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2023 DIGILAW 626 (AP)

Peyyala Nagaraju v. State of Andhra Pradesh

2023-03-23

D.RAMESH

body2023
ORDER : The Writ Petition under Article 226 of the Constitution of India is filed seeking to declare the action of the 3rd respondent in cancelling the authorization of the petitioner fair price shop No.1111016 of Uppathivaripalli Village, Badvel Mandal, YSR Kadapa District dated 03.03.2021, basing on the report of the 4th respondent is illegal and arbitrary. 2. By proceedings dated 21.12.2012, the petitioner has been appointed as fair price shop dealer. Initially the said proceedings were for a period of two(2) years and the same is being renewed from time to time. Accordingly, the petitioner is running the fair price shop without any remarks whatsoever from the 3rd parties or from the cardholders. 3. While being so, the 2nd respondent issued proceedings dated 07.12.2018, directing the petitioner to distribute essential commodities at Puttayapalli Gram Panchayat office for the convenience of the cardholders. As per the directions of the Commissioner of Civil Supplies dated 23.09.2018, the 2nd respondent has issued the proceedings dated 11.12.2018. According to the said instructions of the Commissioner of Civil Supplies, the 2nd respondent identified certain places i.e., hamlets/villages/thandas/AT and SC colonies etc., more than 1 km from the existing fair price shop for taking up the focussed distribution of essential commodities for two days i.e., on 14th & 15th of every month. According to the said proceedings of the 2nd respondent, the petitioner’s shop has to distribute essential commodities at Puttayapalli hamlet villages at MPP school, Puttayapalli. Accordingly, the petitioner has been distributing the essential commodities in the said places without any remarks. After change of the political parties in the State with an ulterior motive, some of the villagers are not permitting the petitioner to distribute the essential commodities at MPP School. In the said circumstances, the petitioner has made a Spandana complaint to the District Collector on 10.02.2020, wherein he has categorically brought to the notice of the authority that some of the 3rd parties are not allowing the petitioner to distribute the essential commodities at Puttayapalli village and also requested to provide one alternate room for keeping the stock and to distribute the essential commodities at Puttayyapalli. 4. Despite receipt of the said complaint, the respondents have not considered and not passed any order. While pending the said request, surprisingly the 3rd respondent has passed the present impugned orders on 03.03.2021. 5. 4. Despite receipt of the said complaint, the respondents have not considered and not passed any order. While pending the said request, surprisingly the 3rd respondent has passed the present impugned orders on 03.03.2021. 5. Learned counsel appearing on behalf of the petitioner contended that the said impugned proceedings are contrary to the rules as well as the observations made by this Court in several Writ Petitions. Though, the orders are passed on 03.03.2021, but the said proceedings were served on the petitioner only on 10.11.2021. Till such time, the petitioner has been distributing the commodities to the cardholders. Learned counsel for the petitioner further submitted that on perusal of the impugned orders, clearly discloses that respondents have violated clause 8(4) of APSTPDS Control Order 2018, wherein it is specifically mandated that the respondents have to conduct a separate enquiry before cancelling/suspending the license or authorization. But in the instant case, the respondents have not conducted any enquiry, only based on the report of the Tahsildar dated 25.02.2020, issued notice/show cause notice and the petitioner has submitted his explanation. Even the said explanation was not considered. 6. Further the learned counsel for the petitioner submitted that the charges framed against the petitioner is weighed. The first charge is the fair price shop dealer has violated the clause 10(a) of the APSTPDS (Control) Order, 2018 for non opening of fair price shop during distribution days i.e., 15.01.2020 and 14.02.2020. The second charge is that the fair price shop dealer has violated the clause 22(1) of the APSTPDS (Control) Order, 2018 for causing interruption or interfere with the process of smooth distribution of Schedule commodities. Learned counsel for the petitioner further submitted that with regard to the first charged, the petitioner has made an application under Spandana on 10.02.2020, bringing it to the notice about the difficulties for distribution of essential commodities at Puttayapalli. Despite receipt of the said complaint, without referring to the said complaint, without providing any alternative accommodation to the petitioner for distribution of the commodities, the respondents ought not to have framed the first charge against the petitioner. 7. Despite receipt of the said complaint, without referring to the said complaint, without providing any alternative accommodation to the petitioner for distribution of the commodities, the respondents ought not to have framed the first charge against the petitioner. 7. Apart from the above, learned counsel for the petitioner has submitted that as observed by the Division Bench of this Hon’ble Court in M. Kalyani vs. District Collector, Prakasam District, Ongole and Others, 2006 (5) ALD 796 (DB), wherein categorically held how to conduct an enquiry in such circumstances, which reads as follows : “11. In our opinion, the order passed by respondent No. 3 cancelling the authorization of the appellant suffers from patent violation of the rules of natural justice and the learned Single Judge gravely erred by refusing to annul the same. It is not in dispute that the report of the Mandal Revenue Officer, which formed the basis of the charges, was not supplied to the appellant. In K. Radha Krishna Naidu v. Director of Civil Supplies, Hyderabad and Ors. 1996 (1) ALD 473 : 1996 (1) LS 456 (AP), it was held that the primary report on the basis of which the charges were framed by the Licensing Authority against the dealer, being not furnished to the dealer, vitiates the proceedings due to violation of the principles of natural justice and absence of sufficient opportunity to the dealer to defend his case effectively. It was further held that the reasonable opportunity should be real and effective and simply because the petitioner submitted his explanation, it does not fulfil the requirement of reasonable opportunity, more so, when the show-cause notice would clearly indicate that the only basis is the report. In that case the petitioner therein had been given opportunity of personal hearing but even then the Court held that the opportunity was not real inasmuch as the basic document had not been supplied to the dealer. In S. Malla Reddy v. M. Vijayalakshmi and Others, 2005 (3) ALT 100 =2005 (5) ALD (NOC) 174, this Court held that the authorization of fair price shop could not have been cancelled on the basis of vague notice.” 8. Following the above judgment the Hon’ble Single Judge has further held in B. Manjula Vs. In S. Malla Reddy v. M. Vijayalakshmi and Others, 2005 (3) ALT 100 =2005 (5) ALD (NOC) 174, this Court held that the authorization of fair price shop could not have been cancelled on the basis of vague notice.” 8. Following the above judgment the Hon’ble Single Judge has further held in B. Manjula Vs. District Collector, Civil Supplies, Kurnool and Others reported 2015 (4) ALT 572 at para 9 and 10 which reads as follows : “This Court is conscious of the fact that the law discussed above was laid down by the Courts in the context of disciplinary proceedings against Government servants and it may not be possible to adhere to the same rigors of procedure in an enquiry against a fair price shop dealer. However, this Court is of the considered opinion that since an order of cancellation of fair price shop visits the dealer with adverse consequences, the appointing authority must adhere to the fundamental ingredients of an enquiry. The enquiry need not be too elaborate as in the case of a disciplinary proceeding against a Government servant, but it shall follow the basic requirement of an enquiry which in my view must be as described infra. 10. An enquiry pre-supposes an opportunity of personal hearing to the dealer to explain his/her case based on the records such as sales and stock registers. If need be, such enquiry must also include recording the sworn statement of the dealer and witnesses, if any, from his/her side. In cases where either card holders or other persons sent any complaint, they must also be examined in the presence of the dealer or his/her lawyer and the dealer shall be given an opportunity of cross-examining such persons. The licencing /disciplinary authority shall also supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. Unless the dealer has no explanation at all to offer, the licensing/disciplinary authority is bound to hold a detailed enquiry.” 9. The licencing /disciplinary authority shall also supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. Unless the dealer has no explanation at all to offer, the licensing/disciplinary authority is bound to hold a detailed enquiry.” 9. By following the observations of the Division Bench of this Hon’ble Court, the Hon’ble Single Judge has categorically held that the respondents ought to have conducted the enquiry by issuing notice to the authorized dealer and if any complaint has received from the cardholders, the respondents has to record the statements from the cardholders/complainants before the authorized dealer and if required the authorized dealer has to provide with an opportunity of cross-examining the said cardholders/complainants and after that the report has to supply to the authorized dealer to submit his or her explanation. But in the instant case, no such enquiry has been conducted or no such report is supplied to the petitioner, no finding was given with regard to the same in the impugned orders. Hence, in the above said circumstances, requested to set aside the impugned orders. 10. After taking notice, the 3rd respondent has filed counter. On perusal of the averments made in the counter, they have mainly focused on the merits of the case. Conducting of enquiry is concerned, they have stated that the two charges were framed against the fair price shop dealer through show cause notice dated 10.03.2020 by the Joint Collector, Kadapa. After that the Joint Collector has passed orders suspending the authorization of the petitioner. Aggrieved by the same, the petitioner has filed the Writ Petition No.13908 of 2020. The said Writ Petition was disposed of, directing the respondents to supply the essential commodities to the fair price shop dealer to ensure that the consumers should not suffer. Accordingly, the petitioner was continuing as a fair price shop dealer. As per the amended APSTPDS (Control) Order, 2018, the Revenue Divisional Officer/Sub-Collector have the jurisdiction, nominated as appoint and disciplinary authority. Accordingly, the 2nd respondent delegated the matter to the 3rd respondent. After that the 3rd respondent has issued notice on 18.01.2021 informing to the petitioner that the case was posted for hearing on 23.01.2021 at the Sub-Collector’s Office, Rajampet. After hearing, a detailed speaking order was issued by cancelling the fair price shop authorization of the petitioner in the capacity of competent authority. After that the 3rd respondent has issued notice on 18.01.2021 informing to the petitioner that the case was posted for hearing on 23.01.2021 at the Sub-Collector’s Office, Rajampet. After hearing, a detailed speaking order was issued by cancelling the fair price shop authorization of the petitioner in the capacity of competent authority. Except that nothing is stated with regard to conducting of enquiry as per Clause 8(4) of the APSTPDS (Control) Order, 2018. 11. Considering the submissions and on perusal of the averments made in the counter and also on perusal of the observations made by the Division Bench of this Hon’ble Court as well as the Single Bench of this Hon’ble Court, this Court has no hesitation that the impugned orders which are passed by the 3rd respondent are not only contrary to the provisions of the Control Order, 2018 but also contrary to the observations made by this Court in the above two judgments. The respondents have not conducted any enquiry, nor provided the enquiry report to the petitioner. 12. In the above said circumstances, the impugned order dated 03.03.2021 is set aside. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs. Miscellaneous petitions pending if any, shall stand closed.