While setting aside the Delhi government's scheme for doorstep delivery of ration, the Delhi High Court has observed that the decision of the Council of Ministers headed by Delhi Chief Minister to roll out the said scheme cannot be described as an Executive action taken by, or in the name of the Lieutenant Governor.
The Court reasoned that the same cannot be done since the LG had expressed his disagreement, which stood unresolved as the scheme was placed before the President.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Jasmeet Singh thus quashed the three tenders issued by the Delhi Government in respect of the doorstep ration delivery scheme.
However, the Court said that the Delhi Government is entitled to frame a scheme for doorstep delivery of foodgrains or rations to the beneficiaries under the Targeted Public Distribution System (TPDS), from its own resources in compliance with the prevailing laws.
The Court thus observed:
"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."
The Court also added "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."
Whether the impugned Scheme capable of being put into execution or implementation when objected to by the Lieutenant Governor?
The Court was of the view that the conduct of the Lieutenant Governor satisfied the standards of Constitutional trust and morality, and the principle of collaborative federalism, and Constitutional balance so eloquently explained by the Supreme Court in State (NCT of Delhi) case.
The Court noted that on 10.03.2018, the Lieutenant Governor was communicated the Cabinet decision which was to implement the proposal for home delivery of ration and that the Council of Ministers approved the proposal to implement the scheme under the TPDS in the city.
It also noted that the LG had expressed his view stating 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.
The Bench also noted that the Lieutenant Governor also expressed his concern stating 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 noticed the view of the Department of Law of the Delhi Government that the Scheme would require prior approval of the Central Government, under Section 12(2)(h) of the Act.
"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," the Court said at the outset.
The Bench added that even if the opinion of the Lieutenant Governor for expressing his difference of opinion was eventually not agreed to by the President, and the President had decided 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," the Court said.
Delhi Govt Failed To Explain How Doorstep Delivery Will Prevent Corruption
The Court was also of the view that the Council of Ministers did not answer the issues raised by the Lieutenant Governor in his decision dated 20.03.2018 and that it 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 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)," the Court held.
NFSA Is Central Legislation, Delhi Govt Bound By It
It also said that since the Parliament had enacted the the National Food Security Act, 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 was bound to implement the proposed Door Step Delivery Scheme only in the manner that the Central Government may prescribe, and not otherwise.
"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," it said.
Further noting that 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, the Court said that there was an obligation for the Chief Minister to communicate the decision of the Council of Ministers to the Lieutenant Governor.
It added that in case, there was a difference of opinion, or a disapproval, then the matter must be have been 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," the Court said.
It added "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."
The bench also held as follows:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Delhi's Lieutenant Governor Anil Baijal had stalled Chief Minister Arvind Kejriwal's "Ghar Ghar Ration Yojana Scheme" for doorstep delivery of ration to the poor. The Centre claimed that fair price shop owners form an integral part of the National Food Security Act and that the proposed scheme of Delhi government mitigates the architecture of the Act.
Case Title: DELHI SARKARI RATION DEALERS SANGH DELHI v. COMMISSIONER FOOD AND SUPPLIES GOVT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 472