Andhra Pradesh High Court - Amravati

M. Nirmalamma, vs The State Of Andhra Pradesh, on 26 April, 2023

    THE HONOURABLE SRI JUSTICE D.RAMESH

             WRIT PETITION No.21756 of 2016

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 action of the respondent no.4 in passing orders dated 08.6.2016 vide D.Dis.No.7319/2015/B by cancelling authorization of the petitioner fair price shop no.17 of Nadimipalli Village, Nallacheruvu Mandal, Anantapur District as illegal, arbitrary and consequentially set aside the same and direct the respondents to permit the petitioner to run the fair price shop no.17 of Nadimpalli Village, Nallacheruvu Mandal, Anantapur District by supplying essential commodities and to pass such other order or orders as the Court may deems fit and proper.

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

2006 (5) ALD 796 (DB)

2015 (3) ALD 617

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.

After notice, 4th respondent has filed counter in which

he submitted that as against three charges all the charges

are held proved that the fair price shop dealer has

contravened the clauses 2(1)(a), 2(2) of Annexure-1, Clause

7(i) and 22(viii) of A.P.State Public Distribution System

(Control) Order, 2008 and hence the fair price shop

dealership and authorization of the petitioner has been

cancelled by giving the opportunity of appeal.

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 08.6.2016 of the 4th respondent is