Calcutta High Court: In a writ petition seeking allocation of kerosene oil to the State of West Bengal on a per capita basis under the Public Distribution System, a single judge bench comprising of Bivas Pattanayak,* J., directed the Central Government to adopt and take a policy decision for the allocation of kerosene oil to the State of West Bengal for distribution to designated consumers through the Public Distribution System. The Court emphasised on the duty of a welfare state to frame policies for the benefit of citizens and highlighted the importance of public interest in the context of locus standi.
Factual Matrix
In the instant matter, the petitioners seek a writ under Article 226, urging respondents 1 to 4 to allocate kerosene oil to West Bengal on a per capita basis like other states. The Central Government’s allocation of kerosene oil is determined by the National Council of Applied Economic Research’s (NCAER) recommendations. The Central Government allocates kerosene oil to State Governments for Public Distribution System (PDS). The petitioners stated that the NCAER report recommended uniform allocation but the same was not implemented. The petitioners stated that the State of West Bengal’s allocation reduced over the years, causing concerns about the impact on designated consumers and trade association members. The petitioners alleged violation of Article 19(1)(g) (right to carry on business) and Article 21 (right to life) of the Constitution of India.
Petitioners’ Contentions
The petitioners contended that alleged reduction in kerosene allocation to West Bengal adversely affects designated consumers, impacting their right to life (Article 21) and trade (Article 19(1)(g)). It was contended that the NCAER’s report suggested uniform allocation based on per capita requirements for states, but this recommendation has not been implemented. It was contended that the allocation based on misuse in other states is unjust. It was contended that lack of LPG accessibility for the poor justifies continued kerosene allocation. The petitioners seek a direction for allocation based on per capita requirement.
Respondents’ Contentions
The respondents contended that the reduction in allocation is a policy decision and there is no violation of fundamental rights. It was contended that the allocation is based on the State government’s assessment of per capita need. The respondents contended that it is encouraged to use LPG for environmental reasons. The respondents alleged the misuse and leakage in West Bengal thereby justifying reduction. It was contended that the petitioners lacked locus standi as the trade association members are not aggrieved parties.
Moot Point
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Whether the reduction in kerosene allocation violates the petitioners’ rights under Article 19(1)(g) and Article 21 of the Constitution of India?
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Whether the petitioners have locus standi to file the writ petition?
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Should the Central Government formulate a policy for kerosene oil allocation?
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Whether the Central Government should be directed to allocate kerosene oil as per the requirement of West Bengal?
Court’s Assessment
Issue 1: Violation of Constitutional Rights
The Court observed that the Article 19(1)(g) of the Constitution of India grants citizens the right to practice any profession, carry on any occupation, trade, or business. The Court stated that the right guaranteed by Article 19(1)(g) is the right to pursue a calling or carry on an occupation of one’s choice, not the right to hold a particular agency for gains. The Court stated that there is no right to insist on the government allocating a specific amount of kerosene oil.
“It is trite law that while a citizen has a fundamental right to carry on a trade or business, he has no fundamental right to insist upon the government or any other individual for doing business with him. It may be emphasised that the Constitution does not recognise promise or rights to business which are dependent on grants by State or business affected by public interest.”
The Court opined that the members of the Trade Association cannot claim a fundamental right to insist on a specific allocation of kerosene oil, as the Central Government’s decisions on allocation fall within its exclusive domain. The Court held that the reduction in allocation does not violate Article 19(1)(g) as the right is to pursue a calling or occupation, not a guaranteed business volume and as is no binding agreement or promise by the Central Government regarding the allocation. The Court further held that Article 21, the right to life and personal liberty, is not violated as there is no infringement of decent living.
Issue 2: Locus Standi
The Court stated that the concept of locus standi has been relaxed in public law proceedings, especially when matters of public interest are involved. The Court observed that the court may entertain a writ petition if a legal wrong or injury is caused, and the affected person is unable to approach the court for relief due to poverty, helplessness, disability, or socio-economic disadvantage.
While referring to the observation in S.P. Gupta v. Union of India, 1981 Supp SCC 87, on public interest litigation and the duty of the court to unearth the truth, the Court relaxed the traditional locus standi rules and allowed the trade association, as a society, to maintain the writ petition on behalf of its members and the designated consumers facing hardship.
Issue 3: Central Government Policy
The Court stated that recommendations made by the NCAER in 2005 were cited, but no evidence of their consideration for policy decisions was presented. The Court noted the absence of a specific policy decision by the Central Government for kerosene oil allocation. The Court referred to definition of “Public Distribution System” as defined in Control Order, 1993 and stated that “it is primary duty of the Central Government to frame a policy for allocation of kerosene oil to the State Governments for distribution to the designated consumers.”
The Court emphasised on the duty of a welfare state to frame policies for the benefit of citizens. The Court opined that the Central Government must frame a policy for the allocation of kerosene oil to the State Governments for public distribution.
“…it is the duty and obligation of a welfare state based on democratic setup to prepare plans and devise beneficial schemes for the good of the common people and accordingly the Central government must take necessary appropriate steps for framing a policy for allocation of kerosene oil for public distribution to designated consumers through Public Distribution System.”
Issue 4: Direction for Allocation
The Court acknowledged the policy decision domain of the Central Government and refrained from directing a specific allocation. The Court directed the Central Government to adopt and take a policy decision for kerosene oil allocation to the State of West Bengal.
Court’s Decision
The Court rejected the restitution claim by the respondents for losses incurred due to the interim order protecting the petitioners from the reduction in kerosene allocation. The Court disposed of the writ petition with the direction for the Central Government to formulate a policy for the allocation of kerosene oil to the State of West Bengal. Interim order, if any, stands vacated. All connected applications, if any, stand disposed of. No order as to costs.
[W.B. Kerosene Agents’ Welfare Assn. v. Union of India, 2024 SCC OnLine Cal 908, order dated 31-01-2024]
*Judgment by Justice Bivas Pattanayak
Advocates who appeared in this case :
Mr. Shyamal Sarkar, Senior Advocate, Mr. Ramesh Dhara, Ms. Mousumi Choudhury, Counsel for the Petitioners
Mr. Avinash Kankani, Counsel for the Union of India
Mr. Sirsanya Bandopadhyay, Mr. Amrita Lal Chatterjee, Counsel for the State
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