1. All these writ applications raise the same question of law and almost the same question of facts and as such, all these cases are taken up for hearing together. This common judgment shall decide the fate of all these writ applications.
2. Civil Rule No. 287 of 1998 has been filed by Assam Roller Flour Mills Association represented by its General Secretary and the prayers made in this writ application are to set aside the letter dated 11-12-97, WT Message dated 12-1-98 and 19-1-98 (Annexures 3, 5 and 7 respectively) to that writ application Civil Rule No. 318 of 1998 has been filed by AH Assam Modern Chakki Mills Association and two others and the prayer is made in the writ application to set aside the WT message dated 19-1-98 only as mentioned above. Civil Rule No. 1088 of 1998 has been filed by 5 persons and they are consumers under the public Distribution System and the prayer made in the writ application is that the order dated 19-1-98 (Annexure-B) to the writ application may be quashed. Civil Rule No. 1089 of 1998 has been filed by two persons and they are also consumers under the Public Distribution System and the prayer made in the writ application is to quash the order dated 19-1-98 (Annexure-C) to the writ application. Civil Rule No. 1426 of 1998 has been filed by ten persons and they are owners of Chakki mills and the prayer made in the writ application is to quash the W.T. message dt. 9-3-98 (Annexure-G) to the writ application.
3. In order to appreciate the factual matrix, let us quote the impugned orders/W.T. message below :
" W. T. MESSAGE DTD. 9-3-98 TO : ALL DEPCOMS/SUB DIVISIONALS (EXCEPT DEPCOMS AND SUB DIVISIONS IN KARBI ANGLONG AND N. C. HILLS DISTRICT). : DEPCOM, KAMRUP (BY HAND) PRINCIPAL SECRETARY, KARBI ANGLONG/N.C. HILLS AUTONOMOUS COUNCILS. INFO : DISPUR,GUWAHATI/MANAGING DIRECTOR, STATFED, GUWAHATI/SENIOR REGIONAL MANAGER, CFI, GUWAHATI (BY HAND). FROM : SUPSEC ASSAM DISPUR
NO. FSA. 28/98/18 DTD. 09-03-98 (.) ONLY WHOLF, WHEAT REPEAT WHOLE WHEAT AND NOT ATTA SHALL BE DISTRIBUTED TO CONSUMERS UNDER TPDS FOR THE MONTH OF MARCH/98 (.) REPEAT MARCH/ 98 (.) WHILESALE CONSUMER CO-OPERATIVE SOCIETIES/STATFED SHALL LIFT WHEAT FROM FCI FOR DISTRIBUTION IN THE URBAN AREAS (.) IN CASE OF RURAL AREAS GPSS AND WHERE THE GPSS ARE FINANCIALLY WEAK AND ARENOT FUNCTIONING PROPERLY STATFED SHOULD BE ALLOTTED WHEAT FOR LIFTING FROM FCI FOR DISTRIBUTION THROUGH FAIR PRICE SHOP AGENTSC) IN CASE OF LIFTING FOR RURAL AREAS THEY WILL DELIVER WHEAT SO LIFTED TO GPSS AFTER LIFTING FROM FCI OR STATFED MAY ALSO BE ASKED TO DELIVER THE STOCK DIRECT TO FAIR PRICE SHOP AGENTS AS IS CONVENIENT(.) PARA (.) PRINCIPAL SECRETARY OF TWO HILL DISTRICTS COUNCILS WILLLIFTTHEWHEATSHOWN AGAINST THEM AND DISTRIBUTE THE SAME TO THE CONSUMERS THROUGH LAMPS/F.P. SHOPS(.) SUB DIVISIONWISE ALLOTMENT OF WHEAT SHOWN AGAINST FOR JANUARY/98 IS IN MT FOR DISTRIBUTION AS UNDER(.) DHUBRI 696 HAT SINGIMARI 428 NORTH SALMARA318 BIJNI 386 GOALPARA 830 BARPETA 1305 BAJALI 397 NALBARI 1240 GUWAHATI 1956 RANGIA 510 PRAGJYOTISHPUR 37 NAGAON 1270 KALIABOR 330 HOJAI 720 MARIGAON 766 JORHAT 904 MAJUU 166 SIBSAGAR 487 NAZIRA 173 CHARAIDED 154 GOLAGHAT 640 DHANSRI 230 BOKAKHAT 147 DIBRUGARH 1280 TINSUKIA 747 MARGHERITA 350 NORTH LAKHIMPUR 744 SADIYA 94 DHAKUAKHANA 178 DHEMAJI 446 JONAI 140 MANGALDOI 1000 UDALGURI 600 TEZPUR 1174 BISWANATH CHARIALI 575 SILCHAR 1284 LAKHIMPUR 209 KARIMGANJ 1015 HAILAKANDl 547 HAFLONG 125 MAIBONG 55 DIPHU 363 HAMREN 240 BOKAJAN 210(.)... MAXIMUM ISSUE PRICE OF WHEAT AT F.P. SHOP LEVEL SHOULD BE LIMITED TO RS. 5.15 PER KG (RUPEES FIVE AND PAISE FIFTEEN) AND SCALE OF DISTRIBUTION PER FAMILY PER MONTH AGAINST FCI SHOULD NOT BE LESS THAN 5 (FIVE) KG (.) WHOLE WHEAT SHALL BE DISTRIBUTED TO BOTH APL AND BPL FAMILIES AT SAME PRICE AND SCALE(.) ACTION TAKEN ON ABOVE MAY KINDLY BE AP-PRISED(.) WHOLE WHEATTO POLICE AND PARAMILITARY FORCES SUCH AS CRPF, BSF ETC. MAY BE ALLOCATED OUT OF THE WHOLE WHEAT ALLOTTED TO YOU ON PAYMENT OF PRICES ON USUAL TERMS AND CONDITIONS AS PER GOVERNMENT OF INDIA'S FORM(.) ACTION TAKEN MAY KINDLY BE INTIMATED TO DISPUR(.) FOR SRM FCI GUWAHATI ONLY(.) HE IS REQUESTED KINDLY TO ADVISE HIS DISTRICT MANAGERS ACCORDINGLY AND ALSO TO EXCEPT VALUE UP TO 28TH MARCH/1998(.) STAY ORDER PASSED BY THE HIGH COURT EARLIER ON DISTRIBUTION OF WHOLE WHEAT HAS BEEN VACATED(.) The above W.T. message is impugned in Civil Rule No. 1426/98.
" W.T. MESSAGE DTD. 19-1-98 TO : ALL DEPCOMS/SUBDIVISIONALS (EXCEPT DEPCOMS AND SUB DIVISIONALS IN KARBI ANGLONG AND N.C. HILLS DISTRICT). DEPCOM, KAMRUP (BY HAND) PRINCIPAL SECRETARY, KARBI ANGLONG/N.C. HILLS AUTONOMOUS COUNCILS. INFO : DISPUR, GUWAHATI/MANAGING DIRECTOR, STATFED, GUWAHATI/SENIOR REGIONAL MANAGER, FCI, GUWAHATI (BY HAND). FROM : SUPSEC ASSAM DISPUR
NO. FSA. 173/97/62 DT. 19-1-98(.) ONLY WHOLE WHEAT REPEAT WHOLE WHEAT AND NOT ATTA SHALL BE DISTRIBUTED TO CONSUMERS UNDER TPDS WITH EFFECT FROM CURRENT MONTH OF JANUARY(.) WHOLE SALE CONSUMER CO-OPERATIVE SOCIETIES/STATFED SHALL LIFT WHEAT FROM FCI FOR DISTRIBUTION IN THE URBAN AREAS(.) IN CASE OF RURAL AREAS GPSS AND WHERE THE GPSS ARE FINANCIALLY WEAK AND ARE NOT FUNCTIONING PROPERLY STATFED SHOULD BE ALLOTTED WHEAT FOR LIFTING FROM FCI FOR DISTRIBUTION THROUGH FAIR PRICE SHOP AGENTS(.) IN CASE OF LIFTING FOR RURAL AREAS THEY WILL DELIVER WHEAT SO LIFTED TO GPSS AFTER LIFTING FROM FCI OR STATFED MAY ALSO BE ASKED TO DELIVER THE STOCK DIRECT TO FAIR PRICE SHOP AGENTS AS IS CONVENIENT(.) PARA (.) PRINCIPAL SECRETARY OF TWO HILL DISTRICT COUNCILS WILL LIFT THE WHEAT SHOWN AGAINST THEM AND DISTRIBUTE THE SAME TO THE CONSUMERS THROUGH LAMPS/F.P. SHOPS(.) SUBDIVISIONWISE ALLOTMENT OF WHEAT SHOWN AGAINST FOR JANUARY/98 IN MT FOR DISTRIBUTION AS UNDER (.) DHUBRI 696 HATSINGIMARI 428 BILASIPARA 512 GUWAHATI 1956 RANGIA 510 PRAGJYOTISHPUR 37 NAGAON 1270 KALIABOR 330 HOJAI 720 MARIGAON 766 JORHAT 904 MAJULI 166 SIBSAGAR 487 NAZIRA 173 CHARAIDEO 154 GOLAGHAT 640 DHANSIRI 230 BOKAKHAT 147 DIBRUGARH 1280 TINSUKIA 747 MARGHERITA 350 NORTH LAKHIMPUR 744 SADIYA 94 DHAKUAKHANA 178 BISWANATH CHARIALI 1575 SILCHAR 1284 LAKHIMPUR 209 KARIMGANJ 1015 HAILAKANDI 547 HAFLONG 125 MAIBONG 55 DIPHU 362 HAMREN 240 BOKAJAN 210 (.) ....... MAXIMUM ISSUE PRICE OF WHEAT AT P.P. SHOP LEVEL SHOULD BE LIMITED TO RS. 5.15 PER KG (RUPEES FIVE AND PAISE FIFTEEN) AND SCALE OF DISTRIBUTION PER FAMILY PER MONTH AGAINST FCI SHOULD NOT BE LESS THAN 5 (FIVE) KG(.) WHOLE WHEAT SHALL BE DISTRIBUTED. TO BOTH APL AND BP, L FAMILIES AT SAMEPRICEANDSCALE(.) ACTION TAKEN ON ABOVE MAY KINDLY BE APPRISED(.) FCI HAS BEEN REQUESTED TO ACCEPT VALUE OF WHEAT FROM NOMINEES TILL 31-1-98 (.) FOR SRM, FCI GUWAHATI ONLY (.) HE IS REQUESTED KINDLY TO ADVISE HIS DISTRICT MANAGERS ACCORDINGLY AND ALSO EXTEND THE VALIDITY DATE FOR DEPOSIT OF VALUE OF WHEAT AGAINST JANUARY ALLOCATION TILL 31 -1-98(.) The above quoted W.T. message is impugned in Civil Rule Nos. 1088/98,1089/98,318/98, and Civil Rule No. 287/98 also.
"No. 4-1/97-DR. III GOVERNMENT OF INDIA DEPARTMENT OF FOOD AND CIVIL SUPPLIES Krishi Bhawan, New Delhi, Dated the 11th December, 1997.
To The Food Secretaries, All State Govts/U.T. Administrations, (as per standard List.) Sub. :-- Custom Milling of PDS Wheat by Roller Flour Mills for conversion into Maida, Sujit and Atta for distribution under PDS Scheme, of regarding.
Sir, I am directed to refer this Department's letter of even number dated the 4th Nov., 1997 on the above subject wherein the captioned scheme of custom milling was extended for a further period of one year and upto 31-10-97 on the express conditions stipulated therein.
2. The Scheme has now been reviewed further and it has been decided not to extend it further.
3. The scheme of custommilling of PDS wheat therefore stands withdrawn/discontinued with immediate effect.
4. Please acknowledge the receipt of this letter.
Yours faithfully Sd/- Raja Lal Under Secretary to the Govt. of India."
W.T. MESSAGE 12-1-98 To :FOODCORP GUWAHATI (BY HAND) INFO : DEPCOMS :
GUWAHATI/SILCHAR/NAGAON/JORHAT/TEZPUR/MANGALDOI/ DIBRUGARH /TINSUKIA/BONGAIGAON/ NORTH LAKHIMPUR/DHUBRI/SIBSAGAR.
SUBDIVISIONAL GOSSAIGAON/BOKAKHAT FROM: DISPUR : GUWAHATI.
NO. DS. 119 97 15(.).GOVT OF INDIA HAVE DIRECTED NOT TO EXTEND SCHEME OF CUSTOM MILLING OF PDS WHEAT BY ROLLER FLOUR MILLS BEYOND31-10-97(.)ITMAYBESTATEDTHAT ALLOCATION OF APL WHEAT FOR JANUARY '98 TO ROLLER FLOUR MILLS AGAINST ALLOCATION MADE FOR JANUARY '98(.) FOR DEPCOMS SUB DIVISIONALS (ONLY(.) THEY WILL NOT DEPOSIT VALUE OF ALLOTTED WHEAT TO R. F MILLS FOR JANUARY '98 UNTIL FURTHER ORDERSC) The above quoted letter dt. 11-12-97 and WT Message dt. 12-1-98 are impugned in Civil Rule No. 287 of 1998, and are annexed as Annexures-3 and 5 in this Civil Rule.
4. I have heard Sri AK Bhattacharyya, learned senior counsel for the petitioners in Civil Rule Nos. 1088/98 and 1089/98, Sri AK Phukan, learned Senior counsel in Civil Rule No. 318/98, Sri P.K. Goswami, learned sr. counsel in Civil Rule' No. 287/98 and Sri C. Baruah, learned counsel in Civil Rule No. 1426/98. I have also heard learned Advocate General, Assam Sri PG Baruah for the Respondents in all the Civil Rules and Sri KN Choudhury, learned Sr CGSC for the Union of India.
5. An affidavit-in-opposition and affidavit-in- reply were filed in the cases on behalf of the State of Assam and ors, but no affidavit could be filed by the Union of India, because of shortage of time. But Sri KN Choudhury, Sr CGSC on receipt of instructions from his client made his submissions and also filed a written note with regard to his argument.
6. The crux of the matter is regarding distribution of atta to the consumers under the Public Distribution System. Earlier in Assam always atta was given in the Family Identify Card now it is sought to be changed to whole wheat. The Family Identity card wheat is defined under Clause 2(7) (d). That definition reads as follows :
"Family Identify Card" means a card or document issued to the head, of a family under or in pursuance of the provisions of this Order in Form II or in such other form as may be specified by the Licensing Authority.
Form II be retained by the card holders provides for following articles : Central rice, atta, levy sugar, salt (others). The card further provides inter alia as follows:
"The Appointed Dealer to whom this card is tagged shall issue notified articles during shop-hours in such quantities, at such intervals of time and at such prices as may be specified by the licensing Authority on presentation' of the card and necessary entries made in the card."
As indicated above, Atta is an article mentioned in the Family Identity Card and even today it is admitted position that form of the Family Identity Card has not been changed by the authority. Be that as it may, this scheme regarding distribution of articles under the Public Distribution System was in vogue in Assam since 1971. In the year 1978 the Central Government in the Ministry of Agriculture & Irrigation (Department of Food) issued a Notification No. G.S.R. 800 dated June 9, 1978 delegating its power under Sub-section (i) of Section 3 of the Essential Commodities Act, 1955 to the State Government to make orders in respect of the matters specified in various Clauses of Sub-section (2) of Section. 3 in relation to foodstuffs subject to certain conditions thereunder. That Notification reads as follows:
Ministry of Agriculture and Irrigation (Department of Food) ORDER New Delhi, June 9, 1978 GSR 800. -- In exercise of the powers conferred by Section 5 of the Essential Commodities Act, 1955 (10 of 1955), and in supersession of the order of the Government of India in the late Ministry of Agriculture (Department of Food) No. GSR 315 (E) dated June 20,1972, the Central Government hereby directs that the powers conferred on it by Sub-section (1) of Section 3 of the said Act to make orders to provide for the matters specified in Clauses (a), (b), (c), (d), (e), (f), (h), (i) and (j) of Sub-section (2) thereof shall, in relation to foodstuffs be exercisable also by a State Government subject to the conditions:
(1) that such powers shall be exercised by a State Government subject to such directions, if any, as may be issued by the Central Government in this behalf;
(2) that before making an order relating to any matter specified in the said Clauses (a), (c), or (f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff, under the said Clause (d), the State Government shall also obtain the prior concurrence of the Central Government; and (3) that in making an order relating to any of the matters specified in the said case (j), the State Government shall authorise only an officer of the government.
Sd/- K. Balakrishnan Deputy Secretary to the Government of India No. 3 (Genl) (1) -D & R (1) -59"
In pursuance of this order, State of Assam framed the Assam Public Distribution of Articles Order, 1982. The preamble of that order reads as follows:
"No. SDA. 60/80/pt./72 -- In exercise of the powers conferred by Section 3 of the Essential Commidities Act, 1955 (Act 10 of 1955) read with the Government of India, Ministry of Agriculture and Irrigation (Department of Food) Order No. GSR 800, dated 9th June, 1978, the Governor of Assam is pleased to make the following order, namely:--
A bare reading of the preamble will show that this Order was not framed by taking prior concurrence from the Central Government. Whether it is necessary or not to take prior concurrence that will be decided if necessary, at a later point of time. But in order to put the facts in a clear manner, it is stated and it is admitted by the counsel for both the sides that prior concurrence was not taken, it was under this order that Clause 2(7) wheat products was made a notified article and wheat products as mentioned in Clause 2(7) means -- Atta, Maida, Suji and Bran. No doubt, in the year 1991 i.e. by Notification dated31-3-9l it was declared wheat as notified article with immediate effect referred to in Clause 2 in addition to wheat products i.e. Atta, Maida, Suji and Bran. So, whole wheat also became notified articles by virtue of this notification dated 31-3-1991 .Some argument was advanced that this notification cannot make wheat a notified article as this was not done by adhering to Clause 72 of the Order of 1982. Clause 27 provides that State Government may, by an Order, published in the official Gazette, increase the number of categories of notified articles and thereunder the number of categories shall be deemed to have been amended accordingly. It was argued that this Order was not published in the official Gazette, but I am not inclined to go to that aspect of the matter inasmuch as this point was not specifically taken up in any of the writ applications, save and except in the writ application No. 1426/98 filed by Sri C Baruah. But later on Sri Baruah did not strenuously urge this point. So, this point for the present is not considered and decided.
7. It is to be borne in mind that the Public Distribution System and the articles mentioned in the Family Identity Card as indicated above are meant for the poor strata of the society and the authority is duty bound to bear in mind that it must make all attempts and endeavour so that the benefit of this scheme reaches the last person in the queue. The scheme is to bring welfare to the poor strata of the society, because the rich and affluent persons normally never go to the fair price shops to get sugar and wheat as it is available in the market of course at a higher price. So public interest is involved in the scheme and that public interest must be furthered in making any change or alteration in the scheme. In Assam, also in other part of the country there were some problems regarding crushing of wheat and supplying atta to the consumers and accordingly the Government of India on 22-8-90 issued instructions/notification to all the State Governments and U.T. Administration regarding Custom Milling of PDS wheat by Roller Flour Mills for conversion into Maida/Suji for distribution under PDS. This was done as sufficient number of Chakki mills were not available to crush the whole wheat and convert it into Atta. That notification is Annexure-1 to the writ application, in Civil Rule No. 287/98 which is quoted below:
"No. 1-5/90-BP, II Government of India Ministry of Food & Civil Supplies Department of Food New Delhi, dated 22-8-90.
To, All State Governments/U.T. Administrations Subject : Customs Milling of PDS wheat by R.F. Mills for conversion into Maida/Suji for distribution under PDS.
I am directed to refer to this Department's letter No. 13-21/88. BP. III dated 26th July, 1988 (copy attached) whereunder it has been laid down that in the event of lack of chakkis in the State and if there is consumers demand for wholemeal atta, wheat may be got converted into whole meal atta through Roller Flour Mills by custom milling, while the State Governments may continue to get PDs wheat custom milled into wholemeal atta (rate of extraction being 90%) as hitertofore it has been decided to allow the State Government if they so desire, to give wheat to Roller Flour Mills out of their PDS wheat quota for custom milling for conversion into products like Maida/ Suji subject to the following express conditions:
i) Distribution of Maida and Suji will be through PDS outlet^ to the Ration Cardholders only at the price fixed by the State Government.
ii) The State Government will not make any profit on the implementation of the Scheme.
iii) Maida or Suji will not be allowed to be sold in the open market. In case of availability of excess quantity of such product which have to be sold in the open market, to avoid wastage etc; the differentia between the controlled price and price fetched in the open market should be credited to the Central Government.
iv) The receipts from the sale of wholemeal or the resultant atta or other products produced during the course of manufacture of maida or suji will be taken into account by the State Government while fixing the milling charges.
v) The total extraction of maida & Suji taken together should not be less than 68% and millers would be issued only that much quantity of wheat for conversion as is required for meeting the requirement of maida and suji for PDS.
vi) The diversion of wheat for conversion into maida and suji will be permitted only for the quota allotted to the State Government for PDS arid no additional quota will be allowed for this purpose.
vii) The above diversion of wheat for conversion into wheat products is, however, allowed for the time being upto the end of June, 1991.
The State Government desirous of making use of this liberalisation may please send monthly statements to the undersigned and the local office of the Food Corporation of India and the Food Corporation of India, Head Quarters in the pro forma attached indicating the quantity of wheat out of their existing quota which has been utilised for production for atta and Maida/Suji for distribution through PDS subject to the conditions mentioned above.
Yours faithfully, Sd/- Illegible (K.S. Rajaseshan) Deputy Secretary to the Govt. of India So it will be seen that this right of custom milling of PDS wheat was given to the Roller) Flour Mill for conversion into Maida, Suji for distribution under PDS with certain-conditions and guidelines. It was further stated in that notification that it number of Chakki mills in the State are not sufficient and if there is consumer demand for wholemeal atta wheat may be got converted into wholemeal atta through Roller Flour Mills by custom milling. The power is given to me State Government to give wheat to the Roller Flour mills out of their PDS wheat quota for custom milling for conversion into products like Maida/ Suji. Thereafter on 4-11-1996 this system of conversion was extended for a further period of one year with certain conditions. That notification is quoted below:
"No. 4-3/95-DR.I1I Ministry of Food (Dept. of Food Pros. & Distribution) Krishi Bhawan, New Delhi.
Dated the 4th November, 1996.
To All State Government UT administrations.
Subject : Custom Milling of PDS wheat by Roller Flour Mills for conversion into Maida/ Suji/Atta etc. for distribution under PDS. of Sir, I am directed to say that the matter relating to the conversion of PDS/RPDS wheat into Maida, Suji and Atta by State Govts/UTs has been reviewed and it has been decided to extend for one year beyond 1-11-1996 the scheme of custom milling for conversion into production like Maida, Suji and atta, if so required, subject to the following express conditions:
i) Distribution of Maida, Suji and atta will be through PDS outlets to the ration card holders only at the price fixed by the State Govt.
ii)The State Govt./UT will not make any profit on the implementation of the scheme.
iii) Maida, suji and atta will not be allowed to be sold in the open market. In case of availability of excess quantity of such products which have to be sold in the open market to aviod wastage, etc. the differentia between the controlled price and the price attached in the open market shall be credited to the Central Government.
iv) The State Government/UT shall fix the free market sale price of wheat products left with the RFMS in such a way that these price are close to the prevailing market prices; but in no case lower than the prices calculated on the bails of wheat sold by FCI in the open market in the State/UT.
v) In case there are more than one centre for open market sale in the State/UT, an average open market sale price or wheat product for the state/ UT could be taken into account while fixing the prices of wheat products for sale in the open market by the state Government/UT.
vi) The State Government/UT shall revise the free market sale price of wheat products as and when the open sale prices of wheat are revised by the Central Government and in no case later than three days from the date of revision of these prices.
vii) The amount realised from the sale of Bran Produced during the course of extraction of Maida or suji will also be credited to the Central Government Account.
viii) The differential amount as in (iii) above and the amount realised by sale of bran as in (v) above is to be credited to the Central Government Account in the form of Bank Draft payable to the "Controller of Account." Ministry of Food" The Head of Account for this purpose will be 'Major Head-0408 Food Storage & Warehousing other receipts-Ministry of Food".
ix) The state Government/UT will fix the forms for extraction of Maidas/Suji/Atta on scientific basis and the millers would be issued only that much quantity of wheat for conversion as in actually required for meeting the requirement of maida, suji and atta for PDS. In any case this quantity issued to RFMS shall not be more than one half of the normal allocation of PDS wheat during the month.
x) The diversion of wheat for conversion into maida, suji and atta will be permitted only from normal quota allocated to the State/UT and no additional quota be allowed for this purpose.
2. The extension is for a period of one year and its continuation will be reviewed on the basis of its performance.
3. The State Government/UTs shall send monthly statement to the undersigned, the local office of the Food Corporation of India and the Food Corporation of India (Head Quarters) in the PRO FORMA attached.
4. The procedure laid down may be followed strictly for the purpose of making available wheat products to the genuine ration card holders at reasonable prices.
5. The scheme will be reviewed in-depth before extending its validity beyond 1-11-1997.
Custom Milling of PDS wheat for production of Maida/Suji/atta etc. monthly Return for the month of......................
(Quantity in Metric Tonnes) Normal Allocation Qty. allotted for Custom Milling
1. Wheat given to RFMS for custom Milling out of PDS quota.
2. Wheat Milled during the month.
3. Maida/Suji/Atta received from the mills during the month Maida Suji Atta
4. Balance brought forward from the previous month Maida Suji Atta
5. Maida/Suji/Atta sold through PDS during the month Maida Suji Atta
6. Balance(3 + 4 -5) Maida Suji Atta
7. Maida/Suji/Atta sold in the open market, if any Maida Suji Atta
8. Controlled price at which products sold in PDS Maida Rs....
9. Product which sold in the open market if any (to be fixed by the State Maida Rs....
10. Price differential between controlled price and open market price Maida Rs....
11. Quantity of Bran produced Rs....
12. Amount realised from sale of Bran Rs....
13. Amount of price differential credited to the account of Central Govt. with details Rs....
14. Total amount credited to the Central Govt. Account (124+13)
6. Receipt of this letter may along be acknowledged and acceptance of the conditions laid down, be communicated before starting conversion of wheat into maida, suji, Atta etc. Sd/-
Under Secretary of the Government of India.
A bare perusal of the notification dt. 22-8-90 will show that a limited quantity was given to the Roller Flour mills for conversion into Maida and suji subject to certain conditions and this limited right which was given was withdrawn vide letter dt. 11-12-97 quoted above. A bare perusal of this letter will show that was withdrawn is the right of custom milling under PDS by Roller Flour mills. Nowhere the Central Government withdrew the right of the chakki mills to convert whole wheat into atta. But the most unfortunate part of the present state is that the State Government wrongly read this letter and issued W.T. message stating that Chakki mill owners also will not convert the PDS wheat into atta. That was never the direction of the Central Government. Argument has been advanced on behalf of the learned Advocate General, Assam that even State Govt. can take policy decision and that policy decision has been taken. By that policy decision the right of the chakki mill owners to convert PDS wheat into atta has been withdrawn. Whether their is such a policy decision or not that will be discussed below. It is stated herein that the State Government has not, produced any correspondence or any material or, any records to show that such policy decision was taken. Merely saying or arguing that policy decision has been taken is not sufficient. The materials on the basis of which the policy decision has been taken, that materials are to be brought before the Court when this is challenged and when it is specifically stated therein that no policy decision was taken by the State of Assam. The impugned order dt. 19-1 -98 was issued by the authority in a high handed, capricious and arbitrary manner. This is a whimsical exercise of power.
8. Now, let us take up the submissions made by the learned counsel for the petitioners as well as the learned counsel for the Respondents. Sri AK Bhattacharyya, learned counsel for the petitioner in the Civil rule mentioned above submits as follows :
i) that he is not interested whether the whole wheat is converted into atta by the Roller Flour mills or by Chakki mills. What is his interest is that by going to the fair price shop the consumers must get the atta provided for in the Family Identity Card. But that is what will not be available now in pursuance of the so called decision of the State of Assam; (ii) that if whole wheat is provided to the consumers that will be nothing, but deception. The consumers will not be absolutely benefited by such whole wheat as it will be next to impossible to convert this whole wheat into atta as in major part of the State of Assam neither chakki nor modern chakki mills are available to convert whole wheat into atta. (iii) that the so-called policy decision is absolutely unreasonable and against the public interest and it is the consumers for whose benefit the scheme is made and they will face innumerable problems and this scheme will be a mockery only.
9. Sri PK Goswami, learned senior counsel for the Roller Flour Mills submits that power of this Court to interfere with a policy decision is limited and circumscribed, but at the same time he submits that if so called policy decision is unreasonable or against the public interest, the Court can step in to interfere with such policy decision. That is what he submits with regard to the policy decision of the Union of India to stop the conversion of whole wheat into Maida, Suji and atta by the Roller Flour Mills in the Stale of Assam as sufficient number of chakki Mills are not available and the existing chakki Mills cannot cater/ meet the need of the consumers for atta and it was for this only that Roller Flour Mills were allowed to crush the wheat to Atta. Sri Phukan and Sri Baruah, learned counsel for the Chakki Mills submit that these Chakki Mills have been established with the licence only to convert the whole wheat under the PDS scheme to atta and that is the condition of licence as will be evident from Annexure-A to the writ application in Civil Rule No. 1426/98 wherein it is stated that licence was granted under the public Distribution System to convert whole wheat into atta and if this is stopped as has been done by the State of Assam, the source of livelihood of these persons shall be taken away, (iii) that at no point of time the Central Government issued any direction to the State of Assam not to allow the Chakki mill owners to convert whole wheat into atta and it is submitted that State of Assam cannot override the decision of the Central Government, (iv) that at no point of time any policy decision was taken by the State of Assam and the impugned order was issued by the authority without adhering the norms of reasonableness, transparency and fairness.
10. On the other hand, Sri PG Baruah, learned Advocate-General, Assam submits that power of this Court to review a policy decision is limited and circumscribed and this Court cannot question the wisdom of the authority in adopting any particular course. It is in the domain of some other authority and this Court should not step in them. That when the Union of India gave certain directions to the State Government the State Govt. is bound to follow such direction. That the action or decision is not unreasonable or against the public interest.
11. Sri KN Choudhury, Sr. Central Govt. Standing Counsel submits as follows :
that the Scheme of Custom Milling of PDS wheat by Roller Flour Mills introduced by scheme contained in Letter No. 1 -6/90-88. III dated 22-8-90 has been discontinued by the Govt. of India by the impugned order No. 4-1/97-DR. OOO dated 11-12-97 because of the following reasons :--
a) The State Government failed to submit the returns in pro forma as required under Clause 2 of the GOI letter dated 22-8-90. In the absence of monthly statements/return it was not possible to ascertain whether the purpose of introducing the custom milling scheme achieved the desired result.
b) In some State even wholemeal wheat is also distributed through PDS system. Therefore it cannot be said that there is any element of discrimination.
c) The Joint Secretary to the Govt. of Assam, Food and Civil Supplies Deptt. vide his DO letter No. ESA. 278/95/74 dated 27-2-98 addressed to Shri S.C. Brahma, Joint Secretary, GOI informed that lifting of Atta by the fair price shops has been poor. Therefore the State Govt. recommended to the Central Govt. for distribution of whole meal wheat. This is a decision which has definitely been taken in public interest. Another factor which was considered by the State Govt. was that Atta has a very less self lift and considering the climatic condition of the State it was opined that public interest would be better served if wholemeal atta is distributed by PDS.
d) On an objective consideration of the issue as indicated above the State Govt. took a policy decision to distribute wholemeal wheat and accordingly requested the Central Govt. which has been accepted by the Central Govt. It needs hardly be emphasised that the State Govt. being the implementing agency under the scheme is better equipped to assess as to whether the scheme thus introduced is required to be continued or do away with. There is no reason why Central Govt. should take a contrary view.
e) A bare reading of the Scheme introduced on 22-8-90 reveals that the Chakki Mills had their existence independent of the scheme.
A list was submitted on behalf of the State of Assam regarding Roller Flour Mills. Modern Atta Chakki Mills and Chakki Mills. That list is quoted below Sl. No. Name of District No. of Roller Flour Mills;
No. of Modern A. Chakki Mills.
No. of ChakkiMills.
1. Kamrup 13 45 73
2. Golaghat 1 44 30
3. Cachar 4 9 14
4. Nagaon 5 77 79
5. Sonitpur 3 23 45
6. Darrang 1 3 21
7. Dibnigarh 3 46 62
8. Tinsukia 2 4 42
9. Jorhat 7 60 21
10. Sibsagar 1 38 36
11. Dhubri 1 1 59
12. Kokrajhar 1
13. Lakhimpur 1 14 26
14. Bongaigaon 1 2 45
18. N. C. Hills
19. Karbi Anglong
-1 17 44 373 696
On the other hand, by filing an application in Civil Rule No. 318/98 it was brought to the notice of this Court as follows:
That in Kokrajhar district there is only one Roller Flour Mill in Gossaigaon town, there is no modern chakki mill or chakki mill. In the entire sub-division of Majuli there is neither a Roller Flour Mill, nor a Modern Atta Chakki Mill or a Chakki Mill. If a consumer gets whole wheat in Majuli he will have to come to Jorhat or North Lakhimpur by crossing river Brahmaputra in rainy season a distance of 60/70 Kms to get whole wheat converted into atta. In the entire sub-divisions of Dhemaji, Jonai, Lakhimpur, Dhakuakhana, Sadiya, North Salmara, Bilasiparas and Halsingimari neither a Roller Flour Mill or a Modern Atta Chakki Mill is available. That in Barpeta town a District Headquarter has neither a Roller Flour Mill nor a Modem Atta Chakki Mill or a Chakki Mill. It was stated in that application that the statements made or submission is not exhaustive but illustrative. This application was filed only to show that if whole wheat is supplied as decided it will be next to impossible for the consumers to enjoy the benefit of the scheme and it was urged that if that is not unreasonable, it cannot be conceived of what is unreasonable. In order to get whole wheat converted into atta, the. consumers will have to spend more than what is the price of atta in the open market, because difference of the price of atta in the fair price shop and in the open market is Rs. 4/- per kg. (Appx.). It was further urged on behalf oi the Modern Atta Chakki Mills by furnishing a list that these Chakki Mills were started/established with the assurance that PDS wheat will be made available to them for conversion into atta and they established the mills by taking loan under the Scheme of "Prime Minister Rojgar Yojna". The list of some of the owners are quoted below :
1. K. B. Atta Chakki Mills
Rehabari Guwahati Owner - Kishore Bhattacharjee
2. Lekha Food Products
Lachit Nagar, Guwahati Owner - Giridhar Dutta
3. Bora Food Products
Beltola, Guwahaii Owner- Uptal Bora.
4. Jagdamba Food Products
Satgaon, Guwahaii Owner- Arun Kr. Giri
5. Nav Laxmi Udyog
Chaygaoiv, Guwahati Owner - Mr. Sharma
6. Sharma Atta Chakki
Fatasil, Guwahati Owner - Polash Sharma
7. Modern Atta Chakki
Lachit Nagar, Guwahaii Owner - Pinku Patwary, Kamal Talukdar
8. Bipul Barkakoty Chakki Mill
Beltola, Guwahati Owner- Bipul Barkakoty
9. B. G. Products
Rajgarh Road Owner - Mr. Borgohain
10. Bina Atta Chakki Mill
Lalmati, Guwahati Owner- Mr. Kalita
11. Biahmaputra Atta Chakki Mill
12. GGD Food Products
Hengrabari, Guwahati Owner - Gulab Saikia
13. Gancsh Flour & Gromdmg (Grounding)
14. Gouri Flour Mill
Kalipur, Owner - Jayanta Chakraborty
15. Janata Industry
Chandmari, Guwahati Owner - Mr. Binando Gogoi An order showing allotment of quota of wheat products to the PDS nominees has been furnished. That list is for the month of January, 1998. A bare perusal of that list will show that these mills under present system is to collect wheat etc. from different districts of the State of Assam to get converted whole wheat into atta, because at those places mills are not available. This I have looked to satisfy the contention of non-availability of mills in the vicinity of the large chunk of the State.
12. Let us take up first the case of Roller Flour Mills. Before we go to decide the contention of Sri P.K. Goswami, let us take up preliminary objections raised by the learned Advocate General, Assam as well as by Sri K. N. Choudhury, Sr. CGSC regarding power of this Court to exercise the power of judicial review. The learned Advocate General, Assam contends that policy-decision of the State cannot be reviewed and/or interfered with by the Court in usual course. In order to decide that contention of the learned Advocate General, it will be necessary to find out whether there was really a policy-decision by the State of Assam in this case before the impugned order was issued by the State of Assam.
13. A policy-decision as understood in common parlance requires three things (i) initiation, (ii) discussion, (iii) decision. As indicated above, no material has been placed by the State of Assam in support of its contention that there was such a policy-decision, save and except some documents which have been produced along with additional affidavit filed by the Respondents. This additional affidavit shows that on 12-3-93 there was seventh meeting of the State Consumer Production on Council, Assam held at Dispur. There was certain discussion on this matter. That minute reads as follows :
"Some members also raised the question of distribution of PDS wheat instead of the whole meal atta through the P.P. shops. They were of the view that this will not only allow some self-employment to your entrepreneur by establishing Chakki Mills where consumers could mill their share of wheat and get better atta, but it would also stop black-marketing by the mills who at present are allotted the PDS wheat for milling by the Govt. direct. Intervening in the discussion, Minister, Food and Civil Supplies said that while siphoning of the PDS wheat to the black-market was primarily due to non-lifting of the wholemeal atta from the mills by the GPSS retail outlets/F.P. shops, the same thing was likely to happen even if wheat was allotted to the P.P. shops/retail agents. However, the Hon'ble Minister assured to examine the suggestion of the members for distribution of whole wheat to the consumers instead of whole-meal atta under the PDS".
No decision was taken thereafter. This is the only document produced by the State of Assam with regard to this matter. That there was no policy-decision that will be evident also from the affidavit-in-opposition filed by the State of Assam in Civil Rule (PIL) No. 3/97. There was a Public Interest Litigation regarding this matter i.e. against distribution of atta to the Fair Price shops under PDS scheme. There an affidavit-in-opposition was filed by the Joint Secretary to the Govt. of Assam, Food and Civil Supplies (A) Department, Dispur, Guwahati where in paragraphs 9A and 10 it has been stated inter alia as follows :--
"9A. That with regard to the statements and allegations made in paragraph-8 of the writ petition are also not correct and same are denied by this deponent. In this connection, it may be mentioned that besides formulating a guideline with regard to allotment of wheat as indicated hereinabove, the State Govt. has also issued another guideline/instruction to all the Deputy Commissioners and Sub-Divisional Officers regarding procedure to be adopted for disposal of wheat products produced out of the PDS quota in order to avoid accumulation of wheat product and also to make the same available in open market at reasonable prices i.e. at the Govt. fixed prices for larger public interest.
10. That the statements made in paragraph 9 of the writ petition are not correct and the same are denied by this deponent. The deponent further states that it is not a fact that in all the other States of India consumers are getting whole meal instead of atta against their ration card. However, there may be a few Stales like Punjab and Haryana and the Union Territory of Delhi where the distribution of whole wheat instead of alta is prevailing. In this connection, the deponent states that there arc certain practical problems and difficulties in introducing distribution of whole wheat instead of whole meal atta amongst the consumers since a consumer cannot consume whole wheat unless it is converted into atta for which purpose a consumer has to run to a mill for grinding the wheat. In this connection, it may also be mentioned that in the State of Assam particularly in rural areas the number of wheat grinding mills are very few and as a result of which if whole wheat is supplied through PDS all over the State, the consumer may have to run to the mills located miles away for conversion of their allotted wheat into whole-meal atta which will be time consuming and expensive considering the poor conditions of the consumer.
However, as stated above the State Govt. has introduced allotment of whole wheat instead of whole-meal atta from the month of February '97 as an experimental basis in 5 (five) towns in Barpeta District, namely-Barpeta, Howly, Sarbhog, Barpeta Road and Chatribari. In this connection, the deponent states that it has been reported that 50% of wheat out of 100 MT as allotted to said District has already been lifted by the appointed dealers and distribution of whole wheat through PDS therein is going on. The State Govt. has, therefore, now proposed to distribute wheat under the PDS in phases in other areas and the State also, if the exercise so made in the above five towns of Barpeta District is found to have yield good reasons from the consumers.
In this connection, the deponent produces herewith the guidelines/instructions regarding disposal of wheat products communicated by the Director of Food and Civil Supplies, Assam Gauhati vide letter No. 323/81/243, dated 25-11-89 together with his enclosures marked as Annexures-F, F1, F2, F3 and F4 respectively." There was a guideline formulated on 24th March, 1992 was enclosed. That guideline is quoted below :
" NOTIFICATION Dated Dispur, the 24th March, 1992. No.SDB .76/92/pt/4:-- The Governor of Assam is pleased to formulate the following guidelines in connection with distribution of PDS wheat received from Govt. of India as shown below :
(1) The Govt. will allot wheat to the DCs/ SDOs for redistribution of the same to Chakki Mills/Fair Price shops/other agencies after ascertaining actual demand in the area.
(II) The allocation of wheat of RF Mills/ Modern Chakki Mills will be considered by the Govt.
(III) Tea Associations/Para-Military Forces/ Public Sector Undertakings will also be considered allotment by the Govt. Wheat will be allotted to nominees after the allotting authority is satisfied that;
(a) The names of the unit, name of the owner along with the Registration No. etc. are properly furnished to the Govt.
(b) approved capacity of the Mills.
(c) past performance of the unit regarding, lifting of the wheat.
(d) they can produce standard quantity Atta.
(e) the wheat products arc lifted by FP shops/ GPSS etc.
(f) the allottees have storage facilities and sufficient financial capacity to lift the allotted wheat.
(g) the allottee should not be who has convicted under the provision of the Essential Commodities Act. No case should be pending against the allottee under the Ac) at the time of allotting wheat.
After getting the allotment of wheat the allottees will act under respective DCs/SDOs as per guideline issued by the Govt. from time to time relating to lifting of wheat/wheat products' under PDS system and submit fortnightly and monthly lifting distribution reports in time;
Director, F and CS will supervise the implementation of the Govt. policy to run the PDS smoothly. He will also distribute the wheat products of R.F. Mills/Modern Chakki Mills to different DCs/SDOs after ascertaining demand in the concerned areas. Chakki Mills allocation of wheat products will be done by DCs and SDOs.
Deputy Secy, to the Govt. of Assam, Food and Civil Supplies Deptt."
It was that policy which was being followed. On 25th November, 1988 even the Government gave permission to the Chakki Mills to dispose of the remaining stock of wheat products by free sale at Govt. fixed rate if the allottees fails to lift their stock by the last day of the following month. This also was not proper thing to be done by the State of Assam. Be that as it may, the guideline quoted above was issued in pursuance of.thc Civil Rule filed before this Court being Civil Rule No. 4929/91 (M/s. Jagadamba Rice and Atta Mills, Hojai v. The State of Assam and another) wherein the Division Bench of this Court directed the authority to prepare the guidelines and place before the Court for approval. Until the guidelines are placed before the Court and approved by the Court allotment shall not be made by the Government. It was for this purpose this guideline was issued. Thereafter nothing has been produced to show that any policy-decision was taken by the authority i.e. State of Assam to change it.
13-A. The Assam Rules of Executive Business, 1968 provides how a policy is to be formulated. This matter is under the purview of Food and Civil Supplies Department. Rule 18 of the Second Schedule of that Executive Business provides that how the proposals involving any major policy or practice is to be initiated/discussed and decided. Nothing was done in this case and it cannot be claimed by the State of Assam that policy-decision, will come into existence in vacuum as pointed out by the Apex Court in (1989) 2 SCC 58 : (AIR 1989 SC 989), District Collector, Chittoorv Chittoor District Groundnut Traders' Association, Chittoor. In order to take a policy-decision, some amount of discussion is necessary and the competent authority must apply its mind and give the seal of approval to the policy. A policy cannot be formulated by anybody and everybody. Assam Rules of Executive Business, 1968 provides how a policy-decision is to be taken. That is what I do not find in the instant case. So, the tall claim made by the State of Assam that there was policy-decision falls through. As a matter of fact, as will be evident from the affidavit, certain guidelines were issued in the year 1992 as quoted above and thereafter there was no fresh guideline with regard to that. So, the objections raised by the learned Advocate General that this Court should not interfere with a policy decision has no legs to stand as there was no policy-decision in the eye of law as required. Even if the matter is looked from another angle then also the contention of the learned Advocate General cannot be accepted. The learned Advocate General in support of his contention relied on the following decisions :
(i) AIR 1996 SC 1627 : (1996 AIR SCW 1679), State of Andhra Pradesh v. McDowell and Co. and he urges that even in a case of administrative action the scope of judicial review is limited to three grounds -- (i) unreasonableness which can more appropriately be called irrational, (ii) illegality, (iii) procedural impropriety. These three things were borrowed from an English case i.e. 1985 AC 374, (Council of Civil Services Union v. Minister for the Civil Services). That decision was accepted by the Apex Court as well. The next case relied on by Sri P. G. Baruah, learned Advocate General is (1997) 5 SCC 301, State of H. P. v. Jaflidevi (Smt.). That was a case regarding appointment on compassionate ground. There the Supreme Court pointed out that policy laid down by the Government regarding such appointment cannot be departed from by the High Court merely on account of sympathetic considerations and hardship of the person concerned. This case does not help the learned Advocate General inasmuch as, as pointed out above, in this particular case, there was no policy-decision, save and except the guidelines as quoted above in the year 1992 which was formulated in pursuance of the order of this Court. The next case is (1998) 2 SCC 198 : (AIR 1998 SC 1467), Govt. of T. N. v. S. Arumugham. That was a case where the Supreme Court pointed out that the Court cannot direct the Government to change its policy. The Government has a right to frame a policy to ensure efficient and proper administration and the Court cannot question the correctness of the policy. So, this case also does not help the learned Advocate General inasmuch as, as indicated above there was no policy in the field. The next case is (1990) 3 SCC 223 : (AIR 1990 SC 1277), Shri Sitaram Sugar Company Ltd. v. Union of India. That was a case regarding fixation of price of sugar and there in paragraph 59 the Supreme Court pointed out that fixation of the price of sugar is within the domain of the Central Government and the Central Government is the best judge to decide exclusively the interest of the nation and to find out what was in the interest of the general public, the Supreme Court decimal to interfere with the policy-decision. But in that very judgment, it is stated that in formulating the policy-decision, the authority must bear in mind the principle of reasonableness and fair play which arc essential for the betterment of the general public. It was further pointed out that any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power, is liable to attract the provision of Article 14 of the Constitution of India inasmuch as as pointed out by the Supreme Court as far as back as in AIR 1974 SC 555 : (1974 Lab IC 427), E. P. Royappa v. State of Tamil Nadu, that "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch". Unguided and unrestricted power is affected by the vice of discrimination. It has been pointed out in paragraph 52 that when an action is arbitrary or unreasonable and if it is found that any authority could never have made such a decision the Court is to set aside and quash the said decision.
14. Sri P. K. Goswami, learned senior counsel for the petitioners relied on the above paragraphs of the judgment quoted above. He also relied on another decision reported in (1994) 2 SCC 729 : (AIR 1994 SC 2311), State of U. P. v. U. P. University Colleges Pensioners' Association, where the Supreme Court in paragraph 8 pointed out that if an order or a decision is unreasonable or against the public interest, the Court can interfere with such a policy and the Supreme Court further pointed out that these are the only two grounds available to a Court to interfere with a policy matter while reviewing the same judicially.
15. The argument of Sri K.N. Choudhury holding brief for the Union of India is on different grounds. His submissions have been noted above. His submissions are finding fault with the State of Assam inasmuch as the Slate of Assam did not furnish the required information and for the absence of that the Central Government could not ascertain whether the proper implementation of the Custom Milling System achieved the desired result. That cannot be a ground to change the earlier policy inasmuch as in order to avoid misdeed one cannot kill the policy. Surgery is made to cure the patient and not to kill him. But that is what has happened in the instant case. As it finds fault with the State of Assam it has taken the cudgel to punish (sic) others.
What can be said with regard to the above submission is that this position is not correct inasmuch as Sri P. K. Goswami has drawn my attention to a notification issued by the Union of India in case of Orissa after the impugned annexure was issued. This was issued on 27-1-1998 i.e. after 11 -12-97 on which date the earlier notification was issued. That is quoted below and that will speak for itself.
"No. 4-1/98-DR III Government of India Ministry of Food and Consumer Affairs Department of Food and Civil Supplies, Krishi Bhawan, New Delhi, Dated the 27th January, 1998., To The Commissioner-cum-Secretary, Govt. of Orissa, Food Supplies and Consumer Welfare Department.
C-2, Narapalli, Bhubaneswar-701012.
Subject : Supply of Atta under PDS - Proposal for Regarding.
Sir, I am directed to refer to your letter No. 639/ FS & CW/FC IW-53/97, dated the 8th January, 1998 on the subject cited above and to convey the approval of this Department to your proposal to distribute whole-meal Atta through PDS and to ration card holders only subject to the following conditions--
i) That the extraction of whole-meal Atta should be between 93 to 98%. However, considering the preference of consumers, the extraction of whole-meal Atta can be increased/ decreased marginally by removing the bran;
ii) No wheat shall be allotted to the State Govt. for this scheme in addition to the wheat being allotted under TPDS/PDS/Welfare Schemes.
iii) State Govt. of Orissa will sell whole-meal Atta at a reasonable price and will not earn any profit under this scheme. While fixing the price of whole-meal Atta, the proceeds of bran will also be taken into account and sale price of Atta will be fixed/reduced accordingly;
iv) Conversion of PDS wheat into Atta will only be undertaken for ration cards holders and distributed under PDS;
v) State Government of Orissa will arrange to send monthly statement to ECI/This Deptt. indicating the quantity of PDS wheat converted into Atta, quantity of Atta distributed to PDS consumers sale price of the Atta thereof.
Yours faithfully, Sd/-
(Raja Lal) Under Secretary to the Govt. of India."
So in case of the State of Orissa, the Union of India accepted the proposal of the State of Orissa for supplying atta under the PDS scheme. It may be stated herein that even without necessary change in the Family Identity Card earlier issued, the Deputy Commissioner, Kamrup on 15-12-97 issued an order that whole wheat shall be distributed against Family Identity Card, but as quoted above in the Family Identity Card which holds at present does not provide for supply of whole wheat. It appears that whole thing is a mess. The authority has not applied its mind in a proper and fair manner to sort out the problem and by taking hasty decision from time to time has complicated and created problem. The next ground argued by Sri Choudhury is with regard to the letter dated 27-2-98 written by the Joint Secretary to the Govt. of Assam to the Joint Secretary of the Union of India. But what can be said with regard to that letter is that first the decision was taken and thereafter the same justification is sought to be put forward. The letter dt.27-2-98 written by the Commissioner and Secretary, Department of Food and Civil Supplies, Assam, Dispur to the Joint Secretary, Govt. of India is well self-explanatory. Paragraph 4 of that letter is quoted below :
"Lifting of resultant atta from the Mills being poor, we believe that there would be marked improvement in the system and loopholes plugged, if whole wheat is distributed, coupled with stepped up vigilance. The State Government has decided to go ahead with the distribution of whole wheat only under PDS."
The authority failed to plug the loopholes earlier and now they want to cause difficulties to the consumers or others for their own failure. If the authority would have placed (sic) involved and procedure would have been utilised in proper manner and properly highlighted in this letter would not have cropped up. In the name of plugging loopholes the object of the scheme cannot be thrown to the wind as that will mean throwing the baby with (sic) the water out of the bathtub. That sort of attitude and/or attempt on the part of the authority cannot be encouraged by the Court as this matter relates to the welfare and betterment of the poor strata of the society. It should not be left by this Court even if the matter involves so called' misdeed of the scheme and/ or mischief by the mill as authority has a long handle to penalise aperson for such misdeed and/ or shortcoming. Sri Choudhury urges that once the decision is reasonable, the Court cannot look further into the merit. How far the decision of the State of Assam is reasonable that aspect of the matter, I will take up at a later point of time. But, before that let us look what we mean by reasonable.
16. Though the Court starts with the assumption that the authority is the best judge of what is good for its community by whose suffrage it comes into existence, the ultimate responsibility of determining the reasonableness of the restriction, from the point of view of the interests of the general public, rests with the Court and the Court cannot shirk this solemn duty cast on it by the Constitution. The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom same hardships may be caused. In other words, a policy cannot be said to be unreasonable merely because, it operates harshly on some person or a chunk of the public. But if something is done in a hasty manner, it causes harm or injury that policy must be deemed to be unreasonable. Further, it is the effect of a policy which constitutes the test of its reasonableness. Its object whether good or bad is immaterial for this purpose. The test of reasonableness wherever prescribed should be applied to each case. No set pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been affected, the underlying purpose of the policy, the extent and urgency of the evil sought to be remedied, the prevailing conditions at the time should all enter into judicial verdict. The standard of reasonableness must also vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. In adjudging the validity of policy the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the policy to promote. The Court in such a situation must scrutinise and find out the interest behind to formulate the policy.
17. So considering all these things, I find that there was no policy by the State of Assam and accordingly the impugned W.T. message dated 19-1-98 shall stand quashed. The State of Assam shall formulate necessary guideline and even the State of Assam may write to the Central Government in terms of the letter written by the State of Orissa and that letter shall be written by the State of Assam within a period of 15 days from the date of receipt of this order and within 15 days thereafter the Central Govt. shall issue necessary instructions with regard to the petition. In the meantime the earlier practice before the impugned order shall hold the field. Otherwise, it will mean that the source of livelihood of the Roller Flour Mills shall be taken away arbitrarily. I hope and trust that the Roller Flour Mills shall adhere to the scope of the scheme and they will not do misdeed and if it is found necessary action may be taken by the authority. Further, 1 find that Annexure-3 dt. 11-12-97 does not prohibit conversion of wheat to atta which was earlier practice regarding conversion of whole wheat to atta. What was prohibited (was) Maida, Suji. So, there is no difficulty in allowing the Roller Flour Mills to convert whole wheat into atta only. Regarding the quantity as pointed out in the letter of the Union of India quoted above, on 27-1-98 the Govt. quota of whole-meal atta shall be between 93-95%. The Roller Flour Mills must adhere to that and State Government shall also convert this atta produced by them for the benefit of whom this scheme is made. Regarding other two petitions (i) Chakki and Consumers as indicated above, there was no direction from the Central Government to stop conversion of whole wheat to atta by Chakki Mills and decision was taken by the State of Assam without adhering to any norm. In that view of the matter, as I quash them, the Chakki Mills will have the right to convert whole wheat to atta as was done earlier. But they should also try to reach the optimum quantity of production. Regarding the petition filed by the Consumers, I find that there is no policy-decision as indicated above and the action of the authority is absolutely unreasonable. It did not take into account the ground reality in the State of Assam. As indicated above, by taking 5 kgs. whole wheat a consumer will have to go to a distance of 30 to 40 kms. for conversion of whole wheat into atta. If this is not unreasonable, I cannot conceive of what more can be unreasonable. A scheme was made to give benefit and that benefit given by right hand cannot be taken away by left hand. That is what is being done in the instant case. It is always accepted that whenever any decision is taken by the executive, and/or authority, it must bear in mind that (it) is for the welfare of the public. The welfare, interest and benefit of the chunk of the people were not borne in mind and they were not even considered and it was not even considered whether supplying whole wheat will serve their purpose or not. In that view of the matter, the earlier practice of the supplying, of whole Atta to the consumers shall continue and this also can find support from other facts that in the Family Identity Card whole wheat was never introduced. Atta was there. Whole wheat cannot be supplied without making entry of the same in the Family Identity Card. That is against their own scheme and order. I have passed this order bearing in mind the decision of the Supreme Court in AIR 1997 SC 645 : (1997 Lab IC 365), Air India Statutory Corporation v. United Labour, wherein the Supreme Court pointed out in para 59 as follows : "The founding fathers placed no limitation or fetters on the power of the (High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach, injustice wherever it is found. The Court as sentinel in the qui vive is to mete out injustice in given facts ............ ........
The High Court has, by judicial review as the basic structure, constitutional duty to enforce the law by appropriate directions. The right of the judicial review is now basic structure of the Constitution as pointed out in Indira Gandhi v. Raj Narayan, AIR 1975 SC 2299 and in S. R. Bommai v. Union of India, 1994 AIR SCW 2946 : (AIR 1994 SC 1918). The Court should properly bear in mind wherever injustice has been caused the Court must step in. That is what I find in this case. In this case injustice was caused to the large chunk of the people of the Slate and further these chunk of the people as I repeat again belong to the poor strata and that the scheme was made for the poor strata of the society and I feel it my legal duty to wipe out the injustice caused to them by deciding to supply whole wheat instead of Atta in the garb of a policy-decision. But as indicated above, it is not a policy-decision. It is executive decision and this executive decision is absolutely unreasonable and against public interest.
18. Accordingly, I quash the impugned Annexures. The Civil Rule No. 318/98 filed by Modern Chakki Mills, Civil Rule No. 1426/98 filed by Chakki Mills and Civil Rule Nos. 1088 and 1089/98 arc allowed by quashing the Annexures impugned thereunder. It is needless to say that what I have decided in Civil Rule No. 287/98 shall hold the field for the present and it is disposed of as indicated earlier. I make no order as to costs.