Patna High Court
Sitaram Gupta vs The State Of Bihar on 3 January, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6428 of 2022
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Sitaram Gupta, aged about 59 years, male, Son of Hiralal Gupta, Resident of
Village- Sabeya, Gram Panchayat- Kandh Gopi, Block- Hathua, Sub-
Division- Hathua, P.S.- Mirganj, District- Gopalganj.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Department of Food and
Consumer Protection, Government of Bihar, Patna.
2. The Principal Secretary, Department of Food and Consumer Protection,
Government of Bihar, Patna.
3. The Commissioner, Saran Division, Chhapra.
4. The District Magistrate, Gopalganj.
5. The Sub Divisional Office, Hathua, District- Gopalganj.
6. The Block Supply Officer, Block- Hathua, District- Gopalganj.
7. The District Selection Committee, District- Gopalganj through the District
Magistrate, Gopalganj.
8. Sima Devi (License No- 17/2021), aged about 26 years, female, Wife of
Yogendra Baitha.
9. Rinku Devi (License No- 19/2021), aged about 25 years, female, Wife of
Amit Tiwari.
10. Samima Khatoon (License No- 21/2020), aged about 30 years, female, Wife
of Khurshed Alam.
All are resident of Village- Kandh Gopi, Gram Panchayat - Kandh Gopi,
Block - Hathua, Sub Division - Hathua, P.S. - Mirganj, District - Gopalganj.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Kumar Pandey No. 5, Adv.
For the Respondent/s : Mr. Upendra Pratap Singh, AC to SC-4
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 03-01-2023
Heard Mr. Sanjay Kumar Pandey No. 5, the
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
learned Advocate for the petitioner and Mr. Upendra
Pratap Singh, the learned counsel for the State.
2. The petitioner is a P.D.S. dealer, who is
aggrieved by the decision of the respondents in creating
more shops under the Public Distribution Scheme in a
particular locality, which is in teeth of the administrative
instruction of the Department of Food and Civil Supplies
and Rule 9 of the Bihar Targeted Public Distribution
System (Control) Order, 2016 (in short the Control
Order of 2016).
3. In order to test the correctness of the
submissions advanced on behalf of the petitioner, a
P.D.S. dealer, who appears to be aggrieved by a dis-
balance of the economies of scale for the creation of
more than required number of P.D.S. shops in the
locality, it would be necessary to refer to Clause-9 of the
Control Order of 2016.
4. The Clause-9 of the Control Order of 2016
mandates that there shall be one fair-price shop for the
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
population of 1350 in urban areas and for the population
of 1900 in rural areas on the basis of the census data
prevailing at that time. It further ordains that it shall be
ensured that a consumer not cover a maximum distance
of more than two kilometers in reaching his fair-price
shop, both in rural and urban areas.
5. In distant and difficult to communicate
areas, especially in the areas of scheduled castes/tribes,
a fair-price shop may be allotted for a population of
1000.
6. It appears that the Department came to
learn that more than the required number of shops were
opened in particular area, which assessment was qua the
number of human heads in urban and rural areas. It
was in this context that a communication was made by
the Secretary of the Department of Food and Civil
Supplies to all the concerned officers for identifying such
shops which were in excess of the requirement qua the
human head; cancelling the agreement with them and
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
allow only such number of shops which would cater to
the needs of the targeted beneficiaries.
7. Drawing strength from this
communication, the petitioner seeks a direction from this
Court for preventing opening of three more P.D.S. shops
in the area, where already, including the petitioner,
seven licensees have been operating.
8. Mr. Pandey, the learned Advocate for the
petitioner has further pointed out that because of such
un-channelized and unrestricted opening of Public
Distribution Shops, an unhealthy competition has
emerged amongst the licensees, who more often than
not, have been induling in distributing food-grains
beyond the list of targeted beneficiaries attached to their
respective shops. This has the potency of the controlled
food-grains being sold in the black-market or the needy
beneficiaries being left out dry of the benefits which are
intended through the Control Order of 2016.
9. The apprehension of the petitioner is
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
unfounded, to say the least.
10. As noted above, Clause-9 of the Control
Order of 2016 merely states the minimum number of
there being at least one fair-price shop for 1350 heads
in urban areas and 1900 heads in rural areas, which
assessment is to be based on the census data prevailing
at the time of distribution of such shops.
11. What the petitioner has conveniently
forgotten is the another mandate in Clause-9 of the
Control Order of 2016, which, as noted above, requires
that a consumer ought not to cover more than maximum
distance of two kilometers in reaching his fair-price shop,
which condition is to be followed in urban as well as rural
areas.
12. There is nothing in the communication,
referred to above, which can give an impression that
such assessment of the Secretary of the Department
was based on any census or head-counting qua the
number of shops. A general statement has been made
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
by the Secretary of the Department, which does not take
into account the overall mandate under the Control
Order of 2016 with respect to the number of shops in a
particular area.
13. There is no outer ceiling limit.
14. What has been prescribed is the
minimum number qua the number of heads.
15. True it is that if more than required
number of shops are opened in an area, that would
result in food-grains being distributed amongst the
shopkeepers which may not ultimately reach the
targeted beneficiaries, leaving food-grains in surplus with
those licensees, who could indiscriminately hoard the
same and sell it in black-market. Nonetheless, seeking
cancellation of the fair-price shops in a particular area or
preventing new shops to be opened, without any specific
instance or evidence and only based on a general
communication of the Secretary of the Department is
neither desirable nor called for.
Patna High Court CWJC No.6428 of 2022 dt.03-01-2023
16. We do not find any reason to hold an
opinion that the number of shops in particular areas are
more than required for which necessary census will have
to be undergone and a figure would have to be
projected. In the absence of such details, an
administrative instruction, a casual one at that, may not
be enforced under Article 226 of the Constitution of
India.
17. The petition has no merit and is,
accordingly, dismissed.
(Ashutosh Kumar, J)
(Satyavrat Verma, J)
Praveen-II/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 09/01/2023
Transmission Date N/A
