Mohd. Razaq and others vs State of J. & K. and others

The petitioners in these three writ petitions were granted licenses for running fair price shops in different locations to cater to need of lakhs of

people. It is claimed that for the last more than thirty years, they were running fair price shops as dealers and getting 5% sales value as commission.

On 16-7-2014, the Cabinet of the State of Jammu and Kashmir took a decision to formulate Government Controlled Sales Depot by opening

7967 shops. That decision apparently did not culminate into a final Government order as no order was passed. In the mean while, the National

Food Security Act, 2013 came into force and was made applicable in the State of Jammu and Kashmir vide order dated 4-1-2016, so as to

enable the State Government to provide ration to twenty lakh beneficiaries and therefore, a policy decision was taken on 4-8-2016 through

executive order to open new fair price shops. In the meanwhile, based on the Cabinet decision dated 16-7-2014 the Government wanted to open

Government Controlled Sales Depot. It appears that dealers who were running fair price shops were asked to surrender their licenses and many

surrendered it. Some of them filed writ petitions and got interim protection.

The cause of action of the present batch of writ petitions is that the earlier Cabinet decision should prevail and the new decision that is to say

dated 4-8-2016 to open fair price shops is bad. The said issue was considered by a Co-ordinate Bench of this Court in OWP No. 730/2016 and

connected matters and decided on 8-11-2016 (AIR 2017 J & K 6) and the same was dismissed with the following observations:

''8. In the backdrop of aforesaid well settled legal position, facts of the case in hand may be seen. In exercise of powers under section 3 of

the Essential Commodities Act, 1955, the Central Government issued an order namely, '' Public Distribution System (Control) Order 2001-

for maintaining supplies and distribution of essential commodities. The State Government in pursuance of provisions of Public Distribution

System (Control) Order 2001 issued guidelines regarding opening of fair price shops on commission basis. Thereafter, the State

Government had initiated proposal for conversion of existing private Ration Shops into Govt. Sale Outlets, which was approved by the

Cabinet. However, the decision taken by the Cabinet did not culminate into passing of an order on behalf of State Government. In

December, 2015, the State Government took decision to implement National Food Security Act, 2013 in the State of J.&K. and in

pursuance of Policy decision of the Cabinet, an order dated 4-1-2016 was passed by which sanction for implementation of the 2013 Act in

the State with effect from 1-2-2016 was granted. On account of implementation of National Food Security Act, 2013, the number of

beneficiaries increased from 99 lacs to 119 lacs. Thus, there was increase in the number of beneficiaries by 20 lacs. Therefore, the State

Government felt the need to open new fair price shops. It is pertinent to mention that under the new policy, the existing fair shops shall not

be closed or converted to the Government sales depot, but additional fair shops shall be opened, It is noteworthy that order dated 4-8-

2016 has been issued in supersession of all previous Government orders.

By an order dated 2-9-2016 issued by the State Government, sanction has been accorded to establishment of 4388 new fair price shops

on commission basis, out of which 2263 shops shall be opened in Jammu, whereas 2125 shops shall be opened in Kashmir. Thus, new fair

price shops are being opened by the State Government to ensure smooth supply of ration to the beneficiaries at the door step. As per the

policy the new ration shops have to be located within a radius of 1.5 to 2 kms. from the residence of beneficiaries and each shop will cater

to the needs of 250 beneficiaries. Thus the policy decision has been taken by the State Government in public interest which by no stretch of

imagination can be said to be either arbitrary or irrational, warranting interference of this Court in exercise of powers of Judicial Review.

Even for yet another reason, no relief can be granted to the petitioners as this Court cannot issue mandamus to frame policy in a particular

manner. (See Census Commissioner and others v. R. Krishnamurthy 2015 2 SCC 796).

It is also relevant to mention here that the petitioners in no way affected by implementation of new policy as they would continue to run

the fair price shops on commission basis. Otherwise also, the petitioners neither have any legal or fundamental right to be appointed as an

agent of a fair price shop under a Government scheme, therefore, the petitioners cannot seek a writ of mandamus to enforce the decision

taken by the Cabinet on 16-7-2014, which did not culminate into an order as required under section 45 of the Constitution of Jammu and

Kashmir and which otherwise stands superseded by an order of the State Government dated 4-8-2016.

The petitioners have no legal right to insist that fair price shops should be converted to Government controlled depots. The policy

decision has been taken by the State Government to cater to needs of 20 lacs additional beneficiaries and this Court cannot interfere with

the policy decision merely on the ground that another view is possible.

In view of preceding analysis, I do not find any merit in this writ petition. In the result the same fails and is hereby dismissed.''

Ms. Seema Shekhar, learned Senior Additional Advocate General appearing for the respondents, states that the issue raised in the present writ

petitions is covered by the earlier order. Mr. U. K. Jalali, learned Senior Advocate, however, points out that the earlier Cabinet decision cannot be

over-written by an executive order. This aspect has not been considered in the earlier order. The learned single Judge has observed that the

implementation of the new policy does not affect the rights of the petitioners as they would continue to run fair price shops on commission basis in

paragraph 10 of the decision, which is extracted above. It is also recorded in paragraph 5 of the decision that some petitioners have not

surrendered their licenses and it is pointed out by learned Senior Additional Advocate General that by virtue of earlier order their licenses have

been kept intact. Therefore, the fundamental right of the writ petitioners to conduct their business has been protected. Petitioners cannot thwart the

Government policy to implement the welfare scheme, when their right to run business is not disturbed. Therefore, in view of the earlier decision and

the observations made therein the writ petitions does not merit consideration.

These writ petitions are accordingly, dismissed.

Interim directions, if any, shall stand vacated.

Petitions dismissed.