JUDGMENT :

Moushumi Bhattacharya, J.

1. The challenge in these Writ Petitions is to a Scheme notified by the Department of Food and Supplies of the Government of West Bengal, for reaching ration to the doorstep of the consumer; named as the “West Bengal Duare Ration Scheme, 2021”. The words “Duare Ration” in Bengali translate to “ration at the doorstep” in English.

2. The petitioners are fair price shop dealers who seek a declaration that the Scheme is ultra vires the Constitution of India and for a writ of Mandamus on the State and the Director, Food Supplies Department, Government of West Bengal, to cancel the Scheme. The underlying ground of the challenge is essentially that the State cannot frame any Scheme in relation to distribution of ration items which is already occupied by a Central Government Order passed under the Essential Commodities Act, 1955 and the National Food Security Act, 2013.

3. Although the relief in the Writ Petition is in relation to Guidelines framed by the State for piloting the Duare Ration Scheme of 23rd September, 2021, the challenge was subsequently extended to the Duare Ration Scheme notified by the Government of West Bengal on 16th November, 2021 upon the Learned Advocate General producing a copy of the Scheme during the course of hearing. The petitioners thereafter extended the challenge to the Scheme by way of a Supplementary Affidavit followed by a response filed by the State. Counsel have restricted the challenge only to the question of law.

4. A preliminary objection taken by the learned Advocate General and the learned Government Pleader on behalf of the State respondents is that the grounds of challenge in the present writ petition were substantially argued in an earlier Writ Petition filed by a group of fair price shop dealers and covered in a Judgment dated 15th September, 2021 in WPA No. 14013 of 2021 (Mrityunjoy Garang & Ors. vs. State of West Bengal & Ors.) by which the Writ Petition was dismissed. This Court is informed that the Judgment was unsuccessfully challenged before the Division Bench and the Supreme Court in the Special Leave Petition by the fair price shop owners referred the matter to the Division Bench. It should be clarified that counsel appearing for the parties invited the Court to only consider the matter on the point of law without going into the practical aspects of implementation of the Scheme. On the request of counsel the decision only addresses the legal arguments advanced on behalf of the parties.

5. Mr. Saktinath Mukherjee, learned Senior Counsel appearing for the petitioners outlines the challenge in the writ petition on the premise of an earlier Order of a superior legislature occupying the field on the date when the State Scheme was notified. The Order in this case is the Targeted Public Distribution System (Control) Order, 2015 notified by the Ministry of Consumer Affairs, Food and Public Distribution of the Central Government issued in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955. Counsel submits that the Duare Ration Scheme of the State cannot be permitted to operate in a field which is already occupied by the Central Government.

6. The arguments advanced on behalf of the petitioners and the State will be stated in detail with reference to the decisions cited in the following part of this judgment.

7. The decisions cited by learned counsel in support of their respective arguments may be divided into two categories; i) finality of orders and ii) the concept of occupying the field.

8. The decisions with regard to finality of orders are in the background of the Judgment passed by a learned Single Judge of this Court in WPA No. 14013 of 2021 (Mrityunjoy Garang & Ors. vs. State of West Bengal & Ors.) dated 15th September, 2021 by which the Writ Petition filed by a group of Fair Price Shop owners aggrieved by the Duare Ration Scheme was dismissed. The position of the State Respondents is that the issues urged in the present wr