K. SHIVALINGAIAH v. HON BLE MINISTER FOR FOOD AND CIVIL SUPPLIES, BANGALORE
2006-11-29
MOHAN M.SHANTANAGOUDAR
body2006
DigiLaw.ai
ORDER Sri B. Veerappa, learned Additional Government Advocate, is directed to take notice on behalf of the respondents 1 and 3. Heard the learned Advocate on both sides and perused the material on record. With consent of the parties, the matter is heard finally. 2. By filing this writ petition, the petitioner has sought for quashing the order dated 26-10-2006 passed by the respondent 1 vide Annexure-A. By the impugned order, the 1st respondent-Revisional Authority stayed the operation and implementation of the order dated 6-10-2006 passed by the 3rd respondent-original authority and ordered to continue with the alternative arrangement made on 31-3-2004, to distribute the foodgrains to cardholders by entrusting the same to Yeliyuru Vyavasaya Seva Sahakara Sangha Niyamitha, Panakanahalli ('VSSN' for short). 3. The records disclose that the petitioner herein was granted an authorisation to run Fair Price Shop situated at Thandasanahalli Village, M.G. Layout, Mandya Taluk. Based on the certain complaint dated 25-11-2003 made against the petitioner, alleging certain irregularities in distribution of essential commodities, show-cause notice was issued by the Deputy Commissioner to the petitioner. It is alleged by certain cardholders that petitioner is not distributing the essential commodities timely and that petitioner was collecting excess price by charging Rs. 6.50 instead of Rs. 6.15 per k.g. for rice, Rs. 5.00 instead of 4.65 for wheat and Rs. 10.00 instead of Rs. 9.50 for kerosene. The Tahsildar held enquiry. After making enquiry in that regard and after obtaining report from the concerned Food Inspector, the Tahsildar submitted his report dated 15-3-2004 to the Deputy Commissioner, Mandya by concluding that the allegations made against the petitioner were found to be correct and requested the Deputy Commissioner to suspend the authorisation issued in favour of petitioner and to entrust the distribution work to "VSSN' Yeliyuru, which is a Co-operative Society, as an alternative and interim measure. The copy of the said report is produced at Annexure-C along with the statement of objections filed by respondent 2. The 3rd respondent-Deputy Commissioner 'suspended the authorisation of the petitioner based on aforesaid material. 4. After two years, the final order is passed by the 3rd respondent Deputy Commissioner on 6-10-2006 holding that the petitioner has violated the terms and conditions contained in the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and committed certain irregularities and consequently, petitioner was imposed fine of Rs.
4. After two years, the final order is passed by the 3rd respondent Deputy Commissioner on 6-10-2006 holding that the petitioner has violated the terms and conditions contained in the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and committed certain irregularities and consequently, petitioner was imposed fine of Rs. 5,000/- and ordered for forfeiture of the security deposit furnished by the petitioner. However, the order of suspension of licence is revoked. The petitioner is also directed that he should not indulge in such activities in future. The said order is found at Annexure-C to the writ petition. Challenging the said order passed by the Deputy Commissioner, the second respondent herein filed revision petition before the 1st respondent-State Government (Revisional Authority) along with an application praying for stay of the order of the Deputy Commissioner. The 1st respondent, pending final decision has granted impugned interim order of stay, staying the operation of the order passed by the Deputy Commissioner vide Annexure-C and directed the Deputy Commissioner to continue with the alternative arrangements made during the period of suspension of the licence/authorisation made in favour of the petitioner. Assailing the correctness of the said interim order, petitioner has filed the present writ petition. 5. Sri HC. Shivaram, learned Counsel appearing on behalf of the petitioner submits that the impugned order passed by the 1st respondent is erroneous, inasmuch as, the first respondent ought not have been granted the interim order of stay, staying the operation of the order passed by the Deputy Commissioner, particularly when the order of the Deputy Commissioner is just and proper under the facts and circumstances of the case; that the 1st respondent being the Revisional Authority has no jurisdiction to pass interim order in the revision petition. The said contentions are opposed by the learned Additional Government Advocate appearing on behalf of the respondents' 1 and 3 and Sri Marigowda, learned Advocate appearing for respondent 2. 6. As could be seen from the' order passed by the Deputy Commissioner dated 6-10-2006, he came to the conclusion that the allegations made against the petitioner were found to be correct, at least insofar as they related to non-maintenance of the accounts pertaining to distribution of the essential commodities. Therefore, the Deputy Commissioner, apart from imposing penalty of Rs. 5,000/-, has ordered for forfeiture of security deposit paid by the petitioner.
Therefore, the Deputy Commissioner, apart from imposing penalty of Rs. 5,000/-, has ordered for forfeiture of security deposit paid by the petitioner. However, the order of suspension of authorisation issued in favour of petitioner is revoked by the said order. It is relevant to note here itself that the order of suspension of authorisation was in exercise for about one and half (11/2) year and during the said period, the 'VSSN Yeliyuru, which is a Co-operative Society has been entrusted with distribution of essential commodities during the said period. Absolutely, no allegations are forthcoming against the said society and the cardholders are happy by the distribution work of the said Co-operative Society. Having regard to the totality of the facts and circumstances of the case, the 1st respondent-Revisional Authority thought it fit to continue the alternate arrangement of distribution of essential commodities through 'VSSN' Yeliyuru during the pendency of the revision petition. The revision petition is now posted for hearing on 25-11-2006. As the first respondent-Revisional Authority has exercised its discretion judiciously, under the facts and circumstances of the case, there is no good ground for this Court to interfere with the said discretionary interim order passed by the 1st respondent. 7. The second contention of the petitioner that the Revisional Authority has no jurisdiction to grant interim order in the revision filed by the 2nd respondent also cannot be accepted. In this connection, it is relevant to note the provision of Clause 20 of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 ('Control Order' for short), which reads thus: «20~ Power to call for and examin/e records.-The Government may suo motu or on an application made to it by an aggrieved person, at any time call for and examine the record of any enquiry or proceedings of any officer exercising or failing to exercise the powers under this order, to suspend or cancel any authorisation issued for the purpose of satisfying itself as to the legality or the propriety of any decision or order passed by such officer and as to the regularity of the proceedings of such officer may pass such order thereon as it thinks fit, provided that the State Government shall not pass any order under this clause which adversely affects any person unless such person has been given a reasonable opportunity of being heard". 8.
8. Learned Counsel for the petitioner submits that Clause 20 of the 'Control Order' mandates that the State Government shall not pass any order including interim order, which would adversely affect any person unless such person has been given a reasonable opportunity of being heard. Thus, according to him, no interim order can be passed against the affected party, v1lithout hearing him. Per contra, it is contended by the learned Additional Government Advocate appearing on behalf of the respondents 1 and 3 that granting of 'interim order' is an inherent exercise of power of the Revisional Authority. According to him, it need not be specifically mentioned in the enactment that the Revisional Authority has power to pass interim order. 9. It is settled law that the Revisional Authority has got jurisdiction to alter, modify or to set aside the order passed by the original authority. As such, this Court is of the considered opinion that the Revisional Authority has also got jurisdiction to grant an interim order in a given circumstance to prevent abuse of process of law during the pendency of the revision petition. The State Government being the highest Executive Authority of the State and as all other officials who are statutory officials under the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 are subordinate to the State Government, it has got jurisdiction to look into the justification or otherwise of the orders passed by its subordinate officials. In the case on hand, as the original authority below has failed to exercise the power to cancel the authorisation issued in favour of the petitioner, despite coming to the conclusion that the petitioner has committed certain irregularities, the Government has got the jurisdiction to entertain the revision under Clause 20 of the aforesaid 'Control Order' and to pass interim order. The State Government-Revisional Authority (respondent 1) has also got the power to grant an ex parte interim order of stay, depending upon the facts and circumstances of each case, during pendency of revision petition. At the stage of passing of the interim order, it is not incumbent upon the State Government. to hear the aggrieved person and then pass the impugned interim order of stay. The exigency of the situation may require passing of ex parte interim order in a particular case.
At the stage of passing of the interim order, it is not incumbent upon the State Government. to hear the aggrieved person and then pass the impugned interim order of stay. The exigency of the situation may require passing of ex parte interim order in a particular case. After the passing of the ex parte interim order, the State Government shall grant an opportunity to the aggrieved person if an application is made for vacating the same. Thus, the provisions of Clause 20 of the 'Control Order' will not prohibit the State Government to pass an ex parte interim order in the cases of necessity and for preventing the abuse of process of law during the pendency of the revision petition. Granting of interim order in such a situation is incidental and ancillary to the revisional jurisdiction of the State Government. Where the Legislature invests the Revisional Authority with powers to prevent injustice, it impliedly empowers it to stay the proceedings or the order, which may result in causing further mischief. Thus, it can be safely held that the power to stay is a necessary corollary to the power to entertain the revision petition. 10. In the instant case, since the interim order is granted by the Revisional Authority to prevent further mischief, it is not a fit case to interfere with the discretionary interim order granted by the 1st respondent-Revisional Authority. Since the revision petition is pending before the 1st respondent-Authority, I do not wish to comment anything on the merits of the matter at-this stage and consequently, the writ petition is liable to be dismissed. Accordingly, writ petition is dismissed. However, having regard to the facts and circumstances of the case, in my considered opinion, interest of justice will be met if the 1st respondent is directed to decide the revision filed by the 2nd respondent on merits without being influenced by any of the observations made above, at an early date, after affording the petitioner an opportunity of being heard.