WP/5379/2006 of Smt.T.M.Begum, Vs The Director of Civil Supplies , Govt of A.P., on 31 December 2010

ORDER:

The petitioner, a fair price shop dealer of Shop No.54,Salmon Centre, Chirala Mandal, Prakasam District, has filed this writpetition questioning the order of the 1[st] respondent, viz., the Director ofCivil Supplies, Andhra Pradesh, Hyderabad passed in AppealNo.N1/12802/2005, dated 25.02.2006, confirming the orders of the 2[nd]respondent Collector and District Magistrate, Ongole, PrakasamDistrict, dated 12.07.2005 in proceedings No.CS2/306/05, creating anew fair price shop at Salmon Centre by bifurcating shop No.54 of thepetitioner and shop No.56 of the another dealer, namely, G. VenkataRamanjaneya Gupta (G.V.R. Gupta), as illegal.

2. The shop of the petitioner is attached with 658 supplycards out of which, 452 are white cards and 206 are pink cards. ShopNo.56 of G.V.R. Gupta was attached with 769 cards out of which, 514are white cards and 255 are pink cards. The 4[th] respondent, viz., theMandal Revenue Officer, Chirala sent proposals in Rc.B.940/2004,dated 17.12.2004 reporting that the card holders have to travel morethan 1 km., to draw ration, and thus, recommended for creating anothershop by detaching 448 cards (312 white + 136 pink) from the shop ofthe petitioner and 460 cards (300 white + 160 pink) from shop No.56.The said recommendation was accepted and accordingly,proceedings dated 12.07.2005 were issued creating a new shop with460 cards (300 white + 160 pink). Thereupon a notificationNo.RCC/1913/2004 dated 26.09.2005 was issued calling forapplications for appointment of a dealer. It appears that the 6[th]respondent alone responded to the notification and she was appointedas dealer by orders dated 9.10.2005. In this writ petition, the petitioner is not concerned with the selection process and appointment of the 6[th]respondent as dealer. The petitioner feeling aggrieved by the orders ofthe 2[nd] respondent dated 12.07.2005, preferred an appeal to the 1[st]respondent. The 1[st] respondent declined to interfere with the orders ofthe 2[nd] respondent and dismissed the appeal by orders in AppealNo.N1/12802/2005, dated 25.02.2006. The petitioner has thereforefiled this writ petition for the aforesaid relief.

3. Heard Sri R.K. Jwala, learned counsel for the petitioner,learned Government Pleader for Civil Supplies for respondents 1 to 5and Sri Ganduri Nageswara Rao, learned counsel appearing forrespondent No.6.

4. The learned counsel for the petitioner would contend thatthe 1[st] respondent passed the order without hearing the petitioner andtherefore, the order is violative of the principles of natural justice. Hewould contend that the appeal was initially posted for hearing on4.02.2006 and 18.02.2006 on which dates the petitioner was ready togo on with the hearing of the case. The matter was again posted on25.02.2006, but her counsel reported that he was unwell andbedridden due to viral fever and requested her to seek adjournment ofhearing of the case either by appearing in person or deputing anyresponsible person on her behalf. The petitioner accordingly deputedher brother-in-law, namely, Basha to seek adjournment of hearing ofthe case and the counsel also sent a telegram and fax on 25.02.2006.Though the said Basha, who was deputed by the petitioner, personallyappeared and requested the 1[st] respondent to adjourn hearing of thecase the 1[st] respondent proceeded as if he argued the case. Thelearned counsel would draw the attention of this Court to the affidavitfiled by him in this writ petition. It is contended that without heeding tothe request for adjournment, the 1[st] respondent dismissed the appeal.It is therefore contended that the order was passed without hearing thepetitioner, and the same is violative of the principles of natural justice.

5. The learned counsel would further contend that bifurcationof her shop and creation of a new shop is contrary to the guidelinesissued by the State Government in Memo No.148/CS.I/98-1, dated22.01.1999, which interalia stipulates that the shops must beeconomically viable and should be within a distance of 1 km., to theresidences of the card holders and that no new shop should besanctioned in the rural areas if the number of cards to be attached tothe fair price shop are less than 350. The petitioner would placereliance on the distance certificate issued by the Panchayat Secretarycertifying that the shop of the petitioner is located within a distance of1/2 Km., from the residences of the card holders. He would thereforedispute the report of the 4[th] respondent that the distance is more than 1km. The learned counsel would submit that due to denial of hearing,the distance certificate of the Panchayat Secretary could not be filedbefore the 1[st] respondent. He would therefore urge that the mattershould be reconsidered by the 1[st] respondent.

6. On the other hand, the learned Government Pleader wouldcontend that even after bifurcation, the petitioner is left with sufficientnumber of cards and the same is viable to run the shop. He wouldfurther contend that the petitioner has no right to question thebifurcation. Nonetheless, the 1[st] respondent heard the representationof the petitioner and passed the impugned order. It is also contendedthat the case was specifically posted on 25.02.2006 on the assuranceof the counsel to go on with hearing and at any rate the impugnedorder is not vitiated even if the counsel was not heard. He wouldtherefore urge that the impugned order is sustainable.7. In the light of the rival contentions it is necessary toconsider whether the petitioner is entitled to claim a right of hearing inthe appeal.

8. The Supreme Court in District Collector and another v.B. Suresh and others[[1]]while dealing with the question as to whether an existing dealer has a right to oppose the bifurcation andnotice is required before bifurcation, held that no such right is availableto a dealer nor has he a right to be heard. The relevant portion readsas follows.

The short question that arises for consideration in thisappeal is whether the respondents, who were appointed asFair Price Shop Dealers under the Andhra PradeshScheduled Commodities (Regulation of Distribution by CardSystem) Order, 1973, can claim a right to be noticed when theState Government decides to bifurcate the shops and reducethe number of cards. The High Court by the impugnedjudgment, being of the opinion that such Fair Price ShopDealers are to be noticed before any alteration is made, hasquashed the decision of the Government. The State assailsthe aforesaid judgment of the High Court.

Under the provisions of the Andhra PradeshScheduled Commodities (Regulation of Distribution by CardSystem) Order, 1973, which order has been framed under theprovisions of the Essential Commodities Act, 1955 a FairPrice Shop Dealer has no right to be appointed as suchdealer. The licence which such dealer has obtained under theprovisions of the Act to deal with the commodities has notbeen cancelled. The right to trade under Article 19(1)(g) of theConstitution of India is not being affected in any manner. TheGovernment, as a policy decision, decided to reduce thenumber of cards per dealer. Such decision does not affect therights, if any, of the Fair Price Shop Dealers and as such theHigh Court was in error to hold that they were to be given anynotice prior to the impugned decision of the StateGovernment.”

In view of the aforesaid law declared by the Apex Court, thepetitioner cannot claim a right of hearing nor can she claim violation ofprinciples of natural justice, even if she had not been heard in theappeal.

9. Even otherwise, in the instant case the petitioner cannotcomplain violation of principles of natural justice as she was affordedopportunity of hearing. Even according to the petitioner notice ofhearing on 25.02.2006 was given to her, but what the petitioner complains is that due to the illness of her advocate she could notpresent her case. She complains that the 1[st] respondent denied herrequest for adjournment and the same amounts to violation ofprinciples of natural justice.

10. Adjournment of a case is not a right of a party. It cannot begranted as a matter of course. Hearing of a case on the day fixed is thegeneral rule whereas an adjournment is only an exception which maybe justified in the extreme unavoidable circumstances and for validreasons. Grant of adjournment for mere asking or without valid reasonswould subvert administration of justice.

11. In the instant case it is seen that the case was posted on4.02.2006 and 18.02.2006. At the request of the counsel, the hearingwas adjourned to 25.02.2006. It is therefore clear that the petitionerwas aware even on 18.02.2006 that the matter would go on, on25.02.2006. Assuming that the counsel was unwell, the petitionercould have made alternative arrangement.

12. In this context it is relevant to extract the impugned order.

“The case has been posted for hearing on 04.02.2006,18.02.2006 and 25.02.2006. The counsel for the appellantshas requested to adjourn the case on some plea or other. On18.02.2006 the appellant authority has specifically informedthe advocate for the appellant that the case is finally postedfor hearing on 25.02.2006. Accordingly final notice wasserved on the advocate through Registered Post withAcknowledgement Due. On 25.02.2006 the advocate hasagain failed to appear before the Director of CivilSupplies……………”

“……. The advocate for the appellant was informed that thecase is finally posted on 25.02.2006 and the advocate hasassured that he would put forth his arguments on 25.02.2006.In the absence of the advocate it is construed that he hasnothing more to argue over and above the contents of appealand the grounds of appeal would suffice to dispose of theappeal……”

13. The petitioner has not denied nor traversed the said facts.On the other hand, she admitted that the case was posted for hearing on 4.02.2006, 18.02.2006 and 25.02.2006. That being the case, evenassuming that Basha sought for adjournment it cannot be said that thepetitioner was denied the opportunity of being heard. That apart, herstatement that she was ready with necessary material evidence ofroute map and distance certificate dated 17.02.2006 is certainly anafter thought. By her own showing she could not have been ready on4.02.2006 and 18.02.2006 as the alleged certificate itself is dated17.02.2006.

14. The contention that creation of new shop is contrary to theguidelines issued by the State Government in Memo No.148/CS.1/98-1, dated 22.01.1999 with reference to the economical viability and thedistance are violative of the Circular cannot be countenanced. TheMandal Revenue Officer before submitting the proposal undertook asurvey and submitted the proposal along with the route map showingthe distance to the existing fair price shop as beyond 1 km., andenclosing the sketch thereto. Therefore, no credence can be given tothe certificate of the Panchayat Secretary, who is not competent toissue such certificates. Indisputably, even after bifurcation, the shop ofthe petitioner is attached with 448 cards. The 1[st] respondent thereforerightly found that the shop of the petitioner is economically viable. The1[st] respondent rightly found that a new shop has to be created keepingin view the interest of the locality, which mostly comprises of weakersections. Therefore the impugned order does not suffer from any legalinfirmity or illegality warranting interference of this Court.

15. There are no merits in the writ petition and the same isaccordingly dismissed. There shall be no order as to costs.

________________

NOUSHAD ALI, J.

31.12.2010Js.

Note : Issue C.C. in one week.

B/O

LVL

[1]2000 (1) ALD 9 (SC)