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Andhra High Court · body

2013 DIGILAW 233 (AP)

M. Anand v. Revenue Divisional Officer

2013-03-28

C.V.NAGARJUNA REDDY

body2013
Judgment : This Writ Petition is filed for a Mandamus to set aside the proceeding in Rc (M).No.313/2013, dated 13-03-2013, of respondent No.1, whereby he has cancelled the petitioner’s fair price shop authorization. I have heard Mr. K.V. Raghuveer, learned Counsel for the petitioner, and the learned Assistant Government Pleader for Civil Supplies appearing for the respondents. The petitioner was the authorised dealer of fair price shop No.11 of K.Thimmapuram Village, Adoni Division, Kurnool District. On the basis of an inspection of the said shop, proceedings were initiated against the petitioner by respondent No.1 and by Order, dated 28-09-2012, he has suspended the petitioner’s authorization. Questioning the same, the petitioner filed WP.No.33629 of 2012. This Court by Order, dated 30-10-2012 allowed the said Writ Petition and set aside the order of suspension on the ground that the same does not conform to the requirements of Clause 5 (5) of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 (for short ‘the Control Order’). Accordingly, the petitioner’s authorisation was restored. Thereafter, respondent No.1 has passed the impugned order cancelling the petitioner’s authorization. Questioning the same, the petitioner filed this Writ Petition. At the outset, it needs to be noted that ordinarily, this Court seldom entertains Writ Petitions filed questioning the orders of cancellation unless the aggrieved parties avail alternative remedies of appeal and revision. However, the case on hand appears to be an exceptional one for more than one reason. Therefore, I have entertained this Writ Petition for adjudication on merits. Respondent No.1 has framed three charges against the petitioner which read as under: “1. That the dealer is distributing Essential commodities only two days from the month. 2. He is not observing the timings as prescribed by the Government. 3. The dealer is not distributing the PDS rice as per the entitlement of the card holders.” With respect to charge No.1, it is stated in the impugned order that the verification of stock register revealed that during the month of September, 2011, the petitioner has distributed the essential commodities ranging between 2 and 5 days. As rightly pleaded by the petitioner, there is no complaint from any cardholder that he has not supplied the essential commodities. There is not even an allegation made by respondent No.1 in this regard. As rightly pleaded by the petitioner, there is no complaint from any cardholder that he has not supplied the essential commodities. There is not even an allegation made by respondent No.1 in this regard. In his affidavit, the petitioner has pleaded that as the cardholders eagerly wait for arrival of essential commodities, as and when the same are made available, they immediately come and take delivery thereof and that therefore, after completion of distribution of the essential commodities, there will be no further entries in the stock register. This explanation of the petitioner is not only reasonable but plausible. In the absence of any allegation that in order to avoid distribution of essential commodities to the card holders, the petitioner is not running the fair price shop through out the month or that delivery of essential commodities only for a few days in a month is causing inconvenience to the cardholders, this charge is wholly without substance. Cancellation of the authorization of a dealer on such flimsy charge not only constitutes patent arbitrariness but also causes serious injustice to him. With regard to charge No.2, its gravaman is that the petitioner is not maintaining timings in running the fair price shop. While the petitioner has denied this charge, respondent No.1 has observed in his order that on 07-01-2012, the Mandal Revenue Inspector, Yemmiganur, conducted enquiry in the village and that it was revealed that the petitioner has not been opening the fair price shop in time as prescribed by the Government. This finding is as vague as vagueness could be. The details of the persons, whom the Mandal Revenue Inspector has examined and the veracity of their statements have not been discussed by respondent No.1. Even assuming that the above charge bears any truth, mere irregular maintenance of timings by the dealer is not so serious as to warrant cancellation of his authorization in respect thereof. Here again, nothing is mentioned in the charge or in the order that due to irregular timings being maintained by the petitioner, any hardship is caused to the cardholders. As for charge No.3, the charge is that the petitioner is not distributing PDS rice to the card holders as per the norms prescribed by the Government. This charge is also too bald and shorn of any details. As for charge No.3, the charge is that the petitioner is not distributing PDS rice to the card holders as per the norms prescribed by the Government. This charge is also too bald and shorn of any details. Even though the petitioner has denied this charge, respondent No.1 has based his finding on the purported enquiry of the Mandal Revenue Inspector, Yemmiganur, during which it was alleged that 45 cardholders have stated that the fair price shop dealer is distributing PDS rice with less weighment. This accusation of the petitioner does not form part of the charge levelled against him. Further more, respondent No.1 has neither indicated the names of the card holders, who allegedly deposed before the Mandal Revenue Inspector, nor mentioned the details of less weighment in the impugned order. I am in agreement with the submission of the learned Counsel for the petitioner that the petitioner is not expected to defend himself against the charge, which is non-specific and vague. The petitioner’s further grievance is that he was not even aware of the purported enquiry of the Mandal Revenue Inspector and he was not supplied with the report, which has constituted the sole basis for the finding rendered by respondent No.1. I have perused the show cause notice issued by respondent No.1, which does not contain any reference to the said report of the Mandal Revenue Inspector. The law is well settled that the authorities cannot rely upon any material behind the back of the person, who is likely to be affected, if an order is based on such material (see State of Orissa vs. Dr.Binapani Devi ( AIR 1967 SC 1269 ), S.L.Kapoor Vs. Jagmohan ( AIR 1981 SC 136 = 1980 (4) SCC 379 ) andSwadeshi Cotton Mills vs. Union of India ( AIR 1981 SC 818 = 1981 (1) SCC 664 ). Respondent No.1 has, thus, committed a serious procedural illegality in seeking to rely upon the purported report of the Mandal Revenue Inspector, which was pressed into service for the first time in his order, without giving the petitioner an opportunity of explaining his stand against the said report. From the nature of the charges framed against the petitioner, I have every reason to hold that none of the charges are substantial enough calling for imposition of extreme penalty of cancellation of fair price shop authorization. From the nature of the charges framed against the petitioner, I have every reason to hold that none of the charges are substantial enough calling for imposition of extreme penalty of cancellation of fair price shop authorization. As noted herein above, charge Nos.1and 2 are too flimsy and charge No.3 is too vague and not substantiated in any manner on the basis of acceptable evidence. The impugned order of respondent No.1 based on such charges cannot, therefore, be sustained. For the above-mentioned reasons, the impugned order is set aside and the Writ Petition is allowed. As a sequel, WPMP.No.11598 of 2013, filed by the petitioner for interim relief, is disposed of as infructuous.