Smt. Kamala Biswal and Others vs State of Orissa and Others

C.R. Dash, J.—All these Writ Petitions having involved common facts & questions of law, they are taken up together for disposal by this common Judgment. The Petitioners are Kerosene sub-wholesalers of Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur districts under the public distribution system (P.D.S. for short). They have been continuing as Kerosene sub-wholesalers for quite some years on the basis of licence issued on year to year basis. The licence period is for one year from 1st April of the year to 31st March of the succeeding year. Without any break of any sort, the Petitioners Were continuing as such kerosene sub-wholesalers till 31.03.2012.

So far as the licensing year is 2012-13 is concerned, Petitioners'' licences should have been renewed with effect from 01.04.2012 with currency till 31.03.2013. The Government of Orissa in Food Supplies & Consumer Welfare Department vide letter No. 09-17-10-5/12-5702/FS & CW., dated 28.03.2012 issued direction to all the District Collectors of the State for renewal of licence of the sub-wholesalers of Kerosene oil for a period of six months with effect from 01.04.2012. In view of such direction of the Government dated 28.03.2012 licences of all the sub-wholesalers of Kerosene oil whose licences expired on 31.03.2012 were renewed for a period of six months with effect from 01.04.2012 up to 30.09.2012 though they were ready & willing to deposit the licence fees for whole of the year & were desirous of obtaining the licences as per the Orissa Public Distribution System (Control) Order, 2008 ("O.P.D.S. (Control) Order, 2008" for short) for the whole year.

In continuation of Letter No. 5702 dated 28.03.2012 referred supra Government of Orissa in Food Supplies & Consumer Welfare Department issued letters to all Collectors except Collectors of Balasore, Boudh, Jaipur, Jagatsinghpur & Sonepur vide Letter No. 15453 dated 25.09.2012 which reads as follows:--

Sir,

In continuation to this Department instructions contained in Letter No. 5702 dt. 28.03.2012, I am directed to say that renewal of licence of sub-wholesaler of Kerosene under P.D.S. whose licence is due to expire on 30.09.2012 under OPDS (Control)) order, 2008 may be extended for a period of six months, i.e., up to 31.03.2013, excepting the sub-wholesalers of Balasore, Boudh, Jaipur, Jagatsinghpur & Sonepur district.

All Instructions & conditions laid down in OPDS (Control) order 2008 should be followed scrupulously while renewing licence of the S. K. Oil sub-wholesalers of PDS.

Yours faithfully, S/d- DCA-cum-Additional Secretary to Government.

The Petitioners being the sub-wholesalers of Kerosene oil belonging to the aforesaid five districts, namely, Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur have filed these Writ Petitions impugning the instructions of the Government of Orissa in Food Supplies & Consumer Welfare Department Letter No. 5702 dated 28.03.2012 renewing their licences for a part of the year & have further impugned the Letter No. 15453 dated 25.09.2012 deciding not to extend the licence period of sub-wholesalers of Kerosene oil in the aforesaid five districts, namely, Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur beyond 30.09.2012.

The State has filed counter affidavit. The gist of the counter affidavit is to'' the effect that intermediary tiers in the distribution chain increase possibility of diversion of P.D.S, Kerosene & there is also increase in price of the same. On the basis of recommendation of "Wadhwa-Committee" the State having abolished the system of "storage agent" at the intermediary level, the State has taken further steps to abolish in phase manner the intermediary tier of sub-wholesalers, so far as the distribution of P.D.S, Kerosene is concerned. On being guided by such State policy, the district of Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur having been taken as pilot project for abolition of the intermediary sub-wholesalership of Kerosene oil, the Writ Petitions are devoid of any merit.

The Petitioners are primarily aggrieved by the action of the Government vide Letter No. 5702, dated 28.03.2012 in confining the licence period to six months from 01.04.2012 to 30.09.2012, though all the Petitioners had made applications for renewal of licence in Form-A of the O.P.D.S. (Control) Order, 2008 for the whole year & some of the Petitioners had deposited the licence fees for the whole year. The grievance is asserted to be justified on the ground that the Petitioners having applied in Form-A, they should have been issued with licence in Form-B. It is further asserted that in view of Clause 7 of the O.P.D.S. (Control) Order 2008, which has been enacted with clear intention to grant licence for one year commencing from 1st April of that year with currency till 31st March of the succeeding year, the action of the Government in confining the period of licence to six months from 01.04.2012 to 30.09.2012 is violative of the Clause (Clause 7 of the Control Order).

It is further submitted that, no doubt, Clause-20 of the P.D.S. (Control) Order; 2008 authorizes the Government to issue guidelines or instructions for improving the efficiency of the public distribution system, but such an authority does not partake the nature of an arbitrary power on the part of the Government to over-ride, abrogate, abridge or bypass the express provisions of the O.P.D.S. (Control) Order, 2008, Spear-heading the argument on behalf of the Petitioners on this point. Mr. S.C. Lal, Learned senior Counsel submits that Letter No. 5702, dated 28.03.2012 though may be submitted to have been issued in the nature of a guideline under Clause-20 of the O.P.D.S. (Control) Order, 2008 the same cannot have the authority to over-ride, abrogate, abridge or bypass the express provision in Clause 7 of the said order.

Mr. Bikram Senapati, Learned Addl. Govt. Advocate on the other hand submits that Clause-7 of the O.P.D.S. (Control) Order, 2008 having authorized the licensing authority to grant licence under the order for a period of one year or a part of a year, unless revoked or expired earlier, no fault can be found so far as Letter No. 5702 dated 28.03.2012 is concerned, which has confined the period of licence to six months from 01.04.2012 to 30.09.2012.

Clause 6 of the O.P.D.S. (Control) Order, 2008 deals with issue of licence. Clause 6 (4) deals with renewal of licence. Proviso to Sub-clause (4) of Clause 6 shows about deemed renewal of licence unless rejected or returned after making of an application in Form-A by the applicant by depositing necessary fees. Clause-7 speaks of the period of licence, i.e., to be valid for one year or part of a year unless revoked or expired earlier.

On conjoint reading of the proviso to Sub-clause (4) of Clause-6, explanation to Sub-clause (1) of Clause-7, Clause 7 of the O.P.D.S. (Control) Order, 2008 & contents of Form-B, para-12 providing for validity of the licence up to 31st March, Mr. S.C. Lal, Learned senior Counsel arguing for the Petitioners, tries to impress that the aforementioned provisions are unequivocal to the effect that the intention of the control order is to grant licence for one year commencing from 1st April of the year with currency till 31st March of the succeeding year. The expression "part of the year" occurring in Clause 7 is only intended to cover licence where an application has been made in the middle of the year. The provisions cannot be read to mean discretion on the part of the licensing authority to restrict the licence arbitrarily to a part of the year.

Relying on the case of AIR 1936 253 (Privy Council) , it is submitted by Mr. Lal, Learned senior Counsel that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all; other methods of performance are necessarily forbidden. Mr. Lal also relies on the case of Pravakar Padhi v. State of Orissa, an unreported case, i.e., W.P. (C) No. 11597 of 2005 (disposed of on 13.04.2006), where this Court has held thus:--

We have passed this order solely on the basis that so long as the P.D.S. (Control) Order 2002 is in operation, renewal of licence should be done in terms of the provisions contained therein, & any guideline issued by the concerned Department of the State Government contrary to the provisions contained in the P.D.S. Control Order 2002 cannot be followed for the purpose of renewal of licence.

Summing up his argument on the point Mr. Lal, Learned senior Counsel submits that in view of the provisions contained in the O.P.D.S. (Control) Order, 2008, the instructions of the Government in concerned department Letter No. 5702, dated 28.03.2012 should not have been followed as it runs contrary to the provisions of the control order, so far as period of licence is concerned.

Mr. Senapati, Learned Addl. Govt. Advocate submits that, Government took a policy decision to restructure the distribution chain of P.D.S. kerosene & for gaining time to restructure the same in the manner the Government wanted, licence of the sub-wholesalers of Kerosene was renewed for a period of six months from 01.04.2012 to 30.09.2012 & such an action is not violative of P.D.S. (Control) Order, 2008.

Clause-7 of the O.P.D.S. (Control) Order, 2008 being pivotal to resolve the issue raised, relevant provision in Clause-7 which relates to grant & renewal of licence is reproduced below for ready reference:--

Period of licence & fees chargeable--(1) Every licence granted under this order shall, unless revoked or expired earlier be valid for a period of one year or part of a year & may be renewed for a period of one year or a part of a year at a time on application

Explanation--''Year'' means the financial year commencing on the 1st day of April & ending on the 31st day of March of the succeeding year.

xxxx

(Emphasis supplied)

Cursory reading of the above provision makes it clear that it contains two parts. The first part speaks of grant of licence (which obviously means grant of fresh licence) to be valid for a period of one year or part of a year unless revoked or expired earlier Part-II speaks of renewal of licence for a period of one year or a part of a year at a time on application. The provision further makes it clear that a licence is to be valid for a period of one year, or part of a year unless revoked or expired earlier. So far as grant of fresh licence is concerned, provisions of Clause-7 is to be read with Clause-4 of the O.P.D.S. Control Order which deals with appointment of dealers & grant of licence. So far as renewal of licence is concerned, provisions of Clause-7 is to be read with Clause-6 of the said order which relates to issue of licence & essentially to renewal of licence. The explanation to Sub-clause (1) of Clause-7 defines a licensing year which according to the explanation is conterminous with the "financial year" which starts on the 1st day of April with currency till 31st of March of the succeeding year. It seems, Mr. Lal, Learned senior Counsel has taken a clue from the aforesaid explanation to base his contention to the effect that the statute intends for renewal of licence for the whole year & not a part of a year. He tries to impress upon to the extent that the expression "part of a year" covers only the licence which has been granted in the middle of the year.

In these Writ Petitions the Court is not concerned with grant of fresh licence as all the Petitioners are stated to have continued as sub-wholesalers of Kerosene oil for quite some year & their licences were valid up to 30.09.2012 on being renewed with effect from 1st April, 2012. As held by me earlier, the question of renewal having been dealt with in Clause-6 of the O.P.D.S. (Control) Order 2008 the provisions of Clause-7 is to be read with Clause-6 of the Control Order. Sub-clause (1) of Clause-6 provides that every application for licence or for renewal thereof or for duplicate copy thereof shall be made to the licensing authority in Form-A. Sub-clause (3) of Clause-6 provides that every application for renewal shall be made along with the original copy of the licence at least 45 days before the date of expiry of such licence. If we understand the word "year" according to the explanation occurring in Sub-clause (1) of Clause-7 then the application for renewal of licence has to be made 45 days before the expiry of the licence on 31st of March of the year. If we read the dictum of Nasir Ahmmed v. King Emperor, referred supra, Into our discussion, then the application shall have to be made at least 45 days before the date of expiry of the licence & the renewal shall have to be granted so that the renewal'' licence can be effective from 1st of April Of the year The processing of the renewal application has to be done within 45 days & that is to be done in the way provided in the statute. If Clause-7 is read with Sub-clause (3) of Clause-6, then I do not find any scope for application for renewal of licence in the middle of the year, so as to concur with the contention of Mr. Lal, Learned senior Counsel to the effect that the words "part of a year" occurring in Clause-7 covers a licence which has been renewed in the middle of the year. Further, the words "one year or a part of a year" occur twice in Clause-7 both in Part-I which relates to grant of fresh licence & in part-II which relates to renewal of licencee. The word "or" has been conspicuously used as a disjunctive in the provisions in between "one year" & "part of a year". The verbs "renewed" & "granted" occurring in the clause qualifies both the expressions, i.e., "one year" & "part of a year" equally giving equal weightage to both in view of the disjunctive "or" occurring in between them. The reading of the Clause as a whole further makes it clear that a licence has to be valid for one year or part of a year if not revoked or expired earlier. That means there is also occasion as recognized by the statute for expiry of the licence before end of one year. In common parlance, we have to understand that expiry of a licence comes, when it has spent its force. Paragraph-12 of Form-B provides for validity of a licence up to 31st March. The Form speaks of the contents, which a licence should contain. The date 31st March is the space provided for the date up to which the licence shall be valid. The contents of Form-B however have no effect of control over the text of Clause-7. In other words, it cannot have the effect of controlling the real content of the Clause-7 nor has it the effect of modifying the language of the said clause which alone forms the enactment. Desertion therefore lies with the authority concerned to renew the licence for the whole year or a part of a year whichever is felt proper & workable in a particular situation. Such a discretion which oscillates between "a year" & "a part of a year" cannot be said to be arbitrary in any manner as there may be many occasions of individual cases where licence has to be renewed for a part of a year is administrative wisdom & exigencies either from the beginning of the year or from the mid year as the case may be. I do not however want to list the occasions to be illustrative for the sake of brevity.

In view of my discussion supra, the Letter No. 5702 dated 28.03.2012 issued by the Government of Orissa in Food Supplies & Consumer Welfare Department cannot be said to be violative of the provisions contained in O.P.D.S. (Control) Order, 2008. The discussion supra further shows that the authority concerned, has the necessary power to confine the period of licence to even a part of a year which has been done in the present case vide the aforesaid letter.

The word ''dealer'' has been defined in Clause 2(h) of the O.P.D.S. (Control) Order, 2008. It has been specifically provided in the aforesaid provisions that the term ''dealer'' includes wholesaler/sub-wholesaler/retailer & storage agents. Taking the clue from the aforesaid definition, Mr. S.C. Lal Learned senior Counsel arguing on behalf of the Petitioners raised the following points:--

(I) The Government in Food Supplies & Consumer Welfare Department having issued Letter No. 5702 dated 28.03.2012, singling out the kerosene sub-wholesalers as a class for renewal of their licence for the part of a year, i.e., six months w.e.f. 01.04.2012, such action is discriminatory & violative of Article 14 of the Constitution of India.

(II) Such a move by the Government vide the aforesaid letter dated 28.03.2012 creates class amongst class & is actuated by mala fide.

(III) Letter No. 15453 dated 25.09.2012 issued by the Government in Food Supplies & Consumer Welfare Department allowing extension of further period of six months so far as the licence of kerosene sub-wholesalers of other districts of the State excepting sub-wholesalers especially of Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur districts are concerned is violative of Article 19(1)(g) of the Constitution of India, in as much as the State cannot single out the aforesaid five districts in the name of ''pilot projects'' for experimenting the effect of abolition of intermediary tier of sub-wholesalership of kerosene.

(IV) Abolition of sub-wholesalership of kerosene has the effect of depriving the means of livelihood so far as the Petitioners belonging to the districts of Balasore, Boudh, Jajpur, Jagatsinghpur & Sonepur are concerned, & such a move by the State is violative of Article 21 of the Constitution of India.

(V) The Petitioners having already made investment in establishing & running their sub-wholesalership of kerosene, the decision of the State shall cause financial loss & loss of employment to the staff employed by the Petitioners.

(VI) Relying on the unreported decision of this Court in the case of Pravakar Padhi v. State of Orissa (in W.P. (C) No. 11597 of 2005) referred to supra, it is submitted that without amending the O.P.D.S. (Control Order, 2008, the system of sub-wholesalership of kerosene oil cannot be abolished.

Mr. Senapati, Learned Add. Govt. Advocate on the other hand supports the instruction of the Government in Letter No. 5702 dated 28.03.2012 & Letter No. 15453 dated 25.09.2012, & submits that in order to check diversion of Kerosene oil & also with a view to check increase in the price of the same, the State has taken a policy decision to abolish the intermediary tier of sub-wholesalership in phased manner, & the five districts of Balasore, Boudh, Jaipur, Jagatsinghpur & Sonepur have been adopted as Pilot Projects to see the efficacy of such abolition & implementation of the policy of the Government so that the entire State may be brought under the policy decision in phased manner.

Sub-clause (h) of Clause (2) of the O.P.D.S. (Control) Order 2008 defines "Dealer" as follows:--

(h) "Dealer" means any person, firm, association of persons, company, Panchayati Raj Institution, Urban Local Body, Co-operative Society, Women Self Help Group, Forest Protection Committee, Self Help Group or any other institution carrying on business on wholesale or retail basis in the purchase, storage, sale and/or distribution of essential commodities meant for distribution under the Public Distribution System. The term "Dealer" includes wholesaler/sub-wholesaler/retailer & storage agents.

(Emphasis supplied)

On the basis of the aforesaid definition, Mr. S.C. Lal, Learned senior Counsel arguing for the Petitioners, submits that wholesaler, sub-wholesaler, retailer & storage agent all taken together constitute a class. It is further submitted that the Government in Food Supplies & Consumer Welfare Department could not have picked sub-wholesaler of kerosene as a class to confine their licence to a period of six months w.e.f. 01.04.2012, that is up to 30.09.2012 while renewing the licence of retailers & wholesalers for the whole year. It is further contended that the Government in the appropriate Department could not have further extended the period of licence of the sub-wholesalers of kerosene of the entire State for the entire year excluding the sub-wholesalers of kerosene belonging to the district of Balasore, Boudh, Jagatsinghpur, Jaipur & Sonepur.

In Clause (2) of the O.P.D.S. (Control) Order 2008i retailer, sub-wholesaler & wholesaler have further been separately defined. I am not concerned with the storage agent, which has been abolished in the meantime & such abolition has got judicial approval in a batch of Writ Petitions disposed of on 19.10.2012 vide W.P. (C) No. 5689 of 2012 (Panchanan Sahu v. State of Odisha & others), W.P. (C) No. 1309 of 2012 (Anitya Ranjan Parida v. State of Odisha & others) W.P. (C) No. 1310 of 2012 (Pitambar Mohapatra v. State of Odisha & others).

The word ''Retailer'' has been defined in Sub-clause (p) of Clause (2) as follows:--

(p) ''Retailer'' means a dealer who purchases PDS commodities from a Wholesaler & stores & sells these commodities to consumers.

The word ''Sub-wholesaler'' has been defined in Sub-clause (r) of Clause (2) as follows:--

(r) ''Sub-wholesaler'' in Kerosene means a dealer other than agent wholesaler of Oil company & a retailer.

The word: Wholesaler'' has been defined in Sub-clause (s) of Clause (2) as follows:--

(s) ''Wholesaler'' means a dealer who stores & sells PDS commodities to another wholesaler or retailer, & includes a sub-wholesaler or a storage agent.

From the aforesaid definitions, it is clear that each category is defined in a manner according to their nature of work in the supply chain so far as distribution of essential commodities under the Public Distribution System is concerned. According to the nature of work, each is different from other & each has got different responsibility in streamlining the supply chain with the sole objective of maximum benefits to the ordinary beneficiaries & utmost efficacy of the distribution of the essential commodities through the supply chain. So far as the definition of "Dealer" in Clause 2(h) is concerned, the word "includes" has been used in the said Sub-clause (h) of Clause (2) to enlarge the meaning of the word "Dealer" occurring in different places in the body of the statute. When the word "includes" is so used in a definition, this word must be construed as comprehending not only such thing as it signifies according to its nature & import but also those things which the interpretation clause declares that they shall include. It seems the word "includes" has been used in Sub-clause (h) of Clause (2) to enlarge the meaning of the word "Dealer" for the purpose of Clause (3), which deals with licensing of the ''Dealers'', Clause (4) which deals with Appointment of Dealers & grant of licence, Clause (5) which excludes certain class of persons from being a dealer & Clause (6) which deals with issue of licence. Sub-clause (h) of Clause (2) therefore cannot be construed to constitute a class of wholesalers, sub-wholesalers & retailers & they cannot be held to be same & also they cannot be held to have held similar position so far as the supply chain of essential commodities is concerned. As discussed by me supra, each class is different from other though each of them is a dealer for the purpose of Clause 2(h), which only enlarges the meaning for the purpose of different Sections in the body of the O.P.D.S. (Control) Order 2008.

Viewed in the light of the aforesaid discussion, the first contention of Mr. S.C. Lal, Learned senior ''Counsel arguing for the Petitioners has to fail, as it cannot be held that the Government in the appropriate Department has issued Letter No. 5702 dated 28.03.2012 to single out the kerosene sub-wholesaler only as a class by treating them apart from their other compatriots namely retailers & wholesalers. On the aforesaid analogy, it cannot be held that the move by the Government creates a class amongst class.

Let me now find out whether the action of the Government is violative of Article 14 of the Constitution of India on the ground of discrimination & such action is fraught by mala fide.

In the case of Krishnan Kakkanth Vs. Government of Kerala and ohters, Hon''ble Supreme Court held as follows:--

To ascertain unreasonableness & arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision should have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise & is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary & not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality & unconstitutionality, Court should avoid "embarking on uncharted ocean of public policy.

Viewed from the perspective of the aforesaid dictum, it is found from the materials on record that distribution of kerosene to the beneficiaries of the Public Distribution System of the State involves three tier system of distribution, which includes wholesaler, sub-wholesaler & fair price shop retailer. The cost of each tier like commission, transport, handling charges & loss due to leakage, etc. is passed on to the consumers, for which the number of tiers in the distribution chain increases the price & the possibility of diversion of highly subsidized PDS kerosene. The Government, therefore, in Food Supplies & Consumer Welfare Department took a policy decision to abolish the intermediary tier of sub-wholesalership in phase manner. For taking the said policy decision, the government fell back upon -

(I) the study commissioned by Government of India through N.C.A.E.R. which has estimated that nearly 51% of PDS kerosene is being diverted in the State;

(II) the recommendation of Hon''ble Justice D.P. Wadhwa Committee, the CVC on Public Distribution System constituted by Hon''ble the Supreme Court, which has recommended to abolish the intermediary tier to eliminate diversion.

In order to supply Superior kerosene oil to the consumers/beneficiaries at a lower price & to eradicate possibilities of diversion, the Govt. of Odisha has taken the policy decision to abolish the intermediary tier of sub-wholesalership of kerosene oil from the distribution chain of superior kerosene oil in the State in phases. For the aforesaid purpose, meeting was held on 20.03.2012 where all the kerosene companies & the wholesalers were present & subsequently on 17.2.2012, 30.07.2012 & 01.09.2012 meetings were held devising a comprehensive plan to keep in place in order to take care of abolition of sub-wholesalership of kerosene from the distribution chain. It was decided by the Government to adopt the districts of Balasore, Boudh, Jagatsinghpur, Jaipur & Sonepur as Pilot Projects to start the process of abolition of intermediary tier of sub-wholesaler of kerosene.

The counter affidavit filed by the State shows that the Government in appropriate Department, after taking into consideration the reports submitted by expert bodies, guidelines of Hon''bles Justice Wadhwa Committee &, above all, interest of the ordinary beneficiaries, took a conscious decision after convening a number of meetings to abolish the system of sub-wholesalership of kerosene, which is the intermediary tier in the supply chain. In order to see the effect & efficacy of the abolition of intermediary tier of sub- wholesaler of kerosene, instead of bringing the entire State under the ambit of the policy decision, the Government in appropriate Department, in their wisdom, have selected five districts, namely Balasore, Boudh, Jagatsinghpur, Jaipur & Sonepur as pilot projects. When the. task of implementation of a policy is Herculean & the effect of implementation of the policy is to be borne & felt by the ordinary beneficiaries, it is wise to adopt the policy in phase manner by adopting Pilot Projects. In doing so, no arbitrariness, mala fide, unfairness & unreasonableness can be found with the Government machinery, as the Government in appropriate Department have had taken a conscious decision in its administrative wisdom after taking into consideration number of premises & after holding number of meetings to adopt the aforesaid five districts as Pilot Projects. Mala fide as a ground to impugn a policy decision of the Government cannot be accepted oh the face of it unless substantiated with the objectivity it requites. In the present case though there is allegation of mala fide (as canvassed in his 2nd contention by Mr. S.C. Lal) so far as, the adoption of the policy in question in the five districts of Balasore, Boudh, Jaipur, Jagatsinghpur & Sonepur is concerned, I fail to find a single material to substantiates such allegation. Mala fide as a ground to impugn the policy in question must, therefore, fail. In the premises as aforesaid, the policy decision cannot also be held to be violative of Article 14 of the Constitution of India.

The aforesaid policy decision of the Government is further impugned on the ground that the same is violative of Article 21 of the Constitution of India, who are kerosene sub-wholesalers belonging to aforesaid five districts. It is further argued that the decision of the Government having stripped the Petitioners of the means of their livelihood, the action on the part of the government is violative of Article 21 of the Constitution of India. In this regard, Mr. S.C. Lal, Learned senior Counsel arguing for the Petitioners, relies heavily on the case of Olga Tellis and Others Vs. Bombay Municipal Corporation and Others, to substantiate his contention that even if there is a procedure for such deprivation of the means of livelihood, the same has to be just & fair; if it is not just & fair, it becomes unreasonable.

Hon''ble Supreme Court in the case of Olga Tellis & others supra for the first time recognized the right to livelihood as a facet of right to life as enshrined in Article 21 of the Constitution of India. Hon''ble Supreme Court in Paragraph 39, 40 & 44 of the Judgment held thus:--

The procedure prescribed by law for the deprivation of the right conferred by Art. 21 must be fair, just & reasonable. Just as mala fide act has ho existence in the eye of law, even so, unreasonableness vitiates law & procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice & fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure & consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law & secondly it must be reasonable. If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitutions, it would have to be struck down. (Quoted from Placitum)

Viewed from aforesaid perspective as laid down by Hon''ble Supreme Court, I have to find out whether the action of the Government, as taken vide letter No. 5702 dated 28.03.2012 & letter No. 15453 dated 25.09.2012, is violative of Article-21 of the Constitution of India being unfair, unjust & unreasonable.

At the outset, I have to find out whether the action by the Government is within the scope of the authority conferred by law. O.P.D.S. (Control) Order 2008 governs the field so far as the authority of the Government in taking the impugned action is concerned. The Government in appropriate department have taken a policy decision to abolish the intermediary tier of sub-wholesaler of kerosene. Such a policy decision aims at lawyering of the price of P.D.S. kerosene so far as the ultimate beneficiaries are concerned & check to diversion of highly subsidized P.D.S. kerosene. In the preceding paragraphs I have already held that a sub-wholesaler of kerosene is a dealer in the intermediary level. Appointment of a sub-wholesaler is not a mandatory requirement according to the scheme of the O.P.D.S. (Control) Order, 2008. Clause-4 of the O.P.D.S. (Control) Order, 2008 provides thus:--

Appointment of Dealers & Grant of Licence--(1) Dealers shall be appointed by such authorities & following such procedure & in such manner as may have been & may be prescribed by the Government.

Cursory reading of the prevision shows that appointment of Dealer is the absolute domain of the Government. Such a power authorizes the Government to take up the issue of supply chain management for the benefit of the ultimate beneficiaries, & for such purpose the Government have been invested with powers under Clause-20 of the O.P.D.S. (Control) Order, 2008. In taking up the issue of supply chain management, therefore, the Government is further authorized to abolish an intermediary tier, if by such abolition the supply chain is not affected from the point of view of the ultimate beneficiaries. I have already discussed about the wisdom of the Government in taking up the issue of abolition of the intermediary tier of sub-wholesaler of kerosene. The Government have devised a comprehensive plan to put in place to take care of the abolition of sub-wholesaler of kerosene. The O.P.D.S. (Control) Order, 2008 having not made appointment of sub-wholesaler of kerosene mandatory, & the Government having been empowered to revamp the supply chain for common benefit, the action impugned must be held to be within the scope of the authority conferred by law on the Government. I do not want to reiterate the discussion further on the point of reasonableness of the policy, as I have already held by discussion with great detail that the policy is neither unreasonable nor arbitrary nor discriminatory nor it is mala fide. Hon''ble Supreme Court in M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration and Others, , has held that in exercise of their power of judicial review, the Courts do not ordinarily interfere with the policy decisions of the Executive unless the policy can be faulted an the ground of mala fide, unreasonableness, arbitrariness or unfairness, etc. Indeed arbitrariness, irrationality, perversity & mala fide render the policy unconstitutional. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party doesn''t justify invalidating the policy. Same is the view of Hon''ble Supreme Court in the case of BALCO Employees Union (Regd.) Vs. Union of India and Others, & Federation of Railway Officers Association and Others Vs. Union of India (UOI),

Viewed in the perspective of the aforesaid dictum & discussion supra, the Government inappropriate department having taken a conscious policy decision after evaluating the pros & cons of the entire supply chain system operating under the PDS, no fault can be found with the Government, nor it can be held that the Government lacks the authority to take the decision without amending the O.P.D.S, (Control) Order 2008, On the same analogy & analysis as discussed supra, the action of the Government cannot also be held to be violative of Article 19(1)(g) of the Constitution of India, in-as much as licence for sub-wholesalership of kerosene cannot be held to be the vested rights of the Petitioners. Regard being had to the discussions, I do not find any merit in the Writ Petitions, Accordingly, all the Writ Petitions are dismissed. The Government in appropriate department is free to execute the policy decision taken subject to any order in any other Writ Petition/petitions/case so far as implementation of the pilot projects in the districts of Balasore, Boudh, Jagatsinghpur, Jajpur & Sonepur is concerned.