractor, this Court notes that the transportation involved is of essential commodities and a sudden cessation of the transportation activities would have a serious consequence on the consumers of the said food- grains, who belong to the marginalised section of the society. Appreciating the said aspect of the matter, this Court provides that the District Commissioner, Tinsukia, shall continue with the present arrangement of the transportation by the private contractor for a further period of 2 (Two) months from today. In the meanwhile, the District Commissioner, Tinsukia, shall select an authorised agency for transportation of the food-grains involved and the agency, so selected, shall be one as specified in the provisions of paragraph 2(g) of the Order of 2015. The said arrangement would be subject to further orders passed by this Court in the connected writ petition i.e. WP(C)/1924/2025.

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30. With the above observations and directions, the present interlocutory application stands disposed of.

JUDGE

Comparing Assistant