K.Eshwarachari vs The Deputy Commissioner / ...
2023 Latest Caselaw 357 Kant

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                                                     WP No. 16917 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 5TH DAY OF JANUARY, 2023
                                         BEFORE
                        THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        WRIT PETITION NO. 16917 OF 2021 (GM-PDS)


                BETWEEN:
                1.     K. ESHWARACHARI
                       S/O KRISHNACHARI
                       AGED 65 YEARS,
                       PROPRIETOR,
                       ANNAPOORNA STORES,
                       TANK MOHALLA,
                       SHIMOGA TOWN-577 201.
                                                            ...PETITIONER
                (BY SRI. T. BASAVARAJ, ADVOCATE)


                AND:
                1.     THE DEPUTY COMMISSIONER /
                       APPELLATE AUTHORITY
                       SHIMOGA DISTRICT
                       SHIMOGA-577 201.
Digitally signed
by PADMAVATHI
BK               2.    JOINT DIRECTOR OF FOOD AND
Location: HIGH         CIVIL SUPPLIES AND CONSUMER
COURT OF               AFFAIRS, D.C. COMPOUND,
KARNATAKA
                       SHIMOGA-577 201.
                                                          ...RESPONDENTS
                (BY SRI. M. VINOD KUMAR, AGA)


                        THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
                THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
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                                             WP No. 16917 of 2021




IMPUGNED ORDER DTD.29.7.2021 PASSED BY THE R-1 VIDE
ANNEXURE-A TO THE W.P. AND CONSEQUENTLY QUASH THE
ORDER PASSED BY THE R-2 DTD.25.2.2021 VIDE ANNEXURE-B
TO THE W.P.

      THIS    PETITION,     COMING      ON      FOR   PRELIMINARY

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

Heard Sri. T. Basavaraj, learned counsel appearing for the

petitioner, Sri. M. Vinod Kumar, learned AGA appearing for the

respondents and perused the materials on record.

2. The learned counsel appearing for the petitioner

submits that the issue in the lis stands covered by the

judgment rendered by Co-ordinate Bench of this Court in

W.P.No.16591/2021.

3. The issue before the Co-ordinate Bench was calling

in question an order of the Deputy Commissioner/the Appellate

Authority, who refused to consider the appeal on the ground

that it was on his direction that the action was initiated against

the allottee of the fair price shop, therein.

WP No. 16917 of 2021

4. In the case at hand, it is the same situation, where

the Deputy Commissioner has not considered the appeal on the

ground that it was on his direction, the action was initiated

against the petitioner. Therefore, the grievance of the

petitioner in the case of V. RAJU vs. THE DEPUTY

COMMISSIONER/APPELLATE AUTHORITY AND ORS.1 and

the case at hand are similar. The Co-ordinate Bench has held

as follows:

"The petitioner is aggrieved by the impugned order dated 29.07.2021 passed by the Deputy Commissioner, Shivamogga District, returning the appeal filed by the petitioner, calling in question the order dated 25.02.2021 passed by the Joint Director, Food and Civil Supplies & Consumers Affairs, Shivamogga District.

2. Learned Counsel for the petitioner submits that the Deputy Commissioner has passed the impugned order on the premise that the action was initiated against the petitioner as per directions issued by the Deputy Commissioner himself and therefore, he would not be competent to hear the appeal.

3. Recently, this Court came across a similar situation in W.P.No.15627/2021 and this Court by order dated 13.12.2022 held that when an appeal is filed at the hands of the petitioner in terms of the statutory provisions, then the appellate authority is duty bound to consider the appeal and dispose off the same on merits. It does not lie in the mouth of the Deputy Commissioner to say that the action was initiated against the

W.P.No.16591/2021 disposed on 16.12.2022

WP No. 16917 of 2021

petitioner-society as per his direction and therefore, he would not be competent to hear the appeal. Initiation of the action may have been at the directions of the Deputy Commissioner but that does not preclude the appellate authority to consider an appeal on merits and dispose of the same in accordance with law.

5. In the light of the issue being similar and covered

on its force by the order passed by the Co-ordinate Bench, not

withstanding this dispute by the learned AGA, I deem it

appropriate to follow the same and pass the following:

ORDER

a) For the reasons stated above, the writ petition is allowed. The impugned order dated 29.07.2021 at Annexure -A passed by the first respondent - Deputy Commissioner is hereby quashed and set aside. The matter stands remanded back to the Deputy Commissioner, Shivamogga District to reconsider the appeal in C.R.No.09/2021-22 on merits and in accordance with law. Further, since an interim order of stay was already granted by this Court, when the matter came up for preliminary hearing, the interim order of stay shall continue to operate till the disposal of the appeal.

WP No. 16917 of 2021

b) The amount deposited by the petitioner before this Court in terms of the interim directions are hereby directed to be returned to the petitioner, forthwith.

Ordered accordingly.

Sd/-

JUDGE

JY