HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 19640 of 2010 In the matter of an application under Articles 226 & 227 of the Constitution of India. ---------- Sri Aloka Chandra Bishoi S/o Late Somanath Bishoi Vill. Old Town, Badadanda Sahi, P.O. Harachandi Sahi, P.S. Lingaraj, Bhubaneswar Dist: Khurda & others ………… Petitioners -Vs.- State of Orissa represented by The Commissioner-cum-Secretary, Deptt. of Food Supplies & Consumer Welfare, and another. .………. Opp. parties For Petitioners : M/s. M.S. Panda & M. Panda. For Opp. Parties : Govt. Advocate. ----------- P R E S E N T: THE HON’BLE THE CHIEF JUSTICE V. GOPALA GOWDA AND THE HON’BLE MR. JUSTICE B. N. MAHAPATRA ----------------------------------------------------------------------------------------- Date of Judgment: 19.05.2011 ----------------------------------------------------------------------------------------- B.N. MAHAPATRA, J. The present writ application, in the nature of public interest litigation, has been filed with a prayer for quashing the instruction/guideline/letter dated 23.09.2010 (Annexure-3) issued by the Chief Secretary, Orissa for verification of ration cards in circulation under 2 Public Distribution System at the Fair Price Shops. The further prayer of the petitioners is for a direction to opposite parties to carry out verification of the said ration cards on door to door basis for elimination of bogus cards and to find out the citizens entitled for new ration cards under Public Distribution System ( in short, “P.D.S.”). 2. The petitioners’ case in a nutshell is that they are residents of Bhubaneswar. Petitioner no.1 is a small retail seller of snacks and petitioner no.5 is an Auto Driver whereas rest of the petitioners are daily workers. All the petitioners have been issued with voter identity cards by the Election Commission of India. The annual average income of all the petitioners vary from Rs.40,000/- to Rs.60,000/- and though all of them are coming under below poverty line, unfortunately none of the petitioners is issued with appropriate ration cards and as such they are deprived of getting commodities and other benefits available under the P.D.S. for various categories such as APL, BPL, AAY & AP. The State Government has not made any effort to conduct enquiry and verification during the last 15 years though a lot of changes have taken place in the economic status or otherwise of the citizens of the State. Some of them have died, some of them have been deprived of their income/lost their livelihood; some of them have become destitute, some of them have lost their property; whereas some have become major citizens and have acquired properties by earning their livelihood in the meantime. Since these economical changes have not been looked into/verified by the State Government for the last 15 3 years to bring them into the benefits of appropriate P.D.S., a large number of citizens including the petitioners in the State are deprived of getting the benefits under the P.D.S. In spite of repeated approaches to the appropriate authority of the State Government, no new ration cards have been issued to such citizens, thereby they are deprived of getting the benefits under the P.D.S. 3. When the matter stood thus, the apex Court on 31.8.2010 while considering a public interest litigation vide Writ Petition (Civil) No. 196 of 2001 issued a direction for carrying out fresh survey to get a correct and comprehensive picture of the citizens who are coming under the categories of APL, BPL & AAY. The Supreme Court has also directed for issuance of advertisement in the newspaper warning the bogus card holders to surrender all the bogus cards within two weeks from the date of advertisement failing which criminal prosecution may be initiated against such card holders. Consequent upon such direction, the Joint Secretary, Government of India, Ministry of Consumer Affairs, Food and Public Distribution issued a letter dated 01.09.2010 to all the State Governments for issuance of the above advertisement. The apex Court in the said order also directed for distribution of surplus food grains in different godowns of the Government amongst the poor. In order to comply with the direction of the Supreme Court in Annexure-1, Government of India had issued guidelines and instructions to all the State Governments to take annual verification report to find out vague/bogus /ghost /duplicate ration cards 4 and eliminate the same to ensure effective and transparent delivery of essential commodities to various categories of ration card holders such as APL, BPL, AAY & AP under the P.D.S. Pursuant to the above direction of the Government of India, the Chief Secretary of Orissa vide letter dated 23.9.2010 has issued instruction/guidelines under Annexure-3 to the Collectors of all the districts to undertake verification of all categories of ration cards both in rural and urban areas from 1.11.2010 to 31.12.2010. According to the said instruction/guidelines, the Government Officials appointed for such supervision shall verify such ration cards on the dates of distribution of essential commodities at each Fair Price Shop. Challenging the said instruction/guideline, on the ground that the same is not in conformity with the direction issued by the apex Court vide Annexure-1, the present writ petition has been filed. 4. Mr. M.S. Panda, learned counsel appearing for the petitioners submitted that if verification of ration cards is carried out as directed by opposite party no.2, Chief Secretary to Government of Orissa under Annexure-3 on the dates of distribution of essential commodities at each Fair Price Shop, then the aim and object of the order passed by the Supreme Court would be frustrated as thereby no new ration cards would be issued to the eligible/entitled citizens including the petitioners. The direction of the apex Court issued under Annexure-1 would be complied if the appointed verifying officers would conduct verification from door to door of the citizens so that persons having no ration cards would be 5 detected at the spot by collecting information about their category of status from their next door neighbours. Therefore, instead of carrying out verification of ration cards at the Fair Price Shop such verification should be conducted from door to door basis so that eligible citizens including the petitioners who have not been issued with the new ration cards can be issued with such cards and brought in to the benefits of the P.D.S. According to Mr. Panda, due to non-verification and non-issuance of various categories of ration cads to the eligible and entitled citizens for the last several years, huge quantity of food grains remained in the stock and such food grains are ultimately being wasted. Therefore, in order to provide the benefits of PDS to eligible categories of citizens there should be regular verification and new cards should be issued to them every year. Although the PDS order provides for annual verification and preparation of a list of beneficiaries, yet the State Government has failed to comply with the same as no verification has been conducted for the last 15 years as a result of which, 2.5 lakhs bogus cards are in circulation in the State. 5. Per contra, learned Government Advocate appearing for opposite party-authorities submitted that the writ petition is not maintainable as several disputed questions of fact are involved in the present writ petition. The State Government is committed to provide an effective and efficient Public Distribution System for its citizens. As per the recommendations at para-6 of the Central Vigilance Committee on P.D.S. headed by the Hon’ble Justice Wadhwa, the State Government was advised 6 to devise a scheme to eliminate bogus ration cards circulated in the State. In compliance to the said direction of the Committee under Annexure-A/1 the State Government has initiated verification campaign through out the State to eliminate fake/bogus cards in PDS during 2009-10 and recently in 2010-11. Besides that, newspaper advertisement warning the bogus card holders to surrender their cards has also been published in leading newspapers of the State to eliminate the bogus ration cards in PDS as per the direction of the apex Court. BPL survey is the duty of P.R. Department in rural area and H. & U.D. Department in urban areas. Therefore, survey in rural areas will be conducted by Panchayati Raj Department of the Government of Orissa, soon after the guidelines from Ministry of Rural Development, Government of India are received by them. Government of Orissa has constituted apex Committee under the Chairmanship of Chief Secretary to consider the recommendation of Wadhwa Committee and in its meeting held on 4.10.2010 it was decided that H & U.D. Department shall initiate the process for identification of people Below Poverty Line in urban areas following appropriate guidelines of Government of India for urban areas. 6. Verification campaign to eliminate bogus/fake ration cards in PDS has been initiated for the purpose of adjustment of genuine person having no ration cards. After assessment of bogus/fake ration cards in the State, the matter of distribution of ration cards among the genuine consumers would be considered. After receipt of guidelines from Central 7 Government and on completion of BPL survey by Panchayati Raj Department in rural areas & Housing & Urban Development Department in urban area, new cards will be issued. The State Government is issuing ration cards to the BPL/AAY beneficiaries against cancelled ration cards. This is a continuous process. With regard to setting up of complaint redressal mechanism for P.D.S., Sanjog Help Line based call centre has been set up to redress the grievances of the consumers on priority basis. The State Government had taken up verification work during 2009-2010 and is also carrying on another annual verification campaign to eliminate further bogus/fake ration cards and adjust those bogus/fake ration cards among the genuine persons having no ration cards. In Government letter No.17243/CS. FS & CW dated 23.09.2010, it has been clearly mentioned at para (h) that all such cases where identity of the card holders cannot be established, local enquiry may be conducted through Revenue Officers, Extension Officers, other Government officials and local public representatives by paying visit to the house of the card holders to ascertain the fact. After completion of verification work, ration cards will be distributed among the genuine persons having no ration card against the cards cancelled. In the matter of proper implementation of PDS work, the State of Orissa is always committed for public interest and has been taking steps effectively to maintain transparency in all the levels in compliance with both the directions of the Supreme Court and Government of India. 8 7. On rival contentions of the learned counsel for the parties, the question that falls for consideration by this Court is as follows: Whether the instructions/guidelines issued by opposite party no.2-Chief Secretary to Orissa under Annexure-3 to all the Collectors for verification of ration cards in circulation at the Fair Price Shop are in conformity with the directions issued by the apex Court under Annexure-1 and the letter of Central Government dated 1.9.2010 under Annexure-2 ? 8. In order to deal with the above question, it is necessary to know the observation and direction made/given by the apex Court in its order passed under Annexure-1 and the direction issued by the Central Government under Annexure-2. The relevant portion of the observation/order of the apex Court passed under Annexure-1 is reproduced below: “Justice Wadhwa, in the report of State of Orissa has mentioned that the system of storage agency is one of the main thrust of diversion of PDS food-grains. This system should end forthwith. The State Corporation has adequate storage facilities and sufficient reserves. Some of the godowns which are owned by the Corporation have let out to storage agents. The Panchayat Raj Department has six godowns of 15 M.T. capacity and 300 godowns of 1000 M.T. capacity. The Panchayat Raj Department and also the Urban Development Department may have more godowns if required. This suggestion may also be considered by Union of India and they must respond to it on the next date of hearing. According to the report of the Food Commissioner, lakhs of bogus cards are in circulation. According to a recent report of Times of India, more than 2,50,000 9 bogus cards are in circulation in the State of Orissa alone. By a newspaper advertisement, a warning be issued asking all the bogus card holders to surrender the bogus cards forthwith, in any event, within two weeks of the date of advertisement, otherwise criminal prosecution may be initiated against the bogus card holders. We have to develop a culture of zero tolerance corruption. Unless immediate and urgent steps are taken, the ultimate effect will be on the poorest citizen who is deprived of legitimate entitlement for food- grains. We must ensure that every poor person is ensured of two square meals per day. It is desirable to abolish the category of the above poverty line altogether. In case it is not possible then the Government should at least consider limiting households whose annual income is less than Rs.2 lacs per year. We see no rationale or justification in providing subsidized food-grains to card holders whose annual income is more than Rupees two lakhs. We also call upon the Union of India to carry out fresh survey to get the correct and comprehensive picture of citizens who are in the categories of APL, BPL and AAY. Let the survey be conducted as early as possible. A survey is required to get a clearer picture of the targeted population in the categories of APL, BPL and AAY…...” 9. The copy of the letter of the Joint Secretary to Government of India, Ministry of Consumer Affairs, Food & Public Distribution Department addressed to Pr. Secretary/Food Secretary, Department of Food, Civil Supplies, all State Governments/UTs is reproduced below: “While hearing Writ Petition (Civil) No. 196 of 2001, People’s Union for Civil Liberties V/s Union of India & Ors. on 31.08.2010, the Hon’ble Supreme Court has directed that “ By a newspaper advertisement, a warning be issued asking all the bogus card holders to surrender the bogus cards forthwith, in any event, within two weeks of the date of advertisement, 10 otherwise criminal prosecution may be initiated against the bogus card holders”. 2. In order to ensure effective delivery of essential commodities to all eligible ration card holders through Targeted Public Distribution System (TPDS), this Department has from time to time, issued instructions for elimination of bogus ration cards in circulation. The Public Distribution System (Control) Order, 2001 (part 2((8) of Annexure of the Order), stipulates elimination of bogus ration cards as well as bogus units in the ration cards shall be a continuous exercise by the State Governments to check diversion of essential commodities. 3. In view of the orders of the Hon’ble Supreme court dated 31.8.2010, I request you to issue a news paper advertisement and take action as directed by the Hon’ble Supreme Court. Compliance of the Supreme Court order may be informed at the earliest.” 10. Conjoint reading of the order of the apex Court passed under Annexure-1 and the letter of the Central Government issued under Annexure-2 makes it amply clear that a comprehensive survey should be made and immediate steps should be taken to eliminate the bogus card in circulation and find out the genuine/eligible persons, who are coming under the categories of BPL, APL & AAY and they should be provided with ration cards to avail the benefits under P.D.S. 11. In the letter issued by the Chief Secretary, Orissa to all the Collectors under Annexure-3, the procedures have been provided to ensure effective and transparent delivery of essential commodities to BPL, APL & AAY ration card holders through P.D.S. The same are quoted below: 11 “The following procedure should be adopted for the purpose: (a) The Government Official appointed for supervision of each Fair Price Shop, under the Rs.2/- per Kg. rice scheme shall be the verifying officer. (b) The verification shall be done on the days of distribution of essential commodities. (c) Advance Publicity through mike should be made in each village/Grampanchayat/Ward about the annual verification exercise to be carried out and the card holders should be informed to get their identity documents at the time of receiving their commodities. The various documents which can be used for establishing the identity are :- (i) Electoral Photo Identity Card (EPIC) (ii) Driving Licence (iii) Bank/Kissan/Post Office Passbooks. (iv) Property documents such as Patas, Registered Deeds etc. (v) SC/ST/OBC Certificate issued by competent authority. (vi) Pension Documents such as ex-service man, Pension Book/Pension Payment Order, Ex-Service man’s widow/Dependant certificate, Old age Pension order and Widow Pension Order. (vii) Railway Identification Cards; (viii) Freedom Fighter Identity Cards (ix) Certificate of Physical Handicapped issued by competent authority. (x) NREGS Job Cards Since a large number of persons in the State have EPICs,. It is expected that this will be the primary document for identification. In case of APL Ration Card holders, Xerox copy of the identity documents of the card holders shall be received by the verifying officer and the same shall be sent to the CSO of the district with a note on the document that it has been verified with the original. But in case of BPL and AAY ration Card holders, the Xerox copy of the document may not be insisted upon and the verifying officer is to record the name of the document which is verified as identity proof and all these cases need to be sent to the CSO for record. CSO shall make necessary arrangement to test check 10% of these cases and keep it as record for future reference. 12 (d) The verifying Officer may be provided (i) copy of the original 1997 BPL list available in DRDA, (ii) the copy of the original 1998 BPL list prepared by the Housing & Urban Development Department in respect of ULBs (iii) the list of BPL/AAY/APL cards distributed by the block retailer-wise for GP/village/ward (iv) copy of the electoral rolls pertaining to village/ward. (e) The verifying Officer will also be given a register as per Annexure-1 to be maintained retailer wise. (f) When the card holder comes to list his/her entitlements, his/her identity would be verified and the signature of the beneficiaries or household members signature be obtained in the register. The verifying Officer should also sign on the register and put his signature, name and designation on ration card authenticating verification. (g) As per the instructions of Government of India, a notice is being issued through leading local dailies for surrender of fake/ghost/bogus Ration Cards before the issuing authorities within 15 days of publication and after completion of that period, if any such type of Ration Cards are detected the legal action as per Law need to be initiated against the person having such cards. (h) All such cases where identity of the card holders can not be established, local enquiry may be conducted through revenue officers, Extension Officers, other Government officials and local Public representatives by making visit to the house of the card holders to ascertain the fact. (i) Thereafter, action should be taken by the Collector to cancel all fake/ghost/bogus/duplicate ration cards. The time schedule of this annual verification drive will be from 1st November and continue up to 31st December of this year. (j) If a beneficiary does not appear in the designated dates to verify his cards and authentication , he is not to be allowed to lift the PDS rice thereafter without verification/authentication by Supply Inspector/Marketing Inspector/ACSO etc. In such cases, resultant modification/ addition be sent to the concerned CSO to the Administrative Department in the software being provided to them for this purpose.” 12. Perusal of the above order of the Chief Secretary shows that the Government Officers shall be appointed for supervision of Fair Price 13 Shops under Rs.2/- per Kg. rice Scheme on the date of distribution of the essential commodities. By this process, only the fake/bogus/ghost ration card holders may be identified and consequently eliminated, but genuine/ eligible citizens who have not been issued with the ration cards cannot be brought into the benefit available under the PDS which is one of the directions of the apex Court under Annexure-1. In the counter affidavit, no positive stand has been taken by opposite party-State to show that any effective step has been taken to identify the eligible and genuine citizens who are eligible/entitled to be issued with the ration cards under P.D.S., but so far have not been issued with. 13. The apex Court in its order dated 30.8.2010 under Annexure- 1 categorically held as follows: “ We have to develop a culture of zero tolerance corruption. Unless immediate and urgent steps are taken, the ultimate effect will be on the poorest citizen who is deprived of legitimate entitlement for food- grains. We must ensure that every poor person is ensured of two square meals per day. xxx xxx xxx We also call upon the Union of India to carry out fresh survey to get the correct and comprehensive picture of citizens who are in the categories of APL, BPL and AAY. Let the survey be conducted as early as possible. A survey is required to get a clearer picture of the targeted population in the categories of APL, BPL and AAY…...” 14. Thus, the whole purpose is that the genuine citizens who are eligible/entitled to be provided with ration cards for availing benefit under 14 P.D.S. should be brought into that benefit. Therefore, to achieve the said purpose, a comprehensive door to door survey should be made and in that process not only the bogus card holders will be identified for the purpose of elimination, but also the genuine citizens who are eligible/entitled to be provided with ration cards to avail benefits under the P.D.S. can be identified/located. Annexure-3 does not speak how the genuine citizens who are entitled to be provided with ration cards, but have not yet been provided with such cards will be identified to avail the benefits under the P.D.S. 15. In paragraph 7 of the writ petition, the petitioners have stated that in order to provide the benefits of P.D.S. to all categories of citizens, there should be regular verification and new cards should be issued to them every year. Although P.D.S. Order provides for annual verification of beneficiaries list, the State Government has failed to comply the same, as no such verification has been conducted for the last 15 years, as a result of which, 2.5 lakhs bogus cards are in circulation through out the State and no new card could be issued to a large number of eligible/entitled citizens. In reply to paragraph 7 of the writ petition, at para-9 of the counter affidavit, traversing the above statement, it is stated that the State Government had taken up verification work during 2009-10 and is also carrying on another verification campaign to eliminate further bogus/fake ration cards and adjust those bogus /fake ration cards among the genuine ration card holders. However, in paragraph 6 of the counter it is stated 15 that the prevailing BPL list is based on the assessment of 1997 BPL survey of P.R. Department in rural areas and 1998 survey of H & UD Department in urban areas. Thus, in their counter affidavit, opposite party-State authorities have not denied the grievance of the petitioners that for the last 15 years annual verification of beneficiaries list has not been prepared. No satisfactory explanation is forthcoming from opposite party-authorities as to why for the last several years annual verification work for elimination the bogus ration cards in circulation and issuance of new cards to the genuine persons have not been carried out. As stated in paragraph 6 of the counter, the prevailing BPL list is based on 1997 BPL survey of P.R. Department in rural areas and 1998 survey of H & UD Department in urban areas. In the mean time, as stated in paragraph 4 of the writ petition, lot of changes in the economical status or otherwise of the citizens of the State have taken place. Some have died, some have been deprived of any income and lost their livelihood, some have become destitute, some have lost their properties