Delhi HC strikes down Delhi Government’s Doorstep Ration Delivery Scheme | Lieutenant Governor expressed his difference of opinion [Full Report]

Delhi High Court: The Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, the Delhi Government’s Mukhya Matri Ghar Ghar Ration Yojana cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion.

Subject Matter of Challenge

In the present matter, the challenge was regarding the Doorstep Delivery of Ration Scheme evolved by the Government of National Capital Territory of Delhi (GNCTD).

The above-said seeks to by-pass the existing Fair Price Shop owners/dealers in the matter of distribution of food grains and wheat flour at the doorstep of the beneficiaries under the Targeted Public Distribution System.

Discussion

Whether the petitioners have the locus standi to prefer these petitions?

Petitioners case was that, their rights were vitally affected by the aforesaid scheme of the GNCTD, and the tenders floated by the GNCTD. Under the impugned scheme and the tenders issued by the GNCTD, what is proposed to be done is to invite tenders inter alia, for the purpose of appointing agencies who would take the grains provided by the Centre and the NFSA.

The petitioners also asserted that the impugned scheme was justified by the GNCTD on the basis of their unfounded and biased allegation of wrong doings by all the FPS owners/ dealers, and their name and reputation are at stake.

Hence, the petitioners had the locus standi to prefer the present petition.

Points worthy of taking note:

  • FPS have always been considered as and continue to be considered as the nodal interface between the State on the one hand, and the beneficiaries on the other hand.
  • While foodgrains are made available for distribution by the Central Government, the responsibility of receiving the foodgrains and ensuring their distribution through the institution of the FPS, is that of the State Governments.
  • The statutory framework – both in the pre NFSA, and post NFSA regime has been, and continuous to be, that the foodgrains, which are delivered at the door step of the allocated fair price shops, are collected by the beneficiaries from the fair price shops.
  • Under the existing regime – with regard to distribution of foodgrains under the NFSA, the only exception to the manner of distribution of foodgrains is in respect of a limited category of beneficiaries. Such beneficiaries re entitled to home delivery of foodgrains, and the States/UTs have been authorised to device the procedure for supply of foodgrains to such beneficiaries at their homes, or through authorized nominees.

Analysis

whether the statutory scheme contained in the NFSA, the Rules framed thereunder, and the Orders issued by the Central Government under the ECA, there is any bar or prohibition, in case of State Government wishes to provide an additional benefit or facility to the beneficiaries for delivery of food grains/atta at the door step of the beneficiaries, so that the beneficiaries are not required to visit the fair price shop to collect their entitlement of food grains?

The answer to the above question was ‘NO’.

High Court could not find anything to indicate that the State Government was not entitled to extend the benefit to the beneficiaries under the NFSA.

Bench noted that Section 24(2)(b) of the Act obliges the State Governments to ―ensure actual delivery or supply of the food grains to the entitled persons at the prices specified in Schedule- I‖.

Therefore, if, in a given State, the State Government wishes to travel that extra mile to deliver the foodgrains at the door step of the beneficiaries, such an endeavour cannot be said to fall foul of any provision of the NFSA.

“Actual delivery of the ration at the door step of the beneficiary, is covered within the scope of authority and responsibility vested in the State Government under Section 24(2)(b) and Section 32 of the NFSA.”

Issue 2: Whether the GNCTD, in their endeavour to implement their scheme of delivering ration/food grain at the doorstep of the beneficiary, can proceed to appoint new fair price shop owners/dealers by inviting tenders, so as to by-pass the existing framework of fair price shops dealers/owners?

Bench stated that it is the right and prerogative of the State Government to grant and rescind licenses issued for the purpose of establishment of fair price shops.

Hence, no scheme framed by the GNCTD to implement to provisions of the NFSA, and to achieve public distribution of foodgrains can violate or go contrary to either the provisions of the ECA, the provisions of the NFSA; the Orders framed under the ECA, or the Rules framed under NFSA.

Elaborating further, Court observed that the State Government is obliged to ensure that the number of Ration Card holders attached to the fair price shops are reasonable. The State Government is also obliged to fix an amount – as the fair price shops margin, which shall be periodically reviewed for ensuring sustained viability of the FPS operations.

With a view to preserve the viability of the fair price shop operations, the State Government is obliged to allow such shops to sell commodities other than the foodgrains distributed under the TPDS.

Bench further added that without addressing concerns of the existing FPS owners with regard to their financial viability — which is statutorily protected, the GNCTD cannot proceed to implement the impugned scheme.

Issue 3: Actions of the GNCTD are actuated by unfounded prejudice and bias.

Bench asserted that when there are above 2000 FPS owners spread across the NCT of Delhi, there are bound to be malpractices resorted to by some of them. In such individual cases, strict actions are called for and should be taken and appear to have been taken, at least, in some of them. However, the issue is whether the GNCTD can paint all FPS owners with the same brush, unless there is germane and relevant material available and considered, and reach the general conclusion that all of them are indulging in corrupt practices and black marketing, and cite that as the reason for introduction of the impugned Scheme?

Court made it clear that it is not here to give clean chit to any, or all of the fair price shop owners with regard to their business dealings.

Though the Bench observed that, even if the exiting TDPS were to work flawlessly, that would not debar the GNCTD from introducing the door-to-door delivery foodgrains to the beneficiaries. The GNCTD can do it out of its own resources, while adequately addressing the concerns with regard to the financial viability of the existing FPS owners/ dealers.

The impugned Scheme is in breach of the statutory protection afforded to the existing Fair Price Shop owners/licencees, and it is founded upon unsubstantiated generalized conclusion that, all Fair Price Shop owners/licencees are indulging in malpractices taken note of.

Reaching near the conclusion, Court stated that, though it is not for the Courts to either frame the policy of the Government or to evaluate its efficacy or question the wisdom of the Government, however, that does not preclude the Court from examining issues with regard to competence, legality and constitutionality of the policy, or of any part thereof, if a challenge is raised to the same before the Court.

Issue 4: Whether the impugned Scheme is capable of being put into execution/ implementation, when the same has been objected to by the Lieutenant Governor, and the Central Government has not been required to examine the difference of opinion between the Council of Ministers – headed by the Chief Minister on the one hand, and the Lieutenant Governor on another hand?

High Court stated that the difference of opinion between the Council of Ministers and the LG is expected to be the exception, and not the norm. The LG should not act in a mechanical manner, without due application of mind, thereby referring every decision of the Council of Ministers to the President.

“The difference of opinion between the Council of Ministers and the Lieutenant Governor should have a sound rationale, and it should not be resorted to only to obstruct the implementation of the decisions of the Council of Ministers, but should be founded upon affirmative constructionism, and profound sagacity and judiciousness.”

As per the record, the LG was communicated of the Cabinet decision and the said was to implement the proposal for home delivery of ration. The Council of Ministers had approved the proposal contained in the Cabinet Note to implement the home delivery of ration under the TPDS in the NCT of Delhi.

Conduct of the LG

High Court’s observation was that, even if the opinion of the LF for expressing his difference of opinion was eventually not agreed to by the President, and the President decided to go with the decision of the Council of ministers, that by itself, would not mean that the opinion of LG could be described as falling foul of the standards of constitutional trust and morality; the principals of collaborative federalism and Constitutional balance.

High Court stated that, the impugned scheme framed by the Council of Ministers – headed by the Chief Minister, before its implementation, was required to be communicated by the Chief Ministers to the Lieutenant Governor, since it relates to the administration of the affairs of the Capital.

In Court’s view, the Chief Minister was not correct in concluding that the approval of the Centre was neither mandated, nor necessary, under Section 12(2)(h) of the NFSA, or that the matter need not have been referred to the President under the proviso to Article 239AA(4), despite the expressed difference of opinion by the LG.

Conclusion

The impugned Scheme cannot be implemented and rolled out by the GNCTD since the LG expressed his difference of opinion and required that the same be referred for his decision to the president.

Hence, the action of the Council of Ministers headed by the Chief Minister to roll out the impugned Scheme to be still borne, and not in accordance with either Article 239AA(4), or even with Section 44(2) of the GNCTD Act.

In view of the above discussion, the petition was disposed of. [Delhi Sarkari Ration Dealers Sangh Delhi v. Commr. Food and Supplies GNCTD, 2022 SCC OnLine Del 1485, decided on 19-5-2022]


Advocates before the Court:

For the Petitioner: Visheshwar Shrivastav, Advocate

For the Respondents: Dr. Abhishek Manu Singhvi & Mr Rahul Mehra, Senior Advocates with Mr. Gautam Narayan, ASC and Ms. Asmita Singh, Advocate, for the State/ GNCTD.

Ms. Aishwarya Bhati, ASG with Ms.Monika Arora, CGSC and Mr. Yogesh Panwar, Mr. Ameyavikrama Thanvi & Mr.Shoumendu Mukherjee, Advocates for respondent/ UOI.

Mr. Anurag Sarda & Mr. Ashutosh Mishra, Advocates for respondent No.6/ Brandavan Food Products.
Mr. D.P. Singh, Mr. Saumay Kapoor & Ms. Puja Raghavan, Advocates for respondent No.9.

Mr. Talha A Rahman, Mr. M. Shaz Khan, Mr. Harsh V Kediya and Mr.Saurabh Seth, Advocates for Intervenor/ Bandhua Mukti Morcha.

W.P.(C) 13104/2021 and C.M. Nos.41322/2021 & 41323/2021

For the Petitioners: Yash Aggarwal and Chitrakshi, Advocates

For the Respondents: Mr. Manish Mohan, CGSC with Ms.Dhwani Sharma, Advocate for respondent/ UOI.
Mr. Om Prakash, Standing Counsel with Mr.Pradeep Kumar Tripathi & Mr. Anil Kapoor, Advocates for respondent No.4/FCI
Dr. Abhishek Manu Singhvi & Mr.Rahul Mehra, Senior Advocates with Mr. Gautam Narayan, ASC and Ms. Asmita Singh, Advocate, for the State/ GNCTD.

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