# Haripal v. State Of U.P. & Ors

- **Citation:** (2021) 5 ILRA 230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-24
- **Case number:** Misc. Single No. 16086 of 2020
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haripal-v-state-of-u-p-ors-47062
- **Pages:** 17

## Headnote

National Food Security Act, 2013-section
12(2) (e); The Constitution of India, 1950-
Article 14-Exlusive preference given to
self help group -for grant of statutorily
regulated licence -sidetracking the role of
Gaon sabha violative of Article 14 beyond
the scope of section 12 (2) (e) of the
National Food Security Act, 2013. (E-7)

## Text

_Characters 0–39,846 of 54,697. This is a partial read: ask again with offset=39846 for what follows._

230 INDIAN LAW REPORTS ALLAHABAD SERIES
Juvenile Justice Act makes the bail of the
juvenile mandatory and the grounds on the
basis of which his bail application can be
rejected is also to serve the best interest of
the juvenile himself. Therefore, the bail of
juvenile can only be rejected if the court
comes to a conclusion that the release on
bail will adversely affect the interest of
juvenile.

16. In this case, there appears to be
nothing on record showing that there is
moral, physical or psychological danger to
the juvenile, if he is released, nor there was
any possibility that he will come in the
company of known criminal nor there is any
reason to conclude that his release on bail
will defeat the ends of justice. In a case like
this where the victim has herself denied the
allegation of rape in her statement given to
the magistrate under section 164 of the
Criminal Procedure Code, the rejection of
bail
by
the
courts
below
is
highly
inappropriate and the rejection order suffers
from material irregularity and illegality.
Therefore, the court is of the firm view that
both the courts below have not exercised their
jurisdiction vested in them keeping in view
the object of the Act. There is one more
consideration necessitating this conclusion.
At present, there is wide spread of pendemic
Covid-19 and it requires a liberal approach to
be adopted while considering the bail plea of
a juvenile.

17. In view of above, I find that the
impugned orders are not sustainable and
they are liable to be set aside.

18. The criminal revision is therefore
allowed. The impugned orders rejecting the
bail application are set aside.

19. The juvenile, namely Jai Kishan
(Minor) be released on bail and he be
given in the custody of the mother guardian
namely Smt. Yamuna Devi on her filing a
personal bond and two sureties of the like
amount to the satisfaction of the court
concerned
with
undertaking
that
the
guardian mother Smt. Yamuna Devi shall
keep the juvenile away from unsocial and
criminal association and will look after his
education and health, keeping his mental
and social status. She will also give an
undertaking that on being so released on
bail, the juvenile will not however indulge
in commission of any crime and she will
ensure his presence during trial before the
court whenever so required by court.

20. Office is directed to transmit the
certified copy of this order to the court
concerned for information and its necessary
compliance. A computerized copy of the
order may also be obtained and produced
before the court concerned for compliance.
the court concerned for compliance.
----------
(2021)05ILR A230
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Single No. 16086 of 2020
And
Misc. Single No. 18232 of 2020
And
Misc. Single No. 17570 of 2020
And
Misc. Single No. 3496 of 2021
And
Misc. Single No. 2662 of 2021

Haripal ....Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
5 All. Haripal Vs. State of U.P. & Ors.
231
O.P. Tiwari, Rajendra Singh, Sudhir Pandey

Counsel for the Respondents:
C.S.C.

National Food Security Act, 2013-section
12(2) (e); The Constitution of India, 1950-
Article 14-Exlusive preference given to
self help group -for grant of statutorily
regulated licence -sidetracking the role of
Gaon sabha violative of Article 14 beyond
the scope of section 12 (2) (e) of the
National Food Security Act, 2013. (E-7)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Let no one die of hunger is a
fundamental duty postulated under Article
47 of the Constitution of India that must be
read as a part of the right to life under
Article 21 for it is the right to food without
which the dignified existence of human
beings is inconceivable. In other words,
right to food is inherent in Article 21 of the
Constitution of India obliging the State to
ensure the execution of its duties in the true
spirit of Article 47 read with Article 39-A
of the Constitution of India. The discharge
of this obligation fundamentally requires
the
government
to
have
a
Public
Distribution System to reach out to the
underprivileged citizens in order to satiate
the basic ingredient of dignified life i.e.
right to food. In the State of Uttar Pradesh,
the targeted population for the supply of
food grains under the Food Security Act,
2013 i.e. Patra Grahasthi and Antyodaya
Ann Yojna is aimed at 15.21 crores out of
which 14.69 crores are identified through
bio-metric system according to the online
report dated 11.2.2021 and this is what the
statement
on
behalf
of
the
State
Government reads in para-6 of the counter
affidavit filed in Writ Petition No. 16086
(MS) of 2021. For a population of this
dimension residing in rural areas, the State
Government is obliged to evolve a
foolproof mechanism ensuring distribution
of food grains as per the policy of the State
trammeled in law.

2. Public Distribution System is
incorporated under Entry-28 Schedule-XI
of the Constitution of India, which by
virtue of Article 243G, mandates as under:

"243G. Powers, authority and
responsibilities of Panchayats- Subject to
the provisions of this Constitution the
Legislature of a State may, by law, endow
the Panchayats with such powers and
authority and may be necessary to enable
them to function as institutions of self
government and such law may contain
provisions for the devolution of powers and
responsibilities upon Panchayats, at the
appropriate
level,
subject
to
such
conditions as may be specified therein, with
respect to -

(a) the preparation of plans for
economic development and social justice;

(b)
the
implementation
of
schemes for economic development and
social justice as may be entrusted to them
including those in relation to the matters
listed in the Eleventh Schedule"

3. In the pursuit of objects under
Article 47 of the Constitution of India, the
Essential Commodities Act, 1955 was
enacted decades back but towards the
fulfillment of Article 21 of the Constitution
of India, the Food Security Act, 2013 was
enacted by the Parliamant, whereunder, the
targeted population as per the policy of the
State is attentively focused for raising their
232 INDIAN LAW REPORTS ALLAHABAD SERIES
standards of livelihood to a dignified level.
It is for the achievement of this object that
Public Distribution System is significant
and must work to the optimum good of
people particularly for the targeted village
population. In the first two writ petitions at
hand, the Court is concerned with the
distribution of food grains through Public
Distribution System at the village level
which involves creation of an incentive
based 'agency' by the government of which
the financial liability payable to the dealers
is met with out of the State largesse as a
means of purported employment both in
rural and urban areas. The targeted
population in U.P. for this purpose in urban
areas corresponds to 4.5 crores whereas in
rural areas, it is figured at 15.51 crores.

4. In view of the 73rd Amendment in
the Constitution of India, an amendment
was also made in Section-15 of the
Panchayat Raj Act, 1947 i.e. U.P. Act No.
9 of 1994 and thereby the functioning of
Gram Panchayats was enlarged to the
promotion of Public Distribution System
for awareness and distribution of essential
commodities
inclusive
of
monitoring.
Section 15 (xxix) of the U.P. Panchayat Raj
Act, 1947 being relevant may be extracted
below:

"15.
Functions
of
Gram
Panchayat. - Subject to such conditions as
may be specified by the State Government,
from time to time, a Gram Panchayat shall
perform the following functions, namely, -

......................................

(xxix) Public distribution system:
.

(a)
Promotion
of
public
awareness with regard to the distribution
of essential commodities.

(b)
Monitoring
the
public
distribution system."

5. It is thus clear that the State
Government has decentralised the function
of awareness relating to distribution of
essential commodities and monitoring of
the Public Distribution System to the
Panchayats in rural areas. In order to give
an impetus to the Public Distribution
System, the National Food Security Act,
2013 provides for reforms in 'Targeted
Public Distribution System'. Section 12 of
the Act reads as under:

"12.
Reforms
in
Targeted
Public Distribution System. - (1) The
Central and State Governments shall
endeavour
to
progressively
undertake
necessary reforms in the Targeted Public
Distribution System in consonance with the
role envisaged for them in this Act.

(2) The reforms shall, inter alia,
include-

(a)
doorstep
delivery
of
foodgrains
to
the
Targeted
Public
Distribution System outlets;

(b) application of information and
communication technology tools including
end-to-end computerisation in order to
ensure transparent recording of transactions
at all levels, and to prevent diversion;

(c)
leveraging
''aadhaar''
for
unique
identification,
with
biometric
information of entitled beneficiaries for
proper targeting of benefits under this Act;

(d) full transparency of records;

(e)
preference
to
public
institutions or public bodies such as
Panchayats,
selfhelp
groups,
cooperatives, in licensing of fair price
shops and management of fair price
shops by women or their collectives;

(f) diversification of commodities
distributed under the Public Distribution
System over a period of time;

(g)
support
to
local
public
distribution models and grains banks;
5 All. Haripal Vs. State of U.P. & Ors.
233

(h) introducing schemes, such as,
cash transfer, food coupons, or other
schemes, to the targeted beneficiaries in
order
to
ensure
their
food
grain
entitlements specified in Chapter II, in such
area and manner as may be prescribed by
the Central Government."

6. The Act by virtue of Section 2(4)
defines a fair price shop as under:

"2. Definitions. - In this Act,
unless the context otherwise requires,-

(1) ........

(2) ........

(3) .......

(4) "fair price shop" means a shop
which has been licensed to distribute
essential commodities by an order issued
under
section
3
of
the
Essential
Commodities Act, 1955 (10 of 1955), to the
ration card holders under the Targeted
Public Distribution System."

7. In order to secure equitable
distribution of food grains to the targeted
population etc., the National Food Security
Act, 2013, by virtue of Section 15, has
constituted
a
district
level
redressal
mechanism
for
distribution
related
grievances and at the State Level, a State
Food Commission is provided for to carry
out the functions as embodied under
Section 16(6) of the Act. In the present
case, however, the issues relate to the
establishment of fair price shops through an
open meeting of Gaon Sabhas, operation
whereof is incentive based and payable
directly in the bank account of the dealers
subject to their satisfactory work on
monthly basis and that is how it is termed
as a means of employment by the State. It
is looking to this dimension of fair price
shop
dealership
that
the
Central
Government as well as the State
Government have both issued control
orders from time to time whereunder the
eligibility norms of persons and criteria for
their selection as dealers were laid down
with due regard to the implementation of
reservation policy within the scope of law.

8. After the enforcement of Food
Security Act, 2013, it is necessary to
understand the laws having due regard to
the object of 'Targeted Public Distribution
System' and the purpose of equitable
distribution of scheduled commodities
through an accountable mechanism for
which a fair selection of dealers in village
areas, as per the eligibility criteria, is
indispensable. The zone of eligibility for
licensing as sanctified by law is traceable to
Clause-9
of
the
Targeted
Public
Distribution System (Control) Order, 2015
issued by the Central Government and the
same being relevant is reproduced as under:

"9. Licensing and regulation of
fair
price
shops.
-
(1)
The
State
Government shall issue an order under
section 3 of the Act, but not inconsistent
with this Order, for regulating the sale and
distribution of the essential commodities.

(2) The licences to the fair price
shop owners shall be issued under the said
order and the order issued by the State
Government shall be notified and displayed
on web portal.

(3) The designated authority
appointed by the State Government shall
issue the licences to the fair price shop
owners.

(4) The State Government shall
accord preference to public institutions or
234 INDIAN LAW REPORTS ALLAHABAD SERIES
public bodies such as panchayats, self
help groups, cooperative societies in
licensing
of
fair
price
shops
and
management of fair price shops by women
or their collectives.

(5) The licences to the fair price
shop owners shall be issued keeping in view
the viability of the fair price shop.

(6) The State Government shall
ensure that the number of ration card holders
attached to a fair price shop are reasonable,
the fair price shop is so located that the
consumer or ration card holder does not
have to face difficulty to reach the fair price
shop and that proper coverage is ensured in
hilly, desert, tribal and such other areas
difficult to access.

(7) The State Government shall fix
an amount as the fair price shop owner's
margin, which shall be periodically reviewed
for ensuring sustained viability of the fair
price shop operations.

(8) The State Government shall put
in place a mechanism to ensure the release of
fair price shop owner's margin without any
delay.

(9) The State Government shall
allow sale of commodities other than the
foodgrains distributed under the Targeted
Public Distribution System at the fair price
shop to improve the viability of the fair price
shop operations."

9. The Targeted Public Distribution
System (Control) Order, 2015 issued by the
Central Government defines 'fair price shop
owner' as under:

"2(j) 'fair price shop owner'
means a person and includes a cooperative
society or a body corporate or a company
of a State Government or a Gram
Panchayat or any other body in whose
name a shop has been licensed to distribute
essential commodities under the Targeted
Public Distribution System."

10. A plain reading of the above
provision clearly shows that the State
Government obliged to issue an order for
sale
and
distribution
of
essential
commodities
under
Section-3
of
the
Essential Commodities Act is bound to act
in consistence with the Control Order, 2015
issued
by
the
Central
Government.
Interestingly, the Central Government has
also provided for a preference to public
institutions or public bodies such as
Panchayats, Self help groups, Co-operative
Societies in the matter of grant of licences.
The law made by the Central Government
also postulates for licencing of an equitable
number of shops having regard to the
number of ration card holders in a
particular urban/village area. The margin of
incentive admissible to the fair price shop
dealers is also provided to be reviewed
periodically. It is in furtherance of the
above mandate that the State Government
in suppression of earlier Control Orders
chose
to
issue
the
U.P.
Essential
Commodities (Regulation of Sale and
Distribution Control) Order, 2016. Clause7 of the Control Order, 2016 issued by the
State
Government
being
relevant
is
extracted below:

7-
Appointment
and
regulation of
fair
price
shops.-

With a view to affecting
fair
distribution
of
foodgrains and scheduled
commodities
the
State
Government shall issue
directions under section-3
of the Act to such number
of fair price shop in an
5 All. Haripal Vs. State of U.P. & Ors.
235
area and in the manner as
it deems fit.

(2)
(i)- A fair price shop shall
be
run
through
such
person
and
in
such
manner as the Collector,
subject to the directions of
the State Government may
decide.

(ii)- A person appointed
to run a fair price shop
under sub clause (1) shall
act as the agent of the
State Government.

(iii)- A person appointed
to run a fair price shop
under sub clause ( 1) shall
sign an agreement, as
directed
by
the
State
Government
regarding
running of the fair price
shop. as per the draft
appended to this order
before
the
competent
authority
prior
to
the
coming with effect of the
said appointment.

(3)
The Food Commissioner
shall
ensure
that
the
number of ration card
holders attached to a fair
price shop are reasonable,
the fair price shop is so
located that the consumer
or ration card holder does
not have to face difficulty
to reach the fair price shop
and that proper coverage is
ensured in hilly, desert,
tribal and such other areas
difficult to access.

(4)
The
State
Government
shall fix an amount as the
fair price shop owner's
margin, which shall be
periodically reviewed for
ensuring
sustained
viability of the fair price
shop operations.
(5)
The Food Commissioner
shall
put
in
place
a
mechanism to ensure the
release of fair price shop
owner's margin without
any delay.

(6)
The
State
Government
shall
allow
sale
of
commodities other than
the foodgrains and other
scheduled
commodities
distributed
under
the
Targeted
Public
Distribution System at the
fair price shop to improve
the viability of the fair
price shop operations.

11. Reference may also be made to
the definition clause-2 whereunder the
'agent', 'fair price shop' and 'fair price shop
owner' are defined as under:

"2- Definitions- ln this Order,
unless the context otherwise requires-,

(b) "Agent" means a person or a
co-operative society or a corporation of the
State Government authorized to run a Fair
236 INDIAN LAW REPORTS ALLAHABAD SERIES
Price Shop under the provision of this
Order;

(n) "Fair price shop" means a
shop set up as directed by the State
Government
under
this
order
for
distribution of foodgrains, sugar, kerosene
oil etc. under various orders of Central and
State Government."

(o) "fair price shop owner"
means a person and includes a cooperative
society authorized to run a fair price shop
appointed under provisions of this order."

12. Having regard to definitions
extracted above, it is quite clear that an
individual, the co-operative societies or a
corporation of the State are inclusive in the
definition of 'agent' but the definition of
'fair price owner' as per the Control
Order,
2015
issued
by
the
Central
Government is much wider. It is in the
background of above mentioned provisions
that the State Government by virtue of
Section-3 of the Essential Commodities Act
issued a further government order on
5.8.2019 whereunder the procedure for
selection of persons in rural areas having
regard to the policy of reservation was laid
down. It is evident from the government
order dated 5.8.2019 that reservation for
various categories of persons was provided
under Clause-I as under:

a. SC - 21%

b. ST - 02%

c. OBC - 27%

d. EWC - 10%

(not included in SC, ST, OBC as
per G.O. No. 1/2019/4/1/2002/Ka-2/10TC11dated 18.2.2019)

13. Clause-II of the government order
dated 5.8.2019 provides for horizontal
reservation for women (20%), Ex-Army
Personnel (5%), Freedom Fighters (5%),
Physically Handicapped (3%). Clause-III of
the government order provides that every
allotment of a fair price shop in the rural
area shall be made on the basis of an open
meeting of the Gaon Sabha and the
resolution
passed
therein
shall
be
forwarded by the Block Development
Officer to the Sub-Divisional Magistrate
within two weeks so that the same is
presented to the tehsil level committee,
headed by Sub Divisional Magistrate for
appointment of fair price shop dealer.

14. The tehsil level committee as per
the government order dated 5.8.2019 is
under a bounden duty to take necessary
decision as regards the approval of open
meeting within 15 days from the date of
receiving the resolution and within the
same very period the Sub-Divisional
Magistrate concerned is expected to issue
an allotment order on the grant of approval
by the Committee or return the resolution
by recording reasons.

15. What is significant to note is that
the process of selection is by an open
meeting of the Gaon Sabha and rightly so
when one may look at the scope of Entry28 Schedule-XI in the context of Article
243-A of the Constitution of India read
with Section 15(xxix) of the Panchayat Raj
Act, 1947. It is also to be noted that the
eligibility of a fair price shop dealer is
dependent upon his being a resident of the
same village and the process of selection is
through an open meeting of the Gaon
Sabha for which the resolution is passed by
the registered voters of the same village by
majority. This is the basic rule according to
which
the
establishment
of
Public
Distribution System to promote social
justice in the rural areas is by law aimed
5 All. Haripal Vs. State of U.P. & Ors.
237
with due regard to the mandate of
reservation
policy.
The
zone
of
consideration for allotment of fair price
shops, when looked at in the light of
preferential clause embodied under Section
12(2)(e) enables the competent authority to
give preference to the public institutions or
public bodies when there is an impasse
between a person and a public body
/institution or two public bodies/institutions
on account of the support of villagers being
equal. The rule of preference applies when
the basic criteria of selection brings the two
prospective persons on equal footing in a
level playing filed. Law does not conceive
application of the rule of preference by
eroding competition in a level playing field.
It is for this reason that the law makers
have
wisely
phrased
the
essential
legislation i.e. Section 12(2)(e) of the Act,
2013.

16. A plain reading of the statute
attaching
preference
to
the
public
institutions or public bodies does not
suggest that the local residents who for the
purposes of grant of licenses fall in the
zone of eligibility or consideration are
sought to be ousted altogether. The rule of
preference is supplementary to the essential
rule under which every person including
the public institutions or public bodies may
compete for allotment of a fair price shop
in an open meeting of the Gaon Sabha. The
purpose is to design a result oriented
delivery system.

17. The State Government in order to
bring the U.P. Control Order, 2016 in line
with the definition clause 2(j) of the Central
Control
Order,
2015
amended
the
definition of 'fair price shop owner' by
Second Amendment Order, 2020, notified
on 2.7.2020 as under:

"(O) "Fair Price Shop Owner"
means a person and includes a cooperative society and self-help group
authorized to run a fair price shop
appointed under provisions of this order."

18. This amendment however left the
definition of 'agent' extracted above as
unaltered. The definition introduced stands
somewhat at variance as compared to Clause
2(j) of the Central Control Order, 2015. The
State Government soon thereafter issued
another government order dated 7.7.2020
whereunder self-help groups were allowed
preference to the exclusion of all other
categories of persons and this is how the
resultant dispute has arisen before this Court
in the first two writ petitions which involve
common questions of law.

19. The controversy in the first two
writ petitions filed before this Court is
centered round the government order issued
on 7.7.2020 which inter alia is assailed on
the ground that it seeks to defeat the very
objects of 73rd Amendment made in the
Constitution of India. It is thus argued that
a whimsical discretion cannot be allowed to
operate in place of a democratic norm once
the decision making authority is conferred
upon the Gaon Sabha to pass a resolution
for selection of licencees to distribute
essential commodities at the village level.
Restricting the zone of consideration,
therefore, is also questioned as violative of
Article 14 and 19(1)(c) of the Constitution
of India. It is further urged that narrowing
down the zone of eligibility under the garb
of rule of preference and confining it to the
self-help groups alone for the purposes of
grant of statutorily regulated licence by
itself is violative of the object of Section
12(2)(e) of the Food Security Act, 2013
which embodies equal consideration.
238 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The questions that arise for
consideration before this Court may broadly
be framed as under:

(i) As to whether the grant of
licences for carrying out the objects of Public
Distribution System, it is the government
order dated 5.8.2019 which is to operate or
the so called supplementary government
order dated 7.7.2020 running in conflict with
the earlier government order occupying the
field and as to whether the impugned
government order stands the tests of Article
14 of the Constitution of India and does not
offend the mandate of Section 12 (2)(e) of the
Food Security Act, 2013.

(ii)
As
to
whether
the
contemplation and enforcement of exclusive
preference in favour of self help groups by
means of the impugned government order
dated 7.7.2020 that too by sidetracking the
role of Gaon Sabhas for passing resolution on
the principle of majority vote is not in
violation of the mandate of Article 14 read
with Article 19(1)(c) of the Constitution of
India as well as the relevant statute.

(iii) As to whether a Self-help
group without having a juristic character
would nevertheless be eligible and would fall
within the scope of a public body or public
institution for the purposes of allotment of
fair price shop in the State of U.P.

21. Before consideration of the
questions framed above, it may be necessary
to take note of the prayer in the writ petitions.
In Writ Petition No. 16086 (MS) of 2020 and
18232 (MS) of 2020, the validity of the
government order dated 7.7.2020 has been
questioned on the ground of lack of authority
and being in violation of Article 14 read with
Article 19(1)(c) and 21 of the Constitution of
India. The scope of other writ petitions
depends upon the outcome of aforesaid two
writ petitions.

22. In brief it may also be worthy to
note that the Patra Grahasthi Card holders
are defined under the following criteria:

General Criteria

Citizen
of India

Family

Landless
Farmer

1. Mukhiya
2.
Spouse
of Mukhiya

3.
Minor
Children
4.
Major
children
and
dependents
5.
Unmarried
daughter
6.Mukhiya's
Parents
dependent
on him

Primary identification

1. All rural/urban families identified as of
now in State as Antyodaya families.
2. All rural/urban families identified as BPL
families except excluded.

Exclusion Criteria in rural areas
1. Income Tax payer.
2. Family with four-wheeler vehicles,
tractor, AC or generator of 5 KV or more
capacity
3. Families with five acres or more
5 All. Haripal Vs. State of U.P. & Ors.
239
irrigated land.
4. Income above two lacs per annum.
5. Family with more than one arm's
licence

Inclusion Criteria in urban areas
1. Beggars, domestic helps, cobblers,
Pheriwalas (unless excluded on the
strength of exclusions as above).
2. Leprosy patients or acid victims.
3. Orphans.
4. Janitors.
5. Rickshaw Pullers.
6. SC/ST, other landless labourers.
7. Daily Wagers.
8. BPL families
9. Kachcha house dwellers.
10. Where Mukhiya is disabled or of
unsound mind.
11. Transgenders.

23. This is broad classification of the
eligibility criteria of beneficiaries and is not
exhaustive. The women and children are
separately prioritized under the Act, 2013.

24. Sri Sudhir Pandey, learned counsel
for the petitioner has argued that Public
Distribution System in the rural areas falls
within the domain of U.P. Panchayat Raj
Act, 1947 and insofar as the establishment
of fair price shops in the rural areas is
concerned, the Central and the State
Government both in exercise of the powers
conferred by virtue of Section 3 of Essential
Commodities Act have issued Control Order
in the year 2015 and 2016. The Control
Orders were supplemented by the State
Government order issued on 5.8.2019. The
Control Orders lay down a complete
mechanism for assessing the eligibility of
persons and carrying out the selection
process for allotment of fair price shops.

25. It is submitted that once the
State
Government by undertaking its
composite legislative exercise i.e. essential
and statutory devolved the selection process
of dealers upon the Gaon Sabhas to
strengthen Public Distribution System, it
was
thereafter
impermissible
for
the
executive authority of the State to act
contrary to the object of local self
governance. The impugned Government
Order dated 7.7.2020 seeking to oust the
role of Gram Sabhas defeats the purpose of
73rd Amendment made in the Constitution
of India apart from being in conflict with the
Government
Order
dated
5.8.2019
occupying the field.

26. Learned counsel for the petitioner
has argued that the nature and extent of
'executive power' is not defined under law
but what is not classified as a legislative or
judicial function, is within the realm of
executive function of the State in common
parlance. Law is clear on the subject that
the entries embodied in Schedule-XI of the
Constitution of India do not confer
authority of any kind upon the Gram
Sabhas or Gram Panchayats unless the
specific functions are sanctified by law. it
is
thus
submitted
that
whatever
is
decentralized by the State in the spirit of
Article 243-A and 243-G read with Part-IV
of the Constitution of India cannot be
frustrated without providing for a stronger
reform executable by the third tier of
governance itself. In other words, the
fundamental rule of democracy must reach
and serve the society in the matter of
executive decisions too. For this purpose,
Article 243-A of the Constitution of India
clearly provides a guidance to the effect
that the Gram Sabhas may exercise such
powers and perform such functions at the
village level as may by law be conferred by
240 INDIAN LAW REPORTS ALLAHABAD SERIES
the State Legislature. This must be read
inclusive of the powers and functions
conferred through delegated legislation
which
accomplishes
the
purpose
of
essential legislation promulgated by the
Parliament or the State legislature and an
inconsistent policy decision must be read
subservient to such laws.

27. According to the learned counsel
for the petitioners, the policy of the State is
bound to adhere to the existing laws. The
distribution of scheduled commodities
through fair price shops, according to him,
is to be understood by giving a full
meaning to the inclusion of Entry-28 in
Schedule XI of the Constitution of India
and the laws made or applied in relation
thereto within the spirit of Article 243-A
and 243-G. Article 243-A for ready
reference may also be extracted as under:

"243-A. Gram Sabha- A Gram
Sabha may exercise such powers and
perform such functions at the village level
as the Legislature of a State may, by law,
provide."

28. This Court would note that the
executive function of the State may be
devolved upon the Local Self-Government
by
law
and
supplemented
through
delegated legislation but once a function
through composite legislative process is
decentralizsed, the same would vest in the
Gram Sabha or Gram Panchayat till the law
reforms or strengthens the Panchayat Raj
even further. The local Self-Government to
the extent of decentralization of executive
functions by law on the subjects mentioned
in Schedule-XI of the Constitution of India
thus assume legitimacy for carrying out
such functions and to that extent, the
executive authority of the State stands
devolved upon the local self government.
In other words, the Control Order issued by
the Central Government in the year 2015
together with the Control Order, 2016 of
the State as promulgated under Section 3 of
the Essential Commodities Act besides the
devolution of functions by the State vide
government order dated 5.8.2019 upon the
Gram Sabhas, leave no manner of doubt
that the allotment of dealership for delivery
of scheduled commodities to an agent was
devolved upon the Gram Sabhas in the
spirit of Article 243-A of the Constitution
of India. This is a function akin to the
election of Gram Pradhan for which an
extraordinary general meeting of the Gram
Sabha as per the provisions of Section 11
of the Panchayat Raj Act, 1947 is a
condition precedent. The resolution passed
by the Gaon Sabha becomes accordingly
enforceable as per the provisions of
Panchayat Raj Act, 1947 and the Rules
framed thereunder.

29. The devolution of function
relating to the selection of fair price shop
dealers upon the Gram Sabhas would
certainly help the targeted population
residing in village areas to be served better
and
is
necessary
to
reform
Public
Distribution System for its inclusion in
Schedule-XI of the Constitution of India
i.e. Entry-28. It may be worthwhile to note
that the purpose to institutionalize the third
tier
of
the
government
i.e.
Gram
Sabhas/Panchayats was to reach out to the
people
living
in
village
areas
and
particularly those who are below the
poverty line. The object of three-tier
governance is none other than the effective
implementation
of
the
development
schemes and projects to uplift the standards
of livelihood at the village level through a
democratic process. The law makers under
Article 243-A and Article 243-G of the
Constitution of India have clearly provided
5 All. Haripal Vs. State of U.P. & Ors.
241
that the governance by local authorities
must be sanctified by law without which
the functional independence of the local
self government i.e. Panchayat Raj would
not be a reality. Once the laws made by the
State or the Central Government segregate
the executive functions or any other
function in the light of Schedule XI
appended to the Constitution of India and
devolve specific functions upon the Gram
Sabhas or Gram Panchayats, such functions
must stand vested with the local self
government till they are reformed by law to
strengthen the third tier of democracy in the
spirit of Section 25 read with Section 26 of
the Food Security Act, 2013.

30. The question as to whether it was
right for the State Government to supplant
the existing process of selection prescribed
under the government order dated 5.8.2019
by a rule exercisable at the discretion of
District Magistrate/Collector and that too
by ousting the participatory rights of the
eligible local villagers, in my humble view,
the impugned government order dated
07.07.2020 defeats the very object and
purpose of the Article 243-A together with
Article 243-G of the Constitution of India
when read with Section-15(xxix) of the
U.P. Panchayat Raj Act, 1947. The
reformation of selection process by means
of the impugned government order dated
7.7.2020 is not only contrary to the own
policy of the State but is wholly violative
of
Article
14
and
19(1(c)
of
the
Constitution of India. This Court may also
take note of the government order dated
14.1.2021 whereby the State Government
while
reiterating
the
enforcement
of
government order dated 5.8.2019 has
clarified that self-help groups would also
be eligible for participation in the selection
process of fair price shop dealership but to
apply the rule of preference exclusively
in terms of government order dated
7.7.2020
is
certainly
unconstitutional.
Therefore, this Court has no hesitation to
hold that the operation of the impugned
government order dated 7.7.2020 standing
in conflict with the subsisting government
order
dated
5.8.2019
is
not
only
inconsistent but violative of Article 14 of
the Constitution of India, hence liable to be
struck down.

31. The Court may also observe that the
control of the State Government to approve a
resolution of the Gaon Sabha is the only
external control which may be exercised by
the executive in relation to the process of
selection. This authority is saved to effectuate
the purpose of law and attach a finality to the
resolutions passed by Gram Sabha in terms of
the
statutory
government
order
dated
05.08.2019. The control with respect to the
discharge of duties by the agents or licencees
is also regulated under the U.P. Control
Order, 2016 read with the government order
dated
5.8.2019.
The
local
redressal
mechanism provided under the provisions of
National Food Security Act, 2013 also comes
to the aid of beneficiaries to strengthen the
Public Distribution System.

32. Coming to the second question,
this Court would note that the State
Government in the counter affidavits filed
has no where stated as to how restricting
the zone of eligibility to the self-help
groups alone would be just, reasonable or
fair and would not offend the mandate of
equality embodied under Article 14 of the
Constitution of India which again is a
fundamental rule of governance.

33. In the present case, the court is
dealing with a controversy which involves
242 INDIAN LAW REPORTS ALLAHABAD SERIES
the welfare of people at the village level.
Raising the standard of nutrition cum living
of rural population through distribution of
food grains is the duty for which the
monetary support is owned by the State out
of tax payers money and is thus a State
largesse. The supply of food grains at the
subsidised rates to alleviate poverty is a
lofty object but the same can not be
achieved unless there is decentralization of
the primary functions to the third tier of
governance at the grass root level. An
effective
and
prompt
mechanism
of
redressal of grievances at the local level
coupled with legal service is also a
condition precedent to actualise the purpose
of law.

34. It cannot be doubted that the most
transparent manner of practicing equality
under Article 14 of the Constitution of
India is either through a process of
competition between equals or through the
vote of majority by equals. Employment of
fair price shop agents from amongst the
local residents of the village is the basic
rule. The rule of discretionary preference
for certain categories of persons in terms of
Section 12(2)(e) of the National Food
Security Act, 2013 is aimed to achieve
consumer friendly results through an
individual or a juristic person. This
provision includes participation of public
bodies or public institutions such as Cooperative Societies, Gram Panchyats or
Self-help Groups as well as the eligible
local residents for a competitive service.
The inclusion of public bodies/public
institutions is not suggestive of any
restriction rather it expands the competitive
horizon between the various categories of
persons so as to achieve the target of
distribution of food grains more effectively
and competitively. The expansion of
competition for effective and faultless
service when tested within the scope of
definition of a 'person' defined under ''The
Competition Act, 2002" gives an idea, as to
how wide, the connotation of a 'person' in
legal parlance can understandably be
stretched. In the present case, however, it is
restricted to an individual and public
bodies/public institutions of the description
mentioned under Section 12(2)(e) of the
National Food Security Act, 2013. Ousting
an individual from the zone of eligibility
for selection of an 'agent' is fundamentally
wrong as no person has an existence
without the presence of an individual. The
exercise of the right embodied under
Article 19(1)(c) is imaginary without the
association of individuals, therefore, for
any kind of employment or licencing by the
State, an individual person cannot be
ousted once he qualifies the prescribed
criteria or the condition fixed under law.