M.Y. Eqbal, J.
1. In these writ petitions, the petitioners have come to this Court with a prayer to issue an appropriate writ of mandamus commanding the respondents to grant and disburse the quota of wheat to the petitioners in accordance with the policy-decision taken by the Food Corporation of India (hereinafter referred to as 'the F.C.I.') as communicated by their Fax/Telex message, a copy of which has been filed and marked Annexure-1 to the writ applications.
2. The grievance of the petitioners is that pursuant to the said policy-decision, the petitioners made applications along with the requisite amounts for supply of wheat from the concerned Depot but the respondents failed to do so.
3. The brief facts of the case are that the petitioners who are Roller Flour Mills and convert wheat into Atta, Maida, Suji and Gram. The F. C. I. from time to time had taken policy-decision for allotment of wheat in priority Sectors and others and have been allotting wheat to consumers as also the Roller Flour Mills. Petitioners' case was that for the month of September, 1996, a policy-decision was communicated, according to which the F.C.I, shall sell the food grains after
keeping/ reserving two months' requirements to P. D. S. and other Government welfare schemes. It was further mentioned that a ceiling of 100 metric tons and 200 metric tons of food grains per buyer per month is fixed from godown to the capacity of 5000 metric tons and more than 5000 metric tons, respectively. According to the said policy, the buyer has to make an application and tender 10% of the amount of price of wheat to the District Manager of the concerned district for sale/allotment of wheat. It has stated that Patna district is having the administrative control of the Revenue Districts of Nalanda, Bhojpur, Buxar and Patna. So far as the stock position is concerned, it was stated that, the stock in the godown is more than the quantity required for two months. However, the petitioners learnt that the F. C. I. had taken a decision not to allot wheat to the petitioners from Patna or under the administrative zone of Patna but to allot wheat from Punjab, which decision on the face of it was arbitrary and erroneous. Further grievance of the petitioners is that, on transporting wheat from Punjab the expenses would be about Rs. 100/- per quintal, i.e., Rs. 1000/- per metric ton which will unnecessarily raise the cost of wheat. Besides, transport vehicles are not available nor will it be feasible or possible for the petitioners to get wheat from Punjab. The petitioners had represented the respondents to allot wheat from Patna but the respondents have refused to accept any of the prayers of the petitioners.
4. The petitioners have, therefore, come to this Court for issuance of an appropriate writ directing the respondents to supply wheat from Patna Depot in terms of the policy-decision as contained in Annexure-1 to the writ applications.
5. By a supplementary affidavit filed on 26-9-1996 the petitioners have stated that they have ascertained the current figure from the F. C. I. and, as per the figure available, the monthly requirement of P.D.S. and other priority Sector per month is only 76,200 metric tons and maximum lifting in any month in priority Sector is between 58000 metric tons and 66000 metric tons and not
more than per month and, as such, the maximum requirement for two months is 132000 metric tons as against which the opening stock as on 1-9-1996 is 74100 metric tons and till 21-9-1996, 66000 metric tons have already arrived and 14000 metric tons is in forecasting and had left Mughalsarai before 24-9-1996 and is to arrive within a day or two. The balance amount of 12000 metric tons is also to be received within September, 1996 which is in the pipe line and, as such, the total quantity available for the month of September, 1996 is 1,64000 metric tons as against the requirement of two months for P.D.S. and other priority Sector is 132000 metric tons and, as such, the respondents can easily deliver wheat to the petitioners after keeping the stock of two months with them to be supplied under priority Sector. It was further stated that the petitioners had deposited the amount as earnest money for lifting 800 metric tons of wheat on the basis of the price prevailing in Patna and, as per the policy-decision, the F.C.I, can give only 100 metric tons and 200 metric tons of food grains per month from a godown of the capacity of 5000 metric tons and more than 5000 metric tons, respectively, and since the capacity of the four godowns in the Patna District Zone is having a capacity of more than 5000 metric tons the petitioners had applied for delivery of 800 metric tons of wheat for the four godowns and had deposited the earnest money equivalent to 10% of the price of wheat as was prevailing in Patna of the F.C.I.
6. In another supplementary affidavit filed on 27-9-1996, the petitioners further stated that they have learnt that, with regard to some other persons, order was placed for supply of wheat from Punjab but actually no delivery has taken place.
7. The respondents have filed counter-affidavit wherein it was stated, inter alia, that the F.C.I., after assessing the stock of food-grains all over the country lying under it decided to sell the same under open market sale scheme to different traders in the whole of the country and as per the decision to sell the food grains a decision was taken framing guidelines for sale of food grains. Certain
quantities were allotted to different regions under the F. C. I. and, as per the decision, the Bihar Region was granted 25000 metric tons of wheat to be sold in open market sale scheme. Referring to the policy-decision (Annexure-1), it was stated that as per clause C (V) of the said policy, if actual stock after ensuring availability of two months' requirement of PDS and other welfare scheme, the quantity of wheat allotted is not actually available, S.R.M. of the respective region would sponsor the identified/selected buyers to lift their full quantity from the CAP Storage situated in Punjab Region. As per the stock position as on 1-9-1996 the total stock of wheat in the Bihar Region was 74724 metric tons whereas the monthly requirement of the region in different welfare scheme as per the Government of India direction is 80849 metric tons and in this way the F.C.I, has to reserve the stock of two months which will be 161698 metric tons and the stock of the F. C. I. shows that it has only 74724 metric tons of wheat in its stock as on 1-9-1996. Apart from that, the Government of Bihar has also demanded 37000 metric tons of wheat to meet the flood relief. It was further stated that, in between 1-9-1996 and 15-9-1996, the total receipt of wheat in the Bihar Region is 37230 metric tons which, if added with opening stock of wheat as on 1-9-1996, it will come to 111954 metric tons. According to the respondents, therefore, there is no excess stock to be sold in open market scheme and, therefore, the petitioners were rightly directed to lift wheat from CAP Storage in Punjab.
8. Mr. Pawan Kumar, Senior Counsel appearing on behalf of the petitioners, submitted that the action of the respondents in not delivering wheat to the petitioners in spite of the fact that the respondents are having sufficient stock of wheat as communicated by fax/telex message is illegal and unjustified. The learned counsel further submitted that the action of the respondents in taking arbitrary decision to lift wheat from Punjab is illegal and contrary to the policy-decision taken by them. The learned counsel also submitted that the respondents are bound to follow the policy-decision/ guidelines.
9. On the other hand, Mr. Prabhakar Tekriwal, learned counsel appearing on behalf of the respondents, firstly took a preliminary objection with regard to the maintainability of the writ applications as, according to him, no mandamus can be issued against the respondents for enforcement of the policy-decision or the guidelines which have no statutory force. The learned counsel then submitted by referring to the policy-decision that nowhere it was provided that wheat shall be supplied from the Depot of the concerned district. The learned counsel further submitted that delivery of wheat from the Depot of the concerned district was agreed to be given only in case of wheat in excess of two months' requirement of PDS and other welfare scheme.
10. Before appreciating the rival contentions of the parties, it is worth to be noticed certain clauses of the policy-decision which is the sheet anchor of the petitioners' case. Some of the general guidelines relevant for the purpose of these cases as laid down in the policy are quoted herein below.
'A. GENERAL
(i) food grain stocks conforming to standards of PPA Act only be issued under this scheme.
(ii) Imported food grain stocks must be given top priority for liquidation.
(iii) Sale of food grains under this scheme should be undertaken after keeping/ reserving two months' requirements to PDS and other Government welfare schemes.
(iv) A ceiling of 100 (one hundred only) MT and 200 (two hundred only) MT of food grains PER BUYER PER MONTH is fixed from a godown of capacity of 5000 MT and more than 5000 MT respectively.
(v)The intending or prospective buyers shall submit some form of identification in the form of registration certificate such as Sales-tax, Income-tax, Shops and Establishments Act, etc. to (sic) their genuineness to minimise sale in fake names. Preference may be given for sale of foodgrains to State Civil Supplies Corporations under this Scheme.'
11. Delivery clause of wheat as provided in Clause (C) are as under:--
'(i) Issue of wheat should be confined only from FCI District Headquarters Depots. In case there is no FCI Depot in the FCI District Headquarters, the Zonal Manager will identify another Depot within the concerned FCI District and on the basis of its location by the side of Railway station/ high-way, but such an identified (sic) will not be in addition to the main Depot located at FCI District Headquarters.
(ii) to (iv) * * * * * *
(v) In case of quantities of wheat allotted is not actually available after ensuring the availability of two months' requirement of PDS/other welfare schemes, etc., the SRMs of the respective regions would sponsor the identified/selected buyers to lift the shortfall quantity from the CAP storages situated in Punjab Region, SRM, Punjab should honour such sponsored allotments. However, under no circumstances, the total issues (both from within the region as well as from CAP storages of Punjab) should exceed the monthly allotment ceiling given to such sponsoring regions. This facility is restricted only to the regions of East and South Zones as well as Madhya Pradesh.'
12. Firstly, I take up the point raised by the learned counsel appearing for the respondents that no mandamus can be issued against them for enforcement of the guidelines/ policy on the basis of which the petitioners applied for purchase of wheat. According to the learned counsel, the guidelines are merely in the nature of instructions issued by the F.C.I, regulating the manner in which delivery of wheat shall be made in favour of prospective allottees. In support of this, the learned counsel heavily relied upon a decision of the Supreme Court in J. R. Raghupathy v. State of Andhra Pradesh, AIR 1988 SC 1681. In that case, the apex Court held that High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give
rise to any legal right in favour of the writ petitioners. The apex Court further held as under (Para 30):--
'We find it rather difficult to sustain the judgments of the High Court in some of the cases where it has interfered with the location of Mandal Headquarters and quashed the impugned notification on the ground that the Government acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience, or that the headquarters should be fixed at a particular place with a view to develop the area surrounded by it. The location of headquarters by the Government by the issue of the final notification under Sub-section (5) of Section 3 of the Act was on a consideration by the Cabinet Sub-Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like the Gram Panchayats and the general public. Even assuming that the Government while accepting the recommendations of the Cabinet Sub-Committee directed that the Mandal Head-quarters should be at place 'X' rather than place 'Y' as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners.'
13. In the case of Comptroller and Auditor General v. K. S. Jagannathan, AIR 1987 SC 537, the Apex Court has held as under(para 20);--
'There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule of a policy-decision of the Government or has exercised such discretion mala fide or on irrelevant
considerations or by ignoring the relevant considerations and materials or (k.t.o.) in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel' the performance in a proper and lawful manner of the discretion conferred upon the government or a public, authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.'
14. In the case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani, AIR 1989 SC 1607, it was held that under Article 226 of the Constitution of India, the High Court can issue a writ to any person or authority 'for enforcement of any of the fundamental rights and for any other purpose'. It was further held that the term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. The Supreme Court observed that the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The 'public authority' for them means every body which is created by statute -- and whose powers and duties are defined by statute. So, Government Departments, local authorities, police authorities and statutory undertakings and corporations are all 'public authorities'. But there is no such limitation for the High Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. It can be issued 'for the enforcement of any of the fundamental rights and for any other purpose.'
The apex Court further held as under (para
21):-
'Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states:' To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.' (Judicial Review of Administrative Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice where ever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.'
15. Applying the principle laid down by the Supreme Court in the instant case, if the deviation by the respondents from the policy decision in not giving delivery of wheat to the petitioners is not justified then appropriate direction can be issued against the respondents for giving effect to the conditions provided therein. Coming back to the relevant clauses of the policy decision (Annexure-1) it would appear that the F.C.I, in express term assured under the policy that issue of wheat should be confined only from F.C.I, district headquarters depots and in case there is no FCI depot in the F.C.I, district headquarters, the Zonal Manager can identify another depot within the concerned F.C.I, district and on the basis of its location by the side of railway station/high-way, but such an identified depot will not be in addition to the main depot located at FCI district headquarters. The said policy decision/guidelines further expressly prescribed the condition under which the allottee shall lift wheat from CAP Storage situated in Punjab Region. According to which in case the quantity of wheat
allotted is not actually available after ensuring the availability of two months requirement of PDS/ other welfare schemes, etc., the SRMs of the respective regions would sponsor the identified/selected buyers to lift the shortfall quantity from the CAP storage situated in Punjab. In other words, according to this clause, only in a case where there is non availability of two months requirement of PDS/other welfare schemes, the respondents would sponsor the identified/selected allottees to lift the shortfall quantity from the CAP storage situated in Punjab region.
16. In the writ applications, supplemented by two affidavits it was specific case of the petitioners that even after stocking two months requirement the excess quantity of wheat is available in the depot at Patna and other nearby deposits. For better appreciation, paragraphs 9 and 10 of the writ applications are reproduced herein below:--
'9. That the stock position as on 31-8-96 with the District Manager, Patna was as follows:--
DighaGodown -- 3,284 M.T.
Phulwari Godown -- 1,206 M.T.
Mokameh Godown -- 12,607 M.T.
Buxar Godown -- 11,345 M.T.
and Phulwari Godown and further received up to 7-9-96 2,185 M.T. of wheat and Mokameh godown 1,698 M.T.. of whet. Besides these the requisitions have been made for further supply of 14,000 M.T. of wheat to these godowns and as such the present position of wheat in Patna godown is more than 32,000 M.Ts,'
'10. That the requirement under the P.D.S.
and other Government welfare scheme in
Patna district zone which is under the
administrative control of Patna district
Manager is as follows:--
P.D.S. -- 7,383 M.T.
Mid Day Mill -- 1,673 M.T.
Jawahar Rojgar -- 3,434 M.T.
Yojna
and as such total requirement of one month under the priority sector is about 12,000 M.T. and the requirement for two months comes to 24,000 M.T. as against which the present stock is more than 32000 MT'
17. In the supplementary affidavit filed by the petitioners on 25-9-1996, they further gave the details of the stock available on 24-9-1996 besides 12000 M.T. was likely to be received by the respondents within September, 1996. According to the petitioners, the total quantity available for the month of September, 1996, is 1,64,000 M.T. as against the requirement of two months for PDS/other priority sector was 1,32000 M.T. In another supplementary affidavit filed by the petitioners on 27-9-1996, they have mentioned the figure of total lifting of wheat during the previous months which is reproduced herein below.
'2. That the petitioner had obtained the figures from the department regarding the total lifting of wheat both under Government Scheme under Priority Sector and open sale of the figures are as follow for the months from June to August:--Month
Total lifting
Govt. Scheme
Open saleJune
60,104
41,623
18,476
July
73,931
49,666
24,265
August
69,432
55,189
14,245 It will thus appear from the figures that although the allotment of wheat under Government Scheme is higher but actual lifting has not been more than 55,189 for last three months and since the September month is also closing and the lifting under the Government Scheme is also not higher during this month and as such the respondent could easily deliver the stock of wheat to the petitioner for which they have already
accepted the security money @ 10% from the petitioner.'
18. There is no specific denial of the aforementioned averments made in the counter-affidavit excepting that according to the respondents, the total stock was 74,724 M.T. as against the requirement of 80,848 M.T. Although the counter-affidavit was filed on behalf of the respondents on 26-9-1996, the respondents have given the stock position up to 15-9-1996. Nothing has been said in the counter-affidavit about the stockposition as specifically alleged by the petitioners that the stock position within September, 1996, was to reach 1,64,000 M.T In absence of any specific denial by the respondents in the counter-affidavit, I have no option but to accept that the respondents are having the stock in the depots more than the quantity required for two months. If that be the position, in my view, there is no justification for the respondents to ask the petitioners to lift wheat from Punjab Region. If, according to the respondents, the quantity of stock required to be kept reserved for two months comes to 1,61,698 M.T., still the respondents are having the excess quantity of wheat lying at the depot.
19. Having regard to the facts and circumstances of these cases, I am, therefore, of the view that the respondents cannot deny delivery of excess quantity of wheat lying in the depot of the concerned districts. I have, therefore, no hegitation in issuing direction to the respondents to stick to the conditions laid down in the guidelines by giving delivery of wheat to the petitioners. However, it is made clear that the respondents shall not be compelled to give delivery of wheat out of the quantity reserved for two months requirement.
20. These writ applications are, accordingly, allowed with the directions and observations made above.
However, there shall be no order as to costs.