Andhra Pradesh High Court - Amravati

Counsel For The Writ vs "8. In The Light Of Above Facts on 13 July, 2023

 IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

THE HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

          WRIT PETITION No. 19426 of 2022


ORAL ORDER:

           Heard Sri K.Naga Phanindra, Ld. Counsel

representing on behalf of Sri K.Rathanga Pani Reddy, Ld.

Counsel for the Writ Petitioner, Ms.P.Rachana, Ld. Counsel

representing on behalf of Ms.N.Revathi, Ld. Counsel for the

Un-Official Respondent and Sri G.Raju, Ld. Assistant

Government Pleader for Civil Supplies representing for

Official Respondents.

2. The prayer in the Writ Petition is as under:

"It is therefore prayed that this Hon‟ble Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the illegal action of the respondents 2 to 4 in coercing the petitioner to handover the Shop No.0904007 of Gattupalli Village, Jaladanki mandal, SPSR Nellore District for which petitioner is working as temporary dealer since May, 2018 to the 5th respondent (Temporary dealer) vide handover proceedings dated 02.07.2022 though the authorization of the petitioner is neither suspended nor removed and it is settled law that no temporary dealer can be replaced by another temporary dealer, only by succumbing to political pressures in most illegal and capricious manner and in gross violation of Article 14, 19 & 21 of The

Constitution of India and consequently direct the respondents 2 to 4 to continue the petitioner as fair price shop dealer for the above mentioned shop and pass such other order or orders as are deemed fit and proper."

3. The Writ Petitioner was appointed as a

temporary dealer for Fair Price Shop No.0904007 of

Gattupalli Village, Jaladanki Mandal, SPSR Nellore District

since May, 2018. It is the case of the Writ Petitioner that

by proceedings dated 02.07.2022 (Ex.P1) styled as Handed

Over Proceedings, the Respondent No.4 directed the Writ

Petitioner to handover the charge of the Fair Price Shop to

the Respondent No.5. A perusal of the said Handed Over

Proceedings dated 02.07.2022 shows that on the direction

of the Revenue Divisional Officer and the Tahsildar, the

Fair Price Shop is forthwith handed over to the Respondent

No.5 with effect from July, 2022. It is the submission of

the Writ Petitioner that the Official Respondents have not

stated any reason for this decision. He also submits that

neither Show Cause Notice nor Cancellation Order was

furnished to the Writ Petitioner in this process.

4. The Ld. Counsel for the Writ Petitioner submits

that this unauthorised action on the part of the Official

Respondents is not only arbitrary and illegal but also

highhanded. Having been aggrieved by this conduct of the

Official Respondents against which the Writ Petitioner has

approached this Court by way of this Writ Petition, by

Order dated 14.07.2022 this Court had stayed the Handing

Over Proceedings dated 02.07.2022 (Ex.P1). On the basis

of this Interim Order, presently, the Writ Petitioner is now

continuing as Temporary Fair Price Shop Dealer.

5. Ld. Counsel for the Writ Petitioner has cited a

decision of this Court in Dama Srikantam vs. State of

Andhra Pradesh, Rep.by its Principal Secretary,

Consumer Affairs, Food and Civil Supplies

Department, Velagapudi, Amaravati and others (2020

(6) ALT 182 (W.P.No.3112 of 2020)), which was decided

on 14.02.2020. He has drawn the attention of this Court

to paragraph Nos.8 to 10 of the Order. The said

paragraphs are usefully reproduced hereunder:

"8. In the light of above facts, the question is whether the 2nd respondent is not bound to issue show-cause

notice to the petitioner and conduct enquiry before passing the termination order. In this context, clause 8(4) of Control Order, 2018 reads as follows:

"(4) The appointing authority may, at any time in the public interest or on suo-motu or on receipt of complaint, after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, suspend or cancel the authorization issued or deemed to be issued to him/her under this clause."

9. A plain reading of the above clause postulates that the appointing authority may suspend or cancel the authorization after making such enquiry as may be deemed necessary and after recording reasons. Therefore, conducting of enquiry is sine qua non for suspension or cancellation of authorization. It is pertinent to note that clause 8(4) has not made any distinction between a temporary dealer and a permanent dealer regarding the essentiality of conducting enquiry for either suspension or cancellation of authorization. Therefore, the 2 respondent cannot just terminate the authorization nd

of the petitioner without conducting enquiry on the pretext of her being a temporary dealer. It should be noted that the temporary dealer may be terminated from the dealership honourably by retrieving back her dealership. In such a case, probably, the civil supplies authorities need not issue prior notice or assigning any reason. If the authorities make any allegations about the conduct of a fair price shop dealer, either he/she is temporary or permanent one, in such an event, they cannot simply terminate the authorization of such dealer without issuing show-cause notice calling for the explanation and conducting the enquiry. If the dealership is terminated without following the principles of natural justice, invariably, stigma of bad conduct imputed against such dealer (either temporary or permanent one) will remain forever and he will not have an opportunity to establish his innocence. Therefore, it is not correct to say that no enquiry need to be

conducted against a temporary dealer. He is also an aggrieved person like a permanent dealer.

10. In M.Vanaja v. B. Balaseshanna and others (1) 2008 (1) ALT 520 = 2007 (4) ALD 388, a full bench of High Court of Andhra Pradesh was engaged with the question whether a temporary fair price shop dealer falls within the ambit and scope of the expression "any aggrieved person" used in Clauses 20 and 21 of the Andhra Pradesh State Public Distribution System Control Order, 2001, it held thus:

"26. If the expression "any person aggrieved" appearing in Clauses 20 and 21 is interpreted keeping in view the scheme of the Control Order, there cannot be any doubt that the said expression takes within its ambit a temporary fair price shop dealer and even a cardholder. The temporary fair price shop dealer is required to comply with all those conditions, which are applicable to a regular or a permanent fair price shop dealer. His/her functions are identical to that of regular/permanent fair price shop dealer. His authorisation can also be suspended or cancelled or altered in terms of Clause 5(4) of the Control Order. Once the authorisation of a permanent/regular fair price shop dealer is suspended or cancelled and a temporary fair price shop dealer is appointed in his/her place, the latter acquires a substantive interest to run the fair price shop. If the order of suspension or cancellation of authorisation of the regular/permanent fair price shop dealer is stayed or set aside, the temporary fair price shop dealer is the immediate person who is adversely affected inasmuch as his right to operate the fair price shop will get stultified by restoration of the regular/permanent fair price shop dealer. To put it differently, the authorisation of a temporary fair price shop dealer may not create a vested right in him, but he will certainly be a person affected by reinstatement of the regular/permanent fair price shop dealer and, therefore, he will certainly have the locus to question the reinstatement of the

regular/permanent fair price shop dealer by filing an appeal under Clause 20 and revision under Clause 21, and we do not see any reason to give a restricted interpretation to the expression "any person aggrieved." It is quite possible to visualize a case in which the appellate authority may, without assigning any reason or for extraneous consideration, restore the authorisation of a permanent/regular fair price shop dealer despite the fact that he may have been found guilty of grave financial or other irregularities and gross violation of the conditions. If a narrow interpretation is placed on the expression "any person aggrieved" appearing in Clauses 20 and 21 and it is held that the temporary fair price shop dealer and/or the beneficiary of the public distribution system is not "an aggrieved person", then there will be none to challenge patently illegal or arbitrary order passed by the appellate authority. This will not at all be conducive to larger public interest. Even otherwise, we are convinced that the expression "any person aggrieved" appearing in Clauses 20 and 21 must, keeping in view the scheme of the Control Order, receive liberal construction so as to enable any affected or interested person to challenge the order made by the competent authority under Clause 5.

33. In the result, the reference is answered in the following terms:

The expression "any person aggrieved"

appearing in Clauses 20 and 21 of the Control Order comprehends within itself a temporary fair price shop dealer and the latter has locus to challenge an order made under Clause 5 or under Clause 20(1) or 20(2) of the Control Order by filing appeal or revision, as the case may be."

6. He has also drawn the attention of this Court to

a Judgment rendered by the Hon‟ble Apex Court in Uma

Nath Pandey And Others vs. State of Uttar Pradesh

and Another ((2009) 12 Supreme Court Cases 40). The

Ld. Counsel has also drawn the attention of this Court to

Paragraph Nos.10, 11 & 12 of the said Judgment.

10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the „Magna Carta‟. The classic exposition of Sir Edward Coke of natural justice requires to „vocate, interrogate and adjudicate‟. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414] the principle was thus stated : (ER p. 420) „[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam" (says God), "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?".‟ Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment

has added light and luminosity to the concept, like polishing of a diamond.

11. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

12. What is meant by the term „principles of natural justice‟ is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Loc. Govt. Board [(1914) 1 KB 160 : 83 LJKB 86] (KB at p. 199) described the phrase as sadly lacking in precision. In General Medical Council v. Spackman [1943 AC 627 : (1943) 2 All ER 337 (HL)] Lord Wright observed that it was not desirable to attempt „to force it into any Procrustean bed‟ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give „a full and fair opportunity‟ to every party of being heard.

7. The Hon‟ble Apex Court, in the above

mentioned Order, referring to several authorities, had held

that the Principles of Natural Justice cannot be dispensed

with at any cost. The proposition laid down by the Hon‟ble

Apex Court, in the humble opinion of this Court, applies to

the fact of the case on hand with full force. It is an

admitted fact that no reasons were communicated to the

Petitioner for cancellation of the Petitioner‟s dealership.

Even if the dealership is on temporary basis, the Official

Respondents are legally obligated to furnish the reasons for

the abrupt cancellation and consequential allotment to any

third party. In the instant case, for the first time, the