1981 Supreme(MP) 269

High Court Of Madhya Pradesh
G. P. Singh, C. J. and Faizanuddin, J.
MADHYA PRADESH RATION VIKRETA SANGH, JABALPUR - Appellant
Versus
STATE OF MADHYA PRADESH, BHOPAL - Respondents
Misc. Petn. 12 Of 1981
Decided On : 04/13/1981

Headnote:(1) Foodstuffs (Distribution) Control Order, 1960 (MP) - Cls. 2 (a), 2 (d) 3 - purpose of the Government scheme - object of the order.

       The Control Order was desired to enable the State Government to distribute foodstuffs at fair price to consumers through fair price shops set up by it. The appointed retailers were to run these shops, The price at which foodstuffs were supplied for fair price shops and at which they were sold by the appointed retailers were fixed by the Government which left a small margin of profit or commission to the appointed retailers. [Para 3

       (2) Essential Commodities Act, 1955 - Ss. 3 and 5 - delegation of powers to the Stale Government - Foodstuffs (Distribution) Control Order, 1960 (MP).Cl. 2, B B -amendment introducing scheme of 'fair price shops' - no sanction of Central Government is required - guidelines issued by State Government are not invalid for want of sanction of the Central Government.

       By the amendment made in the M. P. Foodstuffs (Distribution) Control Order, 1960, by order dated 30th October 1980 clause 2BB was added to define "fair price shop" to mean a shop set up by the Government under the Government Scheme. Clause 3 (1) of the Scheme provides for setting up of fair price shops by the Collectors in each district. The guidelines for his purpose are given in clause 3 (2). Briefly stated, one fair price shop is to feed a population of nearly 2000 and care has to be taken that no consumer may have to travel more than five kilometers for reaching a fair price shop. Clause 4 of the Scheme deals with appointment of agents for running fair price shops. Clause 4 (1) specifically declares that the agent will have no legal ownership of the fair price shop Clause 4 (2) given guidelines which a Sub - Divisional Officer has to follow in the appointment of agents.

       It was contended that these amendments were not valid as the concurrence of the Central Government was not taken.

       Held: The Central Government delegated the power to the State Governments under section 3 by notification No. G. S. R. 1088 dated 15th November 1958. It was in exercise of that power that the 1960 Control Order was made by the State Government. The delegation made to the State Governments by the said notification required concurrence of the Central Government only in respect of Orders made by the State Governments in relation to the matters covered by clause (a) of section 3 (2) or in regard to regulation of transport specified in clause (d) of the said section. The 1960 Control Order did not relate to these matters and, therefore, concurrence of the Central Government was not needed, still concurrence was taken as a matter of abundant caution. [Para 9

       The concurrence given by the Central Government before the making of the 1960 Control Order did not make that order an Order made by the Central Government. It still remained an Order made by the State Government and, therefore, the State Government could amend or vary that Order in exercise of its delegated power under section 3 read with section 5. [Para 9

       (3) Essential Commodities Act, 1955 - Ss. 3 and 5 - formation of opinion under section 3 - is delegated to the State Government if powers are delegated under section 5.

       It was contented that formation of opinion under section 3 of the Act, which is necessary for making an order under that section could not have been delegated and was not delegated under section 5 to the State Government.

       Held: When section 5 enables the Central Government to delegate its power under section 3 to the State Government, it clearly means that the delegation will necessarily carry with it the condition or restriction for the exercise of the power. It is therefore, wholly incorrect to say that the formation of opinion necessary for exercise of the power under section 3 could not and was not delegated to the State Government under section 5. [Para 10

       (4) Foodstuffs (Distribution) Control Order, 1960 (MP) - Cl. 2 (d) - scheme of distribution of foodstuffs - could be changed by the State Government - in place of retail dealers State may appoint agents for operating fair price shops. [Para 12

       (5) Constitution of India - Art. 162, Seventh Schedule, List III, Entry 33 - State Government has executive power to make a scheme for distribution of fair price shops and their management - the scheme does not suffer from vice of sub - delegation - Essential Commodities Act, 1955 - S. 3.

       The executive power of a State as provided in Article 162 of the Constitution extends to the matters with respect to which the Legislature of the State has power to make laws. The topic of distribution of foodstuffs is covered by Entry 33 in List III of the Seventh Schedule and so the executive power of the State extends to this topic. The Government can, therefore, make a scheme for distribution of foodstuffs through its fair price shops in exercise of its executive power without resort to any legislation provided the same is not inconsistent with any provision of law. Section 3 of the Act may enable the making of such a scheme by statutory orders, but it is not necessary that the scheme must be made in that manner. [Para 12

       (6) Essential Commodities Act, 1955 - S. 3 (6) - what orders are required to be laid before the Parliament - non - compliance does not vitiate any order.

       It cannot be said that the scheme is made in the exercise of any sub - delegated power under the 1960 Control Order. The argument that the scheme suffers from the vice of sub - delegation must, therefore, fail. [Para 12

       The laying requirement in section 3 (6) is applicable only in case of orders made by the Central Government and officers or authorities subordinate to the Central Government, Section 3 (6) has no application when an order is made by the State Government or an officer or authority sub - ordinate to it. Further, the laying requirement under section 3 (6) is affirmative in nature. Even if there is non - compliance of such a laying requirement, the order made becomes operative even though it is not laid and the omission to lay the order has no effect on its validity. [Para 13

       (7) Foodstuffs (Distribution) Control Order, 1960 (MP) - Cl. 2 (d) - scheme for appointing agents - is not unconstitutional - Constitution of India Arts. 19 (1) (g) and 14.

       Under the scheme as framed, the shops are operated by agents who enter into agreement with the Government. No person has a fundamental right to be appointed as an agent of the Government for running the Government shops. It is open to the Government to devise a reasonable policy for appointment of agents. The only thing necessary is that in making appointments of agents there should be no discrimination violative of Article 14. In this back ground, there is no question of infraction of Article 19 (1) (g) as the petitioners have no fundamental right to carry on business as agents of fair price shops set up by the Government. [Para 15

       (8) Foodstuffs (Distribution) Control Order, 1966 (MP) - Cl. 2 (d) - scheme for appointing agents - co-operative societies-mean Consumers' Co-operative Societies-preference to such societies - is not unreasonable classification - Constitution of India-Art. 14.

       Clause 2 of the scheme directs that a co-operative society be appointed as agent for running fair price shops in preference to others. It is only when the co-operative society in the area concerned refuses to accept the appointment as agent that any other person can be appointed as agent. Although Clause 2 refers to co-operative societies in general, it is reasonable to assume in the context of the scheme that the intention is to refer to Consumers' Co-operative Societies and not all types of Co-operative Societies. A contrary construction would lead to absurd results.

       There is reasonable basis for the Government policy that as far as possible Consumers' Co-operative Societies should be appointed agents. It is not violative of Article 14 of the Constitution. [Para 16

       (9) Foodstuffs (Distribution) Control Order, 1966 (MP) - Cl. 2 (d) - scheme for appointing agents - State Ministers political statement - not supported by the Government - cannot be declared mala fide.

       It was contended that the scheme is made mala fide because the Minister of State for Civil Supplies made a statement that the previous Government appointed R. S. S. people as retail dealers who corrupted distribution system. The stand of the Government in the return was that the new scheme of distribution is only with a view to improve the working of the distribution system and not to benefit any political party.

       Held: It is a matter of regret to see a Minister making statements which cannot be supported by the State Government. We are, however, satisfied that the new scheme made on 20th March 1981 is not made with the object to benefit any political party. As already noticed, co-operative societies are to be preferred for appointment as agents and unless a co-operative society refuses to become an agent, no other person can be appointed agent. It cannot be assumed that co-operative societies in general have leanings in favour of a particular party. The policy under the scheme to give preference to co-operative societies has, therefore, no political motive behind it. [Para 18

       (10) Constitution of India - Chapter IV - directive principles - are not enforceable and non - adherence to them cannot make a Government action invalid. [Para 19