Andhra Pradesh High Court - Amravati

K Lalitha vs State Of Ap,Rep By Prl, ... on 20 April, 2023

    THE HONOURABLE SRI JUSTICE D.RAMESH

             WRIT PETITION No.44883 of 2017

ORDER:

This Writ Petition under Article 226 of the

Constitution of India is filed for the following relief:-

" to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the proceedings of the 2nd respondent made in D.Dis (C1)13/2017 dated 03.12.2017 confirming the orders of the 3rd respondent made in D.Dis (C1) 82/2015 dated 30.11.2016, the orders of the 4th respondent passed in proceedings D.Dis B/2072/2015, dated 26.6.2015 as wholly illegal, unjust, arbitrary, against the provisions of A.P.State Public Distribution System (Control) Order, violative of principles of natural justice, and accordingly set aside the same and consequently the respondents be directed to allot the essential commodities to the petitioner, F.P.No.20, Eguvamedawada Village, forthwith, and to pass such other and further orders that may be deemed fit and proper in the circumstances of the case.

Heard the learned counsel for the petitioner and the

learned Government Pleader for Civil Supplies appearing for

the respondents.

The contention of the learned counsel for the petitioner

is that without conducting any enquiry as per Clause 8(4) of

the Control Orders, 2018 and without giving any opportunity

to the petitioner, the cancellation orders are passed which is

contrary to the observations made by the Division Bench of

this Court in M. Kalyani vs District Collector, Prakasam

District, Ongole1 and Smt. Manjula Vs. District

Collector, Civil Supplies, Kurnool2.

This Division Bench of this Court in M. Kalyani vs

District Collector, Prakasam District, Ongole and

Others, held that:-

"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

2006 (5) ALD 796 (DB)

2015 (3) ALD 617

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."

Further, this Court in B.Manjula Vs. District

Collector, observed as follows:-

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 licensing/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.

11. The experience of this Court reveals that the appointing authorities of fair price shop dealers are dispensing with the requirement of making personal enquiry by summoning the dealers. They are merely relying upon the reports sent by their subordinates i.e., Deputy Tahsildars and Tahsildars, behind the back of the dealers and resting their decisions solely upon those reports. This procedure is anathema to the concept of enquiry which otherwise means affording the dealer an opportunity of a fair hearing.

12. The experience of this Court reveals that the appointing authorities of fair price shop dealers are dispensing with the requirement of making personal enquiry by summoning the dealers. They are merely relying upon the reports sent by their subordinates i.e., Deputy Tahsildars and Tahsildars, behind the back of the dealers and resting their decisions solely upon those reports. This procedure is anathema to the concept of enquiry which otherwise means affording the dealer an opportunity of a fair hearing.

As regards the second mandatory requirement under sub-clause (5) of Clause 5, namely; reasons to be recorded

in writing, reasons constitute the heart and soul of a decision. In Madhya Pradesh Industries Ltd. Vs. Union of India and others , the Supreme Court, while dealing with an order passed by the Central Government under Rule 55 of the A.P. Mineral Concession Rules 1960, emphasized on the need for giving reasons in support of the order. The Supreme Court inter alia held that the condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the Tribunals within bounds.

13. In G. Vallikumari Vs. Andhra Education Society and others , the Supreme Court, at para-19, held:

The requirement of recording reasons by every quasi- judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognised facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.

15. Unfortunately, a perusal of the impugned order shows that respondent No.3 has not even attempted to hold an enquiry and he has allowed himself to be swayed away by the report of the Tahsildar, Gonegandla without trying to test the veracity of the explanation offered by the petitioner. Unless the petitioner is given an opportunity of substantiating her explanation, it would be a grave travesty of justice to reject her explanation without holding an enquiry. As respondent No.3 has not followed this procedure, the

impugned order cannot be sustained and the same is accordingly set-aside. The orders of respondent Nos.2 and 1, which confirmed the order of respondent No.3 are also set- aside. The fair price shop authorization of the petitioner stands restored and she shall be permitted to function as the fair price shop dealer. This order, however, will not prevent respondent No.3 from holding a detailed enquiry in the light of the observations made hereinbefore and pass a fresh order.

No counter has been filed by the respondents.

Considering the submissions of the learned counsel for

the petitioner and the observations made by this Court in the

above said Judgments, this Court if the opinion that the

impugned orders dated 03.12.2017 of the 2nd respondent is

contrary to the directions of this Court in the above said

Judgments. Hence, the impugned order of the 2nd respondent

dated 03.12.2017 is set aside and the respondents are

directed to continue the petitioner as Fair Price Shop Dealer

in respect of Fair Price Shop No.20, Eguvamedawada Village,

Chittoor District. However, liberty is given to the respondents

to conduct enquiry and take appropriate action in the matter.