Nilam Nisha vs The State Of Bihar & Ors.

Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents-State.

Seeking writ in the nature of mandamus, the petitioner has approached this Court by way of present writ application for a direction upon respondent Nos. 2 to 4 for taking into account the balance stock lying undistributed food grains with the fair price shop of the petitioner for the subsequent allocations in consonance with Clause 22 of the Bihar Trargeted Public Distribution System (Control) Order, 2016.

Initially, the petitioner, being the licence holder of a Fair Price Shop, was aggrieved by the action of respondent Nos. 2 to 4, in not adjusting/reconciling the undistributed food grains lying with her through E-Pos Machine, inter alia, alleging it to be in violation of Clause 22 of the Bihar Targetted Public Distribution System (Control) Order, 2016 (For brevity ‘the Act’) which led her to filing of the present writ application. Subsequently, the order contained in memo No. 22 dated 06.03.2025 issued by the Block Supply Officer, Nokha (Rohtas), by which the allotment of food grains in favour of the Fair Price Shop of the petitioner for the period of April, 2023 to March, 2025 has been stopped/closed followed by the order contained in memo No. 112 dated 08.03.2025 issued by the Sub-Divisional Officer, Rohtas, Sasaram reiterating the closure of allotment of food grains in favour of the Fair Price Shop of the petitioner for the period of April, 2023 to March, 2025, have been questioned before this Court in the present writ application.

It is the specific case of the petitioner that despite the information made to the concerned authorities by filing representations with respect to balance stock of food grains lying undistributed with the Fair Price Shop of the petitioner after the distribution of January, 2022, and her request to exempt her from making E-Challan for the allotment of food grains for the month of March, 2022 so as to save the food grains from its decay, the respondents authorities neither have stopped the allotment of food grains nor they have adjusted/reconciled the undistributed food grains lying with the petitioner, as a result of which the petitioner has suffered from the financial loss.

Learned counsel for the petitioner contends that on account of the fact that the majority of consumers of the petitioners have shifted to another Fair Price Shops and also the Primary Co-operative Samiti, the stocks of food grains of the petitioner’s Fair Price Shop are gradually stored excessively and the same were being ruined despite adopting all preventive measures. He further contends that she made representation with regard to actual status of the stock to the concerned authority for the first time in the year 2022 itself, in February, and since then she had been representing all the concerned authorities reiterating her request but none has paid heed towards her concern, as a result of which the undistributed food grains lying in the stock became rotten due to mite infestation.

He further contends that during the pendency of this writ application, the petitioner has been informed vide order contained in memo No. 22 dated 06.03.2025 issued by the Block Supply Officer, Nokha (Rohtas) that the allotment of food grains for the period of April, 2023 to March, 2025 in favour of the Fair Price Shop of the petitioner has been stopped/closed followed by the order contained in memo No. 112 dated 08.03.2025 issued by the Sub-Divisional Officer, Rohtas, Sasaram reiterating the closure of allotment of food grains in favour of the Fair Price Shop of the petitioner for the period of April, 2023 to March, 2025, which absolutely bad in law. It has also been informed to the petitioner that no allotment of food grains has been sanctioned to the petitioner’s Fair Price Shop since February, 2022 to April, 2022 and she has been conveyed to carry out the distribution of food grains to the consumers from excess stock. It has also been informed that under the scheme of One Nation and One Ration Card, liberty is granted to the consumers to purchase the food grains of their part from any of the Fair Price Shop as per their own wish and, therefore, cardholders cannot be bounded to take food grains from a particular Fair Price Shop. It has finally been informed that the representations of the petitioner shall be deemed to be disposed of without adjusting the excess food grains lying in her stock, which is contrary to Clause 22 of the Act. Therefore, the action of the respondents are arbitrary in nature and as such, the same deserves to be quashed.

Relying on Clause 22 of the Act, it is contended that the action of the respondents in not adjusting or reconciling the excess stock of food grains lying stored with the petitioner is contrary to the Clause 22 of the Act and, therefore, the impugned action of the respondents required to be interfered with.

On the other hand, drawing attention of this Court to Annexure-B to the counter affidavit filed on behalf of the respondents, which is a Gazette Notification dated 14^th March, 2016, it is contended on behalf of the respondents that as per paragraph-17 of the said notification, the licence holder shall preserve all the essential commodities in the proper condition and shall make arrangement to save these commodities from the loss to be caused by the moisture, rainfall, insects, birds, fire and other things. He further contends that being the license holder of a Fair Price Shop, it is the sole responsibility of the petitioner to take all preventive measures to save the food grains once it is delivered to her godown but the petitioner has failed to carry out such exercise leading to decomposition of the excess stored food grains for which respondents are nowhere responsible in any manner.

Further relying on annexure-R/1 series, it is contended that it is clearly evident that from February, 2022 to April, 2022, no allotment of food grains in favour of petitioner has taken effect. This itself shows the bona fide action of the respondents by stopping the further allotment of food grains to the petitioner considering the representation of the petitioner made on 05.02.2022 addressed to the Block Supply Officer, Nokha in which, it has been specifically stated that E-Challan for the month of March, 2022 may be stopped so as to prevent the food grains lying undistributed from getting rotten. He further contends that once the respondents have immediately acted upon considering the representation of the petitioner and also taking note of the fact that undistributed food grains are required to be prevented from getting rotten, it was the sole responsibility of the petitioner to take all preventive measures to protect the food grains in any circumstance and she ought to have distributed them within the three months in which no further allotments have been done in her favour. It could not be overlooked that the petitioner has sought to stop her from making E-Challan for the month of March, 2022 only but she has been provided ample time of two months instead of one month to distribute the excess stored food grains amongst the consumers.

Further, relying on annexure-R/2 to the second supplementary counter affidavit, it has been contended that the petitioner has distributed the grains to the consumers in the month of February, 2022 to July, 2022 and the month wise distribution report is available on the website of Food and Consumer Protection Department AEPDS. The distribution data shows that in the month of Feb, 2022, total 141 transactions of distribution have been done by the petitioner amongst 289 cardholders showing 48.78% as Total Availed Percentage, in March, 2022, 125 transactions showing 43.25%; April, 2022, 107 transaction showing 37.02%; May, 2022, 95 transactions showing 32.87%; June, 107 transaction showing 37.02% and in July, 2022, altogether 104 transactions showing 35.98% Total Availed Percentage. The total percentage of distribution amongst the cardholders shows that the grains lying undistributed in the store of the petitioner were not rotten rather they are being distributed. It is further contended that an inspection was carried out in the store of the petitioner by the B.S.O. Nokha on 05/06.09.2022, wherein it was found that the grains were not damaged/destroyed rather they are in good conditions, the inspection report is annexed as annexure R/5. He further contends that it would be evident from the Annexure-P-7 dated 23.08.2022 that the petitioner has stated in the representation that the grains become rotten whereas during the inspection carried out on 05/06.09.2022, it was found that food grains were not damaged/destroyed rather they are in good conditions, and, on the other hand, she has been distributing the grains to the consumers, the statement itself is contradictory in nature. On the basis of the aforesaid fact, it has been contended that the petitioner has tried to make out a case of damages of the food grains, which may have caused on the failure on the part of the petitioner just to shift the damage, if any, of the food grains on the shoulder of the respondents.

It is not in dispute that the allotment for her Fair Price Shop had been stopped in April, 2023. It is very much strange that in one hand, the petitioner has challenged the action of the respondent stopping the allotment in favour of the petitioner and on the other hand, she has been trying to make out a case that the respondents have made allotment in her favour due to which her store became full with undistributed food grains which became rotten causing loss to her on the ground that 80% consumers have shifted to another Fair Price Shop and Primary Co-operative Samiti. If the consumers have shifted to another Fair Price Shop and Primary Co-operative Samiti due to which strength of the consumers of the petitioner has decreased resultantly, she could not distribute the food grains lying in her store, she ought not to have challenged the action of the respondents stopping further allotment from April, 2023 before this Court as in absence of consumers, as to how she could be able to distribute the food grains in the event of allotment of food grains to her Fair Price Shop.

Further, referring to Annexure-R/1 to the second supplementary counter affidavit filed by the respondent Nos. 2 to 4, it is submitted that it is clearly evident that from February, 2022 to till April, 2022, no allotment has been effected in favour of the petitioner’s Fair Price Shop and even since April, 2022, the allotment was made to the petitioner taking note of her undistributed food grains lying in her stock and also to the tune of her grievance that 80% consumers have shifted to another Fair Price Shop and Primary Co-operative Samiti.

On the aforesaid ground, it is contended that the petitioner has failed to make out a case warranting interference of this Court in exercise of powers conferred under Article 226 of the Constitution of India, therefore, the writ petition deserves to be dismissed.

I have heard the learned counsels appearing for the respective parties and have meticulously examined the records in order to ascertain the issue raised in this writ application.

The question falls for adjudication of this Court is whether the action of the respondents is contrary to Clause 22 of the Act and if it is so, whether the respondents can be held responsible for the damages of food grains lying undistributed in the stock of the petitioner ?

To ascertain the issue, Clause 22 of the Act is being reproduced herein below:

A plane reading the Clause 22 of the Act reveals that no doubt, the respondents are required to take into account the balance stock, if any, lying undistributed with the fair price shop owner while making the subsequent allocations.

To address the action and inaction of the respondents, it is now required to delve upon the facts of the case. In the present case, admittedly, the allotment of food grains had been stopped since February, 2022 till April, 2022 on the request made by the petitioner and thereafter, proportionate allotment has been effected in favour of the petitioner till April, 2023 and since then the allotment of the petitioner has been stopped till March, 2025 vide order dated 06.03.2025 issued by the Block Supply Officer, Nokha, Rohtas and also vide order dated 08.03.2025 issued by the Sub-Divisional Officer, Sasaram, Rohtas. The aforesaid action of the respondents is suffice to establish that the respondents have acted upon in terms of Clause 22 of the Act, therefore, it can be said that the action of the respondents challenged before this Court is not contrary to Clause 22 of the Act. From perusal of the aforesaid order under challenge, it is clearly evident that it has been stated in the said order that petitioner ought to have adopted the FIFO Rule (First in First out) if there has been excess food grains in her store, which could be a reasonable approach in considered view of this Court. It is categorically stated that the petitioner was supposed to act according to Clause 17 of the Act, by which the petitioner has been directed to take preventive measure to save the stored food grains irrespective of any situation, which, undoubtedly, the petitioner has failed to act upon in the aforesaid terms of the Act. It is also clarified that under the One Nation and One Ration Card scheme, no card holder can be refrained from purchasing the food grains from any of the Fair Price Shop and it could not be binding upon the consumers to purchase the food grains from the Fair Price Shop of the petitioner only. Such clarification could also considered to be in the interest of fair practice and to meet the basic purpose of distribution of grains amongst the consumers.

In such view of the matter, this Court is not persuaded by the submission advanced on behalf of the petitioner and, therefore, is of the considered view that the petitioner has failed to make out a case warranting interference of this Court, more particularly, with the prayer made in this writ application. This Court has taken note of the fact that the petitioner has been trying to make out a case of damages of food grains from the very beginning by filing representation clearly stating on 23.08.2022 (Annexure-P-7) that the grains become rotten whereas during the inspection carried out on 05/06.09.2022 immediately after fifteen days of the representation, it was found that food grains were not damaged/destroyed rather they are in good conditions, and, on the other hand, she has been distributing the grains to the consumers. The distribution of food grains by the petitioner also finds support from the data published on the official website of the department. If the grains were rotten on 23.08.2022, as to how the petitioner was distributing the same in the market. This fact has also not been denied by the petitioner although several rejoinders have been filed on her behalf, nor pleaded during course of agrument. From the report of inspection carried out on 05/06.09.2022, an inference can be drawn that on the day of inspection, there were no rotted food grains lying in the stock of the petitioner. The aforesaid fact itself falsifies the entire case of the petitioner. Apart from that even if it is accepted that the food grains were started rotten and in that regard, in February 2022, the petitioner has made representation and the respondents were not acted upon as per her grievance, she could have approached this Court in the year 2022 itself instead of making repeated representations taking note of the fact that she was handling with perishable goods in her stock which needs immediate action for its proper preservation. However, she chosen to sit in peace for the period of two years and knocked the door of this Court in the year 2024. This approach of the petitioner for her so called damages does not find place for consideration of this Court.

This Court has also taken note of the fact that the respondents have also carried out an inspection on 07.02.2026 in which it was found that altogether 395.68 quintals of wheat and 735.15 quintals of rice is being shown on the departmental website lying undistributed in the stock of the petitioner and they are fully rotten and the same are not to be distributed for consumption. Even if this fact is taken into account, this Court is of the view that the petitioner ought to have taken all preventive measures to keep the stock in appropriate condition, irrespective of excess or normal, in her store, which is binding upon the petitioner in terms of Clause 17 of Bihar Gazette dated 14.03.20216 (Anenxure-B to the counter affidavit filed on behalf of respondent Nos. 2 to 4), which she has failed. For the clarity, Clause 17 is being reproduced herein below for ready reference;

With the aforesaid observation, this writ application is dismissed.

However, this Court is of the view that if the petitioner is still having valid license of Fair Price Shop and her allotment has been stopped from April, 2023 to March, 2025 for any reason, the respondents are directed to sanction the further allotment in terms of the Act so as to protect the rights of the petitioner being the valid license holder.