Smt Pathivada Ramanamma vs State Of Andhra Pradesh,
2023 Latest Caselaw 2247 AP

                  THE HON'BLE SRI JUSTICE D.RAMESH

                      WRIT PETITION No.9649 of 2015

ORDER:

The Writ Petition is filed under Article 226 of the

Constitution of India seeking to declare the proceedings of the 2nd

respondent issued in FPSAP No.14/2014/G8 dated 26.3.2015 in

confirming the orders of the 3rd respondent passed in

Rc.No.1153/2014/G dated 18.12.2014 as illegal, arbitrary and

pass such other or further orders as the Court deem fit and

proper.

2. Heard learned counsel for the petitioner and learned

Assistant Government Pleader appearing for respondents.

3. Learned counsel appearing on behalf of the petitioner

submitted that the impugned proceedings passed by R3 dated

18.12.2014 are contrary to the Rule 8(i) of Control Orders 2008

wherein the authorities have not followed the procedure

prescribed in the said orders. Not only that basing on the

interpretation of these orders, the Division Bench of this Court in

a reported judgment in between M. Kalyani vs District

Collector, Prakasam District, Ongole1 and Smt. Manjula

2006 (5) ALD 796 (DB)

Vs. District Collector, Civil Supplies, Kurnool 2 has made

the following observations:

The 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 effective and simply because the petitioner submitted his explanation, it does not fulfil the requirement of reasonable opportunity, more so,

2015 (3) ALD 617

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.

4. Learned counsel appearing on behalf of the petitioner has

submitted that as observed by the Hon'ble Division Bench in the

above orders, the authorities have not followed the basic

principles i.e. not conducted any enquiry and no statements were

recorded before the petitioner from the complainant or card

holders and no enquiry report has been furnished to the petitioner

along with show cause notice. In view of the same, the impugned

orders passed by the 3rd respondent and confirmed by the 2nd

respondent are contrary to the above said observations.

5. After notice, the respondents have filed counter. Even in

the counter it is averred that one Pilla Muthyalu and 44 other card

holders have made some complaint against the petitioner on

25.8.2014 before the Joint Collector, Vizianagaram and basing on

the said complaint, the Joint Collector, Vizianagaram vide order

dated 03.9.2014 directed the authorities to conduct enquiry.

Accordingly, the Civil Supplies Deputy Tahsildar, Gurla along with

revenue authorities have conducted detailed enquiry on 04.9.2014

by verifying the records maintained by the petitioner and basing

on the said report a show cause notice has been issued to the

petitioner on 20.11.2014 calling for explanation and basing on the

said explanation submitted by the petitioner, the authorities have

examined the records and passed the impugned orders cancelling

the authorisation. Hence the authorities have followed the

procedure contemplated under the Act and conducted enquiry and

basing on the enquiry report, the respondents have passed the

final orders.

6. Considering the averments in the counter, after hearing the

learned counsel for the petitioner and on perusal of the impugned

order, this court is of the opinion that the impugned orders passed

by the respondents on 18.12.2014 are contrary to the

observations made by this Court in the judgments referred to

supra. On perusal of the order it clearly discloses that basing on

the complaint dated 25.8.2014 and orders of the Joint Collector

dated 03.9.2014 and letter of the Deputy Tahsildar dated

05.9.2014 again orders of this Court in W.P.No.30247 of 2014

dated 10.10.2014 and letter of Revenue Divisional Officer's office

dated 20.11.2014 and explanation of the petitioner, they have

mentioned about the enquiry report and whether enquiry report

has been supplied along with notice is not also mentioned in the

impugned order.

7. Considering the same, the impugned order dated

18.12.2014 and also the orders dated 26.3.2015 are set aside and

the matter is remanded to the concerned authority to take

appropriate action afresh as per the observations made in the

judgments referred to supra and pass orders.

8. Accordingly, the writ petition is disposed of. No costs.

As a sequel miscellaneous applications, pending, if any,

shall also stand closed.

________________ JUSTICE D.RAMESH

Date: 24.4.2023 RD

THE HON'BLE SRI JUSTICE D.RAMESH

WRIT PETITION No.9649 of 2015

Dated 24.4.2023

RD