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2022 DIGILAW 227 (AP)

A. Prema Kumari v. State of Andhra Pradesh

2022-02-24

M.GANGA RAO

body2022
ORDER : These two writ petitions are filed assailing the proceedings dated 13.06.2019 of the 2nd respondent as illegal, arbitrary and contrary to the provisions of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 [for short, ‘Control Order’]. By the said proceedings, the 2nd respondent, in exercise of suo motu powers conferred under Clause 5(15) of the Control Order had cancelled the authorizations issued in favour of Smt A. Prema Kumari dealer of F.P.Shop No.1382077, and The Mahila Co-operative Super Bazar, dealer of F.P.Shop No.46, Kurnool Town – petitioners herein and imposed a penalty of three times the difference between the market rate and public distribution system rate of the commodity diverted. 2. The facts and the issues raised in both the writ petitions are one and the same. Hence, these two writ petitions were heard together and are being disposed of by this common order. 3. The facts that lead to the filing of these two writ petitions, in brief, are that the 6th respondent submitted a report to the 4th respondent stating that as per the directions the 3rd respondent had conducted inspection of fair price shop Nos.1382046, 1382058 and 1382077 on 14.02.2018 and found that the fair price shop No.46 is not being run in the premises mentioned in the authorization and when contacted with the person A. Tarun Babu, who is lifting stocks on behalf of the dealer, he took them to the premises at door No.39-240, Vaddegeri, Kurnool. In the said premises there was a small board painted in the back side of the staircase mentioning as FP shop No.1382077. As they entered in the FP shop they noticed three E POS devices. On enquiry, the said person revealed that he is nominee of FP Shop Nos.1382046, 1382058 & 1382077 and shown the E POS machines pertained to those three FP shops. On verification of the stock in respect of the above three FP shops, the following variations were found : Sl. No. F.P. shop No. Rice (in Qtls) Sugar (in Qtls) K.Oil (Lts) CSK (Kits) Wheat Atta 1. 1382046 59.00(-) 3.37(-) 0 327(-) 198 packets (+) 2. 1382058 85.49(-) 1.26(-) 126(-) 178(-) 0 3. 1382077 54.55(-) 2.17(-) 0 222(-) 0 Total 199.04(- ) 6.80(-) 126(-) 727(-) 198 packets (+) (-denotes shortage, + excess stock) 4. No. F.P. shop No. Rice (in Qtls) Sugar (in Qtls) K.Oil (Lts) CSK (Kits) Wheat Atta 1. 1382046 59.00(-) 3.37(-) 0 327(-) 198 packets (+) 2. 1382058 85.49(-) 1.26(-) 126(-) 178(-) 0 3. 1382077 54.55(-) 2.17(-) 0 222(-) 0 Total 199.04(- ) 6.80(-) 126(-) 727(-) 198 packets (+) (-denotes shortage, + excess stock) 4. Based on the report of the inspecting team, the 4th respondent - Revenue Divisional Officer, Kurnool, initially suspended the authorization of all the above three FP shops by proceedings dated 19.02.2018. Aggrieved by the said suspension orders, the fair price shop dealers preferred appeal before the 3rd respondent for restoration of their authorizations. The 3rd respondent remanded the case back to the 4th respondent - Revenue Divisional Officer, Kurnool, for finalization of the case. The Revenue Divisional Officer framed six charges against the fair price shop dealers. After conducting enquiry, the Revenue Divisional Officer, having concluded that no complaint is received from the card holders against the dealer and as such there is no positive evidence available against the fair price shop dealer to take necessary action, restored the fair price shop authorization to the dealer imposing a penalty of Rs.5,000/- each with a warning to run the fair price shops in the authorized premises and distribute the essential commodities to the card holders as per Rules vide proceedings of the 4th respondent dated 05.12.2018. In pursuance of the same, the 6th respondent vide proceedings dated 21.01.2019 informed the 5th respondent that the dealers had remitted the fine amount and requested to enter the name of Smt A. Prema Kumari in E POS device for shop No.1382077, and the same dealer may be kept as incharge for FP shop No.1382058 and as nominee her son’s name A Tarun Babu may also be entered in the E POS device and Name of Sri A. Ramesh Babu for shop No.1382046 in E POS device for smooth distribution of essential commodities. The 2nd respondent on finding certain lapses in the order passed by the 4th respondent-RDO has taken up the case under suo motu review as per the provisions of Clause 5(15) of the Control Order and requested the 3rd respondent to submit preliminary enquiry report. The 3rd respondent also submitted report on 14.05.2019. Show-cause notice dated 31.05.2019 was issued to the fair price shop dealers framing the following seven charges. The 3rd respondent also submitted report on 14.05.2019. Show-cause notice dated 31.05.2019 was issued to the fair price shop dealers framing the following seven charges. Charge-1: That the dealer allowed to run his FP shop by Sri A. Tarun Babu unauthorisedly thus he contravened clause 2(a) of the guidelines issued in Annexure 1 to the APSPDS(Control) Order, 2008 Condition 11 of the Authorisation issued under the APSPDS Control Order, 2008. Charge-2: that the dealer failed to maintain true and correct accounts of the FP shop and failed to produce before the inspecting authorities at the time of inspection thus contravened Clause 5(16) of the APSPDS(Control) Orders, 2008. Charge-3: That the following stocks found missing at the time of inspection by the inspecting officials and he diverted the stocks into black market to get pecuniary benefits out of it. Sl. No. FP Shop No. Rice (in Qtls) Sugar (in Qtls) K. Oil (Lts) CSK (Kits) Wheat Atta 1 1382 54.55 2.17(-) 0 222(-) 0 077 (-) 2 1382 59.00 3.37(-) 0 327(-) 198 packet s (+) 046 (-) Charge-4: that the dealer with connivance of one Sri A. Tarun Babu is running the FP shop in other than the licensed premises thus he contravened condition 6 of the Authorization issued under APSPDS Control Order, 2008. Charge-5: that the FP shop dealer with the assistance of one Sri A. Tarun Babu failed to distribute Chandranna Sankranthi Kanuka thus he violated the CL 17(c) of the APSPDS Control Order, 2008. Charge-6: That the dealer failed to exhibit stock cum price list board and authorisation etc. In the FP shop and thus he violated Clause 22(viii) & 6 of the APSPDS Control Order, 2008. Charge-7: Enquiries reveal that the FP shop dealer 46 died long back but her grandson A. Tarun Babu is running the FP shop as benami dealer, No legal heir or compassionate appointments allowed under the provisions of the APSPDS Control Order thus it violated the clause 5(12) of the APSPDS Control Order, 2008. 5. During enquiry, the fair price shop dealers were absent. One A. Tarun Babu appeared through advocate and filed explanation denying the charges framed in the show cause notice. 5. During enquiry, the fair price shop dealers were absent. One A. Tarun Babu appeared through advocate and filed explanation denying the charges framed in the show cause notice. The 2nd respondent, inter alia observing that the FP shop dealers for shop Nos.46 & 77 were absent for hearing but for shop no.77 dealer’s advocate and her son A. Tarun Babu attended for hearing and on perusing the record and considering his explanation in detail and submissions of the counsel came to the conclusion that all charges are proved and found that A. Tarun Babu, S/o A. Prema Kumari is solely running the three shops i.e., 1382046, 1382058 and 1382077 in a single premises without proper authorization or license from the authority and that the dealer has contravened the provisions of the Control Order. Therefore, in exercise of powers conferred under Clause 5(15) of the Control Order, the authorizations issued in favour of A. Prema Kumari for FP shop No.1382077 and The Mahila Co-operative Super Bazar for FP shop No.46 were cancelled and the security deposit amount was ordered to be forfeited to Government. Further a penalty of three times the difference between the market rate and public distribution system rate of the commodity diverted was also imposed. Being aggrieved by the same, these two writ petitions are filed. 6. Learned counsel for the petitioners would contend that the impugned orders cancelling the authorizations issued in favour of the petitioners and imposing penalty is without any authority and jurisdiction and contrary to the provision of Clause 5(15) of the Control Order. The impugned orders are passed contrary to the evidence available on record and without any proper opportunity to the petitioners - fair price shop dealers which is illegal and contrary to the provisions of the Control Order. The 2nd respondent passed the impugned order without properly considering the explanation submitted to the show cause notice. Charge wise finding of the authority is not based on any legally admissible evidence. Imposition of the penalty is contrary to clause 17(c) of the Control Order. Initially, the 4th respondent after considering the explanation and on verification of records concluded that A. Tarun Babu was the nominee to all the three fair price shops and his name was also uploaded into the online system by the civil supplies authorities and held that he is not benami. Initially, the 4th respondent after considering the explanation and on verification of records concluded that A. Tarun Babu was the nominee to all the three fair price shops and his name was also uploaded into the online system by the civil supplies authorities and held that he is not benami. Insofar as the allegation of variations of stocks, he found that no positive evidence was placed by the inspecting officials and no complaints were received from the card holders and restored the authorisations by imposing fine amount of Rs.15,000/-. The said fine amount was accordingly remitted and the said fact was informed to the 6th respondent by the 5th respondent. As the petitioners were not being supplied essential commodities inspite of restoration of their authorizations, they approached this Court by filing WP.No.3536 of 2019 and in the said case notices were ordered to the respondents. Thereafter, the 2nd respondent issued the impugned proceedings cancelling the authorizations forfeiting the security amount to the Government without there being any legally admissible evidence. In the present case, there are no justifiable grounds available to take the case on suo motu review as per clause 5(15) of the Control Order and the cancellation of the petitioners’ authorizations is illegal and arbitrary. 7. Learned Assistant Government Pleader appearing for the respondents, while reiterating the averments of the counter, would contend that the three fair price shops 46, 58 & 77 were given in favour of Mahila Cooperative Super Bazar, S. Indiramma and A. Prema Kumari. Instead of functioning in authorized premises, the three shops are functioning in one and the same premises i.e., at door no.39-240, Vaddegeri, Kurnool. The premises are not identified and fair price shop board is also not exhibited. The inspecting officials inspected the premises on 14.02.2018 as directed by the Joint Collector, Kurnool as the dealers are distributing less essential commodities to the card holders. The premises are not identified and fair price shop board is also not exhibited. The inspecting officials inspected the premises on 14.02.2018 as directed by the Joint Collector, Kurnool as the dealers are distributing less essential commodities to the card holders. On inspection huge variations were found in the stocks and inspite of huge variations when the RDO, Kurnool restored the authorization by imposing penalty of Rs.5,000/- each, the Joint Collector having found the order of the RDO is contrary to the provisions of the Control Order took up the matter as suo motu review exercising the power under clause 5(15) of the Control Order and a show cause notice was issued to the fair price shop dealers but dealers are absent and on behalf of dealers A. Tarun Babu submitted explanation and appeared before the 2nd respondent in the enquiry through advocate. The 2nd respondent having considered explanation and submissions of the counsel passed the impugned order exercising the power under clause 5(15) of the Control Order. There is no illegality or irregularity in issuing the impugned proceedings. 8. Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the record, this Court found that three fair price shops 46, 58 & 77, which were given to Mahila Cooperative Super Bazar, S. Indiramma and A. Prema Kumari and were found to be functioning in one premises i.e., door no.39-240, Vaddegeri, Kurnool instead of different locations in Kurnool town. Shifting of the premises was also not informed to the authorities. When it came to the notice of the 2nd respondent about the less distribution of the commodities to the card holders, at his instance, officials inspected the premises with door No.62/10A fort, Kurnool, and found that the shop is not running in the licensed premises. On enquiry A. Tarun Babu claimed to be the nominee of the fair price shops stated that the he is the nominee of the three fair price shops and showed the 3 E POS machines pertaining to the three fair price shops. The inspection authorities found huge variations of essential commodities in the premises, as stated supra. 9. It is a million dollar question how A. Tarun Babu was permitted to run all these fair price shops without valid nominee authorization. The inspection authorities found huge variations of essential commodities in the premises, as stated supra. 9. It is a million dollar question how A. Tarun Babu was permitted to run all these fair price shops without valid nominee authorization. S. Indiramma - fair price shop dealer of shop No.1382058 in pursuance of the notice appeared before the Collector and gave a statement stating that due to ill health in the year 2013 she applied leave and since then she is not running the FP shop and thereafter she has not turned up and she did not know about the filing of the court cases. During enquiry in the suo motu enquiry by the 2nd respondent it came to light that the authorized dealer of shop No.1382046 i.e., Cooperative Mahila Super Bazar is dealing with the task of distribution of Government sub-sidised PDS ECs to the BPL card holder. The firm is expected to run in accordance with the Rules and Regulations of the Control Orders. At the time of inspection, the acting person of the firm failed to produce any recorded evidence before the inspecting authorities as to who is the authorized appointed dealer and in whose name the authorization was issued. It was stated that the original firm holder died long back. As per condition 9 of the authorization and clause 5(12) of the Control Order, in the event of the death of the fair price shop dealer, the authorization issued stands cancelled and the legal heirs of the deceased are not entitled to transfer the authorization. The case of the petitioners is that one A. Tarun Babu is nominee of the three fair price shops. As per condition 2(1)(a) in Annexure-1 of the Control Order, the authorized dealer only has to run the fair price shop. There are no such provisions in the Control Order for appointment of nominees for FP shop dealers. Tarun Babu also failed to produce any recorded evidence that he is nominee for the three fair price shops. Tarun Babu is the son of the fair price dealer A. Prema Kumar dealer of shop No.1382077. He is claiming himself as a nominee for all the three shops. Allowing A. Tarun Babu as nominee of three shops is contrary to the provisions of the Control Order and is a serious issue to be taken note of. Tarun Babu is the son of the fair price dealer A. Prema Kumar dealer of shop No.1382077. He is claiming himself as a nominee for all the three shops. Allowing A. Tarun Babu as nominee of three shops is contrary to the provisions of the Control Order and is a serious issue to be taken note of. The 2nd respondent, in the absence of the fair price shop dealers, having considered the explanation submitted by A Tarun Babu and also submissions of the counsel after elaborately considering the charge wise explanation given by A. Tarun Babu to the charges, rightly came to the conclusion that the charges are proved against the dealers. This Court found that the fair price shops in question were allowed to be run by A. Tarun Babu, who is none other than the son of A. Prema Kumari, fair price shop dealer of shop no.77 in one premises situated in 39-240, Vaddegeri, Kurnool in utter violation of the provisions of the Control Order. Hence, the contentions of the counsel for the petitioners that the impugned cancellation orders of fair price shop authorizations are passed by the 2nd respondent without authority or power contrary to clause 5(15) of the Control Order is unsustainable as a reading of the provision amply shows that it authorises the District Collector/Collector(CS) along with other officers are entitled either suo motu or on application to examine the records relating to any order passed for the purpose of satisfying himself as to the legality or propriety or adequacy of the punishment imposed and for reasons to be recorded in writing, add to, amend, revise or annul the orders passed by the appointing authority or disciplinary authority. Accordingly, the exercise of the power by the 2nd respondent in cancelling the authorizations of the petitioners by setting aside the order passed by the RDO restoring the authorizations is found to be justified. The further contention of learned counsel for the petitioners that the impugned orders are passed contrary to the evidence available on record without opportunity could not be countenanced as in the absence of the fair price shop dealers A Tarun Babu claiming to be the nominee of the dealers along with counsel appeared before the 2nd respondent in the enquiry held and after considering the explanation given by A. Tarun Babu and submissions of the counsel the impugned cancellation orders are passed. Hence, it could not be said that the impugned cancellation orders are passed without giving opportunity to the fair price shop dealers. 10. In view of the above discussion, the writ petitions are found to be devoid of any merits and liable to be dismissed. 11. Accordingly, the Writ Petitions are dismissed. No costs. 12. As a sequel, miscellaneous applications pending, if any, shall stand closed.