Fence sitters cannot be allowed to barge into courts and cry for their rights at their convenience: Calcutta High Court

Present : Hon’ble Justice Amrita Sinha IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction W.P.A. No. 84721 Sri Durga Enterprise & Anr The State of West Bengal & Ors For the writ petitioners Mr. Ashok Banerjee Sr. Adv Mr. R. A. Agarwala Adv Mr. D. Saha Roy Adv Ms. Nibedita Pal Adv Mr. Ramesh Dhara Adv Mr. Ananda G. Mukherjee Adv Mr. Susovan Sengupta Adv Mr. Subir Pal Adv Mr. Sagar Bandyopadhyay Adv Ms. Soma Kar Ghosh Adv Mr. Abhisek Banerjee Adv For the State For the respondent no. 4 Hearing concluded on Amrita Sinha J In response to a vacancy notice published in the year 2005 for appointment of distributor the petitioner No.1 being a partnership firm applied for the vacancy at Bhupatinagar within one kilometre from Block office of Bhagwanpur II. The petitioner No.1 was found eligible and a license was issued in favour of the petitioner No.1 in 2009 to act as distributor for the location Bhupatinagar within one kilometre from Block Office of Bhagwanpur II. Tagging of the Fair Price shops with the firm was made on 15th September 2009. The petitioners are running the business from 2009 onwards and the license issued in favour of the petitioner No.1 was renewed from time to time by the respondents The petitioners are aggrieved by the number of ration cards which have been tagged with the private respondents. According to the petitioners only 20 dealers having 1 54 197 ration cards have been tagged with them whereas the private respondent no. 4 Alaka Mandal has 37 dealers with 2 81 460 ration cards and an additional load of seven dealers with 46 901 ration cards. Respondent no. 5 M S Ramkrishna Enterprise has 41 tagged dealers with 2 96 504 ration cards with two additional dealers with 14 862 ration cards. Discrimination is alleged The petitioners’ contention is that a distributorship becomes viable upon tagging of at least 2 50 000 ration cards. The petitioners rely upon a memo dated 13th April 1999 issued by the Department of Food and Supplies Government of West Bengal which mentions that the guidelines set out in the said memo is to be in respect of appointment tagging and retagging of distributors wholesalers and retailers in MR area. It mentions that not more than 2.5 lakh ration cards shall be tagged with an MR distributor It is the contention of the petitioners that relying on the aforesaid memo the petitioners reasonably expected that at least 2.5 lakh ration cards will be tagged with them but surprisingly only 1 54 197 ration cards have been tagged whereas more than the prescribed limit of 2.5 lakh cards has been tagged with the private respondents. Petitioners seek equal treatment It has been argued that the respondents were estopped from taking a different stand and ought to have allotted the prescribed limit of 2.5 lakh ration cards to the petitioners in terms of the memo dated 13th April 1999 According to the petitioners in compliance of the direction passed by the Court on 6th April 2021 the respondents were to file a report in the form of an affidavit disclosing the reasons why the petitioners were unequally treated contra the other It has been submitted that the report filed by the respondents does not disclose any reason whatsoever as to why the petitioners have been treated unequally. It has been argued that the alleged report filed on behalf of the State respondents is devoid the required information and accordingly no reliance may be placed on the same The petitioners pray for issuance of a writ of Mandamus commanding the respondents to tag all the dealers of Bhagwanpur II block with the petitioners’ The prayer of the petitioners has been strongly opposed by the State as well as the private respondent Alaka Mandal It is the contention of the State that license was granted to the petitioner on 14th September 2009 in respect of Bhupatinagar under Purba Medinipur district The petitioners are continuing with the business from 2009 onwards without raising any objection seeking tagging of more ration cards. It has been submitted that the grievance of the petitioners that the business was not viable for want of enough ration cards was never ventilated before the respondent authorities. It has been submitted that the 1999 memo relied upon by the petitioners lost its force the moment West Bengal Public Distribution System Order came into force. There is no concept of block wise distributorship in West Bengal Public Distribution SystemOrder 2013 5 SCC 612 wherein the Court held that a Fair Price Shop dealer has no right to be appointed as dealer. The license which such dealer has obtained under the provision of the Andhra Pradesh Scheduled Commodities Regulation and Distribution by Card System) Order 1973 to deal with the commodities has not been cancelled. The right to trade under Article 19(1)(g) of the Constitution of India is not being affected in any manner. The Government as a policy decision decided to reduce the number of cards per dealer. Such decision does not affect the rights if any of the Fair Price Shop dealers Reliance has been placed on the judgment of the Hon’ble Supreme Court in the matter of Chairman Managing Director U.P Power Corporation Ltd. & Ors vs Ram Gopal reported in 2020 SCC Online SC 101wherein the Court held that while it is true that limitation does not strictly apply to proceedings under Article 32 or 226 of the Constitution of India nevertheless such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delay would always be relevant in writ action and writ courts naturally ought to be reluctant in exercising their judicial power to protect those who have slept over wrongs and allow illegalities to fester. Fence sitters cannot be allowed to barge into courts and cry for their rights at their convenience Judgment of the Supreme Court in the matter of State of Madhya Pradesh Anr. vs Bhailal Bhai & Ors. reported in AIR 1964 SC 1006 has been relied upon by the private respondent wherein the Court held the power to give relief under Article 226 is a discretionary power. Where a person comes to the Court at a delayed stage the Court can rightly refuse the relief sought for by the aggrieved party The respondents pray for dismissal of the writ petition I have heard and considered the submissions made on behalf of all the It appears that pursuant to an advertisement published in 2005 the petitioner No.1 was successful and was issued a license in the year 2009 and is continuing business since then. The sheet anchor of the petitioners’ argument is the memo dated 13th April 1999 which speaks of an upper limit of 2.5 lakh cards to be tagged with a dealer distributor. The same is the outer limit of cards that may be tagged The said memo does not speak of any lower limit which implies that any number of cards below 2.5 lakh is permissible to be tagged with a dealer distributor In the case at hand more than 1.54 lakh cards have been tagged with the petitioners for long. The petitioners never raised any objection before the concerned authority praying for tagging more cards on the plea that less amount of cards affects the viability of the business. The petitioners rushed to the writ court challenging the tagging of cards of the private respondents The memo of the year 1999 relied upon by the petitioners was cancelled way back in 12th March 2015. The petitioners never felt the requirement or necessity to challenge the same. The petitioners continued their business without any murmur or protest. After the promulgation of the National Food Security Act 2013 the procedure for tagging and de tagging the eligible beneficiaries got changed. The Control Order 2013 was published in August 2013. The norms for engagement of distributor have been laid down therein For the purpose of better functioning of the Public Distribution System the District Administration is the appropriate authority to take necessary steps for declaration of vacancy and for filling up the same. Several factors are required to be taken into consideration at the time of tagging de tagging of ration cards. The Administration took into consideration the relevant factors and found it fit to tag the additional ration cards with the private respondents as a temporary measure. The authority certainly has the right to do so The equal treatment right which the petitioners are seeking is grossly misconceived in the facts and circumstances of the instant case. Firstly the petitioners have approached this Court directly without highlighting their grievance before the concerned authorities that too at a delayed date without any plausible excuse. Secondly the petitioners have failed to produce any evidence to show that there has been any arbitrariness or mala fide on the part of the respondent authorities by tagging more number of cards with the private respondents than that has been tagged with them The license of the petitioner No.1 was issued only in respect of Bhupatinagar area and not in respect of the entire Bhagwanpur II block. It was is open for the District Administration to assess the relevant factors including the convenience of the eligible beneficiaries and the proper functioning of the Public Distribution System at the time of taking the decision for tagging the cards. Location of the Fair Price Shop distance of the godown accessibility etc. are pertinent issues which plays a vital role in the decision making process The Hon’ble Supreme Court in the matter B. Suresh held that the right to trade under Article 19(1)(g) of the Constitution of India does not get effected by the policy decision of the State Government to reduce the number of cards per dealer. Here the cards of the petitioners have not been reduced. The District Administration acted in accordance with the Control Order 2013 and the provisions of the National Food Security Act 2013 and tagged the required number of cards with the respective dealers distributors The petitioner cannot claim as a matter right issuance of a writ of Mandamus to tag all the dealers of Bhagwanpur II block with them because of the reason that the petitioners were never issued any license in respect of the entire Bhagwanpur II block. The license of the petitioners was issued only in respect of the area Bhupatinagar under Bhagwanpur II block I do not find any reason to interfere in this matter in the absence of infringement of either any fundamental or statutory right of the petitioners. The writ petition fails and is hereby dismissed WPA 84721 is dismissed Urgent certified photocopy of this judgment if applied for be supplied to the parties on compliance of usual legal formalities Amrita Sinha J

Summary: “Where a person comes to the Court at a delayed stage, the Court can rightly refuse the relief sought for by the aggrieved party.” The High Court at Calcutta before the Hon’ble Justice Amrita Sinha in the matter of Sri Durga Enterprise &amp; Anr. Vs. The State of West Bengal &amp; Ors. [W.P.A. No. 8470 of 2021], dismissed the writ petition stating that it did not find any reason to interfere in such a matter where there is an absence of infringement of either any fundamental or statutory right of the petitioners. This case relies on the fact that in response to a vacancy notice published in the year 2005 for the appointment of distributor, petitioner No. 1 being a partnership firm applied for the vacancy at Bhupatinagar within one kilometer from Block Office of Bhagwanpur– II. On successfully being eligible for such distributorship, the petitioner was provided a license to act as the distributor for the location of Bhupatinagar within one kilometer from the Block Office of Bhagwanpur– II. It is important to note that petitioners have been running the business since 2009 and their license has always been renewed by the respondents from time to time. The petitioners were provided only 20 dealers having 1,54,197 ration cards tagged with them, whereas, the private respondent No. 4, Alaka Mandal had 37 dealers with 2,81,460 ration cards tagged along with an additional seven dealers with 46,901 ration cards. Similarly, respondent No. 5, M/S Enterprise, had 41 tagged dealers with 2,96,504 ration cards with two additional dealers with 14,862 ration cards. The petitioner alleged discrimination in such aspect of distribution, and seek equal treatment in this regard. According to the petitioner, a distributorship becomes viable upon tagging at least 2,50,000 ration cards, relying upon the memo dated 13th April 1999, issued by the Department of Food and Supplies, Government of West Bengal, mentioning that such distributorship shall be followed in respect of appointment, tagging and re-tagging of distributors, wholesalers and retailers in MR area, and not more than 2.5 lakh ration cards shall be tagged with an MR distributor. The respondents, in this regard, have not disclosed any reason as to the inequality treatment received by the petitioners, and thus, the petitioners prayed for issuance of a Writ of Mandamus, commanding the respondents to tag all the dealers of Bhagwanpur- II block with the petitioners’ distributorship. Petitioner No. 1 also complained that it was never appointed as the distributor for the entire Bhagwanpur- II block. According to the respondents and the State, the license was granted to the petitioner in respect of Bhupatinagar under Purba Medinipur District, and such want of enough ration cards was never conveyed to the respondent authorities. Adding to that, the petitioners lost their force when the West Bengal Public Distribution System (Maintenance and Control) Order came into force, and no concept of block-wise distributorship has been mentioned in the above-stated Order of 2013. Moreover, after the National Food Security Act, 2013, came into effect, it is the sole discretion of the State Government to identify the eligible beneficiaries under the Act, and such declaration of vacancies for dealers and distributors, appointment, de-tagging, and re-tagging of distributors, wholesalers and dealers vide memo dated 13th April 1999, have been canceled with immediate effect vide memorandum dated 12th March 2015, which was issued by the Principal Secretary &amp; Food Commissioner, Food and Supplies Department. In the latter memo, it has been prescribed that such declaration of new vacancies and appointment of dealers and distributors, tagging of eligible beneficiaries was to be done following the National Food Security Act, 2013, wherein the Fair Price Shop dealers, wholesalers and distributors are to be guided by the number of eligible beneficiaries selected in the local area, geographical location convenient to the beneficiaries, remoteness, and accessibility to the Fair Price Shops and the distance traveled by such beneficiaries in keeping with compactness and homogeneity of the area. Hon’ble Justice Amrita Sinha, with regard to the number of ration cards tagged to each dealer, opined that an upper limit of 2.5 lakh cards was mentioned in the memo of 13th April 1999, but a lower limit has never been mentioned, which meant that any number of cards below 2.5 lakh was permissible to be tagged to a dealer/distributor. The Court also raised the fact that the concerned petitioner never complained to the authorities challenging the tagging of cards of the private respondents. It has also been stated by Her Lordship that for the better functioning of the Public Distribution System, the District Administration was deemed to be the appropriate authority for taking necessary steps for the declaration of vacancy and filling up the same since several factors are important for consideration during the tagging/de-tagging of ration cards, and the administration took into consideration the relevant factors and found it suitable to tag additional ration cards temporarily for suitable convenience of the beneficiaries and that, it had all the authority to do so. Furthermore, Her Lordship said, “The equal treatment right which the petitioners are seeking is grossly misconceived in the facts and circumstances of the instant case.” Supporting Her Lordship’s statement, the Hon’ble Court provided suitable reasons – that, the petitioners approached the Court directly without highlighting their grievances before the concerned authorities at a delayed instance; and, that, they failed to produce any reasonable evidence to prove that there has been any arbitrariness or mala fide on the behalf of the respondent authorities for tagging more number of cards with the private respondents than what had been tagged with the petitioners. Subsequently, it was held that the license of petitioner No. 1 was issued only in respect of the Bhupatinagar area and not the entire area of the Bhagwanpur- II Block, and this was done by the authorities as they deemed fit after assessing the relevant factors.