Delhi Sarkari Ration Dealers Sangh v. Commissioner Food and Supplies Govt of NCT of Delhi

9. Grievance Resolution and Management.

10. Scope of Work for the PoS vendor.

11. Periodic reporting to DCCWS. ‖ (emphasis supplied)

7. The introduction to this NIB, inter alia, stated as follows: ―Targeted Public Distribution System (TPDS) is a food security system, established by the Government of India under the Ministry of Consumer Affairs, Food and Public Distribution and managed jointly with the State/UT Governments/Administrations, to distribute highly subsidized food grains to the economically weaker sections of the society. Under the PDS scheme, the subsidized food grains (Wheat and Rice) and other essential commodities like Sugar, Salt, and non-food commodities like Kerosene are distributed through a network of Fair Price Shops (also known as ration shops) established across the state. The operation related to Public Distribution System (PDS) in the National Capital Territory of Delhi (NCTD) is managed by the Department of Food and Supplies, GNCTD. The primary policy objective of the Department is to ensure food security for the state through timely and efficient procurement and distribution of essential commodities. This involves procurement of essential commodities, building up and maintenance of food stocks, their storage, movement and delivery to the distributing agencies.‖ (emphasis supplied)

8. It disclosed that the commodities delivered and distributed each month under the TPDS are rice, wheat and sugar. The total number of ration cards issued across the NCT of Delhi were disclosed as 17,54,863.

9. It also took note of the fact that the job of lifting of commodity from the FCI godowns is managed by Delhi State Civil Supplies Corporation Ltd. (DSCSC) – respondent No. 2 in W.P.(C) No. 2037/2021, and the distribution of commodities in Delhi is currently managed by a network of 2000+ licensed fair price shops which are appointed by the department in line with the TPDS guidelines. It further stated: ―The beneficiaries registered under the TPDS are tagged to a Fair Price Shop as per the prescribed guidelines. The responsibility of registration of beneficiary and tagging them to the FP Shops is being carried out by the Department of F&S. For the purpose of buying the entitled ration a beneficiary reaches out to the tagged FPS. The FPS dealer performs all the kinds of operation which includes display of information on a notice board at a prominent place in the shop on daily basis regarding. a) Entitlement of foodgrains, b) Scale of issue, c) Retail issue prices, d) Timings of opening and closing of the fair price shop including lunch break, if any, e) Stock of foodgrains received during the month, f) Opening and closing stock of foodgrains, g) The mechanism including authority for redressal of grievances with respect to quality and quantity of foodgrains under the Targeted Public Distribution System and h) Toll-free helpline number etc. Apart from the above, the FPS dealer is also responsible for: i. Producing books and records relating to the allotment and distribution of foodgrains to the inspecting agency and furnishing of such information as may be called by the designated authority; ii. Maintaining accounts of the actual distribution of foodgrains and the balance stock at the end of the month, at the fair price shops and reporting the same to the designated authority of the State Government with a copy to the local authority‘ iii. Maintaining opening and closing of the fair price shop as per the prescribed timings displayed on the notice board etc. The entire operation involved in the sale of commodity at Fair Price Shops, is directly monitored by the officials of Department of Food, Supplies and Consumer Affairs at District and Circle level. The responsibility of the department officials is to carry out regular inspections of fair price shops to ensure that stocks of foodgrains under the Targeted Public Distribution System, as issued from the Corporation godowns, are not replaced or tampered during storage, transit or at any stage till delivery to the ration cardholder.‖

10. The NIB states, in paragraph 1.[2] – under the heading ―Overview of Mukhya Mantri Ghar-Ghar Ration Yojna‖, that over the years, post implementation of TPDS scheme in Delhi, feedback has been received from citizens through various channels regarding the enumerated deficiencies in the existing TPDS system. The deficiencies pointed out were the following: ― a) Non-issuance of commodity to the end user beneficiary. b) Non-issuance of commodity as per the entitlement. c) Commodity supplied by Delhi State Civil Supplies Corporation is replaced with substandard/expired commodity. d) Beneficiaries are misled by FPS. e) FPS have been found to be closed during official operating hours. ‖

11. The NIB further notes that with the aim to reform the TPDS, and to ensure that the targeted beneficiaries receive their monthly ration in a transparent manner with maximum ease, the GNCTD had planned to launch a new scheme, namely MMGGRY with the aim to make quality ration available at the door step of the beneficiary in a packaged form to ensure that the right quality and right quantity is received by the beneficiary.

12. It further states that the MMGGRY involves distribution of wheat flour (Atta) instead of wheat, which is being distributed as a part of the existing NFSA Scheme. Further, rice could be distributed to the beneficiaries in packaged form after removing foreign objects/ impurities.

13. The aforesaid scheme of the GNCTD envisaged that the Miller would lift NFSA wheat and Rice from the FCI Depots, where after wheat would be processed into wheat flour (Atta) to be made available for distribution in packaged form. Rice would be cleaned, and packed prior to distribution to the end beneficiaries. Post processing of wheat flour (Atta) and rice, the Miller would lift and deliver the same – packaged in a master bag to the FPS shops of Direct to Home Delivery (DHD) agency – to be empanelled by the Delhi Consumer‘s Co-operative Wholesale Store Ltd. (DCCWS) Respondent No. 3, as per agreed schedule between the Miller and DHD agency within stipulated time frame and subject to directions issued by DSCSC/ DCCWS/ Department of F&S, GNCTD. The packaged wheat flour (Atta) and rice will then be delivered at the door step (direct to home) of the beneficiary by a DHD agency appointed by the department. The beneficiary will be informed in advance, for convenience, and the distribution will take place after successful biometric authentication of the beneficiary.

14. Clause 2 of the NIB sets out the scope of work for the bidder which, inter alia, envisaged the rendering of service as a door step delivery agency for wheat flour (Chakki Atta), Rice and Sugar to be distributed at the door step of the NFSA beneficiaries in Delhi under the MMGGRY Scheme. Clause 2.[3] of the NIB/ RFP states that the bidder shall be responsible for the identification and setting up of fair price shop(s) with larger storage facility for DCCWS under MMGGRY Scheme at the district or group level for interim storage of commodity, prior to the distribution of the same at the door step of the beneficiary. The bidders must open adequate number of such fair price shops with large storage facility considering the number of households to be catered, and the quantity of commodity to be distributed in the group allotted to the bidder. The bidder shall identify the FPS location and inform the same to DCCWS.

DCCWS would then obtain the necessary licenses against each identified premises from the Department of Food and Civil Supplies, GNCTD. Clause 2.[6] states that the bidders must ensure that the delivery of packaged commodity lifted from the FPS shop at district/ group level takes place at the door step of MMGGRY beneficiary in a timely manner in accordance with the delivery schedule.

15. The aforesaid RFP/ NIB was followed by two more RFP/ NIB‘s both dated 19.01.2021 issued by the DSCSCL – respondent No. 2 in W.P.(C.) No. 2037/ 2021. The first of these two NIB‘s bearing reference No.: Bid I.D. No.2021_DSCSC_198916_1, was issued for the purpose of inviting electronic bids/ proposals for the empanelment of qualified Flour/ Chakki Miller located in Delhi to dedicatedly work for DSCSC and carry out the following activities: ―

1. Transportation of NFSA Wheat packed in bags of different sizes on principal to principal basis from FCI Godowns located in National Capital Territory of Delhi to the place of dedicated milling unit.

2. Processing of Wheat into Wheat Flour (Atta) at dedicated milling unit.

3. Packaging of Wheat Flour (Atta) in different size at dedicated milling unit as per the requirement of DSCSC and

4. Delivery of Wheat Flour (Atta) packet from the dedicated milling unit to the designated FPS shop as per the delivery scheduled agreed between the Bidder and the doorstep delivery agency.‖

16. Clause 2.0 of this RFP/ NIB sets out the scope of work for the bidder, and the same, inter alia, states that ―DSCSC is looking forward to empanelling Flour/Chakki Atta who will work dedicatedly for DSCSC and will be responsible for lifting, transportation, milling, packing of Wheat Flour (Atta) (WFA) and delivering the packaged commodity at the designated FPS shop…‖

17. Thus, it would be seen that the aforesaid RFP/ NIB dated 19.01.2021 was issued in relation to the processing of NFSA wheat into wheat flour (Atta) for distribution under the MMGGRY Scheme of GNCTD. On the same day, the DSCSC – respondent No.2 issued another RFP/ NIB vide tender reference No.: BID I.D. No. 2021_DSCSC_198921_1 for the purpose of empanelment of agency for transportation, cleaning, processing, packaging and delivery of packaged Rice for distribution under MMGGRY Scheme of GNCTD.

18. The purpose of this RFP/ NIB was to empanel qualified bidders for doing dedicated work for the DSCSC, and to carry out the following activities: ―

1. Transportation of NSFA Rice packed in bags of different sizes on principal to principal basis from FCI Godowns located in National Capital Territory of Delhi to the place of dedicated Rice processing (cleaning and packaging) unit.

2. Cleaning of Rice to ensure it does not contain any impurities or foreign substance.

3. Packaging of Rice in different sizes at dedicated unit as per the requirement of DSCSC.

4. Delivery to packaged Rice from the dedicated Rice processing unit to the Designated FPS as per the delivery scheduled agreed between the Bidder and the doorstep delivery agency storage location.‖

19. The scope of work contained in Clause 2 of this RFP/ NIB, inter alia, states that ―DSCSC is looking forward to empanelling Bidders who will work dedicatedly for DSCSC and will be responsible for lifting, transportation, cleaning, packing of Rice and delivering the packaged Rice at the designated FPS shops‖

20. Thus, the aforesaid RFP related to transportation, processing, packaging and delivery of packaged Rice for distribution under the MMGGRY Scheme. The terms and conditions of the aforesaid two RFP/ NIB dated 19.01.2021 are, otherwise, more or less similar, except that while the first deals with the aspect of lifting, transportation, processing and distribution to the fair price shops of NFS Wheat (Atta) up to the fair price shops, the second deals with the lifting, transportation, cleaning, packaging and delivery of rice at the designated FPS.

21. The petitioners sought information on 22.12.2020 in relation to the MMGGRY from the GNCTD. The petitioners, inter alia, sought a copy of the said Scheme, and raised various issues in relation to the sanction/ approval of the scheme by the Cabinet of Ministers of the GNCTD; the Legislative Assembly of Delhi; the Lieutenant Governor of the GNCTD, and raised other related queries. On 01.01.2021, the GNCTD responded in the affirmative to the query whether the Government of NCT of Delhi is operating a scheme called MMGGRY. In relation to all the other queries, the answer given was that ―since door step delivery of ration scheme is being implemented consequent to Cabinet Decisions informations can‘t be provided in terms of Section 8(i) of Right to Information Act, 2005.‖

22. The MMGGRY Scheme was notified by the Department of Food Supplies and Consumer Affairs of the GNCTD on 20.02.2021. The framework of door step delivery of ration under the notified scheme is stated as follows in the aforesaid notification:

3. Framework for Doorstep Delivery of Ration As per new scheme i.e. Mukhya Mantri Ghar Ghar Yojna, food grains will be lifted from FCI godown by the Millers empanelled by DSCSC through tendering process and transported to the milling units, where Wheat will be converted into Wheat Flour (Chakki) Atta (WFA) and packed in packets of different weights as per requirement. Similarly, Rice will be lifted from FCI godown to Rice Processing Units where it will be cleaned and packed in packets of different weights as per requirement. These packed items will be delivered to designated FPSs by the Millers which will be further delivered to the doorstep of beneficiaries. Distribution of packaged items (Wheat Flour Atta & Rice) will be done only after successful biometric authentication using e-PoS devices. The cost of subsidized food grains and a specified amount as milling/conversion charges will be collected from the beneficiaries. The scheme will be optional, and an option shall be taken from the beneficiaries of existing TPDS scheme in Delhi, as to whether they want to enrol under MMGGRY or continue under existing TPDS. Those who are not opting for MMGGRY shall continue to get their ration as per existing mechanism and price. Beneficiaries will be able to exercise option in the beginning of every financial year. Implementation of the MMGGRY scheme will be done into two stages. i. Stage-1: Delhi State Civil Supplies Corporation Ltd. (DSCSC) has been engaged as the implementation and monitoring agency for Stage-1 and is entrusted with the empanelment of millers/processing unit, who shall carry out the lifting of foodgrains (Wheat and Rice) from FCI godowns, transporting to their dedicated milling units, where it would be Milled/processed, packed and then transported to the designated Fair Price Shops for doorstep delivery of ration to the end beneficiaries. The DSCSC Ltd. will empanel Millers who shall setup and operate milling and processing units for MMGGRY Scheme. These Millers will be responsible for lifting and transportation of commodities (Wheat and Rice) from FCI godown to these dedicated milling and processing units. The Millers/Processing Units shall store, clean and grind the wheat using only the stone (chakki) mills to make Wheat Flour (Atta). Similarly, the Rice shall be cleaned of all impurities like straws, jute bag thread, dust etc. The Wheat Flour (Atta) and clean Rice shall be packed using standard quality of packaging material and shall have the name of mill, batch no., date of manufacturing, expiry (best before) date, and all mandatory information on each packet. These packed Commodities shall be then delivered at the Fair Price Shops of DCCWS for further distribution to the doorstep of the end beneficiaries. ii. Stage-2: Delhi Consumer’s Co-operative Wholesale Store Ltd. (DCCWS) has been engaged with the responsibility of setting up of Fair Price Shops across various districts of Delhi. Further, it shall empanel Direct to Home Delivery (DHD) agencies for delivering the packaged commodities to the doorstep of the end beneficiaries from DCCWS associated Fair Price Shops. The DCCWS shall empanel Direct to Home Delivery Agencies who shall be responsible for lifting the packed rations from Fair Price Shops and deliver the same to doorstep of beneficiaries. The DHD Agency shall notify the beneficiary in advance through SMS. The packed ration shall be handed over to the beneficiary only after his/her successful biometric authentication using the e-PoS device. An e-PoD (Proof of Delivery) shall be captured for records. The ration card holders may draw their full entitlements of food grains (packed rations) in more than on instalment. There will be provision of a grievance management system to enable the beneficiaries of MMGGRY to raise their grievances related to the scheme. A call centre for beneficiaries is also envisaged under the scheme. The DHD Agency shall also carry out beneficiary reach out programmes from time to time and provide various scheme related information to the beneficiaries. To ensure transparency and to prevent leakage/diversion/substitution/theft etc., the scheme shall be monitored closely by the Department. The entire operation from lifting of food grains form FCI, milling, packaging all the delivery of packaged commodities to the beneficiary shall be carried out under CCTV monitoring, and the transportation of commodities shall be done in GPS fitted vehicles. This issues with the prior approval of Hon‘ble Minister (Food, Supplies & Consumer Affairs) based on Cabinet Decision No. 2561 dated 06.03.2018, Cabinet Decision No. 2857 dated 21.07.2020 and Cabinet Decision NO. 2878 dated 09.10.2020.‖ (emphasis supplied)

23. In the aforesaid background, W.P.(C.) No. 2037/ 2021 came to be filed before this Court.

24. Correspondence ensued between the GNCTD and the Central Government, and also between Chief Minister and the Lieutenant Governor – in the form of file notings, of which we shall take notice a little later. The same resulted in the decision dated 24.03.2021 No. 2987, of the Council of Ministers, which reads as follows: NOTE FOR COUNCIL OF MINISTERS "GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DEPARTMENT OF FOOD, SUPPLIES & CONSUMER AFFAIRS - BLOCK, VIKAS BHAWAN, I.P. ESTATE, NEW DELHI - 110002 MINSTER-IN-CHARGE: Shri Imran Hussain SECRETARY-IN-CHARGE: Shri Ankur Garg NOTE FOR COUNCIL OF MINISTERS

1. The Council of Ministers, GNCTD vide Cabinet Decision No.2561 dated 06/03/2018 (Annexure-I), approved the scheme of delivery of ration (Wheat Flour (Atta), Rice and Sugar as per entitlement) at the doorstep of the end beneficiaries under Targeted Public Distribution System.

2. The Council of Ministers, GNCTD vide Cabinet Decision No. 2857 dated 21/07/2020 (Annexure-II) approved certain modifications in the scheme as detailed at para 12 to 20 in the scheme of Home Delivery of Ration under TPDS approved vide Cabinet Decision No. 2561 dated 06/03/2018 and also decided to name the scheme 'Mukhya Mantri Ghar Ghar Ration Yojna'.

3. Accordingly, the "Scheme Document" of Door Step Delivery of Ration (Wheat Flour, Rice and Sugar) under Targeted Public Distribution System under "'Mukhya Mantri Ghar Ghar Ration Yojna" was notified vide notification dated 20/02/2021 (Annexure-III).

4. Deptt. of Food & Public Distribution, M/o Consumer Affairs, Food & Public Distribution, GoI vide letter No.D.O.No.24(Delhi)/2021-PD.II(E.374438) dated 19/3/2021 (Annexure-IV) clarified that the subsidized food grains being allocated by M/o Consumer Affairs, Food & Public Distribution, GoI for distribution under the National Food Security Act (NFSA) cannot be used for the operationalization of any State specific/ other scheme under a different name/ nomenclature/ scheme other than NFSA, as the same is not permissible under the Act. Further, any changes/ amendments in the provisions of the Act including nomenclature/ schemes used for distribution of NFSA food grain can only be done through the Parliamentary procedures.

5. Further, highlighted thatwhile States may like to enhance the distribution of subsidized food grains, including additional entitlements, more subsidy, etc. the nomenclature/ scheme from NFSA to any local state scheme name may be misinterpreted by the beneficiaries as State benefit and may give rise to confusion regarding their rights under the Act.

6. Gazette Notification with the nomenclature/ scheme "MMGGRY" has already been issued vide No. F.2(172)/F&S/IT/2017-18/Vol./185-215 dated 20/02/2021.

7. The matter has been examined in the light of communication received from Deptt. of Food & Public Distribution, M/o Consumer Affairs, Food & Public Distribution, GoI vide letter No.D.O.No.24(Delhi)/2021- PD.II(E.374438) dated 19/3/2021 and the following is accordingly proposed:-

(i) The scheme "'Mukhya Mantri Ghar Ghar Ration

(ii) Implementation process of door step delivery of processed and packaged Wheat Flour Atta, Rice and Sugar shall be continued in accordance with the provisions of NFS Act 2013 and TPDS.

(iii) All activities undertaken by the Deptt. including the tendering process for empanelment of agencies for implementation of the Door Step Delivery of processed and Packaged ration of NFSA will remain valid and shall continue.

8. In view of above, the proposal at para-7 above is submitted for kind consideration of Council of Ministers. (IMRAN HUSSAIN) Minister of Food, Civil Supplies & Consumer Affairs"

CABINET DECISION "GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI GENERAL ADMINISTRATION DEPARTMENT (CO-ORDINATION BRANCH) DELHI SECRETARIAT, I.P. ESTATE, NEW DELHI No.F:03/10/GAD/CN/2021/dsgadiii/1683-9 Dated:24/03/2021 TABLED ITEM CABINET DECISION NO. 2987 DATED 24.03.2021 Subject: Door Step Delivery of Ration Decision: The Council of Ministers considered the Cabinet Note of Minister (F, CS & CA) and approved the proposal contained in para-7 (i),(ii) and (iii) of the Cabinet Note. --Sd-- (Vijay Kumar Dev) Secretary to the Cabinet"

SUBMISSIONS ON BEHALF OF THE PETITIONERS:

25. The submission of Mr. Shrivastav, learned counsel for the petitioners is that the impugned Scheme, and the three tenders floated by the GNCTD even prior to the promulgation of the scheme, seek to destroy the statutory framework created for distribution of food articles under the TPDS to the beneficiaries, by by-passing the existing FPS, and substituting them with other third parties who may succeed in the tendering process initiated by the respondents, as aforesaid.

26. Mr. Shrivastav submits that the existing fair price shop owners have been granted licenses under Section 3 of the ECA. He submits that under Section 3 of the ECA, from time to time, orders have been issued for the purpose of continuation of the licenses of the existing fair price shops. He has drawn our attention to the statutory scheme. He submits that fair price shops have always been the point of distribution of foodgrains under the PDS to the beneficiaries, and that position has not changed despite introduction of different schemes, from time to time. Under the Delhi Specified Food Articles (Regulation of Distribution) Order, 1968, (Order 1968), clause 2(7) defines a Fair Price Shop Holder to mean a retail dealer authorized under Clause 3 in respect of any specified food article. Under Clause 3, the administrator (or any authorized officer) could authorize any person or body of persons to be, inter alia, a Fair Price Shop Holder in respect of specified food articles. The authorized Fair Price Shop Holder could obtain and supply specified food articles in accordance with the provisions of the order. Even when the Delhi Specified Articles (Regulation of Distribution) Order, 1981, (Order 1981), was issued by the Administrator of the UT of Delhi on 12.01.1981, it continued with the institution of Fair Price Shops by defining in Clause 2(9) a ―Fair Price Shop Holder‖ to mean a retail dealer authorized under Clause 3 in respect of any specified article. The existing Fair Price Shop Holders under the previous order were continued, unless their appointment/ authorization was rescinded. Clause 3(1) enabled the Administrator, or (an authorized officer), to authorize a Fair Price Shop Holder to deal in specified articles i.e. to obtain and supply specified articles in accordance with the provisions of the said Order. Even when the Public Distribution System Order 2001, (PDS Order 2001), was issued by the Central Government under Section 3 of the ECA, the institution of fair price shop was continued. The Public Distribution System, under the PDS Order 2001, was defined to mean the system for distribution of essential commodities to the ration card holders through Fair Price Shops such as rice, wheat, sugar, edible oils, kerosene and such other commodities, as are notified by the Central Government under Clause (a) of Section 2 of the ECA. Clause 6 of this Order, which dealt with the aspect of distribution of foodgrains, inter alia, charged the Fair Price Shop owners with the responsibility of taking delivery of food stocks from authorized nominees of the State Governments to ensure that essential commodities are available at the Fair Price Shops within one week of the month for which the allotment is made. The District authority entrusted with the responsibility of implementation of Public Distribution System was charged with the responsibility to ensure that the stocks provided to the Fair Price Shops are physically delivered to them by the authorized nominee. Even when the NFSA was enacted in 2013, the institution of Fair Price Shops was continued. Section 2(4) of the NFSA defined ―Fair Price Shop‘ to mean a shop which has been licensed to distribute essential commodities by an order issued under Section 3 of the ECA to the ration card holders under the TPDS. The ration card, itself, was defined as a document issued for the purchase of essential commodities from the FPS under the TPDS. The TPDS was defined to mean a system for distribution of essential commodities to the ration card holders through FPS. Thus, it is argued that the FPS has remained the nodal point for distribution of foodgrains etc. to the beneficiaries under the statutory schemes which have prevailed from time to time.

27. The submission of Mr. Shrivastav is that Section 12 of the NFSA speaks about the reforms that the Central and State Governments shall endeavour to progressively undertake in the implementation of the TPDS System. He submits that the reforms, inter alia, include ―door step delivery of foodgrains‖ to the TPDS outlets i.e. Fair Price Shops. He submits that the NFSA nowhere contemplates the doing away with the existing Fair Price Shop structure, and replacing the same with a wholly new set of Fair Price Shops as envisaged under the RFP/ NIB dated 06.01.2021 and the impugned Scheme.

28. Even Section 22 of the NFSA obliges the Central Government to, inter alia, provide assistance to State Governments in meeting the expenditure incurred by it towards intra-state movement, handling of foodgrains and margins paid to fair price shop dealers.

29. Mr. Shrivastav submits that, particularly, the RFP/ NIB dated 06.01.2021 seeks to put the existing Fair Price Shop dealers out of business by diverting foodgrains allocated by the Central Government under the NFSA, so as to implement the impugned Scheme, for which purpose the GNCTD proposes to issue Fair Price Shop licenses to the successful bidders who would perform the obligations in terms of the requirements of the RFP/ NIB dated 06.01.2021. Mr. Shrivastav submits that this action of the GNCTD is in the teeth of the obligation cast on GNCTD by Section 24 of the NFSA. Section 24 charges the State Governments with the responsibility for implementation of monitoring of schemes of various Ministries and Departments of the Central Government in accordance with the guidelines issued by the Central Government for each scheme, for ensuring food security to the targeted beneficiaries in the NCT of Delhi. Section 24(2) specifically charges the GNCTD with the responsibility under the TPDS, to deliver the foodgrains from the designated depots of the Central Government in the NCT of Delhi, ―at the door step of each Fair Price Shop‖

30. He submits that the GNCTD is also obliged to ensure actual delivery or supply of foodgrains to the entitled persons at specified prices. However, for that purpose, it is the obligation of the GNCTD to follow the statutory scheme laid down in the NFSA and in the TPDS Order, 2015.

31. Mr. Shrivastav submits that though the GNCTD is entitled to formulate other food based welfare schemes, and to evolve schemes for providing benefits higher than those provided under the NFSA and the TPDS Order, 2015, from its own resources, in the garb of so doing, the GNCTD cannot destroy the existing structure of Fair Price Shops and put them out of business.

32. Mr. Shrivastav points out that the Central Government has framed the Food Security Allowance Rules, 2015 (Allowance Rules, 2015), under Section 39(2)(c) read with Section 8 of the NFSA. Under these Rules, Food Security Allowance is payable to the beneficiaries to whom foodgrains are not supplied. However, Rule 9 states that Food Security Allowance shall not be payable to an entitled person who does not visit Fair Price Shop to claim his entitlement during the month. Thus, under the Scheme of the NFSA and the Rules framed thereunder, the Fair Price Shops are envisaged as the last point – in the TPDS, wherefrom foodgrains are required to be collected by the targeted beneficiaries. Similarly, the Food Security (Assistance to State Governments) Rules, 2015 (Assistance to State Governments Rules, 2015), framed by the Central Government envisages intra-state movement as movement of foodgrains within a State from a designated depot to the door step of the Fair Price Shops. In this regard, he has also drawn the attention of the Court to Rules 3 and 5 of the said Rules.

33. Even under the Targeted Public Distribution System (Control) Order, 2015, (TPDS, Order 2015), Clause 7(11) obliges the State Government to devise suitable mechanism for transportation of foodgrains from the FCI godowns, inter alia, to the door-step of Fair Price Shops. Mr. Shrivastav submits that Clause 8 of the TPDS, Order 2015 mandates that the allocation of the foodgrains made to the State Government shall be used for distribution as per the provisions of the NFSA, and not for any other purpose. Clause 8(3) mandates the State Government to ensure that physical delivery of foodgrains takes place to the Fair Price Shops in a time bound manner. Under Clause 8(4), the State Government is obliged to obtain a monthly certificate confirming delivery of allocated foodgrains to the fair price shops. He further submits that under Clause 10 of the TPDS Order, 2015, it is the responsibility of the Fair Price Shop owners to disburse foodgrains to the ration card holders as per their entitlement under the TPDS. Thus, Mr. Shrivastav submits that, particularly, by notifying the RFP/ NIB dated 06.01.2021, the respondent GNCTD is seeking to completely destroy the existing structure for distribution of foodgrains under the NFSA and TPDS, by inviting other agencies to take over the task of distribution of foodgrains to the TPDS beneficiaries. This is being done under the garb of empanelling agencies who would supply the foodgrains at the door step of the beneficiaries after the same is processed, such that wheat is converted into Atta, and rice is cleaned and both are packed in packages. He further submits that under the impugned Scheme, the GNCTD has purportedly given an option to the TPDS beneficiaries as to whether they would like to be covered by the said Scheme, or whether they would like to continue to avail of the benefits of the TPDS through the existing system of retail Fair Price Shops.

34. Mr. Shrivastav submits that the financial viability of the Fair Price Shops has to be ensured, and the introduction of the impugned Scheme, and appointment of contractors in response to the RFP/ NIB issued by the respondent GNCTD, would take away a substantial number of ration card holders who are registered with the existing Fair Price Shops, thereby resulting in reduction of the turnover of the existing Fair Price Shops, and making the Fair Price Shops financially unviable.

35. In support of this submission, Mr. Shrivastav, firstly, relies on Rule 8 of the Assistance to State Governments Rules, 2015, which obliges the State Government to ensure payment of Fair Price Shop margins in advance. It also provides that if the price of foodgrains payable by Fair Price Shop dealers in any State or Union Territory, is lower than the Fair Price Shop dealer‘s margin, the State Government shall ensure upfront payment of margin, in full, to fair price shop dealers. Even under the TPDS Order, 2015, the viability of Fair Price Shops has been statutorily mandated. Rule 9(5) stipulates that license of Fair Price Shop owners shall be issued, keeping in view the viability of the Fair Price Shops. He submits that this only means that not only the Fair Price Shop to which the license may be issued should be financially viable, but also that the existing Fair Price Shops who continue to remain financially viable. The issuance of any fresh license to a Fair Price Shop owner cannot be at the cost of financial viability of the existing Fair Price Shops. Rule 9(6) obliges the State Government to ensure that the number of ration card holders attached to a Fair Price Shop is reasonable. Rule 9(7) obliges the State Government to 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 and to improve the viability of the Fair Price Shop operations. Rule 9(9) mandates that the State Government shall allow the sale of commodities, other than foodgrains distributed under the TPDS system, at the Fair Price Shops. Thus, the financial viability of the existing Fair Price Shops is bound to be protected by the State Government. However, the proposed issuance of Fair Price Shop licenses to the successful bidders under the tenders in question, coupled with the taking over of the operations of the existing Fair Price Shops for the purpose of attainment of door step delivery of foodgrains at the door step of beneficiaries, would completely destroy the financial viability of the existing Fair Price Shops. Mr. Shrivastav submits that the impugned Scheme and the tenders in question, are in the teeth of the NFSA and the TPDS Order, 2015. He has also relied upon the Justice Wadhwa Committee Report (the said Committee was constituted under the directions of the Supreme Court in W.P.(C.) No. 196/ 2001 to look into the maladies affecting the proper functioning of the Public Distribution System and to suggest remedial measures). One of the specific points of reference made by the Supreme Court was ―the ideal commission or the rates payable to the dealers‖, wherein the Committee, in depth, examined the question of viability of Fair Price Shops. It also took note of the existing guidelines of the Food Department, requiring 1000 food cards to be attached to a Fair Price Shop unit.

36. Mr. Shrivastav submits that the issue with regard to distribution of wheat flour (atta) to ration card holders through TPDS under the NFSA was addressed by the Central Government on 03.11.2014, wherein the Government issued a direction to the State Government that they ―may distribute wheat flour (Atta) through the network of Fair Price Shops to the eligible TPDS beneficiaries under the NFSA, 2013, subject to certain conditions.‖

37. Therefore, Mr. Shrivastav submits that there is nothing novel about the conversion of wheat into Atta, and about its distribution to the TPDS beneficiaries. Similarly, he submits that even in respect of door step delivery of foodgrains to eligible beneficiaries under the TPDS, the issue was addressed by the Central Government, as early as on 01.02.2018. The Central Government, by this communication, addressed to all the States and Union Territories, inter alia, directed as follows: ―

3. The matter of distribution of entitled quantity of foodgrains to such beneficiaries has been under the consideration of Government of India. After careful examination of the matter, it is proposed to put in place the following special dispensation of such beneficiaries: a) NFSA beneficiary(ies), who are above sixty five years of age, or who are differently abled, and have no other adult family member (16 to 65) listed in the Ration Card, and are not in a position to visit the Fair Price Shop themselves, would be eligible to be covered under the special dispensation. b) State/UT Government may consider adopting any of the two approaches mentioned below to ensure regular supply of foodgrains to beneficiaries under such special dispensation: i. Home delivery of the entitled quota of foodgrains: State may devise the procedure for supply of foodgrains at the doorstep of such beneficiaries without adding any additional cost to the beneficiaries. A few states like Odisha have adopted this mode for distribution of foodgrains. ii. Delivery through authorized nominees of such beneficiaries: Such beneficiaries should apply for special dispensation to the authority issuing ration cards along with details and Aadhaar number of their nominee for receiving the entitled foodgrains on their behalf. Such nominee must fulfil following conditions:  The nominee must be a NFSA beneficiary tagged to the same FPS.  Foodgrains should be issued to the nominee only after proper authentication/identification as in case of any other NFSA beneficiary.  FPS dealer or his/her family members cannot be authorized as a nominee. iii. After approval, the nominee may be added in the ration card of such beneficiary and would be entitled to receive the ration of such beneficiary on his/her behalf. iv. Vigilance Committee(s) may also be advised to identify and recommend such beneficiaries to be covered under special dispensation to the concerned District Supply Officer.‖ (emphasis supplied)

38. The submission of Mr. Shrivastav is that the Fair Price Shop owners are themselves poor and marginalized sections of the society, and the object of appointing them as Fair Price Shop licensee is to provide gainful employment to them. In this regard, he has placed reliance on the memorandum issued by the NCT of Delhi laying down the policy for allotment of PDS outlets. It stipulates that: a) 10% of the PDS outlets shall be reserved for women candidates, whose spouse is not gainfully employed. Preference may be given to young widows; b) 10% of the PDS outlets shall be reserved for ex-servicemen and war-widows with preference to warwidows; c) 10% reservation will be kept for women out of SC quota (which is 25% of overall vacancies), and d) The remaining preferential categories of physical handicapped persons, cooperative societies and employed graduates. He submits that the impugned RFP/ NIB dated 06.01.2021 goes contrary to the aforesaid governmental decision. He submits that under the RFP/ NIB dated 06.01.2021, there is no preference/ reservation provided for any of the aforesaid categories. Clause 3.[3] talks about formation of consortium by bidders of a maximum of 2 bidders. The bidder, and each member of consortium, is not allowed to participate in more than one bid. He submits that the bidders are required to furnish, as part of their bid, an earnest money deposit (EMD) of Rs.88 lakhs by means of a bank guarantee valid for 180 days. He, thus, submits that the endeavour of the GNCTD is to highjack the system of procurement and distribution of foodgrains under the TPDS, and to place it in the hands of people with deep pockets.

39. Mr. Shrivastav submits that the Central Government has not only not approved of the impugned Scheme formulated by the Council of Ministers, but has expressly disapproved of the same. In this regard, he has drawn our attention to the communication dated 19.03.2021 of the Central Government, issued with reference to the notification issued by the GNCTD dated 20.02.2021 for implementation of the MMGGRY – door step delivery of ration scheme under the TPDS. The Central Government informed the GNCTD that the subsidized foodgrains being allocated by the Central Government for distribution under the NFSA cannot be used for the operationalisation of any State specific/ other scheme under a different name/ nomenclature, other than NFSA, as the same is not permissible under the NFSA. Further any change/ amendments in the provisions of the Act, including nomenclatures used for distribution of NFSA foodgrains can only be done through the Parliamentary procedure. The Central Government stated that it will have no objection if a separate scheme is made by the State Government, without mixing the elements of NFSA foodgrains. The GNCTD was called upon to follow the norms and provisions of the NFSA in the rightful spirit and manner for the distribution of NFSA foodgrains to the eligible beneficiaries under the Act.

40. Mr. Shrivastav has also drawn our attention to the communication issued on 17.06.2021, whereby the Central Government communicated to the GNCTD the non-compliance of some of the provisions of the NFSA by the GNCTD. The communication specifically referred to non-compliance of Section 12; non-compliance of Section 28; non-compliance of Section 29 and non-compliance of Section 38 of the NFSA. It also gave a direction under Section 38 of the NFSA to the GNCTD to take steps to fulfill the pending obligations under Section 12 of the Act immediately, to enable the transparent distribution of foodgrains (through ePoS) under both – NFSA and PM-GKY, to all NFSA beneficiaries in Delhi, including migrants through One Nation One Ration Card (ONORC).

41. Mr. Shrivastav submits that on 22.06.2021, the Central Government, once again, pointed out concerns and shortcomings in the door step/ home delivery of ration (wheat flour, rice and sugar) under TPDS Scheme of the GNCTD. On 08.10.2021, the Central Government again directed the GNCTD to follow the norms and provisions of the NFSA, 2013 in rightful spirit and manner, while distributing foodgrains to the eligible NFSA beneficiaries under the TPDS. At the same time, it stated that ―This Department will have no objection if a separate scheme is made by the State Government without mixing the elements of the NFSA foodgrains. It is therefore informed that all the statutory provisions of NFSA, 2013 are mandatory, and operation of TPDS as mandated shall be conducted in the manner prescribed under the NFSA, in order to ensure transparent and rightful targeting. The alleged proposal under consideration with Delhi Government for HOME DELIVERY does not fulfil the norms of NFSA and therefore, is not permissible in its current form by Government of India.

42. Mr. Shrivastav submits that in relation to a Union Territory ―State Government‖ is defined in Section 2(d) of the ECA, to mean the Administrator thereof. Mr. Shrivastav submits that the Council of Ministers headed by the Chief Minister, is bound to place all matters before the Lieutenant Governor. He submits that the impugned Scheme has been disagreed with by the Lieutenant Governor. The only course open to the GNCTD was to have the disagreement resolved by the President. In the face of the disagreement expressed by the Lieutenant Governor, the Council of Ministers – headed by the Chief Minister, could not have proceeded to pursue their impugned scheme and tenders. In this regard, he has drawn our attention to Articles 239 and 239AA – particularly Sub Article (4) thereof, and to the provisions of the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act) – in particular Sections 41-45 contained in Part IV thereof.

43. Mr. Shrivastav submits that a perusal of the impugned Scheme – notified by the GNCTD on 20.02.2021 at the end states ―This issues with the prior approval of Hon‘ble Minister (Food, Supplies & Consumer Affairs) based on Cabinet Decision No. 2561 dated 06.03.2018, Cabinet Decision No. 2857 dated 21.07.2020 and Cabinet Decision No. 2878 dated 09.10.2020.‖ The approval of the Lieutenant Governor – in whose name official acts have to be undertaken, is conspicuous by its absence. This is because the Lieutenant Governor did not agree with the Cabinet decision framing the impugned Scheme.

44. Mr. Shrivastav submits that the GNCTD has acted deliberately, in violation of Article 239AA(4) of the Constitution of India. The MMGGRY Scheme was notified, despite difference of opinion with the Lieutenant Governor and without the reference being made to the President of India. In this regard, he has drawn our attention to the file noting in the relevant file at Page 2/N at

┌─────────────────────────────────────────────────────────────────────────────────────┐
│ Sl. No.    Name of       Type of       Nos. of districts      Total numbers of      │
│            Agency        Agency*       covered under          FPSs covered by the   │
│                                        doorstep delivery by   Agency under          │
│                                        the Agencies           doorstep delivery     │
└─────────────────────────────────────────────────────────────────────────────────────┘

1.[2] of the NIB bearing reference No. Bid I.D. NO. 2021_DSCSC_198916_1.

159. In the said NIB, the GNCTD states in paragraph 1.[2] that over the years, post implementation of TPDS Scheme in Delhi, feedback has been received from citizens regarding deficiencies in the existing TPDS system, which are the following:- (a) ―Non-issuance of commodity to the end user beneficiary. (b) Non-issuance of commodity as per the entitlement.

(c) Commodity supplied by Delhi State Civil Supplies

(d) Beneficiaries are misled by FPS.

160. The NIB further states that with the aim to reform the TPDS, the GNCTD has planned to launch the new scheme, namely, MMGGRY. (As we have already noticed, the nomenclature of the impugned Scheme has been changed by substituting it with another similar Scheme on 24.03.2021.)

161. During the course of arguments, neither Dr. Singhvi, nor Mr. Mehra has drawn our attention to any material or data to substantiate the aforesaid findings. At the same time, we may observe that though Dr. Singhvi and Mr. Mehra have not drawn our attention to the documents filed on behalf of the GNCTD, we have, on examination of the record, found the analysis report of the NIC Central Team in respect of OTP transactions undertaken in the month of March 2018 of various fair price shops in Delhi, as well as the file notings regarding the survey report, which led to suspension of the license of several FPS owners on account of black marketing of foodgrains by such identified FPS owners.

162. When there are above 2000 FPS owners spread across the NCT of Delhi, there are bound to be malpractices resorted to by some of them. In such individual cases, strict actions are called for and should be taken, and appear to have been taken, at least, in some of them. However, the issue is whether the GNCTD can paint all FPS owners with the same brush, unless there is germane and relevant material available and considered, and reach the general conclusion that all of them are indulging in corrupt practices and black marketing, and cite that as the reason for introduction of the impugned Scheme?

163. In our view, it was incumbent for the respondent GNCTD to collect and collate data – including in the form of substantiated and investigated complaints from the beneficiaries, to establish the generalized allegations of: a) ―Non-issuance of commodity to the end user beneficiary. b) Non-issuance of commodity as per the entitlement. c) Commodity supplied by Delhi State Civil Supplies d) Beneficiaries are misled by FPS. e) FPS have been found to be closed during official operating hours. ‖

164. However, none has been placed before us, and relied upon either by Dr. Singhvi or Mr. Mehra.

165. Thus, we find merit in the grievance of the petitioners that the actions of the respondent GNCTD were actuated by unfounded prejudice and bias.

166. We, however, make it clear that we are not here to give a clean chit to any, or all of the fair price shop owners with regard to their business dealings, and our aforesaid observations have been made in the context of the petitioners‘ grievance that the generalized allegations made by the GNCTD – as aforesaid, have not been substantiated, and, before us, the GNCTD has not placed materials, and has not drawn our attention to such materials which could lead to such generalized inferences establishing the aforesaid allegations against all the FPS owners.

167. At the same time, we may observe, that even if the exiting TPDS were to work flawlessly, that would not debar the GNCTD from introducing the door-to-door delivery foodgrains to the beneficiaries, as we have already discussed hereinabove. The GNCTD can do it out of its own resources, while adequately addressing the concerns with regard to financial viability of the existing FPS owners/ dealers.

168. At this stage, we may notice that on the one hand, the GNCTD has made the aforesaid allegations, while, on the other hand, it appears from the correspondences addressed by the Central Government to the GNCTD – that the GNCTD has not discharged its statutory obligations of maintaining vigilance over the functioning of the FPS System.

169. We have already noticed the correspondence undertaken by the Central Government, inter alia, on 17.06.2021, wherein the Central Government stated that the GNCTD was in non-compliance of inter alia Sections 28, 29 & 30 of the NFSA. Section 28 obliges every local authority, or any other authority or body authorized by the State Government to conduct or cause to be conducted, periodic social audits of the functioning of fair price shops, Targeted Public Distribution System and other welfare schemes, and cause to publicise its findings and take necessary action. Section 29 obliges the State Government to set up Vigilance Committee as specified in the PDS (Control) Order, 2001 for ensuring transparency and proper functioning of the Targeted Public Distributed System and accountability of the functionaries in such system. The Vigilance Committees have to be set up at the State, District, Block and fair price shop levels. We have already noticed hereinabove in paragraph 49, the responsibilities and functions to be discharged by the Vigilance Committees. In the aforesaid communication, the Central Government stated that the GNCTD had not set up the Vigilance Committees at the FPS level, which was stated to be ―the most important level for monitoring implementation of NFSA at the grass root level‖.

170. We have consciously taken note of the relevant provisions under the NFSA and the other subordinate legislations noted hereinabove, which deal with the obligations of the State Government to maintain vigilance and accountability, and also to deal with the grievances of the beneficiaries in the matter of distribution of foodgrains made available under the NFSA, through the TPDS. It appears that there is merit in the submission of Mr. Shrivastav, that rather than discharging its duties of maintaining vigilance in terms of the provisions of the NFSA and redressing grievances of the beneficiaries under the NFSA – which itself would make the current TPDS system piloted by the FPS owners more efficient and transparent, the respondent GNCTD has chosen to introduce the impugned scheme with a view to bypass the existing FPS network, and replace the same with another set of persons, who would be appointed as FPS owners, and who would have much deeper pockets.

171. At this stage, we may also take note of the observations made by the Lieutenant Governor in his notings dated 20.03.2018 (at page 29/N of the noting file), wherein he observed at paragraph 105 as follows:- ―105. In this context, I note that the Finance Department has ration materials and corruption may not be eliminated under the proposed scheme. The best option would be adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thus totally eliminating middlemen. The Finance Department has also noted that an expenditure of about Rs. 250 Crores per annum is likely to be incurred on the home delivery scheme, and if DBT is adopted, the beneficiaries can procure an additional 5 kg of Atta per family per month, with the money so saved. For the poor marginalized sections of society, this additional 5 kg of Atta per family per month would be a huge welfare measure resulting from adoption of DBT. Therefore, in my view, suggestion of Finance Department is worth considering.‖ (emphasis supplied)

172. This aspect, raised by the Lieutenant Governor. has not been addressed by Dr. Singhvi. It is not disclosed, how the impugned scheme would plug the loop holes, reduce pilferage and diversion of foodgrains/atta into the black market.

173. Dr. Singhvi, in support of the impugned scheme, has sought to place reliance on the door step delivery scheme introduced by the Government of Andhra Pradesh. He has also placed reliance on the decision of the Calcutta High Court dated 15.09.2021 in Mrityunjoy Garang (supra). In our view, these reliances are misplaced, for the reason, that both – in the State of Andhra Pradesh, and in the State of West Bengal, the schemes introduced by the State Governments envisaged the delivery of the ration articles by the FPS owners, and not through systems which bypass the existing FPS network – which is the precise issue we are confronted with.

174. The submission of Dr. Singhvi, premised upon P.P. Suresh (supra), appears to be misplaced. There can be no quarrel with the proposition that the Government has freedom to change its policy in public interest with passage of time, and overriding public interest would be a good reason to justify change in policy which overrides the claim of legitimate expectations of those affected by such change in policy. However, the same judgment also contains the Caveat, while observing, ―so long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of the legitimate expectations of an individual or a group of individuals being defeated‖.

175. In the present cases, we are concerned with the issue whether the impugned policy sought to be introduced by the GNCTD is arbitrary, unreasonable, or unconstitutional, or illegal. We have already found that the impugned Scheme is in breach of the statutory protection afforded to the existing Fair Price Shop owners/ licencees, and it is founded upon unsubstantiated generalized conclusion, that all Fair Price Shop owners/ licencees are indulging in malpractices taken note of hereinabove. The petitioners have not founded their claim in these petitions on the plea of legitimate expectations alone and, therefore, the decision in P.P. Suresh (supra) is of no avail to the respondent GNCTD. The decision in Laxminarayan Chopra (supra) is also of no avail, for the reason that we have come to the conclusion that it is open to the respondent GNCTD to introduce a scheme for door step delivery for ration to the beneficiaries under the TPDS. The question, however, is whether the manner in which the respondent GNCTD has sought to introduce the said door step delivery scheme of ration to beneficiaries stands the scrutiny of law. We have found that it does not. For the same reason, International Trading Co. (supra) is of no avail. For the same reason, we are of the view that the decisions relied upon by Dr. Singhvi in All Kerala Online Lottery Dealers Association (supra); Rajeev Suri (supra); BALCO Employees’ Union (Regd.) (supra) and; Punjab State (supra) are of no avail.

176. No doubt, judicial review in matters of policy decisions of the Government is confined to a narrow sphere – as urged by Dr. Singhvi. It is not for the Courts to either frame the policy for the Government, or to evaluate its efficacy, or question the wisdom of the Government in not coming out with one, or the other, policy. However, that does not preclude the Court from examining issues with regard to competence, legality and constitutionality of the policy, or of any part thereof, if a challenge is raised to the same before the Court. Reliance placed by Dr. Singhvi on several orders taken note of in paragraph 119 hereinabove, are also of no avail for the aforesaid reason.

177. We may now proceed to consider the issue whether the impugned Scheme is capable of being put into execution/ implementation, when the same has been objected to by the Lieutenant Governor, and the Central Government has not been required to examine the difference of opinion between the Council of Ministers – headed by the Chief Minister on the one hand, and the Lieutenant Governor on the another hand.

178. India, i.e. Bharat, is a Union of States. The States and the territories thereof are specified in the First Schedule to the Constitution. The territory of India comprises of the territories of the States; the Union Territories specified in the First Schedule; and such other territories as may be acquired (See Article 1 of the Constitution of India). The First Schedule to the Constitution enlists, inter alia, ―II. The Union Territories‖. Delhi is enlisted under the list of Union Territories. Thus, Delhi is a Union Territory. Part VIII of the Constitution of India deals with ―The Union Territories‖. It begins with Article 239. Article 239 of the Constitution of India deals with the aspect of administration of Union Territories, and states that every Union Territory shall be administered by the President acting to such extent as he thinks fit, through an Administrator to be appointed by him, with such designation as he may specify.

179. In relation to the Union Territory of Delhi, Article 239AA makes a special provision and states that – as from the date of commencement of the Constitution 69th (Amendment) Act, 1991 (the date of commencement being 01.02.1992), the Union Territory of Delhi shall be called the National Capital Territory of Delhi, and the Administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. The GNCTD of Delhi has a Legislative Assembly and seats in the Assembly are filled by the members chosen by direct election from territorial constituencies in the NCT of Delhi by virtue of Article 239AA(2).

180. While sub-Article (3)(a) of Article 239AA empowers the Legislative Assembly of the NCT of Delhi to make laws for the whole, or any part of the NCT in respect of matters enumerated in the State list or in the Concurrent List (Insofar as any such matter is applicable to Union Territories, except matters with respect to Entries 1, 2 and 18 of the State list and Entries 64, 65 & 66 of that list insofar as they relate to the said Entries 1, 2 & 18), Clause (b) of the same sub-Article states that ―nothing in subclause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union Territory or any part thereof ‖. Thus, it appears to us, that Clause (b) seeks to make it clear that the powers of the Parliament to make laws on any matter – even those enumerated in the State List is recognized, in respect of the Union Territory of the NCT of Delhi, or any part thereof, in the same way as the Parliament exercises the legislative power in respect of any other Union Territory. The effect of Clause (b) aforesaid is that though the Legislative Assembly of the NCT of Delhi may make laws in respect of matters taken note of hereinabove, there is no matter over which the powers of the Legislative Assembly are exclusive. The Parliament can make laws in respect of the Union Territory of the NCT of Delhi, or any part thereof, in respect of all matters.

181. Clause (c) of sub-Article (3) of Article 239AA, maintains the supremacy of Parliament over the Legislative Assembly of the NCT of Delhi, by providing that in case of repugnancy of any law made by the Legislative Assembly with the law made by Parliament on the same matter – whether passed before or after the law made by the Legislative Assembly, the law made by Parliament shall prevail, and the law made by the Legislative Assembly shall, to the extent of repugnancy, be void. We are not concerned with the two provisos to Clause (c) of sub-Article 3 of Article 239AA and we are, therefore, not taking note of them.

182. Before proceeding further, we may observe that while sub-Article (3) deals with the aspect of legislative competence, scope of authority of the Legislative Assembly to make laws, and the limitation on the legislative powers of the Legislative Assembly, sub-Article (4) of Article 239AA deals with the aspect of the executive power of the Council of Ministers headed by the Chief Minister – on whose aid and advice, the Lieutenant Governor functions, in relation to the matters with respect to which the Legislative Assembly has power to make laws.

183. Sub Article (4) of Article 239AA, inter alia, states that there shall be a Council of Ministers – with the Chief Minister at the head, to aid and advice the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion.

184. Article 73 and Article 162 lay down the extent of executive power of the Union, and the executive power of a State respectively. In their material part, they are similar inasmuch, as, they state that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws and, similarly, the executive power of a State shall extend to matters with respect to which the Legislature of the State has power to make laws. So far as the Concurrent List is concerned, i.e. matters with respect to which the Legislature of the State and Parliament both have power to make laws, the executive power of the State is subject to, and limited by the executive power expressly conferred by the Constitution, or by any law made by Parliament upon the Union, or authorities thereof. However, it appears that sub-Article (4) of Article 239AA seeks to tweak the aforesaid general norm qua the executive power of the Council of Ministers headed by the Chief Minister, when it comes to the Union Territory of Delhi, since the NCT of Delhi is not a State.

185. In this regard, we may take note of the proviso to Article 239AA(4), which is pertinent. It reads: ―Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.‖

186. Thus, even in respect of matters over which the Legislative Assembly has power to make laws for the NCT of Delhi, the executive powers of the Council of Ministers – headed by the Chief Minister, is not unfettered. In cases where differences arise between the Council of Ministers on the one hand, and the Lieutenant Governor on the another hand, the Executive Decision of the Council of Ministers is liable to be referred to the President for his decision. The Lieutenant Governor shall then act according to that decision of the President. Pending such decision, in case urgency requires the Lieutenant Governor to act, he may act, and give directions in the matter, as he deems necessary.

187. The Constitution Bench of the Supreme Court in State (NCT of Delhi) (supra) has extensively considered the aforesaid provisions in relation to the NCT of Delhi. We have extracted some of the conclusions drawn in the said decision hereinabove, which were relied upon by Dr. Singhvi. The conclusions drawn in paragraphs 284.13 to 284.23 of the majority judgment rendered by the Hon‘ble Chief Justice of India – for himself, A.K. Sikri & A.M. Khanwilkar, JJ., are most relevant, and may be referred to at this stage. At the cost of some repetition, we reproduce the same hereinbelow. ―284.13. With the insertion of Article 239-AA by virtue of the Sixty-ninth Amendment, Parliament envisaged a representative form of Government for NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision.

284.14. The interpretative dissection of Article 239-AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List.

284.15. A conjoint reading of clauses (3)(a) and (4) of Article 239-AA divulges that the executive power of the Government of NCTD is coextensive with the legislative power of the Delhi Legislative Assembly and, accordingly, the executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State List. However, if Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament.

284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution.

284.17. The meaning of ―aid and advise‖ employed in Article 239-AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the ―aid and advice‖ of Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him.

284.18. The words ―any matter‖ employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean ―every matter‖. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.

284.19. The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness.

284.20 [Ed.: Para 284.20 corrected vide Official Corrigendum No. F-3/Ed.B.J./56/2018 dated 19-11-2018.]. The Transaction of Business Rules, 1993 stipulate the procedure to be followed by the Lieutenant Governor in case of difference between him and his Ministers. The Lieutenant Governor and the Council of Ministers must attempt to settle any point of difference by way of discussion and dialogue. By contemplating such a procedure, the 1993 TBR suggest that the Lieutenant Governor must work harmoniously with his Ministers and must not seek to resist them at every step of the way. The need for harmonious resolution by discussion is recognised especially to sustain the representative form of governance as has been contemplated by the insertion of Article 239-AA.

284.21. The scheme that has been conceptualised by the insertion of Articles 239-AA and 239-AB read with the provisions of the GNCTD Act, 1991 and the corresponding the 1993 TBR indicates that the Lieutenant Governor, being the administrative head, shall be kept informed with respect to all the decisions taken by the Council of Ministers. The terminology ―send a copy thereof to the Lieutenant Governor‖, ―forwarded to the Lieutenant Governor‖, ―submitted to the Lieutenant Governor‖ and ―cause to be furnished to the Lieutenant Governor‖ employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof.

284.22. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts.

284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a ―rational anarchist‖, but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living document so as to enable true blossoming of the constitutional ideals. The Lieutenant Governor and the Council of Ministers headed by the Chief Minister are to constantly remain alive to this idealism.‖ (emphasis and underlining supplied)

188. Thus, the Lieutenant Governor would be expected to normally act on the aid and advice of his Council of Ministers in respect of matters on which the Legislative Assembly may legislate. The difference of opinion between the Council of Ministers and the Lieutenant Governor is expected to be the exception, and not the norm. The Lieutenant Governor should not act in a mechanical manner, without due application of mind, thereby referring every decision of the Council of Ministers to the President. The difference of opinion between the Council of Ministers and the Lieutenant Governor should have a sound rationale, and it should not be resorted to only to obstruct the implementation of the decisions of the Council of Ministers, but should be founded upon affirmative constructionism, and profound sagacity and judiciousness. At the same time, it is obligatory on the Council of Ministers to keep the Lieutenant Governor abreast with all their decisions, to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof.

189. We may now proceed to examine whether, in the facts of the present case, the conduct of the Lieutenant Governor satisfies the standards of Constitutional trust and morality, and the principle of collaborative federalism, and Constitutional balance so eloquently explained in the aforesaid judgment. We will examine, whether the conduct of the Lieutenant Governor satisfies the concept of Constitutional governance and objectivity, and displays adherence to respect for a representative Government. We will examine whether the Lieutenant Governor could be said to have acted in a mechanical manner, without due application of mind, while requiring his Council of Ministers to refer the matter in relation to the formulation of the impugned scheme to the President, or whether his action can be described as that of an obstructionist. We will examine whether the difference of opinion has a sound rationale, and whether it reflects the philosophy of affirmative constructionism, and profound sagacity and judiciousness.

190. The record shows that on 10.03.2018, the Lieutenant Governor was communicated the Cabinet decision Number 2561, dated 06.03.2018. This decision was to implement the proposal for home delivery of ration. The Council of Ministers approved the proposal contained in the Cabinet Note to implement the home delivery of ration under the TPDS in the NCT of Delhi.

191. The aforesaid Cabinet decision was placed before the Lieutenant Governor, and on 20.03.2018, he expressed the view, as already taken note of in paragraph 70 hereinabove. We may, however, quote paragraph 104 to 111 of the file noting approved by the Lieutenant Governor, which has been placed on record before us: ―104. An efficient public distribution system would ensure that while no eligible beneficiary is denied his/her quota of ration, at the same time, no ineligible person could misuse the facility. There should not be any diversion of foodgrains meant for the needy & the poor. The entire system should, function in the most efficient, cost- effective and transparent manner.

105. In this context, I note that the Finance Department has ration materials and corruption may not be eliminated under the proposed scheme. The best option would be adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thus totally eliminating middlemen. The Finance Department has also noted that an expenditure of about Rs. 250 Crores per annum is likely to be incurred on the home delivery scheme, and if DBT is adopted, the beneficiaries can procure an additional 5 kg of Atta per family per month, with the money so saved. For the poor marginalised sections of society, this additional 5 kg of Atta per family per month would be a huge welfare measure resulting from adoption of DBT. Therefore, in my view, suggestion of Finance Department is worth considering.

106. The Finance Department has also raised the issue of managing the existing contract with BEL and the financial implications on this account, because there are commitments on account of rental charges payable in respect of PoS machines, weighing scales and iris devices.

107. The Cabinet Note mentions that GNCTD and some States had distributed fortified whole wheat atta during 2012-13 (249/C), but results were not encouraging. No reasons for failure of the earlier scheme or lessons learnt have been placed on record. As such, it is not clear how the present proposal would improve upon the previous experiment. While making such a big change in a critical sector that directly impacts the weakest sections of society, I would expect that all due diligence is carried out.

108. The Cabinet Note, in its SWOT analysis of the proposal, brings out several potential threats and weaknesses. The department has also noted (para 74) that the introduction of scheme has potential operational and implementation risks and it should be implemented initially on pilot basis.

109. Further, the letter dated 01.02.2018 (114/C) of Government of India provides for ‗home delivery‘ as one of the two options, only as a special dispensation for a category of beneficiaries who are above 65 years of age or are differentlyabled, have no other adult family member listed in the ration card and are not in a position to visit the Fair Price Shop themselves.

110. In Targeted Public Distribution Scheme (TPDS), the Central Government plays a major role in implementation including procurement, storage, distribution and bulk allocation of foodgrains. The entire TPDS is being implemented under the National Food Security Act, 2013. The Law Department in its note (21/N) has pointed out that introduction of proposed scheme would require prior approval of Central Government under Section 12(2)(h) of the said Act. The department has already made a reference on 12.01.2018 to Central Government (42/C). It is learnt that Government of India has requested GNCT of Delhi to forward a copy of proposed scheme and circulars/ guidelines issued in this regard, for proper examination and furnishing of comments.

111. Therefore, I would advise that the proposal of home delivery of ration under TPDS may be referred to Government of India with full details including all implementation issues, before a final decision is taken.‖ (emphasis supplied)

192. The gist of the view expressed by the Lieutenant Governor was that the proposed system of home delivery of ration will only replace one set of human intervention with another i.e. the service providers and their agents. Hence, diversion of ration materials and corruption may not be eliminated under the proposed scheme. He was of the view that the suggestion of the Finance Department to resort to the Direct Benefit Transfer (DBT) was worth considering, as that would save additional expenditure of about Rs. 250 Crores per annum, and if the said amount is distributed through DBT, the beneficiaries would be able to procure additional 5kg of atta per family per month. The Lieutenant Governor also expressed his concern, inter alia, that the proposed change was a big change in a critical sector that directly impacts the weakest section of the society, and that called for the carrying out of all due diligence. He also notices the view of the Department of Law of the GNCT of Delhi that the Scheme would require prior approval of the Central Government, under Section 12(2)(h) of the Act. In paragraph 111 of the file noting, he advised that ―that the proposal of home delivery of ration under the TPDS may be referred to Government of India with full details including all implementation issues, before a final decision is taken.‖

193. The record shows that on 22.05.2021, the FSO (Policy) placed the proposal for door step delivery of ration at the door step of the beneficiaries after rescinding the earlier MMGGRY Scheme notified on 20.02.2021, and by seeking to extend the spirit of the letters dated 03.11.2014 and 01.02.2018, to not just a few limited classes of beneficiaries, but to all beneficiaries under the TPDS. The GNCTD sought to place reliance on similar steps taken by the Government of Andhra Pradesh and the Government of Haryana. It provided the draft notification on home delivery of processed and packed NFSA rations under TPDS. The record shows that the said proposal was cleared by the Council of Ministers, and on 24.05.2021, the Chief Minister placed the matter before the Lieutenant Governor ―to kindly decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution.‖ The Lieutenant Governor then, on 02.06.2021, recorded his decision on the said proposal as follows: ―14. I have perused the proposal and observed that in an earlier proposal of the scheme of doorstep delivery of ration, I had advised vide note dated 20.03.2018 in file no.2 (172) F&S/IT/2017-18 (CD no. 000470456), that the proposal of home delivery of ration may be referred to Government of India as per section 12(2)(h) of National Food Security Act, 2013 will full details, before a final decision is taken (copy placed at C/ 54-55). However no approval of GOI is placed on record. Hence, it is again advised that the above proposal of home delivery of ration may kindly be referred to the Government of India for approval in accordance with the above provision of the NFSA, 2013.

15. Incidentally I may also mention that a Writ petition WP(C) 2037/2021 in the above matter has been filed by the Delhi Sarkari Ration Sangh in the Hon‘ble High Court of Delhi challenging the proposed arrangement of doorstep delivery of ration by the GNCTD wherein Union of India is also a party. The next date of hearing in the matter is 20.08.2021.

16. The file is accordingly returned for reconsideration to the Hon‘ble Chief Minister.‖ (emphasis supplied)

194. From the aforesaid, it is seen that the Lieutenant Governor reiterated his earlier decision, requiring his Council of Ministers to seek the approval of the Government of India on the difference of opinion between him and his Council of Ministers with regard to the implementation of the door step delivery of ration to the TPDS beneficiaries. This time, he also took note of the pendency of the present writ petition being W. P. (C) 2037/2021.

195. The file noting shows that the Chief Minister, on 16.06.2021, recorded in paragraphs 17 and 18 at Page 6/N as follows: ―17. I have perused the note of Hon’ble LG.

18. There appears to be a serious misunderstanding. The instant matter before Hon’ble LG is not ―approval‖ of the scheme of doorstep delivery of ration. The scheme has already attained finality.‖

196. Thus, the stand of the Chief Minister now was that the door step delivery of ration scheme had ―already attained finality‖, and the matter was not referred to the Lieutenant Governor for his approval of the scheme. In the same office noting, in paragraph 26, the Chief Minister, inter alia, recorded ―Hon‘ble LG‘s insistence on referring the matter to the Central Government for its approval does not appear correct. The approval of the Central Government is neither mandated nor necessary. As explained above, we have merely implemented Central Government‘s orders. Further, Delhi Government, through several communications, has been informing and seeking assistance of the Central Government, from time to time for the implementation of this doorstep delivery scheme.‖

197. On the heels of the aforesaid noting dated 16.06.2021 made by the Chief Minister of Delhi, the Government of India shot out two communications dated 17.06.2021 and 22.06.2021, of which we have already taken notice in the earlier part of the judgment. By these communications, the Government of India pointed out several noncompliances of the Act by the GNCTD, and also commented on the proposed home delivery scheme.

198. Post the issuance of the aforesaid two communications, the matter was again considered by the Lieutenant Governor on 24.06.2021. He made reference to the letter dated 22.06.2021 of the Department of Food & Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, and observed that the proposed scheme has not been accepted by the Ministry, as it did not meet the statutory and functional requirements of the NFSA. He advised that the directions issued by the Government of India with regard to the implementation of the NFSA may be complied with by the Food and Supply Department, GNCTD.

199. The Chief Minister, yet again, made his noting on 01.07.2021. The Chief Minister again sought the view of the Lieutenant Governor on whether he differs with the draft notification of the scheme for doorstep delivery of ration, or not. We may extract the notings found at Page 13/N of the file, which reads as follows: ―45. With respect to the advice of Hon‘ble LG, I again humbly submit that the instant matter relates to the draft notification at 49-53/C on the scheme of doorstep delivery of ration. Hon’ble LG may kindly indicate whether he differs with the said notification or not.

46. Hon‘ble LG has given certain directions. It is most humbly submitted that as per the judgment of the Constitution Bench of Hon‘ble Supreme Court dated 4 July 2018, Hon‘ble LG does not have the powers to give any directions on the transferred subjects, unless Hon‘ble LG has referred the matter to the President under the proviso to Art 239 AA (4).

47. The letter from the Central Government is being examined and necessary action will be undertaken as per law.‖

200. On 02.07.2021, the Assistant Commissioner from the Department of Food, Supplies & Consumer Affairs of GNCTD, sent a communication to the Government of India, with a copy to the Principal Secretary to the Lieutenant Governor stating that the Government has decided to implement distribution of both – NFSA and PMGKAY ration to all NFSA beneficiaries in Delhi, including migrants through ePoS devices. In this communication, it was, inter alia, stated that the Department has complied with both the directions under Section 38 of the NFSA Act, and the other issues raised under Section 28 and 29 are being taken up separately, and the progress report will be shared shortly in due course of time.

201. The aforesaid noting made by the Chief Minister on 01.07.2021 was responded to by the Lieutenant Governor on 26.07.2021 as follows: ―48. Reference observations of Hon‘ble Chief Minister, at pre-page.

49. In the first instance, it is pointed out that my observation at page 12/ N has been misunderstood as ‗direction‘ though it was only a conciliatory advice in sync with the observations of Hon‘ble Supreme Court (Constitution Bench) Judgment dated 04.08.2018, wherein Hon‘ble Supreme Court has emphasized that there is requirement of discussion and deliberations and that fine nuances are to be dwelled upon with mutual respect.

50. Keeping in view the provisions of the National Food Security Act 2013, the Department of Food and Public Distribution, Ministry of CAF&PD, Govt. of India vide letter dated 22.06.2021 has already conveyed its concerns and decision on the proposed Scheme of Door Step delivery of Ration. This communication of the Central Government appears to be in accordance with the Section 38 of the National Food Security Act, 2013.

51. It is noted that the above communication dated 22.06.2021 of Central Government has not yet been considered by the Council of Ministers, GNCTD. Therefore, in case the Hon’ble Chief Minister, GNCTD still differs, I would request the Hon’ble Chief Minister, GNCTD to refer this matter to the Council of Ministers for its consideration and decision in accordance with Rule 49 of the TBR, 1993 read with section 45(c) of the Government of NCT of Delhi Act, 1991.‖ (emphasis supplied)

202. When we examine the aforesaid exchange of views, which have taken place between the Council of Ministers/ Chief Minister, on the one hand and the Lieutenant Governor on the another hand, we find that when the scheme was initially placed for approval of the Lieutenant Governor on 20.03.2018, he made known the reasons for his view as to why he did not agree with the proposed scheme, and what were the reasons for his difference of opinion with regard to the proposed scheme. In our view, in judicial scrutiny, we are not called upon to return a finding whether the reasons for difference of opinion expressed by the Lieutenant Governor are correct and sustainable, or not. We are only called upon to see, whether the conduct of the Lieutenant Governor could be said to satisfy the standards of constitutional trust and morality, and the principle of collaborative federalism and constitutional balance. As noticed hereinabove, the Central Government issued yet another communication dated 08.10.2021 reiterating the position of the Central Government, and calling upon the GNCTD to strictly adhere to the mandatory requirements of the NFSA.

203. We may observe that even if the opinion of the Lieutenant Governor for expressing his difference of opinion is eventually not agreed to by the President, and the President decides to go with the decision of the Council of Ministers, that by itself, would not mean that the opinion of the Lieutenant Governor could be described as falling foul of the standards of constitutional trust and morality; the principals of collaborative federalism, and Constitutional balance. This is for the reason that there could be genuine and bona fide difference of opinion, on account of fundamental and serious difference of approach of the Council of Ministers on the one hand and the Lieutenant Governor on the another hand.

204. It is only where it appears to the Court that the expressed reasons are no reasons in the eyes of law, i.e. they are arbitrary, whimsical, unreasonable, suffer from non-application of mind, or are demonstrative of obstructionist attitude and conduct, which do not accord with the standards of constitutional trust and morality, the principals of collaborative federalism, and Constitutional balance, that the Court would draw an inference that the difference of opinion expressed by the Lieutenant Governor is an ―exposition of the phenomenon of an obstructionist‖ and not reflective of ―the philosophy of affirmative constructionism and profound sagacity and judiciousness‖, as expressed by the Supreme Court in State (NCT of Delhi) (supra).

205. The Council of Ministers does not appear to have answered the issues raised by the Lieutenant Governor in his note/ decision dated 20.03.2018. The Council of Ministers did not answer as to how the replacement of one set of human intervention with another, as proposed under the scheme, would improve upon aspects of diversion of ration materials and corruption and eliminate the same. The issue raised by the Lieutenant Governor, premised upon the observations of the Finance Department, that the best option would be the adoption of Direct Benefit Transfer (DBT), as that would totally eliminate middlemen and also save expenditure of Rs. 250 crores per annum which, in turn, can provide additional 5 kg of atta per family per month with the money saved, have not been addressed by the Council of Ministers in any of the subsequent decisions and notings. The observations that it was not clear as to how the proposed scheme would improve upon the previous experiments, and that a big change in a critical sector that directly impacts the weakest section of the society requires due diligence to be carried out, also do not appear to have been responded to by his Council of Ministers. The Lieutenant Governor also relied upon the noting of the Law Department, that the proposed scheme would require prior approval of the Central Government under Section 12(2)(h) of the Act. To examine whether reliance placed by the Lieutenant Governor on the said note of the Law Department is reasonable, or not, we may reproduce hereinbelow Section 12(2)(h) of the Act insofar as it is relevant. The said provision reads as follows:- ―12. (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) …….. (b) …….. (c) ……. (h) introducing schemes, such as, cash transfer, food coupons, or other schemes, to the targeted beneficiaries in order to ensure their foodgrain entitlements specified in Chapter II, in such area and manner as may be prescribed by the Central Government.‖ (Emphasis supplied)

206. Reading of the aforesaid provision shows that introduction of schemes, such as cash transfer, food coupons or other schemes can be done ―in such area and manner as may be prescribed by the Central Government‖. From the point of view of the Lieutenant Governor, firstly, he was entitled to rely upon the file noting made by the Law Department. Secondly, even on a plain reading of the aforesaid provision, it cannot be said that the view expressed by the Law Department was wholly incorrect or unsustainable and, therefore, the Lieutenant Governor acted without due application of his own mind, or that he blindly followed the file noting made by the Law Department. The manner in which the scheme may be introduced to reform the TPDS, appears to require the approval of the Central Government as the said manner has to be prescribed by the Central Government. Thus, the Lieutenant Governor appears to be justified in relying upon the note of the Law Department in relation to the understanding of the Law Department of Section 12(2)(h). We may here refer to Article 239AA(3)(b) of the Constitution, which reads: ―(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.‖

207. Since the Parliament has enacted the NFSA, which specifically requires that the schemes introduced by the Central or State Government shall be, ― in such area and manner as may be prescribed by the Central Government.‖, the GNCTD is bound to implement the proposed Door Step Delivery Scheme only in the manner that the Central Government may prescribe, and not otherwise.

208. The rescindment of the MMGGRY scheme and framing of the new scheme on 24.03.2021 was merely a cosmetic change, as is evident from the Cabinet decision No. 2987 dated 24.03.2021 alongwith the relevant Note for Council of Ministers.

209. The said modified/ new scheme was again placed before the Lieutenant Governor to ―decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution‖. Thus, it would be seen that the issues raised by the Lieutenant Governor, while recording his difference of opinion on 20.03.2018 were not specifically addressed and the Lieutenant Governor again advised his Council of Ministers that the ―proposal of home delivery of ration may kindly be referred to the Government of India for approval in accordance with the above provision of the NFSA, 2013‖.

210. The file noting made by the Chief Minister on 16.06.2021, appears to be discordant with the earlier file notings taken note of hereinabove. When the Chief Minster placed the matter before the Lieutenant Governor on 24.05.2021, the Chief Minister was conscious of the fact that the Lieutenant Governor was entitled to ―invoke his powers under the proviso to Article 239AA(4) of the Constitution‖. However, while making his noting on 16.06.2021, the Chief Minister records that ―The instant matter before the Hon‘ble LG is not ―approval‖ of the scheme of doorstep delivery of ration. The Scheme has already attained finality.‖ He expresses the view that there appears to be a serious misunderstanding.

211. To us, it appears, that the misunderstanding was not on the part of the Lieutenant Governor, but on the part of the Chief Minister himself. Every Union Territory is administered by the President, acting through an Administrator. In respect of the NCT of Delhi, the administrator appointed under Article 239 is designated as the Lieutenant Governor. The Lieutenant Governor functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion, on the aid or advice of his Council of Ministers headed by the Chief Minister. By virtue of Section 44(2) of the GNCTD Act, 1991, ―Save as otherwise provided in this Act, all executive action of the Lieutenant Governor whether taken on the advice of his Ministers or otherwise shall be expressed to be taken in the name of the Lieutenant Governor‖.

212. Thus, the impugned scheme framed by the Council of Ministers – headed by the Chief Minister, before its implementation, was required to be communicated by the Chief Ministers to the Lieutenant Governor, since it relates to the administration of the affairs of the Capital. It was in this light that the impugned scheme was initially placed before the Lieutenant Governor, on which he expressed his difference of opinion on 20.03.2018. It was precisely for the same reason that the proposal was again placed by the Chief Minister before the Lieutenant Governor on 24.05.2021 calling upon him ―to kindly decide whether he would like to invoke his powers under the proviso to Article 239AA(4) of the Constitution‖. While observing that ―the Scheme has already attained finality‖, the Chief Minister in his noting dated 16.06.2021 does not state as to, how, and, when, the scheme could be said to have attained finality when, as a matter of fact, the Lieutenant Governor expressed his difference of opinion on the record on two successive occasions, i.e. on 20.03.2018, and again on 02.06.2021 and required that the proposal of home delivery of ration may be referred to the Government of India for approval in accordance with the provisions of the NFSA, 2013. Though there may be no necessity, under the Constitutional scheme, for the decision of the Council of Ministers requiring the ―approval‖ of the Lieutenant Governor, there is an obligation for the Chief Minister to communicate the decision of the Council of Ministers to the Lieutenant Governor and, in case, there is a difference of opinion, or a disapproval, then the matter must be referred to the President under the proviso to Article 239AA(4). In our view, the Chief Minister was not correct in concluding that the approval of the Central Government is neither mandated, nor necessary, under Section 12(2)(h) of the NFSA, or that the matter need not have been referred to the President under proviso to Article 239AA(4), despite the expressed difference of opinion by the Lieutenant Governor.

213. In our view, the Council of Ministers headed by the Chief Minister were obliged to follow the mandate of the proviso to Article 239AA(4), and to refer the matter for the decision of the President.

214. At this stage, we may observe that the language of the proviso to Article 239AA(4) shows that ―the Lieutenant Governor shall refer it to the President for decision……‖. Therefore, the Lieutenant Governor could also have referred the matter for the decision of the President directly, if the Council of Ministers headed by the Chief Minister were not doing the same. Even when the Lieutenant Governor requires the Chief Minister to make a reference to the President, it is his reference of the difference of opinion.

215. The aforesaid narration of facts shows that after the Chief Minister made his noting on 16.06.2021, the Government of India sent two communications, including the communication dated 24.06.2021 to the GNCTD, pointing out several non-compliances of the Act by the GNCTD and also commenting on the proposed home delivery scheme. On 01.07.2021, the Chief Minister again sought the view of the Lieutenant Governor on whether he differs with the draft notification for the scheme of doorstep delivery of ration, or not. This noting of the Chief Minister was responded to by the Lieutenant Governor on 26.07.2021. He referred to the aforesaid communication dated 22.06.2021 of the Central Government, and observed that the same have not been considered by the Council of Ministers, GNCTD. In this light, he requested the Chief Minister to refer the matter to the Council of Ministers for its consideration and decision in accordance with Rule 49 of the TBR, 1993 read with section 45(c) of the GNCTD Act.

216. We find this action of the Lieutenant Governor to be in accord with Rule 49 of the TBR, 1993 read with section 45(c) of the GNCTD Act. The file noting dated 01.07.2021 is that of the Chief Minister, and not the Council of Ministers. The record does not show that the Council of Ministers considered the letter dated 22.06.2021 of the Central Government, and the decision to refer the scheme again to the Lieutenant Governor on 01.07.2021 appears to be that of the Chief Minister alone. Rule 49 of the TBR, 1993 reads as follows:- ―49. In case of difference of opinion between the Lieutenant Governor and a Minister in regard to any matter, the Lieutenant Governor shall endeavour by discussion on the matter to settle any point on which such difference of opinion has arisen. Should the difference of opinion persist, the Lieutenant Governor may direct that the matter be referred to the Council‖.

217. In the light of the exchanges which took place between the Council of Ministers/ Chief Minister on the one hand, and the Lieutenant Governor on the other hand, which we have taken note of hereinabove, and since the difference of opinion was not settled despite discussions on the matter, the Lieutenant Governor was justified in directing that the matter be referred to the Council of Ministers for consideration of the letter dated 22.06.2021 of the Central Government. Section 45(c) of the GNCTD Act, insofar as it is relevant reads ―it shall be the duty of the Chief Minister – if the Lieutenant Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.‖

218. Thus, we are of the view that the Lieutenant Governor was justified in requiring the Chief Minister to take the matter to the Council of Ministers alongwith the communication of the Central Government dated 22.06.2021 for its consideration, if the Chief Minister still differed with the opinion already addressed by the Lieutenant Governor.

219. We are, therefore, of the view that the impugned scheme cannot be implemented and rolled out by the GNCTD since the Lieutenant Governor has expressed his difference of opinion and required that the same be referred for his decision to the President. The said scheme would necessarily have to be rolled out in the name of the Lieutenant Governor, while recording his approval thereof. That has not been done in the facts and circumstances taken note of hereinabove. The Chief Minister should, therefore, place the matter before the Council of Ministers and consider the proposed scheme in the light of the letter of the Central Government dated 17.06.2021 and 22.06.2021, and observations made by us hereinabove. Even if the Council of Ministers resolves to reiterate the proposed scheme, the same would require to be placed again before the Lieutenant Governor, who would be entitled to again examine the issues and in case he still has a difference of opinion with his Council of Ministers, he may require the Chief Minister to place the difference of opinion for the decision of the President of India, or he may, on his own, place the matter before the President of India for his decision. The GNCTD shall be bound by whatever decision is taken by the President of India in the matter.

220. Thus, we find that the action of the Council of Ministers headed by the Chief Minister to roll out the impugned Scheme to be still borne, and not in accordance with either Article 239AA(4), or even with Section 44(2) of the GNCTD Act. We are consciously using the expression ―Council of Ministers headed by the Chief Minister‖ in relation to the action of rolling out the impugned scheme, since the same cannot be described as an action of the GNCTD. For the same to be an action of the GNCTD, the action has to, necessarily be in the name of the Lieutenant Governor. In the present case, as noticed above, the decision of the Council of Ministers headed by the Chief Minister to roll out the impugned Scheme is not, and cannot be described as an Executive action taken by, or in the name of the Lieutenant Governor, since he has expressed his disagreement, which stands unresolved, as it has not been placed before the President.

221. We may also deal with the submissions advanced by the Bandhua Mukti Morcha – the applicant in C.M. No. 21333/2021 in W.P.(C.) NO. 2037/2021. The decisions in People’s Union for Civil Liberties (PDS matters) (supra) and Swaraj Abhiyan (supra) relied upon by Mr. Rahman, do not direct the State to necessarily provide the rations under the TPDS to the beneficiaries at their door-step. As we have already observed, there is nothing wrong in the GNCTD entertaining the desire and intention to deliver packaged atta and rice to the beneficiaries under the TPDS at their doorstep. However, that can be done only in accordance with the scheme of the NFSA, and the statutory Orders under the ECA, and not otherwise. We do not agree with Mr. Rahman that the delivery of food to the beneficiaries under the TPDS at the doorstep of the Fair Price Shops does not amount to a guarantee of adequate food and nutrition to the beneficiaries under Article 21 and 47 of the Constitution of India. We also do not find any merit in the plea of Mr. Rahman, that it is against the right to dignity and privacy to compel beneficiaries under the TPDS to queue up to collect their allocated rations from the Fair Price Shops. In our view, it is only civil that persons – who desire to obtain/ buy anything from an outlet, should queue up, if such a queue is necessary looking to the number of persons, who may land up at the outlet at the same time. It does not offend the right to dignity and privacy of any person, merely because the person may be required to queue up at the outlet. The outlet could be for anything, or for any service. People queue up to buy medicines from a medical store; to buy milk at the milk booth; bus, train and airline tickets at bus stations, railway stations and airports; to buy cinema tickets at cinema houses; to buy tickets for sporting and other entertainment events at the venues, so on and so forth. If the submission of Mr. Rahman in this regard is accepted, it would mean that the right to dignity of such persons – who queue up, is violated. Acceptance of the submission would also mean that such persons have a right not to stand in a queue, or break of queue. Such a thought would destroy civility and orderly conduct and respect for others‘ rights in the society, which cannot be accepted. Reliance placed at K.S. Puttaswamy (Aadhaar-5J.) (supra) is also of no avail.

CONCLUSION

222. For all our aforesaid reasons, we dispose of this petition with the following findings and directions:-

222.1. The GNCTD is entitled to frame a scheme for doorstep delivery of foodgrains/ rations to the beneficiaries under the TPDS at the doorsteps of the TPDS beneficiaries. However, the same has to be done by the GNCTD from its own resources in compliance with the prevailing laws.

222.2. Any such scheme framed by the GNCTD should comply with all the requirements of the NFSA and the Orders issued under the ECA. The impugned scheme as presently framed by the Cabinet Decision NO. 2987 on 24.03.2021, does not comply with the provisions of the NFSA and TPDS Order, 2015.

222.3. The TPDS Order, 2015 has to be read with the NFSA and they are both enforceable. The submission of the GNCTD that the TPDS Order, 2015 stands overridden by Section 36 of the NFSA is rejected.

222.4. The Council of Ministers headed by the Chief Minister is bound to communicate its decisions/ resolutions, including any such scheme or proposal to the Lieutenant Governor, so as to enable him to examine the same and to take a call on whether, or not, he has a difference of opinion with any such scheme.

222.5. When any decision of the Council of Ministers headed by the Chief Minister is placed before the Lieutenant Governor for his approval, he shall be mindful of the decision of the Supreme Court in State of (NCT of Delhi) (supra), and shall take his decision to express his difference of opinion, if any, in the light of the aforesaid Judgment.

222.6. In case the Lieutenant Governor expresses his disagreement with his Council of Ministers headed by the Chief Minister, he may either require the Chief Minister to refer the matter to the President for his decision, or he may, on his own, refer the matter to the President for his decision. Even when the Lieutenant Governor requires the Chief Minister to refer the matter for his decision to the President, it is reference by the Lieutenant Governor and would, therefore, meet the requirement of the proviso to Article 239AA(4) of the Constitution.

222.7. The final decision shall rest with the President on the difference of opinion and the said decision shall prevail and bind the Council of Ministers headed by the Chief Minister and the Lieutenant Governor, who shall act in accordance with the said final decision.

222.8. In the facts of the present case, the impugned scheme for doorstep delivery of rations to the beneficiaries under the TPDS framed by the Cabinet Decision no. 2987 on 24.03.2021 has not been approved/ consented to by the Lieutenant Governor and, therefore, in any event of the matter, the same cannot be implemented in its present form.

223. Consequently, we allow these writ petitions and quash the following 3 tenders/ NIB‘s issued by the respondents, and actions taken in furtherance thereof: i. Bid I.D. No. 2021_DCCWS_198395_TENDER Issuing Date: 06/01/2021 ii. Bid I.D. No.2021 DSCSC198921_1 TENDER Issuing Date: 19/01/2021, iii. Bid I.D. No.2021 DSCSC198916_1 TENDER Issuing Date: 19/01/2021

224. The petitions stand disposed of in the aforesaid terms.

225. The parties are left to bear their respective costs.

VIPIN SANGHI (ACTING CHIEF JUSTICE)

JASMEET SINGH (JUDGE) MAY 19, 2022