- (1.) HEARD learned counsel for the petitioner Sri Prince Lenin, Sri Mukund Tiwari for the State and Sri Ali Raza Khan for Chairman, Nagar Panchayat Ganj, Muradabad and Executive Officer, Nagar Panchayat Ganj, Muradabad, op posite parties No. 7 and 8.
(2.) THIS writ petition in the nature of public interest has been filed by one Iqbal Hasan Ansari. It appears that on an objection being raised by the State that this petition is not maintainable in the absence of person who cannot be said to be aggrieved by the change of his category from below poverty line to above poverty line or cancellation of his B. P. L. card, two persons, namely, petitioner Nos. 2 and 3 have been added as additional petitioners in pursuance of the order passed by this Court presided over by Hon'ble the Chief Justice on 17th September, 2007. Thus, the petitioner No. 1, who has espoused the cause of other legible persons falling below poverty line is now not alone in challenging the action of the Sub Divisional Magistrate, cancelling the list of the B. P. L. card holders or changing their catego ries. Two aggrieved persons have also been added in the array of the petitioners. Considering the aforesaid facts it does not appear necessary for us to enter into the question of maintainability of this writ petition in the nature of public interest but suffice would it be to mention that the petition not only represents the cause of petitioners No. 2 and 3 but also 248 other persons whose category has been changed from below poverty line to above poverty line and their cards have been cancelled. Affidavits have been exchanged. State has come forward with the case that on a complaint made by Chairman, Nagar Panchayat, Ganj Muradabad that cer tain B. P. L. cards have wrongly been issued to some ineligible persons and on enquiry conducted by Lekhpal category of 250 persons has been changed and their cards have been cancelled after being found that they are not elegible for the said benefit. 5, Argument has been raised by Sri Mukund Tiwari that after inquiry, category has been changed, therefore, this Court may not enter in assessing the claim of individuals, may be in public interest litigation as it is within the domain of the Executive to find and extend privilege of the scheme to the persons falling below poverty line or to those who are entitled to the benefit of Antyodaya scheme. 6. Question remains that whether such action can be taken arbitrarily and without following any uniform and transparent procedure. 7. In the short counter affidavit filed by State sworn by Sri S. C. Tiwari, S. D. M. Safipur, it has been mentioned that Chairman of Nagar Panchayat wrote him a letter mentioning that some ineligible persons have been classified in the cat egory of below poverty line or to the category of Antyodaya scheme and made a request for conducting an enquiry. 8. This complaint was made on 18th May, 2007. On 25th May, 2007 the S. D. M. directed the concerned Lekhpal to make enquiry and submit report within fifteen days. The Lekhpal submitted his report on 8th June, 2007. On the basis of the said report, impugned action has been taken. 9. We have been taken through the said report of the Lekhpal and we find that it is a tabular chart prepared by Lekhpal, which contains names of 250 persons and in the last column the Lekhpal has given his conclusion in one or two lines for their being ineligible for the benefit of the scheme. 10. The learned counsel for the petitioner refuting the factum of holding any enquiry by Lekhpal and disputing its correctness vehemently submitted firstly that Lekhpal did not make any enquiry on spot and no person affected was asso ciated in such an enquiry, if it was at all held by Lekhpal and that the Lekhpal was not competent to hold any enquiry for the purpose to find out persons regarding their category of below poverty line or for Antyodaya scheme or for any other benefit under the scheme. 11. In exercise of the powers conferred under Section 3 of the Essential Commodities Act, 1955 read with the order of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution. Department of Food and Public Distribution, the Governor has made an order known as' Uttar Pradesh Sched uled Commodities Distribution Order, 2004 prescribing the mechanism for identi fying the families falling below poverty lines under Clause 5 of the aforesaid Rule is quoted below; "5. Identification of families living below the poverty line.- (1) Under or der of the State Government a Food Officer shall undertake identification of families living Below the Poverty Line (BPL) including the Antyodaya families. As per the estimates adopted by the State Government care will be taken to ensure that the families so identified are really the poorest. The exercise of identification of BPL, and Antyodaya families, wherever it has not been done earlier shall be completed within three months from issue of this order. (2) A Food Officer shall get the lists of BPL and Antyodaya families re-a viewed every year for the the purpose of deletion of ineligible families and inclusion of eligible families. (3) While undertaking the exercise of identification or review of BPL and Antyodaya families, State Government shall prescribe a suitable proforma to be filled up by or on behalf of the head of a family. (4) The data provided in the prescribed proforma shall be verified by the designated authority. The said authority shall also certify the correctness of the information contained in the proforma and report to concerning Food Of ficer for his approval. (5) Gram Sabhas shall finalize the list of beneficiaries belonging to BPL and Antyodaya categories drawn up by the designated authority in respect of the area under their respective jurisdiction. (6) Where there are no Gram Sab has, the Food Officer shall finalize the list of beneficiaries belonging to BPL and Antyodaya categories within their respective jurisdiction. " 12. In fact, on the complaint of Chairman, Nagar Panchayat, no exercise was undertaken by the 'food Officer' regarding identification of families for the pur pose of finding as to whether the said persons are eligible or they being ineligible of or not to be continued to be treated under below poverty line. 13. Aforesaid clause also says that Food Officer would get lists of BPL and Antyodaya families reviewed and that while undertaking exercise of identification or review of list of BPL and Antyodya families, the State Government shall pre scribe a suitable proforma to be filled up by or on behalf of the head of family. The data provided in the prescribed proforma shall be verified by the 'designated Au thority', who shall also certify the correctness of the information contained in the proforma and report to the concerning 'food Officer' for his approval. Where there is Gram Sabha, it shall finalize the list and where there is no Gram Sabha, the Food Officer shall finalize the list of beneficiaries belonging to BPL and Antyodaya categories. 14. Food Officer has been defined in sub-clause (m) of Section 2 which means the Food Commissioner, Additional Food Commissioner, Deputy Food Commissioner, Assistant Food Commissioner, Regional Food Controller, District Magis trate, Additional District Magistrate (Civil Supplies), District Supply Officer, Dis trict Food Marketing' Officer and Deputy Town and Rationing' Officer, Area Ration ing Officer or any other officer authorized by the State Government in this behalf. 'designated Authority' has been defined in sub-clause (k) of Section 2, which means Supply Inspector, a Senior Supply Inspector but for rural areas it also includes Gram Panchayat and Gram Vikas Adhikari at Gram Panchyat level. 15. Submission of learned counsel for the petitioner is that identification of the families who fall within the category of BPL either at the time of initial catego rization or at the time of review has to be done in the manner prescribed in the Rule. 16. Under clause 7 (1) the Food Officer and on his approval' Designated Authority' may at any time add to, amend, vary or rescind any ration card. 17. The scheme of the aforesaid order has been made with a view to make equal distribution of food grains and other essential commodities on fair price. Selection and identification of persons falling below poverty line is essence of the successful implementation of the said scheme. It is with this purpose in mind that a detailed procedure has been prescribed as aforesaid for identification of eligible persons. Consequent upon the categorization of persons under below poverty line, ineligible families should be deleted and for that matter yearly review has been provided. 18. In the instant case on a report of Chairman Nagar Panchayat, the S. D. M. required the Lekhpal to make an inquiry and submit his report. Under the afore said order of 2004, such a procedure is not prescribed. Without entering into further detail about the grievance raised and the procedure followed while chang ing categorization of persons for extending benefit, it would be pertinent to men tion that in the instant case the identification of the families has not been done in the manner prescribed. Lekhpal unless authorized under clause 2 (m) cannot be made sole person to conduct an enquiry in this regard and that admittedly in this case, enquiry was not conducted by the Food Officer as defined under the order. 19. Apart from the fact that the inquiry was not conducted by the Food Officer the persons against whom said inquiry was conducted were never associated with it and 'head of the family' was not required to furnish necessary information much less in the given proforma. 20. We, therefore, are of the view that the enquiry conducted cannot be up held and on the basis of such enquiry neither category could be changed of 250 persons nor they can be brought out from the BPL lists or Antyodaya scheme. 21. Before parting, we will like to put on record that genuine persons should not be deprived of the benefit of the aforesaid scheme and if this benefit is ex tended to the persons who are not eligible, then the purpose of scheme would be frustrated. We, therefore, expect that the State Government in all such matters will hold appropriate enquiry as given in the order so that such uncalled for litiga tion does not come to the Court as it is the Executive authority which is mainly responsible for the correct and just implementation of the scheme and for that matter enquiry in the instant case be conducted expeditiously. 22. We, therefore, set aside the order and list prepared by the SDM changing category of these 250 persons and also quash the enquiry conducted by Lekhpal. We further direct that a fresh enquiry be conducted in accordance with Rules. After identifying the families, appropriate order would be passed. These 250 per sons would be extended benefit to which they were entitled prior to change of their category or cancellation of their cards till enquiry is completed. With the aforesaid directives, the writ petition is allowed. .;