Rajesh Kumar & Ors vs Ut Of J&K And Others
2021 Latest Caselaw 163 j&K

                                                                                        141


                               HIGH COURT OF JAMMU AND KASHMIR
                                          AT JAMMU


                                                            WP(C) No. 304/2021
                                                            CM Nos. 1525/2021,
                                                            1526/2021

           Rajesh Kumar & ors                                               ....Petitioner(s)

                                  Through :- Mr. Mehtab Gulzar, Advocate.
                                 V/s
           UT of J&K and others                                           ....Respondent(s)
                                  Through :-

           Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                                                  ORDER

22.02.2021 (ORAL)

1. The petitioners are all fair price shops dealers' appointed by the

Department of Food Civil Supplies and Consumer Affair, Jammu (earlier

CAPD Department) and stated to have been engaged in the sale of food

grains under the public distribution system to the consumers in different

villages on commission basis.

2. The grievance of the petitioners has its genesis in the policy decision

taken by the Govt. of supplying rations on door to door basis to the

consumers and in doing so, the petitioners apprehend that there would be

a fall in the profits by way of commission.

3. Counsel for the petitioners also tried to emphasize that there would be no

accountability in the system sought to be adopted by the Govt. and that

the system that was in vogue for the last twenty years be not discontinued

as the same had proved successful without giving any cause or grievance

to any consumer whatsoever.

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4. The issue that requires to be considered by this court is whether the

policy being adopted by the official respondents of supplying rations at

the door step of the consumers is a policy, which is bad or perverse.

5. The scope of judicial review in policy matters is no longer res integra. It

is settled law that the Courts would not ordinarily interfere with the

policy decision of the executive unless the same could be faulted on the

grounds of malafides, unreasonableness, arbitrariness or unfairness, in

which case the policy would render itself to be declared as

unconstitutional. In State of Punjab and others Vs Ram Lubhaya

Bagga and others; (1998)4 SCC 117, it was held thus:-

"..............When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints."

6. On similar lines was the pronouncement of Apex Court in case of Ugar

Sugar Works Ltd. V/s Delhi Administration and others; (2001)3

SCC 635, wherein the Apex Court held as under:-

"The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."

(Emphasis supplied)

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7. In Balco Employees Union (Regd.) V/s Union of India and others;

(2002)2 SCC 333, the Apex Court in paragraph 92 & 98 held as under:-

"92. In a democracy, it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court

98. In the case of a policy decision on economic matters, the Courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgement of the experts who may have arrived at a conclusion unless the Court is satisfied that there is illegality in the decision itself."

8. This view has recently been reiterated by the Apex Court in Parisons Agrotech Private Limited and another Vs Union of India and others; (2015)9 SCC 657 where in the Apex Court held thus:

"14. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review."

9. Counsel for the petitioners, however, has failed to satisfy this court as to

in what manner the proposed policy is perverse, arbitrary or irrational.

Rather the entire emphasis was laid only on the personal interest of the

petitioners, who are apprehending fall in their profits through

commission on account of lower sales. Admittedly, the fair price shops NARESH KUMAR 2021.03.03 16:01 are not wound up neither are the commissions being reduced by the I attest to the accuracy and integrity of this document Govt. The apprehension expressed by the petitioners that there would be

a loss in profits on account of commission certainly cannot be a good

ground for interference in the proposed policy.

10. For the reasons mentioned above, the petition is found to be without any

merit and is accordingly dismissed along with connected applications.

(Dhiraj Singh Thakur) Judge JAMMU 22.02.2021 (NARESH)

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