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TMI Blog1981 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... amily cards', the registration of the holders of such 'family cards' with appointed retailers , the appointment of appointed retailers , the supply of foodstuffs to 'appointed retailers' by the Government, the sale of foodstuffs by 'appointed retailers' to consumers etc. Family card was defined as meaning a card or document issued to the head of a family under or in pursuance of the provisions of this order. Appointed retailer was defined to mean a retail dealer appointed or deemed to be appointed under the provisions of Clause 3 in respect of any foodstuff. Govt. scheme was defined to mean the scheme for distribution of foodstuffs to consumers through fair price shops set up by the Government in this behalf. Clause 3 of the Order made provision for the appointment of appointed retailers by the Collector for purposes of distributing foodstuffs under the Government scheme. Clause 4 of the Order prohibited an appointed retailer from supplying any foodstuffs in respect of which he held his appointment, except under and in accordance with the provision of the Order. Pursuant to the Madhya Pradesh Foodstuffs (Distribution Control) Order 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginally, there were provisions for appeal and revision against orders of suspension or revocation of the appointment of appointed dealers. These clauses also went the way of the other clauses relating to appointed retailers. Thereafter the Government of Madhya Pradesh promulgated a scheme known as the Madhya Pradesh Food-stuffs (Civil Supply Distribution) Scheme, 1981. The scheme cast a duty upon the Collector to establish 'fair price shops.' It was proposed that there should be a 'fair price shop' in each area with a population of 2000 so that no consumer may have to travel more than five kilo meters to purchase foodstuffs. The fair price shops were to be run by agents appointed by the Collector. It was made clear that the agents were to have no right of legal ownership over the fair price shops.' In the allotment of 'fair price shops', cooperative societies were to be given first preference. If there was a cooperative society in an area, and if such society expressed, in writing, its unwillingness to run the fair price shop, the fair price shop could be allotted to other persons. The allotted was to be a person with satisfactory financial resources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh Foodstuffs (Distribution Control) Order 1960 had not even been amended by that date; (2) The amendment of the Madhya Pradesh Foodstuffs (Distribution Control) Order 1960 was invalid as it was not approved by a legislation within six months; (3) The amendment was invalid as the concurrence of the Central Government had not been obtained; (4) The amendment and the schemes were also invalid as they were not laid before the Parliament; (5) There was a violation of the principles of natural justice as the amendment took away the right of the existing 'appointed retailers' without hearing them; (6) The scheme was invalid as it was made pursuant to delegation of delegated powers; (7) There was an unlawful creation of monopoly in favour of cooperative societies. We do not find any substance in any of the submissions made by the counsel. 6. Shri Gopala Subramanyam, who presented the case for the State of Madhya Pradesh with ability and clarity drew our attention to the history of the scheme of distribution of foodstuffs in the State of Madhya Pradesh and pointed out, with reference to the counter-affidavit filed on behalf of the State of Madhya Pradesh, how the well inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 15, 1958. GSR No. 1088 dated November 15, 1958 required that the concurrence of the Central Government should be obtained by the State Government in respect only of orders made in relation to matters covered by Clause (a) and (d) of Section 3(2) of the Essential Commodities Act. GSR 1088 of November 15, 1958, was later superseded by other notifications. The notification in force on the date of the amendment of the Control Order was GSR 800 dated June 9, 1978, under which concurrence of the Central Government was necessary only when the orders related to matters specified in Clause (a), (c) and (f) of Section 3(2) of the Essential Commodities Act or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuffs under Clause (d). The Control Order of 1960 and the amendment dated October 30, 1980 do not relate to any of these matters and the concurrence of the Central Government was therefore unnecessary. It may be that the concurrence of the Central Government was obtained by the State Government before the 1960 Control Order was made but that was really unnecessary. Merely because concurrence of the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other provision in the Order authorising the setting up of fair price shops or the making of a scheme for setting up fair price shops. On the other hand the State Government has undoubted competence to make a scheme for setting up fair price shops and to set up fair price shops in pursuance thereof, in exercise of its executive power under Article 162 of the Constitution. The executive power of the State Government under Article 162 of the Constitution is coextensive with the legislative power of the State legislature. Entry 33 (b) of List III (Concurrent List) is trade and commerce in, and the production, supply and distribution of foodstuffs, including edible oil-seeds and oils. The Government, therefore, has the undoubted right to make a scheme for the distribution of foodstuffs, without being vested with any special authority under any order made under the Essential Commodities Act. As already mentioned by us the Madhya Pradesh Foodstuffs (Distribution Control) Order 1960 does not purport to vest any such power in the Government. It must, therefore, be taken that the Madhya Pradesh Foodstuffs (Civil Supply Distribution) Scheme, 1981, was made in exercise of the executive po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumer's cooperative societies), would be the best method of distribution by which the goods could be delivered i.e. rations could be supplied to the consumers. No one can doubt the positive and progressive role which cooperative societies are expected to and do play in the economy of our country and, most surely, in the fair and effective distribution of essential articles of food. There certainly was a reasonable classification and a nexus with the object intended to be achieved, which was a fair and assured supply of rations to the consumer. The fundamental right of traders like the petitioners to carry on business in food stuffs was in no way affected. They could carry on trade in foodstuffs without hindrance as dealers; only, they could not run fair price shops as agents of the Government. No one could claim a right to run a fair price shop as an agent of the Government. All that he could claim was a right to be considered to be appointed as an agent of the Government to run a fair price shop. If the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops, in the light of the frustrating and unfortunate exper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son and purpose of granting a monopoly to cooperative societies. In other words, the discrimination that has been made by the licensing authority is really in the administration of the law. It has been administered in a discriminatory manner and for the purpose of achieving an ulterior object, namely, the creation of a monopoly in favour of cooperatives, an object which, clearly enough, is not within Sub-clause (e) of Clause 5 of the Control Order, 1961. In the present case, apart from defining the expressions fair price shop and Government scheme , the Control Order has given no indication of the lines on which the Government scheme was to be drawn or of the guidelines to regulate the allotment of fair price shops. The scheme, as already found by us, was formulated outside the Control Order and in exercise of the State's executive power. The appointment of agents to run fair price shops was to be made under the scheme and in accordance with the guidelines prescribed by the scheme. There could, therefore, be no question of the fair price shops not being allotted in consonance with the Control Order. On the other hand, there are several observations in the judgment which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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