Smt. P. Saraswathi vs The State Of Andhra Pradesh
2023 Latest Caselaw 2112 AP

    THE HONOURABLE SRI JUSTICE D.RAMESH

             WRIT PETITION No.3513 of 2015

ORDER:

This Writ Petition under Article 226 of the

Constitution of India is filed for the following relief:-

"..to issue a writ, order or direction more particularly one in the nature of a Writ of Mandamus declaring the order passed by the 3rd respondent in proceedings No.C/534/2014 dated 31.01.2015 cancelling the authorization issued to the petitioner in respect Fair Price Shop No.20 of Kammapalle Village, Chinna Mandem Mandal, YSR Kadapa District as arbitrary, illegal and violative of Articles 14, 19 and 21 of Constitution of India and consequently set aside the same..".

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 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

2006 (5) ALD 796 (DB)

2015 (3) ALD 617

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 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.

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.

After notice, counter affidavit is filed on behalf of the

respondents. In the said counter affidavit it is stated that on

receipt of complaints against the petitioner, the Enforcement

Dy.Tahsildars, Rayachoty, Muddanur and Rajampet have

jointly inspected the subject Fair Price Shop on 05.07.2014

conducted door to door enquiry with the card holders,

recorded their statements and submitted report to the Joint

Collector and Revenue Divisional Officer, Kadapa for taking

disciplinary action. Thereafter, the Tahsildar, Chinnamandem

has submitted a report to the Joint Collector, Kadapa stating

that the petitioner has committed certain irregularities and

recommended for taking disciplinary action against the

petitioner. Hence, the Revenue Divisional Officer, Kadapa has

passed proceedings on 31.01.2015 cancelling the

authorization of the petitioner as dealer of subject F.P shop.

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 31.01.2015 of the 3rd respondent is

contrary to the directions of this Court in the above said

Judgments. Hence, the impugned orders of the 3rd

respondent dated 31.01.2015 are set aside and the

respondents are directed to continue the petitioner as Fair

Price Shop Dealer in respect of subject shop. However, liberty

is given to the respondents to conduct enquiry and take

appropriate action in the matter.

With the above directions, this Writ Petition is disposed

of. No costs.

Miscellaneous petitions pending, if any, in this Writ

Petition shall stand closed.

__________________ JUSTICE D.RAMESH

Date : 20.04.2023 tm

THE HONOURABLE SRI JUSTICE D.RAMESH

WRIT PETITION No.3513 of 2015

Date: 20.04.2023

tm