State Of Karnataka vs H. Sadananda Shetty on 10 April, 1990

ORDER, 1986 – Conspectus – Scheme evolved by State Government for distribution of foodgrains to cardholders in exercise of powers under Article 162 – That 1986 Order covers ‘kerosene’ does not lead to inference that Scheme for distribution of foodgrains being essential commodities falls within Section 3 of Act -Scheme independent does not fall under Section 3 of Act or under 1986 Order – Scheme not contrary to Act; not covered by orders under Section 3(3) of Act -Authorisation to holder of Retail Dealers Licence under 1986 Order does not make it one under 1986 Order; independent of 1986 Order & as per Scheme.

POINTS FOR CONSIDERATION : PARA – 7

Held:

(i) The power exercisable under Section 3 of the Act [Essential Commodities Act, 1955] by the Central Government has been delegated to the State Government by a Notification issued under Section 5 of the Act. That it is so, is not in dispute. Therefore, the State Government is entitled to issue Karnataka Essential Commodities Licensing Order, 1986 covering kerosene also. It may be noticed that the object of the “1986 Order” is only to grant wholesale or retail dealer licence for dealing in commodities mentioned in Schedule-I to the “1986 Order”. ‘Kerosene’ is one of the items included therein. The commodities covered by the “1986 Order” are essential commodities..The fact that the “1986 Order” covers the ‘kerosene’ also, cannot lead to an inference that the Scheme framed by the State Government for distribution of foodgrains, which are also essential commodities, at subsidised rates to the card-holders falls within Section 3 of the Act and not under Entry 33 List III of Seventh Schedule to the Constitution. It is relevant to notice that the “1986 Order” does not cover the distribution of essential commodities to card-holders at subsidised rates. “1986 Order” covers only issuing of wholesale or retail dealer licence to deal in the commodities mentioned in Schedules-I and II to the “1986 Order” and the matters connected as laid down in the “1986 Order” to obtain a wholesale dealer licence or a retail dealer licence. It is also not necessary for the holder of a retail dealers licence or the wholesale dealers licence to undertake distribution of foodgrains to card-holders or to supply the foodgrains on wholesale basis to the persons-institutions to distribute the foodgrains through fairprice shops. Therefore, the Scheme of distribution of foodgrains to card-holders on subsidised rates is an independent Scheme not falling either under Section 3 of the Act or under the “1986 Order”…The Scheme framed by the State Government for distribution of foodgrains to card-holders at subsidised rate is not contrary to any of the provisions contained in the Act. The Scheme is not covered by any of the Orders issued under Section 3(3) of the Act either by the Central Government or by the State Government. The fact that authorisation has to be granted only to those who have obtained retail dealers licence issued under “1986 Order” does not make the authorisation as the one issued under the “1986 Order”. It is independent of the provisions contained in the “1986 Order”. It is issued only as per the Scheme framed. The holder of authorisation is bound by the terms of the bond he executes in favour of the authority who grants the authorisation.

ARTICLE 246: VII SCHEDULE: LIST I – ENTRY No. 53: LIST II – ENTRY Nos. 26 & 27: LIST III – ENTRY No. 33 – Entry Nos. 26 & 27 of List II subject to Entry No. 33 of List III -Scheme framed under Article 162 falls under Entry No. 33(b) of List IN not under Entry No. 53 of List I.

Entry Nos. 26 and 27 of List II are subject to the provisions of Entry 33 of List III. The result of reading of Entry Nos. 26 and 27 of List II “subject to the provisions of Entry 33 of List III” is that the exclusive power to legislate regarding intra-State trade and commerce and production, supply and distribution of goods belongs to the State Legislature excepting such matters as are included in Entry 33 of List III.

The Scheme has been framed in exercise of the Executive Power of the State under Article 162 of the Constitution and it does not fall under Entry 53 of List I of the Seventh Schedule; but it falls under Entry 33(b) of List III of the Seventh Schedule as held by the Supreme Court in Sarkari Sasta Anaj Vikreta Sangha’s case (AIR 1981 SC 2030).

ARTICLE 226 – CONTRACTUAL RIGHTS: enforcement -Action of public authority with authority of law & without authority of law: distinction – Action with authority of law, involving enforcement of contract: suit in Civil Court, not petition under Article 226 – Action without authority of law, including contractual matters, depending not on terms of contract, but, provisions of law & enforcement of statutory provisions or competence of public authority, amenable to Writ Jurisdiction to be examined by Court – Question in each case to be decided with reference to particular action, activity of State or its instrumentality while performing action, public law or private law character of action & other relevant circumstances – Challenge to want of competence falls under public law.

There is a subtle distinction between the action of the public authority with the authority of law and without the authority of law. In the latter case, even if its pertains to contractual matters, it would be amenable to the jurisdiction of this Court under Article 226 of the Constitution as it would be a case of exercise of power by a public authority without the authority of law. In the first category of cases, the authority will be exercising power under the authority of law. The validity of the action of the public authority taken without the authority of law will rest upon the provisions of the Statute or the Rules, as such, it would undoubtedly be amenable to Article 226 of the Constitution as the validity of such action would not depend upon the terms of the contract. Therefore, in the latter case, the petitioners would not be enforcing the contract; whereas in the first category of cases the petitioners would be enforcing the contractual obligations. Therefore, to the extent of nforcement of the statutory provisions or the competence of the public authority is in question, the petitioners are entitled to invoke the jurisdiction under Article 226 of the Constitution and it would be the duty of this Court to examine and find out whether the authority has acted with the authority of law or not. Investigation and determination of this aspect does not depend upon, and it is not with reference, to the contract but it would be with reference to the provisions of the Act and the Rules. In the case which falls in the first category the petitioners will be enforcing the contract itself and in such a case, remedy is to approach the Civil Court in an appropriate suit and not a petition under Article 226 of the Constitution, because it relates to contractual matters…The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. That being so, insofar as the challenge to the action of the public authority on the ground that the authori ty has no competence, the matter falls under public law and not under private law.

On Facts:

In the light of the relief sought for by the petitioners challenging the competence of the officials of the Zilla Parishad to pass the impugned orders, the Writ Petitions are maintainable.

(B) KARNATAKA ZILLA PARISHADS, TALUK PANCHAYAT SAMITHIS, MANDAL PANCHAYATS & NYAYA PANCHAYATS ACT, 1983 (Karnataka Act No. 20 of 1985) -Sections 182(1)(XV) & 184 – Source of power for Section 182(1)(XV) traceable to Entry 33(b) of List lit of Constitution of India – Section 184 providing transfer of functions by Government to Zilla Parishad, question of delegatee re-delegating power does not arise -Distribution of essential commodities obligatory duty of Zilla Parishad – Zilla Parishad directly entrusted with duty, entitled to exercise all powers of State Government – Once power transferred or entrusted, future action by Zilla Parishad, not Government – No fresh authorization necessary, Zilla Parishad stepping into shoes of Government.

The source of power for the enactment of the provisions contained, in Clause XV of Sub-section (1) of Section 182 of Karnataka Act No. 20/1985 is traceable to Entry 33(b) of List III of the Constitution. Further Section 184 of the Karnataka Act No. 20/1985 specifically empowers the State Government to transfer its functions to the Zilla Parishads. Therefore, the question of delegatee re-delegating the power does not arise. It is ah independent power conferred upon the Zilla Parishad and at the same time, the Karnataka Act No. 20/1985 also empowers the State Government to transfer such of its functions to the Zilla Parishads. It is in exercise of the power under Section 184 of the Karnataka Act No. 20/1985, the State Government has issued the order dated 26-3-1987…Clause XV of Sub-section (1) of Section 182 deals with distribution of Essential Commodities. Thus distribution of essential commodities is one of the obligatory duties of the Zilla Parishad…Therefore it is not possible to hold that the Zilla Parishad is a delegatee of the duty of distribution of essential commodities. This duty has been directly entrusted to the Zilla Parishad under Karnataka Act No. 20/1985. It is pursuant to Clause (XV) of Sub-section (1) of Section 182 read with Section 184, the State Government has entrusted the function of distribution of essential commodities by issuing a Government Order dated 26th March 1987. Therefore, the Zilla Parishad is entitled to exercise all the powers which were duly exercised by the State Government in the matter of distribution of essential commodities under the Scheme framed by the State Government. The Zilla Parishad is entitled to deal with the holders of authorisation for distribution of fair price commodities to the card-holders in the same manner in which the Authorities of the State Government were entitled to deal with them…Once the power is entrusted or transferred, in respect of all the acts done in exercise of that power anterior to transfer or entrustment, the future course of action in relation to the same can be taken by the Zilla Parishad and not by the State Government and for that purpose, it is not necessary to issue fresh authorisation and it is also not necessary to execute fresh bonds in favour of the Zilla Parishads because the Zilla Parishad steps into the shoes of the State Government and is entitled to exercise all the powers the State Government hitherto exercised in the matter. Therefore the Circular dated 25-2-1988 issued by the Director of Food Civil Supplies, Bangalore cannot be sustained.

SECTION 268 – Entrustment of power by Government under Act, open to Zilla Parishad to delegate powers to Secretary or other Officers – ‘Notification’ means Notification published in Official Gazette: without such publication, Notification not effective.

(i) The provisions contained in Section 268 of Karnataka Act
No. 20/1985 are very clear and enable the Zilla Parishad to
delegate to the Secretary or other Officers any of the powers
conferred by or under the Act on the Zilla Parishad. The
entrustment of power by the Government is under the Act only
and not independent of the Act…It is open to the Zilla Parishads
to delegate any of the powers conferred upon them by or under
the Act to the Secretary or other officers of the Zilla Parishads by
a Notification.

(ii) Karnataka Act No. 20/1985 does not define the ‘Notification’, but Section 268 specifically provides that the delegation of power by the Zilla Parishad may be done by Notification. As per Clause 24(b) of Section 2 of the General Clauses Act as inserted by Karnataka Act 9/1985, Notification means Notification published in the Official Gazette.

As the Notification issued by the Zilla Parishads in question, except, Zilla Parishad, Kolar are not published in the Official Gazette, the said Notifications are not effective. Therefore, neither the Chief Secretaries nor the Deputy Secretaries of such Zilla Parishads (except Zilla Parishad, Kolar) were and are entitled to exercise such powers.

JUDGMENT

K.A. Swami, J.

1. All these Writ Appeals except W.A.No. 262/1990 are preferred against the order dated 13-7-1989 passed in W.P.Nos. 3174/1989 c/w W.P.Nos. 15922, 10413 and 10414, 11712, 5862, 12216/1988; 2036/1989, 8786, 16676/1988, 444, 742, 1962, 8562, 9386, 10173, 10370, 3439, 9616, 9498, 5904, 10697, 10933, 11235, 10543 and 10862/1989. Writ Apepal No. 262/1990 is also connected with the aforesaid Writ Appeals even though it is preferred against the order dated 22-1-1990 passed in W.P. No. 1324/1990 because it also relates to the same subject-matter. Hence the above Appeal is heard along with the other Writ Appeals.

2. In all the above Writ Petitions, the subject matter was as to whether the Scheme evolved by the State Government for the purpose of distribution of foodgrains through fair price shops was under the provisions of Section 3(3) of the Essential Commodities Act, 1955 (hereinafter referred to as the ‘Act’) and the ORDER issued thereunder viz., Karnataka Essential Commodities Licensing Order 1986 or whether the said scheme was evolved in exercise of the executive power of the State and as such it fell outside the purview of the Act and the Karnataka Essential Commodities Licensing Order, 1986.

3. The other question involved was as to whether the Zilla Parishads, constituted pursuant to the coming into force of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (Karnataka Act No. 20/1985) (hereinafter referred to as ‘Karnataka Act No. 20/1985’), have been entrusted with the function of the State Government to distribute the fair price commodities or they have been doing it under any of the right/power conferred on them under the provisions of Karnataka Act No. 20/1985. One more contention advanced before the learned Single Judge was that even if it is held that the Zilla Parishads were entrusted with the function of distribution of fair price commodities under Karnataka Act No. 20/1985 by the State Government, whether it was not permissible for the Zilla Parishads to delegate the same to its Officers and as such the orders passed by the Officers of the Zilla Parishad were illegal.

4. The learned single Judge has proceeded on the basis that the authorisation granted by the concerned authorities for distribution of fair price commodities to card-holders is equivalent to a licence issued under the provisions of the Karnataka Essential Commodities Licensing Order, 1986 (hereinafter referred to as the ‘1986 Order’) and as such the cancellation of the licence attracted the provisions of Clause 9 of the ‘1986 Order’; therefore, the petitioners were entitled to an opportunity as required by the provisions contained in the 1986 Order and as no such opportunity was afforded, the impugned orders either cancelling the authorisation or withdrawing the cards from the petitioners and entrusting the same to other persons are illegal. Accordingly, the learned single Judge has allowed the Writ Petitions, and has set aside the impugned orders.

“5. In W.A.No. 262/1990, the petitioner sought for quashing the Resolution dated 10-1-1990 (Annexure-B) passed by the Sub-Committee (Food and Vigilance), Zilla Parishad, Belgaum and also the order dated 17-1-1990 bearing No. ZP.APV.ADAR.W.80/89-90 Annexure-C passed by the Chief Secretary, Zilla Parishad. The learned Single Judge has held that the Rule laid down in MAHADESHWARA STORES v. STATE OF KARNATAKA AND ORS., 1983 (2) KLJ 201 attracts the case, therefore, the petitioner is not entitled to the relief under Article 226 of the Constitution. Accordingly, the learned single Judge has dismissed the Writ Petition.

6. In the other Writ Appeals referred to above, the learned single judge distinguished the Decision in Mahadeshwara Stores’ case as he was of the opinion that the distribution of foodgrains was not governed by the Scheme framed by the State Government in exercise of its executive powers but it was done under the provisions of the 1986 Order.

7. In the light of the contentions urged on behalf of both sides, the following points arise for consideration:

1) Whether the system of Distribution of Foodgrains evolved by the State Government through fair price shops to the card-holders falls under Section 3(3) of the Essential Commodities Act, 1955 and/or under the Karnataka Essential Commodities Licensing Order 1986 or it is framed in exercise of its Executive powers under Article 162 of the Constitution?

2) Whether the powers and functions of the State Government to distribute fair price commodities to the card-holders and all connected matters thereto have been transferred to the Zilla Parishads in the light of the Government Order dated 26-3-1987 bearing No. FTD 146 DRA 86?

3) Whether the Circular dated 15-2-1988 bearing No. DFS.DRA.IMD 23/87-88 issued by the Director of Food and Civil Supplies, Bangalore, is in conformity with the Government Order No. FTD 146 DRA 86 dated 26-3-1987?

4) Whether it is permissible for a Zilla Parishad to delegate its power relating to grant of authorisation of distribution of fair price commodities to card holders to its officers?

5) Whether the Notification issued by a Zilla Parishad delegating its powers to its officers is required to be published in the Official Gazette and if not what is the effect of it on the validity of such Notification?

6) Whether the petitioners are entitled to invoke and seek relief under Article 226 of the Constitution?

POINT NO. 1:

8. It is contended by Sri Chandrasekharaiah, learned Government Advocate appearing on behalf of the appellants in W.A.Nos. 1874 to 1899 of 1989 and for the State in other Writ Appeals, that the order issued under Section 3 of the Essential Commodities Act, namely the Kamataka Essential Commodities Licensing Order 1986, does not cover the distribution of foodgrains through fair price shops and granting of authorisation to persons to distribute fair price commodities including food grains to card-holders; that inspite of the provisions contained in Section 3 of the Essential Commodities Act, it is still open to the State Government to formulate a Scheme for distribution of foodgrains and other essential commodities to the card-holders in exercise of its executive power under Article 162 of the Constitution and as such the Scheme framed by it cannot be held as the one formulated under Section 3 of the Essential Commodities Act or under the ‘1986 Order’. The learned Government Advocate, in support of the above contention has placed reliance on a Decision of the Supreme Court in SARKARI SASTA ANUJ VIKRETA SANGH v. STATE OF M.P.,

9. On behalf of the respondents who were the petitioners in the Writ Petitions and also on behalf of the appellant in W.A.No. 262/1990, it is contended that under List-I Entry 53 the power is vested in the Central Government and as such the power under Entry 33(b) of List-III of Seventh Schedule of the Constitution is not available. It is also contended that when the case falls under List-I Entry 53 and pursuant to that, the Essential Commodities Act has been passed and in exercise of the powers conferred by the Act, the Central Government has delegated the powers to the State Government, it is not open to the State Government to claim, and it is not permissible to hold, that it is still open to the State Government to exercise the executive power and it is also not open to the State Government to contend that the scheme evolved by it is in the purported exercise of its executive powers under Article 162 of the Constitution.

10. Entry 53 of List-I of the Seventh Schedule relates to “Regulation and development of oil-fields, and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable.” The contention based on Entry No. 53 is that it is under Entry No. 53 of List-I, Section 3 of the Act has been enacted by the Parliament and the State Government has been delegated with that power; therefore the State Government in the purported exercise of its executive power cannot include ‘kerosene’ in the scheme framed by it in the purported exercise of the executive power under Article 162 of the Constitution. It is not possible to accept this contention.

11. The power exercisable under Section 3 of the Act by the Central Government has been delegated to the State Government by a Notification issued under Section 5 of the Act. That it is so, is not in dispute. Therefore, the State Government is entitled to issue Karnataka Essential Commodities Licensing Order, 1986 covering kerosene also.

12. It may be noticed that the object of the “1986 Order” is only to grant wholesale or retail dealer licence for dealing in commodities mentioned in Schedule-I to the ‘1986 Order”. ‘Kerosene’ is one of the items included therein. The commodities covered by the ‘1986 Order” are essential commodities.

13. The contention that as the “1986 Order” covers both the foodgrains and the kerosene and it is issued under Section 3 read with the Notification issued under Section 5 of the Act, the distribution of foodgrains cannot be taken out of the purview of the “1986 Order” because Section 3 of the Act is enacted by the Parliament, cannot be accepted as correct. The fact that the “1986 Order” covers the ‘kerosene’ also, cannot lead to an inference that the Scheme framed by the State Government for distribution of foodgrains, which are also essential commodities, at subsidised rates to the card-holders falls within Section 3 of the Act and not under Entry 33 List III of Seventh Schedule to the Constitution. It is relevant to notice that the “1986 Order” does not cover the distribution of essential commodities to card-holders at subsidised rates. “1986 Order” covers only issuing of wholesale or retail dealer licence to deal in the commodities mentioned in Schedules-I and II to the “1986 Order” and the matters connected thereto. It is open to any person or institution as laid down in the “1986 Order” to obtain a wholesale dealer licence or a retail dealer licence. It is also not necessary for the holder of a retail dealers licence or the wholesale dealers licence to undertake distribution of foodgrains to card-holders or to supply the foodgrains on wholesale basis to the persons-institutions to distribute the foodgrains through fair price shops. Therefore, the Scheme of distribution of foodgrains to card-holders on subsidised rates is an independent Scheme not falling either under Section 3 of the Act or under the “1986 Order”.

14.1. Entry No. 33(b) of List-III of Seventh Schedule relates to:

“Trade and Commerce in, and the production, supply and distribution of –

 a) xxx            xxx           xxx
 

b) foodstuffs, including edible oilseeds and oils"
 

The other Clauses (a), (c), (d) and (e) are not necessary for our purpose. The contention is that as the Parliament has enacted the Essential Commodities Act which covers the foodgrains as well as edible oilseeds and oils, no power is available to the State Government or the State Legislature to legislate or exercise the executive power in that regard; whereas, it is contended by the learned Government Advocate that List II of Entry Nos. 26 and 27 of the Seventh Schedule empower the State to evolve a scheme regarding distribution of foodgrains to card-holders on subsidised rates.

14.2. Entry Nos. 26 and 27 of List II are as follows:

“26. Trade and Commerce, within the State subject to the provisions of Entry 33 of List III.

27. Production, supply and distribution of goods subject to the provisions of Entry 33 of List III.”

Entry Nos. 26 and 27 of List II are subject to the provisions of Entry 33 of List III. The result of reading of Entry Nos. 26 and 27 of List II “subject to the provisions of Entry 33 of List III” is that the exclusive power to legislate regarding infra-state trade and commerce and production, supply and distribution of goods belongs to the State Legislature excepting such matters as are included in Entry 33 of List III. We are of the view that the subject does not require to be elaborately discussed because it is no more res integra. The Supreme Court in Sarkari Sasta Anaj Vikreta Sangh, Tehsil Behetra and Ors. v. State of Madhya Pradesh and Ors. has considered this subject. In that case, the Supreme Court was called upon to consider the question as to whether Madhya Pradesh Food-stuffs (Civil Supply Distribution) Scheme 1981 made on 20-3-1981 was well within the legislative power of the State Legislature. On considering the same it was held by the Supreme Court that it did fall under Entry 33(b) of List Ml of the Seventh Schedule. Therefore, it was well within the legislative power of the State Legislature and as such the State Government had the competence to make a scheme for setting up of fair price shops and to set up fair price shops in pursuance thereof in exercise of its executive power under Article 162 of the Constitution. The relevant portion of the Judgment is as follows:

“9. One of the submissions of the learned Counsel was that the formulation of the scheme was an exercise of power by the delegate of a delegate and therefore, void. We see no force in this submission. The basic assumption underlying the argument was that the scheme was formulated by the Government pursuant to some power purported to be vested in the Government under the M.P. Foodstuffs (Distribution) Control Order 1960 and that the Government would otherwise have no power to formulate such a scheme. The assumption is not well-founded. In the first place, the M.P. Foodstuffs (Distribution) Control Order 1960 as amended in 1980 defines “fair price shop” as a shop set up by the Government under the Government Scheme” and “the scheme for distribution of foodstuffs to consumers through fair price shops set up by the Government in this behalf”. There is no other provision in the order authorising the setting up of fair price shops or the making of a scheme for setting up fair price shops. On the other hand, the State Government has undoubted competence to make a scheme for setting up fair price shops and to set up fair price shops in pursuance thereof in exercise of its executive power under Article 162 of the Constitution. The executive power of the State Government under Article 162 of the Constitution is co-extensive with the Legislative power of the State Legislature. Entry 33(b) of List III (Concurrent List) is “trade and commerce in, and the production, supply and distribution of foodstuffs including edible oil-seeds and oils.” The Government, therefore, has the undoubted right to make a scheme for the distribution of foodstuffs without being vested with any special authority under any Order made under the Essential Commodities Act. As already mentioned by us, the M.P. Foodstuffs (Distribution) Control Order 1960 does not purport to vest any such power in the Government. It must, therefore, be taken that the M.P. Foodstuffs (Civil Supplies Public Distribution) Scheme 1981, was made in exercise of the executive power of the Government and not in exercise of any power delegated by a delegate under the Essential Commodities Act.”

The Scheme in question is also similar to the one considered by the Supreme Court in the aforesaid case. Therefore, the Scheme framed by the State Government for distribution of foodgrains to card-holders at subsidised rate is not contrary to any of the provisions contained in the Act. The Scheme is not covered by any of the ORDERS issued under Section 3(3) of the Act either by the Central Government or by the State Government. The fact that authorisation has to be granted only to those who have obtained retail dealers licence issued under “1986 Order” does not make the authorisation as the one issued under the “1986 Order”. It is independent of the provisions contained in the “1986 Order”. It is issued only as per the Scheme framed. The holder of authorisation is bound by the terms of the bond he executes in favour of the authority who grants the authorisation.

14.3. In Mahadeswara Stores Case the very Scheme was considered by a Division Bench of this Court and it was held that the Scheme was framed in exercise of the Executive power of the State Government and the persons who were granted the authorisation were governed by the terms of the bond and the Scheme under which they were granted. The following points were framed for determination in that decision:

“1. Whether the State Government had entered into the agreements in question with the petitioners in exercise of its executive or statutory power; and

2. Whether this Court could, in exercise of its Writ Jurisdiction, give relief to the petitioners complaining about breach or threatened breach of such agreements.”

On the first point, it was held that the agreements were entered into by the State Government in exercise of the executive power and not the statutory power, and under the terms of the Scheme framed by the State Government in exercise of its executive power. It was also held that the mere fact that certain terms were similar to the terms and conditions in the licences issued under the Karnataka Foodgrains Retail Dealers Licensing Order 1964 or Karnataka Sugar Dealers Licensing Order 1962, would not make them statutory terms and conditions. A Decision of the Supreme Court in Sarkari Sasta Anaj Vikreta Sangh’s case was also relied upon in support of the conclusion that the Scheme framed by the State Government was the one framed in exercise of the executive power. Therefore, the contention raised on behalf of the Writ Petitioners that the Scheme cannot be held to fall outside the purview of the Essential Commodities Act and the orders issued thereunder cannot at all be accepted. Accordingly, point No. 1 is answered as follows:

“The Scheme has been framed in exercise of the executive power of the State under Article 162 of the Constitution and it does not fall under Entry 53 of List I of the Seventh Schedule; but it falls under Entry 33(b) of List III of the Seventh Schedule as held by the Supreme Court in Sarkari Sasta Anaj Vikreta Sangha’s case .”

POINT Nos. 2 and 3

15. These two points are inter-related, hence they are considered together.

16. It is contended on behalf of the Writ Petitioners that under Clause XV of Sub-section (1) of Section 182 of Karnataka Act, No. 20/1985, one of the functions of the Zilla Parishads is to distribute essential commodities; that the State Government is the delegatee of the power to distribute fair price commodities as per the Notification issued under Section 5 of the Essential Commodities Act, read with Sub-section (3) of Section 3 of the Act, as such it is not permissible for the State Government to re-delegate the same power to any other authority. It is not possible to accept this contention.

17. The contention overlooks the fact that the State Legislature has power to pass a law as pointed out by the Supreme Court in Sarkari Sasta Anaj Vikreta Sangh’s case in exercise of its power under Entry 33(b) of List III of the Seventh Schedule. Thus the source of power for the enactment of the provisions contained in Clause XV of Sub-section (1) of Section 182 of Karnataka Act No. 20/1985 is traceable to Entry 33(b) of List III of the Constitution. Further Section 184 of the Karnataka Act No. 20/1985 specifically empowers the State Government to transfer its functions to the Zilla Parishads. Therefore, the question of delegates re-delegating the power does not arise. It is an independent power conferred upon the Zilla Parishad and at the same time, the Karnataka Act No. 20/1985 also empowers the State Government to transfer such of its functions to the Zilla Parishads. It is in exercise of the power under Section 184 of the Karnataka Act No. 20/1985, the State Government has issued the order dated 26-3-1987, entrusting the following functions to the Zilla Parishads:

17.1. Chapter IX of Karnataka Act 20/1985 deals with the functions of Zilla Parishads. It contains Sections 182 to 189. Section 182 of the Act enumerates the obligator/ duties of the Zilla Parishad. Sub-section (1) thereof specifically states that subject to such exceptions, restrictions and conditions as may from time to time be specified by order by the Government, it shall be the duty of every Zilla Parishad to make reasonable provision for the matters enumerated in Clauses (I) to (XV) within the area under its jurisdiction. Clause (XV) thereof deals with Distribution of Essential Commodities. Thus distribution of essential commodities is one of the obligatory duties of the Zilla Parishad. Of course Sub-section (2) of Section 182 also empowers the State Government to omit any entry from the list enumerated in Sub-section (1) of Section 182 under Clauses (1) to (XV) or add any entry thereto or amend any such entry by a Notification in the official Gazette. It also further provides that on the issue of such a Notification, the duties enumerated in Clauses (I) to (XV) of Sub-section (1) of Section 182 shall be deemed to have been amended accordingly. Such a notification is also required to be placed before each House of State Legislature. Sub-section (3) of Section 182 also further directs the State Government to entrust to the Zilla Parishad the implementation of schemes under the State plans in respect of the development functions of the Zilla Parishad mentioned in Sub-section (1) of Section 182 which can be executed by the Zilla Parishad. It also further directs that on entrustment of such schemes, the Government shall by appropriation by law at the beginning of each financial year transfer to the credit of each Zilla Parishad funds, the funds necessary for implementation of such schemes. Therefore, it is not possible to hold that the Zilla Parishad is a delegatee of the duty of distribution of essential commodities. This duty has been directly entrusted to the Zilla Parishad under Karnataka Act No. 20/1985. It is pursuant to Clause (XV) of Sub-section (1) of Section 182 read with Section 184, the State Government has entrusted the function of distribution of essential commodities by issuing a Government Order dated 26th March 1986 reproduced above. Therefore, the Zilla Parishad is entitled to exercise all the powers which were duly exercised by the State Government in the matter of distribution of essential commodities under the Scheme framed by the State Government. The Zilla Parishad is entitled to deal with the holders of authorisation for distribution of fairprice commodities to the card-holders in the same manner in which the authorities of the State Government were entitled to deal with them. Therefore, the Circular dated 15-2-1988 issued by the Director of Food and Civil Supplies Bangalore, produced as Annexure-R-3 by the State Government, cannot be held to be not in conformity with the provisions of Section 182 of Karnataka Act 20/1985 and the Government Order dated 26-3-1987. Once the power is entrusted or transferred, in respect of all the acts done in exercise of that power anterior to transfer or entrustment, the future course of action in relation to the same can be taken by the Zilla Parishad and not by the State Government and for that purpose, it is not necessary to issue fresh authorisation and it is also not necessary to execute fresh bonds in favour of the Zilla Parishads because the Zilla Parishad steps into the shoes of the State Government and is entitled to exercise all the powers the State Government hitherto exercised in the matter. The Government Order dated 26-3-1987 referred to earlier clearly states that the powers and functions pertaining to distribution of foodgrains and grant of authorisation and all other actions to be taken in connection therewith are entrusted to the Zilla Parishad. Therefore, the Circular dated 25-2-1988 issued by the Director of Food and Civil Supplies, Bangalore, cannot sustained. Accordingly point No. 2 is answered in the affirmative and point No. 3 in the negative.

POINT NO. 4

18. The contention of the Writ Petitioners is that under Section 268 of Karnataka Act No. 20/1985, the Zilla Parishad can delegate only such of the powers to its officers which are conferred by or under the Act, on the Zilla Parishad and not those which are transferred to them by the State Government. It is contended that in the case of transfer of power by the State Government to the Zilla Parishad, the Zilla Parishad will become a delegatee of the power. Therefore, the delegates cannot re-delegate its power to anyone, Section 268 of Karnataka Act 20/1985 reads thus:

“268. Delegation of powers – The Zilla Parishad may by notification delegate to the Secretary or other officer any of the powers conferred by or under this Act on Zilla Parishads.”

The contention that the words used ‘conferred by or under this Act’ only mean that the power must have been conferred upon Zilla Parishad directly under the provisions of the Act and not those which would be transferred by the Government. It is relevant to notice that Section 182 of Karnataka Act 20/1985 enumerates the duties of the Zilla Parishad. Section 184 empowers the State Government to entrust to the Zilla Parishad such powers and functions relating to any matter as are exercised and performed by the Government or any officer of Government under any enactment which the State Legislature is competent to enact or otherwise in the executive powers of the State and appear to relate to matters arising within a District and to be of an administrative character and shall on such entrustment, transfer to the Zilla Parishad such funds and properties and place at the disposal of the Zilla Parishad to exercise the powers and discharge the functions entrusted. Thus from Sub-section (1) of Section 184 of Karnataka Act No. 20/1985, it is clear that it is open to the State Government to entrust such of those powers as are exercisable by it to the Zilla Parishads imposing such terms and conditions as it may deem fit. Therefore, transfer or entrustment of any of the powers by the State Government to the Zilla Parishads will be in exercise of or in obedience to Section 184 of the Act. In that event, such entrustment will be under the provisions of the Act. Therefore, it will be open to the Zilla Parishad to delegate such powers also to its officers.

19. Section 268 states that the Zilla Parishad may by Notification delegate to the Secretary or other Officer any of the powers conferred by or under the Act on the Zilla Parishad. The power can be conferred directly by the Act itself or any authority may be directed to confer power pursuant to the provisions of the Act. Therefore, transfer or entrustment of power by the State Government under Section 184 of Karnataka Act No. 20/1985 will be entrustment of power by the State Government under the Act. In that event, the Zilla Parishad will not be a delegatee but it will be substituting the Slate Government, as it steps into the shoes of the State Government. Even otherwise, the provisions contained in Section 268 of Karnataka Act No. 20/1985 are very clear and enable the Zilla Parishad to delegate to the Secretary or other officers any of the powers conferred by or under the Act on the Zilla Parishad. The entrustment of power by the Government is under the Act only and not independent of the Act. It is also necessary to bear in mind that one of the objects of Karnataka Act 20/1985 is to assign to them local Government, and judicial functions, and to entrust the execution of certain works and development schemes of the State Five Year Plans to Zilla Parishads and to provide for the decentralisation of powers and functions under certain enactments to the local bodies for the purpose of promoting the development of democratic institutions and securing greater measure of participation by the people in the execution of plans and in local and Governmental affairs. Therefore, it is not a delegation of power but it is distribution of powers so that the Zilla Parishads, the Taluk Panchayats, Mandal Panchayats etc. can work as local – self Government in the sphere of activities that are entrusted to them. Hence the contention that entrustment of the power by the State Government amounts to delegation of power cannot be accepted. That being so, it follows that it is open to the Zilla Parishads to delegate any of the powers conferred upon them by or under the Act to the Secretary or other officers of the Zilla Parishads by a Notification. Accordingly point No. 4 is answered in the affirmative.

POINT NO. 5

20. It is contended by Sri Veerabhadrappa, learned Counsel appearing for some of the Writ Petitioners, that no doubt Karnataka Act No. 20/1985 does not define the ‘Notification’, but Section 268 specifically provides that the delegation of power by the Zilla Parishad may be done by Notification. As per Clause 24(b) of Section 2 of the Genera] Clauses Act as inserted by Karnataka Act 9/1985, Notification means Notification published in the Official Gazette. As the Notification issued by the Zilla Parishads in question except, Zilla Parishad, Kolar are not published in the Official Gazette, the said Notifications are not effective. Therefore, neither the Chief Secretaries nor the Deputy Secretaries of such Zilla Parishads (except Zilla Parishad, Kolar) were and are entitled to exercise such powers. The contention deserves to be accepted.

21. As per Clause 24(b) of Section 2 of Karnataka General Clauses Act, as inserted by Karnataka Act 9/1985, which came into force on 27-4-1985, the Notifications issued by the Zilla Parishads are required to be published in the Official Gazette. As the Notifications in question issued by the various Zilla Parishads are not published in the Official Gazette, except the one issued by the Zilla Parishad, Kolar the Chief Secretaries and other Officers of other Zilla Parishads cannot be held to have been delegated with the powers to perform the functions of the Zilla Parishads as mentioned in the Notifications. Point No. 5 is answered accordingly.

POINT NO. 6

22. It is contended on behalf of the Zilla Parishads and their officials that the relationship between the petitioners and the Zilla Parishads is a contractual relationship, because, under the scheme, the petitioners are granted authorisation as per the terms of the contract and in case of breach of the terms of the contract, it is open to the Zilla Parishads to cancel the authorisations. Therefore, the rights of the petitioners flow out of the contract and what they are now trying to do in these petitions is to enforce the contractual rights. Hence they are not entitled to invoke the jurisdiction under Article 226 of the Constitution. In other words, it is submitted that in such cases the exercise of jurisdiction under Article 226 of the Constitution is not warranted.

23. Sri Chandrasekharaiah, learned High Court Government Advocate and Sri Somayaji, learned High Court Government Pleader, have also tried to derive support from the decisions of the Supreme Court reported in DR. INDRAMANI PYARELAL GUPTA AND ORS. v. W.R. NATU AND ORS., ; RADHAKRISHNA AGARWAL AND ORS. v. STATE OF BIHAR, AIR 1977 SC 1496; and LIFE INSURANCE CORPORATION OF INDIA v. ESCORTS LTD. AND ORS.,

24. On the contrary, it is contended on behalf of the Writ Petitioners that the petitioners are not enforcing merely the contractual rights but they have challenged the action taken by the public authority in the purported exercise of the power which is not conferred upon it. Therefore, it is the submission of the petitioners that the administrative action of the public authority which is beyond its competence alone is challenged and no relief in terms of contractual obligation is sought for.

25. In this regard, it is relevant to notice that the contentions of the petitioners are that after the State Government transferred its functions to the Zilla Parishads i.e., distribution of fair price commodities, the Zilla Parishad has not delegated powers to its officers as per Section 268 of Karnataka Act 20/1985. In the absence of such delegation, the action of the Chief Secretary or Deputy Secretary of the Zilla Parishad becomes without the authority of law and as such it is liable to judicial review because, it would be a case of exercise of power by the public authority which is not empowered under law to enable it to exercise such power. Even though such exercise interferes with the performance of the contractual obligations or deprives the petitioners to take advantage of the contractual obligations in terms of the contract, but nevertheless, the petitioners would not be enforcing the contractual right but they would only be challenging the validity of action of the public authority. From the facts of each of these petitions, it is clear that what is challenged in these Writ Petitions is either the action of the Chief Secretary or the Deputy Secretary of the Zilla Parishad either cancelling the authorisation or taking away certain card-holders from one fair price shop and entrusting the same to other fair price shop etc. If such authorities are empowered under Karnataka Act No. 20/1985 by the Zilla Parishad, their action becomes the action of the Zilla Parishad as they would be authorised under the Act. In that event, the petitioners would be purely enforcing the contract. On the contrary, if those authorities are not at all empowered under the Act and without such empowering they cannot exercise any such power, the action of the authority will be without the authority of law and as such the challenge to it will be not on the basis of enforcing the terms of the contract but on the basis that the authority has no jurisdiction or the competence to take such action. There is a subtle distinction between the action of the public authority with the authority of law and without the authority of law. In the latter case, even if it pertains to contractual matters, it would be amenable to the jurisdiction of this Court under Article 226 of the Constitution as it would be a case of exercise of power by a public authority without the authority of law. In the first category of cases, the authority will be exercising power under the authority of law. The validity of the action of the public authority taken without the authority of law will rest upon the provisions of the Statute or the Rules, as such, it would undoubtedly be amenable to Article 226 of the Constitution as the validity of such action would not depend upon the terms of the contract. Therefore, in the latter case, the petitioners would not be enforcing the contract; whereas in the first category of cases the petitioners would be enforcing the contractual obligations. Therefore, to the extent of enforcement of the statutory provisions or the competence of the public authority is in question, the petitioners are entitled to invoke the jurisdiction under Article 226 of the Constitution and it would be the duty of this Court to examine and find out whether the authority has acted with the authority of law or not. Investigation and determination of this aspect does not depend upon, and it is not with reference to the contract but it would be with reference to the provisions of the Act and the Rules. As already pointed out, in these petitions the actions of the Chief Secretary or the Deputy Secretary are challenged on the ground that they have no such authority, and hence the Writ Petitions are maintainable. The petitioners are entitled to seek relief against the public authority which has acted without the validity of law.

26. In the case which falls in the first category the petitioners will be enforcing the contract itself and in such case, as held in Mahadeswara’s case, remedy is to approach the Civil Court in an appropriate suit and not a petition under Article 226 of the Constitution, because it relates to contractual matters.

In Indramani Pyarelal Gupta’s case the question considered was not the one whether in a petition under Articles 226 and 227 of the Constitution, a party can enforce the contractual rights. The question considered was as to whether the bye-laws framed under the Act can travel beyond the provisions of the Act. Therefore, the said Decision has no bearing on the point under consideration.

In R.K. Agarwal and Ors. v. State of Bihar, the petitioners tried to enforce the contractual obligations. In para 2 of the Judgment, the facts are succinctly stated which are as follows:

“2. Primarily the case of the petitioners is that of a breach of contract for which the State would be liable ordinarily to pay damages if it had broken it. If the petitioners could establish some right, either contractual or equitable to continue in possession, the State could be prevented by appropriate proceedings, from ousting the petitioners from the forest land from which the petitioners have been gathering sal seeds. The petitioners had also set up mala fides on the part of the Conservator of Forests, in enhancing the royalty unreasonably and then cancelling the lease, allegedly acting under the influence of friends and associates of the Forest Minister of Bihar.”

It is in the context of those facts, the Supreme Court considered whether the Writ or Order could issue under Article 226 of the Constitution in cases to compel the authorities to remedy a breach of contract pure and simple, and it was held that the authorities could not be compelled to remedy a breach of contract. Thus the Decision in Messrs R.K. Agarwal’s case is relatable to the first category of cases in respect of which we have held that the petition under Article 226 of the Constitution cannot be maintained. As far as the latter category of case are concerned, the principles laid down in this Decision are not applicable.

In Life Insurance Corporation of India v. Escorts Ltd. and Ors. while accepting the contention of the learned Attorney General, it is held that matters relating to the field of private law cannot be brought under the purview of Article 32 or 226 of the Constitution on construing that the provisions of Article 14 of the Constitution are attracted on the ground that the decision is either arbitrary or is not informed of the reasons. In paragraphs 101 and 102 of the Judgment, the Supreme Court has observed thus:

“101. It was however, urged by the learned Counsel for the Company that the Life Insurance Corporation was an instrumentality of the State and was therefore, debarred by Article 14 from acting arbitrarily. It was therefore, under an obligation to state to the Court its reasons for the resolution once a rule nisi was issued to it. If it failed to disclose its reasons to the Court, the Court would presume that it had no valid reasons to give and its action was, therefore, arbitrary. The learned Counsel relied on the decisions of this Court in Sukhdev Singh , Maneka Gandhi , International Airport Authority and Ajay Hasia . The learned Attorney General on the other hand, contended that actions of the State or an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. He relied on O’Reilly v. Mackman (1982) 3 All ER 1124, DAVY v. SPELTHORNE (1983) 3 All ER 278, I Congress Del Partido (1981) 2 All ER 1064, R v. EAST BERKSHIRE HEALTH AUTHORITY (1984) 3 All ER 425 and RADHA KRISHNA AGARWAL v. STATE OF BIHAR, AIR 1977 SC 1496 While we do find considerable force in the contention of the learned Attorney General, it may not be necessary for us to enter into any lengthy discussion of the topic as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional Law, Administrative Law and Public Law as the law in India in these branches has forged ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical Rules which have hampered the development of the English Law. While we do not for the moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution, we do not construe Article 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions.

102. For example, if the action of the State is political or sovereign in character, the Court will keep away from it. The Court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the Court, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the Company like any other shareholder.”

From the aforesaid observations, it is clear that the question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. That being so, in the instant case, we have already held that in so far as the challenge to the action of the public authority on the ground that the authority has no competence, the matter falls under public law and not under private law. Therefore, to this extent, the said Decision goes in favour of the petitioners. Thus we are of the view that in the light of the relief sought for by the petitioners challenging the competence of the officials of the Zilla Parishad to pass the impugned orders, the Writ Petitions are maintainable. The point No. 6 is answered in the affirmative and to the extent indicated above.

27. We shall now take up individual Writ Appeals.

W.A.No. 1874/1989

This Writ Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 3174 of 1989. The learned single Judge has dismissed the Writ Petition. The action challenged in the Writ Petition is that of the Chief Secretary, Zilla Parishad, Shimoga, cancelling the authorisation granted in favour of the petitioner for distribution of fair price commodities. The Zilla Parishad, Shimoga, has not delegated its functions relating to grant of authorisation for distribution of fair price commodities, cancellation of the same and other matters connected thereto in terms of Section 268 of Karnataka Act 20/1985 inasmuch as there is no Notification published in the Official Gazette delegating those powers. Apart from this, it is not brought to our notice that the Zilla Parishad has passed any resolution or taken any decision either to cancel the authorisation granted to the petitioner or to approve the action taken by the Chief Secretary. Therefore, the Writ Petition to this extent has to succeed. Accordingly, the appeal is allowed. The order under appeal is set aside. The Writ Petition is allowed. The action of the Chief Secretary, Zilla Parishad, Shimoga, cancelling the authorisation granted to the petitioner is quashed. It is made clear that this Order shall not be construed as coming in the way of the Zilla Parishad to take such action in the matter as it deems necessary. There will be no order as to costs.

WRIT APPEAL NUMBER 1875 OF 1989

This Writ Appeal is preferred against the Order dated 13-7-1989 passed in Writ Petition No. 15922 of 1988. The learned single Judge has allowed the Writ Petition and quashed the order passed by the Chief Secretary, Zilla Parishad, Gulbarga, cancelling the authorisation granted to the petitioner and further entrusting the same to Respondent No. 4 (Annexure-‘E’).

These reasons given above and also the reason given in W.A.1874 of 1989 apply to this case, because, there is no delegation of power by the Zilla Parishad to the Chief Secretary as per Section 268 of Act No. 20 of 1985. So in view of this the ultimate Order passed by the learned single Judge quashing the order of the Chief Secretary does not call for interference, though not on the reasons given by the learned single Judge but on the reasons given by us in this Order. Hence, the Writ Appeal is dismissed. There will be no order as to costs.

WRIT APPEALS 1876 AND 1877 OF 1989 Connected with WRIT

APPEALS 1859 AND 1860 OF 1989

These Writ Appeals 1876 and 1877 of 1989 arise out of the decision dated 13-7-1989 passed in Writ Petition Nos. 10413 and 10414 of 1988. The appellants in Writ Appeals 1876 and 1877 of 1989 are the petitioners in the aforesaid Writ Petitions; whereas in Writ Appeals 1859 and 1860 of 1989, the appellant is the Zilla Parishad, which is respondent-3 in the Writ Petitions. The learned single Judge has dismissed the Writ Petitions on the ground that the persons in whose favour the authorisations were granted on cancelling the authorisation granted in favour of the petitioners are not made parties. The petitioners themselves are not aggrieved by the order as they have not come up in appeal. However, the State and the Zilla Parishad have come up in appeals on the ground that the learned single Judge has held that the grant of authorisation is nothing but grant of licence under the Karnataka Essential Commodities Licensing Order. Therefore, all the rights, protections and obligations arising out of the provisions of the Karnataka Essential Commodities Licensing Order 1986 will govern the parties. We have held that authorisation for distribution of fair price commodities is quite different and independent of the licence granted under the Karnataka Essential Commodities Licensing Order 1986. The granting or cancellation of such authorisation has nothing to do with the Karnataka Essential Commodities Licensing Order 1986. The findings recorded by the learned single Judge contrary to the findings recorded by us are set aside. Therefore, for the reasons stated above, these Writ Appeals are dismissed, not on the reasons given by the learned single Judge but on the reasons we have given in the earlier portion of this Judgment. There will be no order as to costs.

WRIT APPEAL NO. 1878/1989

This Writ Appeal is preferred against the Order dated 13-7-1989 passed in Writ Petition 11712 of 1988. The learned single Judge has allowed the Writ Petition and quashed the order dated 16-6-1988 suspending the licence granted in favour of the petitioner (Annexure-E). Learned single Judge has also quashed the order dated 22-8-1988 (Annexure-F) cancelling the licence granted under Annexure-E. The Zilla Parishad, Hassan, has not shown that it has delegated the powers to its Chief Secretary in accordance with Section 268 of Karnataka Act No. 20/1985 as held by us above.

Therefore, for the reasons stated by us, and not on the reasons given by the learned single Judge which stand set aside, the operative portion of the Order has to be maintained. Accordingly, the Writ Appeal is dismissed. However, the findings recorded by the learned single Judge contrary to the findings recorded by us are set aside. There will be no order as to costs.

WRIT APPEAL 1879 OF 1989

This Writ Appeal arises out of the Order dated 13-7-1989 passed in Writ Petition No. 5862 of 1988. The learned single Judge has quashed the order dated 10-3-1988 passed by the Chief Secretary, Zilla Parishad, Chitradurga (Annexure-D) suspending the authorisation granted to the petitioner on the basis of the decision of the Sub-Committee. It is not shown to us by the Zilla Parishad that the decision of the Sub-Committee was approved by the Zilla Parishad and it was that decision of the Zilla Parishad which was carried out by the Chief Secretary.

Therefore, for the reasons stated above, the ultimate order passed by the learned single Judge allowing the Writ Petition has to be sustained on the reasons stated in this Order but not on the reasons given by the learned single Judge.

Accordingly the Writ Appeal is allowed in part. The findings recorded by the learned single Judge contrary to those recorded by us are set aside. There will be no order as to costs.

WRIT APPEAL 1880 OF 1989

This Writ Appeal arises out of the Order dated 13-7-1989 passed in Writ Petition No. 12216 of 1988. The learned single Judge has allowed the Writ Petition and quashed the order dated 1-8-1986 passed by the Chief Secretary, Zilla Parishad, Mandya (Annexure- B), cancelling the authorisation granted to the petitioner to distribute fair price commodities. It is not shown by the Zilla Parishad, Mandya that the Chief Secretary was delegated with the power, as required by Section 268 of Act No. 20 of 1985. In the absence of such delegation, the Chief Secretary has no authority to cancel or grant the authorisation. The Zilla Parishad has also not shown before us that it had taken a decision to cancel and the said decision was carried out by the Chief Secretary. Under these circumstances the order allowing the Writ Petition on the reasons stated by us and not on the reasons given by the learned single Judge, is not liable to be interfered with. Accordingly, the Writ Appeal is dismissed. The findings recorded by the learned single Judge contrary to those recorded by us are set aside.

WRIT APPEAL 1881 OF 1989

This Writ Appeal arises out of the Order dated 13-7-1989 passed in Writ Petition 2036 of 1989. The learned single Judge has dismissed the Writ Petition. In the Writ Petition the petitioner has sought for quashing the resolution passed by the Zilla Parishad granting authorisation to the 3rd respondent in the Writ Petition produced as (Annexure-A). The petitioner has not come up in appeal but the State has come up in appeal, because of certain findings recorded by the learned single Judge. Those findings we have set aside in the earlier portion of this Judgment while recording our findings on the common question of law that arise in the Writ Appeals. Therefore, for the reasons stated by us the Writ Appeal has to fail. However, the findings recorded by the learned single Judge are set aside.

WRIT APPEAL 1882 OF 1989

This Writ Appeal is preferred against the Order dated 13-7-1989 passed in Writ Petition 8786 of 1988. The learned single Judge has allowed the Writ Petition quashed the order dated 23-5-1988 passed by the Deputy Commissioner, Mandya (Annexure-C) cancelling the authorisation granted to the petitioner to distribute fair price commodities and also forfeiting the earnest money deposit; and the order dated 28-5-1988 passed by the Deputy Director, Food and Civil Supplies Department, Mandya (Annexure-D). The Deputy Commissioner has exercised the power after the function of distribution of fair price commodities, granting of licence and ail other matters connected there with were transferred to the Zilla Parishad by the Government by its order dated 26th March. 1987. Consequently from that date it is the Zilla Parishad who has got exclusive power in the matter. Therefore, the order dated 23-5-1988 passed by the Deputy Commissioner, Mandya and the order dated 28-5-1988 passed by the Deputy Director, Food and Civil Supplies Department, Mandya are liable to be quashed. As such the order passed by the learned single Judge for the reasons stated by us and not on the reasons given by the learned single Judge quashing the orders of the Deputy Commissioner and the Deputy Director, Food and Civil Supplies Department, is not liable to be interfered with. Accordingly, the Writ Appeal is dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those recorded by us are set aside. There will be no order as to costs.

WRIT APPEAL 1883 OF 1989

This Writ Appeal is preferred, against the Order dated 13-7-1989 passed in Writ Petition 16676 of 1988. The learned single Judge has allowed the Writ Petition and quashed the notice dated 21-10-1988 (Annexure-C) calling upon the petitioner to show cause as to why the authorisation granted to the petitioner to distribute fair price commodities should not be annulled and also the order dated 14-11-1988 (Annexure-E) passed by the Deputy Secretary, Zilla Parishad, suspending the authorisation granted to the petitioner. As the power has not been delegated to the Deputy Secretary by the Zilla Parishad, the impugned orders are liable to be quashed. It is not shown before us that the Mandya Zilla Parishad had taken a decision to suspend the authorisation granted to the petitioner or to issue show cause notice to the petitioner, therefore, the order passed by the learned single Judge, quashing the same is not liable to be disturbed for the reasons stated by us in this Judgment and not for the reasons given by the learned single Judge. Accordingly, the Writ Appeal is dismissed. However, the findings recorded by the learned single Judge contrary to those recorded by us are set aside. There will be no order as to costs.

WRIT APPEAL 1884 OF 1989

This Writ Appeal is preferred against the Order dated 13-7-1989 passed in Writ Petition 444 of 1989. The learned single Judge has allowed the Writ Petition and quashed the authorisation (Annexure-B) dated 14-10-1988 granted by the Chief Secretary, Zilla Parishad, Kolar, to a Co-operative Society (3rd respondent).

It is brought to our notice that the Zilla Parishad, Kolar has delegated the power to the Chief Secretary by its Notification dated 16th March 1989 bearing No. ZPK/KFCS-28/88-89 which is published in the Karnataka Gazette. The Zilla Parishad has not only delegated the power to grant authorisation and other matters connected therewith it has also approved all the actions taken by the Chief Secretary on and from 18th June 1988. In the instant case, the authorisation is granted to the 3rd respondent on 14-10-1988. Therefore, the same is not liable to be interfered with. Accordingly, the Writ Appeal is allowed. The Order dated 13-7-1989 passed in W.P.No. 444/1989 is set aside and the Writ Petition is dismissed. There will be no order as to costs.

W.A.No. 1885/1989

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 742/1989. In the Writ Petition, the petitioner sought for quashing the order dated 15-12-1988 passed by the Chief Secretary Zilla Parishad, Kolar, cancelling the authorisation granted to the petitioner and entrusting distribution of the fair price commodities to the 2nd respondent therein. The learned single Judge has allowed the Writ Petition and quashed the order impugned. We have already held that the Zilla Parishad, Kolar has delegated its functions to the Chief Secretary. Therefore, the order passed by the Chief Secretary, Zilla Parishad, Kolar dated 5-12-1988 cannot be interfered with in a petition under Articles 226 and 227 of the Constitution. Hence this Writ Appeal is entitled to succeed. Accordingly the Appeal is allowed, the Order dated 13-7-1989 passed by the learned single Judge in W.P.No. 742/1989 is set aside, and the Writ Petition is dismissed.

W.A.Nos. 1886 and 1675/1989:

These two Appeals are preferred against the Order dated 13-7-1989 passed in W.P.No. 1962/1989. In the Petition the petitioner has sought for quashing the order dated 11-1-1988 passed by the Deputy Secretary, Zilla Parishad, Mandya bifurcating the ration cards from the authorisation granted to the petitioner and assigning the same to the 3rd respondent in the Writ Petition which is a Co-operative Society. It has been held by us that the Zilla Parishad. Mandya, has not delegated its powers and functions as required by Section 268 of the Karnataka Act No. 20/1985; as such the Deputy Secretary, Zilla Parishad had no authority to interfere with the authorisation held by the petitioner in the Writ Petition. The learned single Judge has allowed the Writ Petition and quashed the order dated 11-1-1988 passed by the Deputy Secretary, and has reserved liberty to take such action as is permissible in law. We do not see any ground to interfere with the ultimate direction issued by the learned, single Judge. Accordingly, the Writ Appeals are dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those we have recorded in the earlier portion of this Judgment stand set aside.

W.A.Nos. 1887/1989 c/w W.A. 1534/1989

These two Appeals are preferred against the Order dated 13-7-1989 passed in W.P.No. 8562/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 13-4-1989 passed by the Deputy Secretary, Zilla Parishad, Kolar, produced as Annexure-B in the Writ Petition. The Deputy Secretary has granted the authorisation to the 3rd respondent in the Writ Petition to distribute fairprice commodities to the card-holders. The records produced before us show that though the order was issued by the Deputy Secretary, Zilla Parishad, but it was issued on the approval of the Chief Secretary. Therefore, it is an order passed by the Chief Secretary only. The Zilla Parishad, Kolar had delegated its functions to the Chief Secretary and this aspect of the matter we have already pointed out in the earlier portion of this Judgment. In view of the fact that the order is in the one passed by the Chief Secretary though communicated by the Deputy Secretary, Zilla Parishad, merely because it is communicated by the Deputy Secretary, Zilla Parishad, it does not cease to be the one passed by the Chief Secretary. Therefore, the Writ Appeals are allowed. The Order dated 13-7-1989 passed by the learned single Judge in W.P.No. 8562/1989 is set aside. The Writ Petition is dismissed. Consequently the order dated 13-4-1989 Annexure-B passed by the Chief Secretary and communicated by the Deputy Secretary. Zilla Parishad, stands undisturbed.

W.A.No. 1088/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 9386/1989. The learned single Judge has allowed the Appeal, quashed the communication dated 6-4-1989, Annexure-E, passed by the Zilla Parishad, Chitradurga, cancelling the authorisation granted to the petitioner in the Writ Petition. The learned single Judge has allowed the Writ Petition on the ground that the petitioner was not afforded an opportunity to put forth his say in the matter before cancelling the authorisation. We have already held that as the matter lies purely in the arena of contract, the aggrieved party has to seek appropriate relief before a Civil Court and the question of principles of natural justice cannot be made applicable. That being so, this Writ Appeal has to be allowed. Accordingly, it is allowed. The order dated 13-7-1989 passed in W.P.No. 9386/1989 is set aside. The Writ Petition is dismissed. Liberty is reserved to the petitioner to seek appropriate relief in a Civil Court. All the contentions of the petitioner are left open.

W.A.No. 1889/1989

This Writ Appeal is preferred against the order dated 13-7-1989 passed in W.P.No. 10173/1989. The learned single Judge has dismissed the Writ Petition on the ground that the petitioner has an alternative remedy under Rule 13 of the Karnataka Essential Commodities Licensing Order. The learned single Judge has proceeded on the basis that by the order dated 22-4-1989, the Joint Director of Food and Civil Supplies, Bangalore, has cancelled the licence granted under the Karnataka Essential Commodities Licensing Order whereas what has been done by the Joint Director is the cancellation of the authorisation.

No doubt the learned single Judge is not correct in holding that there is an alternative remedy available under Rule 13 of the Karnataka Essential Commodities Licensing Order as the said Rule does not apply to the case of granting of authorisation. The authorisation in question relates to the area lying within the City of Bangalore over which the jurisdiction of the Zilla Parishad does not extend. Therefore in such areas the State Government continues to have its authority. Therefore, the Joint Director of Food and Civil Supplies being one of the officials to implement the scheme, is also entitled to pass appropriate orders. As such we do not see any ground to interfere with the order passed by the Joint Director in cancelling the authorisation. If the petitioner is aggrieved by the said order, it is open to him to seek adjudication of the same before the Civil Court. Therefore, for the reasons stated above and not for the reasons stated by the learned single Judge, we do not see any ground to interfere with the impugned order. All the contentions are left open. The Writ Petition is dismissed. Liberty is reserved to the petitioner in the Writ Petition to agitate the matter before the appropriate Civil Court.

W.A.No. 1890/1989

This Appeal is preferred against the Order dated 13-7-1989 passed by the learned single Judge in W.P.No. 10370/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 20-3-1989 passed by the Chief Secretary, Zilla Parishad,
Kolar, suspending the authorisation granted to the petitioner for distribution of fairprice commodities. It is already pointed out that the Zilla Parishad, Kolar, has delegated its power to the Chief Secretary. Therefore, the order passed by the Chief Secretary, suspending the authorisation is well within his power. As the matter relates to purely one of contract, it is not necessary to exercise the jurisdiction under Articles 226 and 227 of the Constitution. Accordingly, the Writ Appeal is allowed. The Order dated 13-7-1989 passed in W.P.No. 10370/1989 is set aside. The Writ Petition is dismissed. It is now open to the Zilia Parishad to proceed in accordance with law. All the contentions of the petitioner are left open.

W.A.Nos. 1891/1989 and 1861/1989:

These two Writ Appeals are preferred against the Order dated 13-7-1989 passed in W.P.No. 3439/1989. The learned single Judge has allowed the Writ Petition, quashed the order dated 15-1-1989 passed by the Chief Secretary, Zilla Parishad, Mysore cancelling the authorisation granted in favour of the petitioner. As the Zilla Parishad, Mysore, has not delegated its functions under Section 268 of the Karnataka Act No. 20/1985 to the Chief Secretary, the order passed by the Chief Secretary, Zilla Parishad is without the authority of taw. Hence the order passed by the learned single Judge allowing the Writ Petition and quashing the order of the Chief Secretary does not call for interference. Accordingly, the Writ Appeals are dismissed. However, it is made clear that all the findings recorded by the learned single Judge contrary to those recorded by us stand set aside.

W.A.No. 1892/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 9616/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 25-5-1989 passed by the Chief Secretary, Zilla Parishad, Gulbarga, cancelling the authorisation granted to the petitioner. As the Zilla Parishad, Gulbarga has not delegated its power to the Chief Secretary, Zilla Parishad, the order passed by the Chief Secretary is without the authority of law. Hence the order allowing the Writ Petition and quashing the order dated 25-5-1989 passed by the Chief Secretary, Zilla Parishad, Annexure-F does not call for interference. Accordingly, the Writ Appeal is dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those recorded by us stand set aside.

W.A.No. 1893/1989:

This Writ Appeal is preferred against the Order dated 13-7-1989 passed by the learned single Judge in W.P.No. 9489/1989. The learned single Judge has allowed the Writ Petition, quashed the order dated 11-5-1989 and 23-5-1989 passed by the Vice-President, Zilla Parishad, Mangalore. As the order is not passed by the Zilla Parishad and it is passed by the Vice President, Zilla Parishad alone, it cannot be held to be legal. Hence the order passed by the learned single Judge allowing the Writ Petition does not call for interference. Accordingly, the Writ Appeal fails and it is dismissed. However, the findings recorded by the learned single Judge contrary to those recorded by us are set aside.

W.A.No. 1894/1989:

This Writ Appeal is preferred against the Order dated 13th July 1989 passed in W.P.No. 5904/1989. The learned single Judge has allowed the Writ Petition, quashed the order dated 23-5-1989 passed by the Deputy Secretary, Zilla Parishad, Kolar cancelling the authorisation issued to the petitioner. No doubt the Zilla Parishad. Kolar had delegated its power to the Chief Secretary, but it is not shown to us that the order was passed by the Chief Secretary and it was only communicated by the Deputy Secretary, Zilla Parishad. In the absence of such a material, it is not possible to hold that the order is passed by the Chief Secretary, Zilla Parishad, Kolar. Therefore, the order passed by the Deputy Secretary, Zilla Parishad, Kolar, who has not been delegated with the power is illegal and as such it is liable to be set aside. Accordingly, we do not see any reason to interfere with the order passed by the learned single Judge. Hence the Writ Appeal is dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those recorded by us are set aside.

W.A.No. 1895/1989 and 1862/1989:

These two Appeals are preferred against the Order dated 13-7-1989 passed in W.P.No. 10697/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 24-3-1988 passed by the Chief Secretary, Zilla Parishad, Mysore. It has already been pointed out that the Zilla Parishad, Mysore has not delegated its functions to the Chief Secretary, as required under Section 268 of Karnataka Act No. 20/1985. That being so, the Chief Secretary has acted without the authority of law in keeping the authorisation granted to the petitioner under suspension. Hence we do not see any ground to interfere with the order passed by the learned single Judge. Accordingly, the appeal fails and it is dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those recorded by us in the earlier portion of this Judgment are set aside.

W.A.No. 1896/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 10933/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 15-6-1989 passed by the Deputy Secretary, Zilla Parishad, Kolar. No doubt the Zilla Parishad, Kolar had delegated its power to the Chief Secretary, Zilla Parishad under Section 268 of Karnataka Act No. 20/1985. But it is not shown to us that the impugned order is the one passed by the Chief Secretary and the Deputy Secretary, Zilla Parishad, has only communicated the decision. In the absence of an order passed by the Chief Secretary, Zilla Parishad, Kolar, and in the absence of delegation of power to the Deputy Secretary, Zilla Parishad, Kolar, the impugned order dated 15-6-1989 is liable to be quashed. Accordingly, we see no reason to interfere with the order passed by the learned single Judge in the Writ Petition. Hence the Writ Appeal fails and the same is dismissed. However, it is made clear that the finding recorded by the learned single Judge contrary to those recorded by us are set aside.

W.A.No. 1897/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 11235/1989. The learned single Judge has allowed the Writ Petition and quashed the order dated 25-3-1989 passed by the Chief Secretary, Zilla Parishad, Chitradurga cancelling the authorisation granted to the petitioner. It is not shown to us that the Zilla Parishad, Chitradurga has delegated its functions to the Chief Secretary as per Section 268 of Karnataka Act No. 20/1985. Hence the impugned order is without the authority of law, as such it is liable to be quashed. That being so, the order passed by the learned single Judge does not call for interference. Accordingly, the Writ Appeal fails and it is dismissed. However, it is made clear that the findings recorded by the learned single Judge contrary to those recorded by us are set aside.

W.A.No. 1898/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 10543/1989. The learned single Judge has allowed the Writ Petition and quashed the impugned order dated 9-6-1989 passed by the Chief Secretary, Zilla Parishad, Bangalore District, Bangalore, cancelling the authorisation issued in favour of the petitioner. It is not shown to us that the Zilla Parishad Bangalore District, Bangalore, has delegated its powers and functions under Section 268 of the Karnataka Act No. 20/1985 to the Chief Secretary. Therefore, the order passed by the Chief Secretary was without the authority of law. Hence, we do not see any ground to interfere with the order passed by the learned single Judge quashing the order dated 9-6-1989 passed by the Chief Secretary, Bangalore District, Bangalore. Hence the Writ Appeal fails and the same is dismissed. However, we make it clear that the findings recorded by the learned single Judge contrary to the ones recorded by us, are set aside.

W.A.No. 1899/1989:

This Appeal is preferred against the Order dated 13-7-1989 passed in W.P.No. 10862/1989. The learned single Judge has allowed the Writ Petition, quashed the order dated 26-7-1988 passed by the Deputy Commissioner, Tumkur cancelling the authorisation issued in favour of the petitioner for distribution of fair price commodities and also the order dated 22-5-1989 passed by the Director of Food and Civil Supplies, Bangalore. The learned single Judge has allowed the Writ Petition on the ground that what was granted to the petitioner was the licence and not the authorisation. However, we have held that it is not the licence issued under the provisions of the Karnataka Essential Commodities Licensing Order, 1986 but it is an authorisation issued under the scheme framed by the State Government in exercise of its executive power for distribution of fair price commodities. They are quite independent of each other and the authorisation cannot also be termed as a licence. It is also not governed by the provisions of the Karnataka Essential Commodities Licensing Order. As the order passed by the Deputy Commissioner cancelling the authorisation granted to the petitioner for distribution of fair price commodities to the card holders within the limits of City Municipal Council, Tumkur, which area lies outside the jurisdiction of the Zilla Parishad and as such the State Government continues to have its powers the order passed by the Deputy Commissioner who is one of the authorities to implement the scheme, framed by the Government, does not call for interference. Thus it is a case which is purely governed by the terms of the contract as incorporated in the authorisation. Therefore, it is open to the petitioner to seek appropriate relief in a Civil Suit. Accordingly, this Writ Appeal is entitled to succeed. It is accordingly allowed. The Order dated 13-7-1989 passed in W.P.No. 10862/1989 is set aside. The Writ Petition is dismissed. All the contentions of the petitioner are left open. Liberty is reserved to the petitioner to agitate the matter in an appropriate civil suit.

WRIT APPEAL 262 OF 1989:

This Writ Appeal is preferred against me Order dated 22-1-1990 passed in Writ Petition No. 1324 of 1990. In the Writ Petition the petitioner/appellant has sought for quashing the Resolution dated 10-1-1990 (Annexure B) passed by the Sub-Committee, Food and Vigilance, Zilla Parishad, Belgaum and also the order dated 17-1-1990 bearing No. ZP/APV/ADAR/W/80/89-90 (Annexure-C), passed by the Chief Secretary, Zilla Parishad, Belgaum, pursuant to the resolution dated 10-1-1990 passed by the Sub-Committee, Food and Vigilance, Zilla Parishad, Belgaum:

In this case it is relevant to notice that the authorisation granted to the petitioner for distribution of fair price commodities has not been cancelled. However, 4 more individuals have been granted authorisation to distribute fair price commodities in the areas which were also covered by the authorisation granted to the petitioner. The learned single Judge has dismissed the Writ Petition on the ground that the case is covered by the Decision of the Division Bench in MAHADESHWARA STORES v. STATE OF KARNATAKA [1983(2) Kar.L.J. 201]. We are of the view that it is a case in which no order can be passed without the persons in whose favour the authorisation is granted are made parties to the Writ Petition. Hence, the relief sought for in the Writ Petition cannot be considered on merits. The Writ Appeal is dismissed. There will be no order as to costs.