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Judgment
The petitioner herein prays for an appropriate writ, order, or direction particularly one in the nature of Mandamus and declare the action and decision of respondents to open a new Fair price shop at Nekhunambad village of Besthavarapet Mandal, Prakasam District by bifurcating the existing fair price shop of Somavarapeta village of Besthavaraipeta Mandal, as arbitrary, illegal and violative of principles of natural justice and the provisions of Arts. 14, 21 and 300A of the Constitution of India.
The petitioner is an authorised fair price shop dealer of Somavaripeta. He was appointed as such by the Revenue Divisional Officer in the year 1991. The fair price shop was originally located in Besthavaripeta village and on instructions from the 2nd and 3rd respondent, the said shop is shifted to Somavaripet in the month of March, 1996. It is stated that the villagers of Nekhunambad, Somavarapeta and Besthavarapeta are roughly situated as three points of triangle at a distance of 1/2 K.M. The card holders of Nekhunambad and Besthavarapeta use only the age old foot paths and not the metal roads for coming to the Somavarapeta Fairprice shop to purchase essential commodities.
The white and pink card particulars for the existing Somavarapeta fair price shop consisting of Somavarapeta, Nekhunambad and Besthavarapeta village is as follows :--
Sl.No. Name of the village Total cards White cards Pink cards
Somavarapeta 202 152 50
Nekhunambad. 274 252 22
Besthavarapcta 15 13 2
491 417 74
It is stated by the petitioner that the population of Somavarapeta village if about 931 and Nekhunambad is 938.
The respondents have decided to have a new fair price shop at Nekhunambad with 289 cards including 15 ration cards of Besthavarapeta village which are now attached to Somavarapeta fair price shop of which the petitioner is the authorised dealer. The decision of the respondents to establish a new fair price shop at Nekhunambad is questioned by the petitioner on various grounds. It is stated that the petitioner is getting a commission of Rs. 1339-90 Ps. per month when 491 cards are attached to his fair price shop. It is his case that the total income would be graphically reduced if a new fair price shop is allowed to be created at Nekhunambad village. The petitioner submits that the decision of the respondents to have another fair price shop is contrary to the guide-lines laid down in Memo No. 40829/CS.IV-1/91-1 Food and Agriculture (C.S.) Department Dt. 26-7-1991. The petitioner''s shop is left only with 202 cards (152 cards of white and 50 pink cards). Therefore, the shop will become economically not viable. It is also staled that a new fair price shop will be opened only for every 1650 population and admittedly the population of Nekhunambad is only 938 as per 1991 census. Every new fair price shop should have a minimum of 330 cards and bifurcation of an existing fair price shop should ordinarily he done if it has more than 500 cards. It is also further stated that all the 177 card holders of Nekhunambad village had given a signed representation at Markapur to the 2nd respondent before the commencement of the Food Advisory Committee meeting held in the month of June, 1996 stating that they arc not facing any difficulty in gelling their essential commodities from the fair price shop located at Somavaripet.
Sri V.T.M. Prasad, learned counsel for the petitioner submits that the bifurcation of the existing fair price shop is contrary to the guidelines issued by the Government from time to lime which is binding upon the respondents. It is submitted that since the bifurcation is contrary to the guidelines, the same has to be declared a illegal. The learned counsel submits that even the guidelines issued by the Government from time to lime and if not followed and implemented by the authorities concerned, a writ can be issued by this Court enforcing the instructions issued by the Government as guidelines. It is not open to the respondents to act in a manner contrary to the instructions issued by the Government. The 2nd contention urged by the learned counsel for the petitioner is that the impugned order passed by the Collector is contrary to the principles of natural justice and no notice whatsoever was issued to the petitioner before bifurcating the existing fair price shop.
The Government is discharge of its constitutional obligations as a welfare Slate had undertaken the task of supplying of essential commodities to its citizens through public distribution system. The Government has decided to distribute the essential commodities through the medium of fair price shops established by the Government for which necessary authorisation is granted to various individuals, societies and other institutions from time to time depending upon the variety of factors and circumstances. Such authorisation in respect of the fair price shop created and established by the Government is granted under the provisions of the A.P. Scheduled Commodities (Regulation of distribution by card system) Order, 1973, for short ''the control order''. The scheduled commodities have to be distributed through the said fair price shop to the card holders. The authorisation itself is issued with a view to control the distribution of scheduled commodities to the card holders and to make the supplies available at pre-determined price. The authorised dealer cannot sell or supply even the scheduled commodities to any person except for household consumption and at such price as may be prescribed by the State Government in this behalf. The supply is restricted only to the card holders. The authorisation would automatically come to an end and shall cease to be invalid when the Government undertakes the running of the authorised fair price shops either by itself or through a Government undertaking or a Corporation wholly owned by the Government under a Government scheme. The Government is also at liberty to replace all or any of the fair price shops and entrust the distribution of essential commodities through a shop set up by the State Government, State Government undertaking or a Corporation wholly owned by the Stale Government under a Government scheme.
The policy decision and the guidelines framed by the Government from time to time and the control orders would undoubtedly reveal that the paramount consideration in creating or establishing fair price shops is for the convenient of the card holders. The purpose is to supply the essential commodities to the consumers in a convenient and speedy manner avoiding inconvenience to the people and to supply all the essential commodities at a pre-determined cost. The authorisation granted by the authorities concerned does not create any right as such in a dealer except such rights which are given by the authorisation itself. No person can claim the dealership of a fair price shop as a matterof right. No person has any such legal right and muchless a fundamental right.
This Court while considering the very same question in W.P. No. 2032/94 D/- 16-8-1996 held as follows :--
"Establishing and creation of a fair price shop would depend upon variety of factors and the circumstances, which have to be taken into account by the administration concerned and the discretion exercised in this regard cannot be assailed, save for exceptional reasons. As to how many fair price shops should be there in each District or Mandal is a decision to be taken by the Executive and to have more number of fair price shops can never be said to bean arbitrary decision. On the other hand, such measure should be welcomed as it would be convenient for the, card holders to get the essential commodities quickly and conveniently. Supply of essential comodities through the public distribution system is an obligation cast upon the State. In the process, the state undertake to supply essential commodities through various means including by way of appointing certain dealers who are authorised by the State to supply the essential commodities on its behalf. Such authorisation to run a fair price shop on behalf of the Stale would not confer any vested or statutory right as such, except to the extent authorised by the State under the control orders. No fair price shop dealer can insist to have a particular number of cards as no such right is concerned upon by any statute or control orders. Therefore, the decision to have another fair price shop by bifurcating the existing fair price shop in the normal circumstances cannot be said to be an arbitrary or illegal decision."
The learned counsel for the petitioner Sri V.T.M. Prasad placed reliance upon the decision of the Apex Court in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, , State of Maharashtra v. Sanjay Thakre 1995 Suppl (2) SCC 407 and a decision of the United States Supreme Court Reports in William Vincent Vitarelli v. Fred A. Sealon (1959) 359 US 535 for the proposition that the Government and its authorities are equally bound by the procedure prescribed by itself, as the procedure not only gives legal protection to the individuals concerned but also confines and structures the discretion of the authorities in the matter of granting benefit, such as, jobs, contracts, licences, quotas, mineral rights etc. It is true that no Government or its authorities can claim any unlimited discretion in distribution of its largess. There cannot be any doubt that every Governmental activity in a democracy will be subject to many restraints, inherent in its position in a democratic system. The learned counsel places reliance upon the following observations of Justice Frankfurter in William Vincent Vitarelli v. Fred A. Seaton 1959 (359) US 535 (supra):
"An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exch.Com. v. Chenery Corp. (1942) 318 US 80, 632, 633, 63 S Ct. 454. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles 354 US 363: 1 Led 2d 1403: 77 S Ct 1152. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He shall perish with that sword."
The learned counsel also relied upon Management of Management of M.S. Nally Bharat Engineering Co. Ltd. Vs. State of Bihar and Others, and submits that every action of the Government and its authorities must be fair and that the concept that the justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice hut with the appearance of injustice or possible injustice. The learned counsel submits that the non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary.
The impugned order, according to the learned counsel for the petitioner has to be declared as void, as the same is issued without any prior notice to the petitioner. It is violative of principles of natural justice.
The Apex Court in J.R. Raghupathy and Others Vs. State of A.P. and Others, as to whether a mandamus can be issued to enforce purely administrative instructions held (At Pp. 1690-91 of AIR):
"Broadly speaking, the contention on behalf of the State Government is that relief under Article 226 of the Constitution is not available to enforce administrative rules, regulations or in tructions which have no statutory force, in the absence of exceptional circumstances. It is well settled that mandamus docs not lie to enforce departmental manuals or instructions not having any statutory force, which do not give rise to any legal right in favour of the petitioner. The law on the subject is succinctly stated in Durga Das Basu''s Administrative Law, 2nd edn. at p. 144 :
Administrative instructions, rules or manuals which have no statutory force, are not enforceable in a Court of law. Though for breach of such instructions, the public servant may be held liable by the State and disciplinary action may be taken against him, a member of the public who is aggrieved by the breach of such instructions cannot seek any remedy in the Courts. The reason is, that not having the force of law, they cannot confer any legal right upon anybody and cannot, therefore, be enforced even by writs under Art. 226."
The learned author however rightly points out at p. 145 :
"Even though a non-statutory rule, bye-law or instruction may be changed by the authority who made it, without any formality and it cannot ordinarily be enforced through a Court of law, Ihe party aggrieved by its non-enforcement may nevertheless, get relief under Article 225 of the Constitution where the non-observance of the non-statutory rule or practice would result in arbitrariness or absence of fair play or discremination particularly where the authority making such non-slatulory rule or the like comes within Ihe definition of ''State'' under Article 12." It is true that it may not be open to the authorities concerned to contend that they are entitled to act contrary to the administrative instructions and guidelines issued by the Government from time to time. The very purpose of such administrative instructions and guidelines is to structure and limit the discretion of the authorities concerned. Adherence to the guidelines and administrative instructions may ensure fairness and uniform treatment to all the persons who are similarly situated. The guidelines may regulate the conduct of the authorities concerned and to some extent would operate as a check on the arbitrary exercise of power. After all every statutory and administrative power is to be exercised in a reasonable and fair manner and for the purpose for which such power is entrusted to the authorities concerned. But at the same time, it is required to bear in mind that every administrative instruction or guidelines issued by the Government from time to time does not confer any corresponding right upon any person and therefore, ordinarily no writ of mandamus would lie for enforcement of the administrative instructions orcircular unless it is further shown that contravention of such administrative instruclions and circulars is proved lo be arbitrary, unfair and unreasonable.
Be that as it may, there is absolutely no justification on the part of the petitioner in complaining that the impugned order bifurcating the existing fair price shop is contrary and violative of the guidelines issued by the Government. The relevant portion of the guide-lines issued by the Government vide Memo No. 40829/CS-IV-l/ 91-1 D/- 26-7-1991 is to the following effect:
Each and every village should have a separate F. P. shop.
F. P. Shops should be within a distance of one K. M. from each other.
Whether there is need for a separate shop to cover harijan Basti in the village.
In tribal areas, F. P. Shops may be created even for 1000 population.
In non-tribal areas, F. P. shops may be opened for every 1650 population.
The shops must be economically viable.
There is any amount of flexibility in the matter, as the Memorandum issued by the Government itself would show that "(his is only an indication of possible number of additional shops to be opened, but in reality, the number may be more or less depending on various factors. The memorandum stipulates that each and every village should have a separate fair price shop. By the impugned proceedings, a fair price shop is established for the first time in Nekhunambad village. Therefore, I am of the clear opinion that the impugned order does not suffer from any infirmity.
There cannot be any doubt that the authorities have bestowed their attention in taking a decision for establishing a new fair price shop for the first time in Nekhunambad villge by bifurcating the existing fair price shop. The same is in the public interest. In my considered opinion, the petitioner is not entitled for any notice before deciding to bifurcate the existing fair price shop. This is not acaseof any suspension or cancellation of his authorisation completely in respect of the said fair price shop. Some cards are taken away from the purview of the existing fair price shop and allotted to the newly established fair price shop. No legal or vested right of the petitioner is infringed. The bifurcation of the existing fair priceship is not fraught with any civil consequences. There is some reduction in the commission which the petitioner was getting from the existing fair price shop. But no specified amount towards commission was ever assured to the petitioner and that is not the purpose for which a fair price shop is established, as the main purpose for establishing fair price shop is the speedy distribution of scheduled commodities to the consumers at the prescribed rates. The application of the principles of natural justice would depend upon variety of factors and there is no straight jacket formula in the matter of application of principles of natural justice. The respondents have taken the decision for bifurcating the existing fair price shop and establishing, a new shop with laudible objectives of supplying essential commodities to the card holders in speedy manner and without causing any inconvenience. It has not resulted in any injustice and therefore, the Court is entitled in its discretion not to interfere in the matter. Issuance of a writ is not a matter of course. The court in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution of India in its discretion is entitled to refuse to grant relief even in cases where there is some infraction of some rule or administrative instructions unless such infraction has resulted in mis carriage of justice.
For the aforesaid reasons, I do not Find any merit in the writ petition and the same is accordingly dismissed. No costs. Petition dismissed.
Petition dismissed.