Judgment:
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side WP NO.431 OF2017IN THE MATTER OF : KANCHAN CHOUDHARY & ORS.VS THE STATE OF WEST BENGAL & ORS.WP NO.433 OF2017GA NO.2514 OF2017IN THE MATTER OF : CALCUTTA KEROSENE OIL DEALERS’ASSOCIATION & ANR.
VS THE STATE OF WEST BENGAL & ORS.WP NO.436 OF2017IN THE MATER OF: WEST BENGAL KEROSENE DEALERS’S ASSOCIATION & ANR.VS THE STATE OF WEST BENGAL & ORS.W.P.19543(W) OF2017GANESH DAS & ANR versus THE STATE OF W.B.& ORS.W.P.19544(W) OF2017NANDA DAS & ANR.
versus THE STATE OF W.B.& ANR.
W.P.19627(W) OF2017SANDIP DAS versus THE STATE OF W.B.& ORS.BEFORE: Hon’ble JUSTICE RANJIT KUMAR BAG Date :7th August, 2017 MR.BIKASH RANJAN BHATTACHARYYA, SR.ADVOCATE, MR.DEBABRATA SAHA ROY, MR.PINGAL BHATTACHARYYA, ADVOCATES FOR APPLICANT IN G.A.NO.2414 OF2017IN W.P.NO.433 OF2017MR.S.N.MUKHERJEE, SR.ADVOCATE, MR.R.A.AGARWAL, MS.NIBEDITA PAL, MR.R.DHARA, MR.A.G.MUKHERJEE, ADVOCATES FOR PETITIONERS IN W.P.NO.431 OF2017MR.JAYANTA BANERJEE, MR.SUNIL KUMAR CHAKRABORTY, MR.SABYASACHI HAZRA, ADVOCATES IN WP NO.433 OF2017MR.KALYAN BANDYOPADHYAY, SR.ADVOCATE, MR.ABHRAJIT MITRA, SR.ADVOCATE, MR.R.A.AGARWALA, MS.NIBEDITA PAL, MR.RAMESH DHARA, MR.A.G.MUKHERJEE, ADVOCATES IN WP NO.436 OF2017MR.KISHORE DATTA, ADVOCATE GENERAL, MR.AMITESH BANERJEE, SR.STANDING COUNSEL, MR.SIRSANYA BANDYOPADHYAY MS.IPSITA BANERJEE, MR.SUDDHADEB ADAK, ADVOCATES FOR THE STATE IN CONNECTION WITH ABOVE WRIT PETITIONS MR.ANINDYA KUMAR MITRA, SR.ADVOCATE, MR.N.C.BEHANI, MR.DEBASISH GHOSH, ADVOCAT ES FOR THE PETITIONER IN WP NO.19543(W) OF2017MR.KALYAN BANDYOPADHYAY, SR.ADVOCATE, MR.DEBASISH GHOSH, ADVOCATE FOR PETITIONER IN WP NO.19544(W) 2017 MR.ARABINDA CHATTERJEE, MS.ISHITA CHAKRABORTY, MR.ARKADIPTA SENGUPTA, ADVOCATES FOR THE PETITIONER IN WP NO.19627(W) OF2017MR.KISHORE DATTA, ADVOCATE GENERAL, MR.AMITESH BANERJEE, SR.STANDING COUNSEL, MR.SIRSANYA BANDYOPADHYAY, MS.IPSITA BANERJEE,MR.SUDDHADEVADAK,ADVOCATS FOR THE STATE IN CONNECTION WITH ABOVE WRIT PETITIONS.
MR.TAPAN BHANJA, ADVOCATE FOR UNION OF INDIA(RESPONDENT NO.5.) IN W.P.NO.19543(W) OF2017AND W.P.NO.19544(W) OF2017THE COURT:-The petitioners have challenged notification dated July 11, 2017 issued by the Principal Secretary to the Government of West Bengal and Food Commissioner, Food and Supplies Department, by which the State of West Bengal has laid down policy of distribution of superior Kerosene Oil (in short S.K.Oil ) to the holders of the ration cards.
Some of the petitioners are holders of ration cards and others are West Bengal Kerosene Dealers’ Association and Kolkata Kerosene Dealers’ Association.
It appears from the impugned notification that the State has taken a policy of equal distribution of subsidised S.K.Oil in terms of paragraph 5A of the West Bengal Kerosene Control Order, 1968 by taking into consideration the special needs of disadvantaged socio-economic groups in different parts of the State and in pursuance of the orders passed by the High Court in connection with several writ petitions.
The State has created the following categories of ration card holders for distribution of subsidised S.K.Oil : (i) the ration card holders falling in the fiRs.category will get S.K.Oil at the rate of one litre per head per month on the basis of their residence in a particular geographical location of the State; (ii) the ration card holders falling in the second category will get S.K.Oil at the rate of 600 ml per head per month on the basis of possessing digitized ration cards; (iii) the ration card holders falling in the third category will get S.K.Oil at the rate of 150 ml per head per month for not possessing digitized ration cards.
The common grievance of the writ petitioners is that the above classification of the ration card holders for obtaining S.K.Oil at subsidised rate as essential commodity is discriminatory, arbitrary and violative of Article 14 of the Constitution.
Mr.Sakti Nath Mukherjee, learned senior Counsel appearing on behalf of some petitioners contends that the State has already identified the families on the basis of economic criteria for issuance of various categorize of ration cards for distribution of essential commodity through public distribution system.
By referring to the provision of paragraphs 2 (b),(c),(e) and (f) of the West Bengal Public Distribution System (Maintenance and Control ) Order 2013, he submits that ration cards have been issued to families living above poverty line (APL).families living below poverty line (BPL).families considered to be poorest among the families belonging to the below poverty line (AAY) and persons identified for distribution of food grains of specified quantity on monthly basis under Annurpana Scheme.
Mr.Mukherjee argues that economic criteria are totally ignored by making classification on the basis of geographical location and on the basis of possession of digitized and nondigitized ration cards which are arbitrary, unreasonable and irrational and violative of Article 14 of the Constitution.
The specific submission made by Mr.Mukherjee is that the State has treated the unequals as equals and the equals as unequals and thereby violated the principle embodied in Article 14 of the Constitution.
He has also pointed out that the impugned notification has not been published in the Official gazettee as per provision of Section 3(5) of the Essential Commodities Act,1955.
By referring to paragraphs 11 and 12 of the Judgement in “ Ramana Dayaram V.
International Airport Authority of India” reported in AIR1979SC1628 Mr.Mukherjee submits that discretion of the State in the matter of grant of largess including the award of jobs, contracts, licences etc.must be confined and structured by rational, relevant and non- discriminatory standard or norms and if the State departs from such standard or norms in any particular case or cases, the action of the State would be liable to be struck down, unless it can be shown by the State that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
Mr.Anindya Kumar Mitra, learned senior Counsel appearing on behalf of some petitioners submits that the impugned notification is ex facie void.
By referring to the object of enactment of the Essential Commodities Act, 1955, he submits that the classification of the ration card holders in the impugned notification has no nexus with the object of securing equitable distribution and availability of S.K.Oil through public distribution system as essential commodity.
He elaborates his argument by submitting that residence of the ration card holders in a particular geographical location cannot be the criterion for reasonable classification of the ration card holders for equitable distribution of S.K.Oil.
Mr.Mitra has relied on the decision of the Supreme Court in “ Suneel Jatley V.
State of Haryana” reported in (1984) 4 SCC296and submitted that the impugned notification does not satisfy the twin tests, viz, (i) the classification of the ration cardholders is to be founded on an intelligible differentia which distinguishes from others left out of the group, and (ii) the differentia must have rational relation to the object sought to be achieved by the West Bengal Kerosene Control Order, 1968.
Mr.Kalyan Bandopadhyay, learned senior Counsel appearing on behalf of some petitioners contends that the classification of the ration cardholders under the impugned notification is discriminatory, arbitrary, irrational and violative of Article 14 of the Constitution.
He further submits that the notification has not been published in the official gazettee as per provision of Section 3(r) of the West Bengal Kerosene Control Order, 1968.
Mr.Arabinda Chatterjee, learned senior Counsel appearing on behalf of some petitioners submits that non digitized ration cards are still valid and the holders of those ration cards cannot be deprived of allotment of S.K.Oil at par with others who have been possessing digitized ration cards.
The specific submission of Mr.Chatterjee is that the classification of ration card holders on the basis of geographical location and on the basis of digitized and nondigitized ration cards is violative of Article 14 of the Constitution.
Mr.Jayanta Banerjee, learned Counsel appearing on behalf of some petitioners contends that the impugned notification has not taken into consideration the guidelines given by learned Single Judge on June 15, 2016 in WP No.7841(w) of 2016 and affirmed by the Division Bench of this Court on January 27, 2017 in APO No.218 of 2016 and thereby the said notification can not be given any effect for equitable distribution of S.K.Oil through public distribution system.
Mr.Kishore Datta, learned Advocate General representing the state-respondents contends that there are three categories of petitioners who have challenged the impugned notification.
The fiRs.category is the agent’s association who have been issued license under paragraph 5 of the West Bengal Kerosene Control Order, 1968 and the second category is the Dealer’s association who have been granted license under paragraph 6 of the West Bengal Kerosene Control Order, 1968.
By referring to the conditions of license incorporated in the respective forms for issuance of license under the West Bengal Kerosene Control Order, 1968, Mr.Datta submits that these writ petitioners have no authority to challenge the impugned notification and as such the writ petitions filed by the said petitioners are not maintainable in law.
The further contention made on behalf of the state respondents is that the third category of the writ petitioners claiming to be the representatives of the ration card holders have not disclosed in the writ petitions how they have common interest with the holders of all types of ration cards for challenging the impugned notification and as such the said writ petitioners have also no authority to challenge the impugned notification and thereby the said writ petitions are also not maintainable in law.
By referring to paragraph 9 of the Judgement in “Mani Subrat Jain V.
State of Haryana” reported in (1977) 1 SCC486 Mr.Datta submits that the petitioners have no judicially enforceable right as well as legally protected right and as such the petitioners cannot pray for issuance of mandamus in connection with the impugned notification.
While I fully agree with the proposition of law laid down by the Supreme Court, I cannot accept the submission made on behalf of the state respondents that the petitioners have no right to challenge the impugned notification if the classification of the ration card holder is found to be arbitrary, unreasonable and violative of Article 14 of the Constitution.
By relying on paragraph 54 of the judgment in “Premium Granite V.
State of Tamil Nadu” reported in (1994) 2 SCC691learned Advocate General contends that this Court cannot consider the validity of public policy of the State, particularly when the public policy is taken by the State for equitable distribution of essential commodity like S.K.Oil.
It is clearly laid down in the said report that the Court can consider the validity of the public policy if the policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right.
In the instant case, petitioners have challenged the impugned notification for violation of fundamental rights guaranteed under Article 14 of the Constitution and as such I am unable to accept the above contention made on behalf of the state respondents.
By referring to paragraphs 46 and 92 of “Balco Employees’ Union V.
Union of India” reported in (2002) 2 SCC333learned Advocate General contends that it is not within the domain of the Courts to exercise power of judicial review to embark upon an enquiry whether a particular public policy is wise or whether better public policy could have been evolved by the State.
The issue before this Court is not whether the policy of distribution of S.K.Oil to the ration card holder on the basis of classification of ration card holders in the impugned notification is wise or a better policy could have been adopted by the State, but the issue to be decided by the Court is whether the classification of the ration card holders in the impugned notification is unreasonable, irrational, discriminatory and violative of Article 14 of the Constitution.
So the decision of “Balco Employees’ Union”(supra) cannot have any bearing on the facts of the present case.
Learned Advocate General has referred to paragraphs 27 and 28 of “Sanchit Bansal V.
Joint Admission Board” reported in “(2012) 1 SCC157?? and submitted that the action taken by the State can be branded as arbitrary and capricious, if the person in authority takes any action based on individual discretion by ignoring prescribed rules, procedure and the said action or decision is found to have caused prejudice.
The Supreme Court has made the above observations in connection with the admission of the candidates on the basis of their performance and as such the said observations cannot have any bearing on the facts of the present case.
By relying on the paragraphs 59 and 60 of “Shri Sitaram Sugar Company Limited V.
Union of India” reported in (1990) 3 SCC223learned Advocate General argues that policy decision taken by the State by making classification of the holders of the ration cards on the basis of the geographical location cannot be branded as arbitrary.
In this report, the Supreme Court dealt with the policy and planning of the Central Government to decide whether it would be in the best economic interest of the sugar industry and the general public that the sugar factories are grouped together with reference to geographical-cum-agro-economic factors for the purpose of determining the price of levy sugar.
The facts of the present case are clearly distinguishable from the facts of “Shri Sitaram Sugar Co.Ltd.” (supra) and as such the ratio of the said report cannot have any bearing on the present case.
Lastly, learned Advocate General has referred to paragraphs 138 and 139 of “Jal Mahal Resorts (P) Limited V.
K.P.Sharma”reported in (2014) 8 SCC804and submitted that the Court will not be justified in questioning the validity of the policy decision of the State when the State has taken the decision for classification of holders of ration cards for equitable distribution of S.K.Oil.
On perusal of paragraph 139 of the said report, I find that the Supreme Court has held that the Courts should be justified in questioning a particular decision if illegality or arbitrariness is writ large on a particular venture, though excessive probe or restraint on the activity of the State is bound to derail execution of an administrative decision.
In the instant case, the Court will examine whether the classification of the holders of the ration cards is arbitrary, irrational, discriminatory and violative of fundamental rights embodied in Article 14 of the Constitution and as such the said report cannot have any manner of assistance to the state respondents.
By producing a copy of the chart prepared by the state respondents in respect of blocks of the district of Coochbehar, learned Advocate General has tried to justify that the classification of the ration card holders on the basis of geographical location is reasonable and not arbitrary or irrational.
On perusal of the chart produced by learned Advocate General for the blocks of the district of Coochbehar, I find that the percentage of people belonging to scheduled tribes and scheduled castes in block Mathabhanga-I is 69%, but they have been excluded from getting S.K.Oil @ one litre per head per month, whereas Dinhata-I and Dinhata-II are included in the fiRs.category of classification in the impugned notification for obtaining S.K.Oil @ one litre per head per month, in spite of percentage of people belonging to scheduled castes and scheduled tribes in those blocks is 44%.
No survey report is placed before this Court on behalf of the state respondents to establish that the State collected the data for implementation of the guidelines given by the learned Single Judge and affirmed by the Division Bench of this Court for framing the policy of equitable distribution of S.K.Oil among ration card holdeRs.G.A.NO.2514 of 2017 The applicants of G.A.No.2514 of 2017 being West Bengal Kerosene Agent’s Welfare Association and its General Secretary have prayed for impleading the applicants as respondents in connection with W.P.No.433 of 2017.
Mr.Bikash Ranjan Bhattacharyya, learned senior counsel appearing on behalf of the applicants contends that classification of holders of the ration cards on the basis of geographical location justified for the purpose of equitable distribution of S.K.Oil.
He submits that the State might not have achieved 100% accuracy in identifying the blocks where holders of the ration cards can use S.K.Oil @ 1 litre per head per month, but the area which have been identified are populated by poor people and many of them are holders of ration cards for getting special package of foodgrains like rice @ Rs.2 per Kg.
He further submits that there is need of digitization of the ration cards for getting benefit of the foodgrains under the Food Security Act of 2013 and almost 90% of the ration cards have already been digitized by the State.
According to Mr.Bhattacharyya, the execution of microscopic percentage of the ration card holders from getting maximum benefit of S.K.Oil cannot be a ground to challenge the impugned notification issued by the State.
Leave is granted to the advocate-on-record of the petitioners of writ petition no.433 of 2017 to implead the applicants of G.A.No.2514 of 2017 as respondents by way of amendment of cause title of the writ petition in couRs.of this day.
Having heard learned counsel representing all the parties and on consideration of the impugned notification and the order passed by the Division Bench of this Court, I find that the Division Bench of this Court affirmed the order passed by learned Single Judge who gave the guidelines for framing a policy by the State for equitable distribution of S.K.Oil among ration card holdeRs.The guidelines include whether the persons entitled to get S.K.Oil has LPG connection or not.
The identification of geographical location can be made by the State on the basis of availability of electricity and on the basis of cold climatic condition as per guidelines given by the learned Single Judge and affirmed by the Division Bench.
No survey has been conducted by the State for ascertaining the availability of electricity or availability of LPG connection for the purpose of classification of the ration card holders for supply and distribution of S.K.Oil.
No explanation is forthcoming before this Court how some remote blocks of district of Bankura and all blocks of district of Darjeeling having cold climatic condition have been excluded from the fiRs.category of ration card holdeRs.who are entitled to get one litre of S.K.Oil per head per month.
On the other hand, the head quarter of the district of Paschim Midnapore (Midnapore Sadar) is included in the fiRs.category of ration cardholders for obtaining S.K.Oil at the rate of one litre per head per month.
In my view, there is no reasonable basis for classification of ration card holders in the impugned notification for obtaining S.K.Oil at the rate of one litre per head per month, particularly when the State has ignored the guidelines given by the learned Single Judge and affirmed by the Division Bench of this Court for framing the policy of distribution of S.K.Oil in the State.
While admitted position is that it is an obligation on the part of the State to digitize the ration cards, the State has reduced the supply of S.K.Oil to the holders of the non-digitized ration card holdeRs.The classification of the ration card holders on the basis of digitized and non-digitized ration cards for the purpose of supply of S.K.Oil is, prima facie, appears to be irrational, arbitrary and unreasonable.
The classification of the ration card holders on the basis of geographical location without making any survey and without collecting proper data also, prima facie, appears to be unreasonable, irrational and discretionary for supply of S.K.Oil to the ration card holders of a particular geographical location at the rate of one litre per head per month.
The classification of the ration card holders in the impugned notification has no reasonable nexus with the object of equitable distribution of S.K.Oil as essential commodity through public distribution system, which is the object of both the West Bengal Kerosene Control Order, 1968 and the Essential Commodities Act, 1955.
In view of my above observation, I am inclined to pass any interim order to stay the operation of the impugned notification for a limited period.
The respondents are at liberty to file affidavit-in-opposition within a period of three weeks from this date, and reply, if any, to be filed by the petitioners within a period of two weeks thereafter.
Under the above circumstances, the operation of the impugned notification dated July 11, 2017 issued by the Principal Secretary to the Government of West Bengal, Food Commissioner and Food and Supplies Department is stayed for a period of twelve weeks or until further order whichever is earlier.
The state-respondents are directed to supply S.K.Oil to the holders of the ration cards through public distribution system at the rate of 550 ml per head per month or more than that depending on availability of the S.K.Oil equally among the holders of the ration cards throughout the State for a period of twelve weeks from this date or until further order whichever is earlier.
List all the writ petitions under the heading “Hearing” after expiry of five weeks.
Leave under Rule 12 of the Writ Rules is granted in WP No.431 of 2017.
The stay of operation of the order, as prayed for by the learned Senior Standing Counsel, is refused.
(R.K.BAG, J.) nm/sb