WP/23036/2011 of Munju Venkata Ramana Vs The Government of Andhra Pradesh on 28 December 2012

Conclusion

HON’BLE SRI JUSTICE R. SUBHASH REDDY

WRIT PETITION Nos.23036 and 24580 of 2011

Dated: 28.12.2012

Between:

Munju Venkata Ramana.

And

…..Petitioner

The Government of Andhra Pradesh, rep. by its Secretary,Revenue (Civil Supplies) Department & others.

…..Respondents

HON’BLE SRI JUSTICE R. SUBHASH REDDYWRIT PETITION Nos.23036 and 24580 of 2011COMMON ORDER:

As both the writ petitions are filed questioning theorder dated 03.06.2011, passed by the 3[rd] respondent-Revenue Divisional Officer in Rc.No.1334/2009, and theconsequential orders of recovery, issued inLr.No.27/2009/CS, dated 16.06.2011, by the 4[th]respondent-Tahsildar, they are heard together and arebeing disposed of by this common order. For the purposeof disposal, I refer to the facts as arise in W.P.No.23036 of2011.

The petitioner is a fair price shop dealer fordistribution of essential commodities including keroseneoil, for shop No.35, situated at Door No.8-2-114/A,P.W.Market of Vizianagaram town. It is stated that he isworking as dealer for the last about 35 years and thatthere were no complaints against him at any point of time. While so, there were representations from the members ofVizianagaram Town Poor People Welfare Committee,alleging that during the period from August 2008 to July 2009, in the entire Vizianagaram mandal, all the 101 fairprice shop dealers have mis-used the kerosene oilallotted under public distribution system. Mainly, it isalleged that instead of distributing 3 litres kerosene oil tothe cardholders, they have distributed 2 litres to ‘Deepam’cardholders and also to BPL cardholders. Based on thesaid complaint, inquiries were conducted by the DeputyTahsildar, not with reference to any specific case, but byrecording the statements of some cardholders in ‘Avagahana Sadassu’. As there was somedifference in the reports submitted by different DeputyTahsildars, a further inquiry is conducted. The RevenueDivisional Officer, on the ground that the personalinquiries conducted by her in the slum localities, namely,Jonnaguddi, Lankapatnam, Kanapaka etc., on09.03.2011 and 22.03.2011 by interacting with therepresentatives of cardholders, revealed that the petitionerand other dealers have distributed only 2 litres ofkerosene oil to ‘Deepam’ cardholders and also to the BPLcardholders, has recorded a finding that the dealers havemisappropriated the balance quantities of kerosene oil. Inthe impugned order, it is further stated that the purchaseprice of kerosene oil per litre is Rs.38.70 ps., and the priceat which it is supplied to the cardholders under publicdistribution system is Rs.9.50 ps., and thus, there is adifference of Rs.29.20 ps. per litre. The RevenueDivisional officer, based on the inquiry conducted by herself, has issued the impugned proceedings dated03.06.2011, in Rc.No.1334/2009D, levying penalty at therate of Rs.87.60 ps. per litre i.e. three times of thedifferential price. Based on the orders issued by theRevenue Divisional Officer, consequential notices wereissued by the Tahsildars for recovery of amounts.

In these writ petitions, it is mainly submitted by thelearned counsel for petitioners that when notices wereissued to them, all the fair price shop dealers havesubmitted their explanations, denying the allegations, butwithout verifying from the cardholders, based on thealleged interaction with the representatives of cardholders,the impugned orders are passed ordering to recover theamounts. On the other hand, it is submitted by thelearned Government Pleader appearing for respondentsthat, as the inquiry revealed that the petitioners and otherdealers have distributed only 2 litres of kerosene oilinstead of the prescribed 3 litres to the cardholders andthus misappropriated 1 litre of kerosene oil on each card,the impugned orders are passed for recovery and thesame is permissible under Clause 17(c) of the A.P.StatePublic Distribution System (Control) Order, 2008.

Having heard the learned counsel for the parties, Ihave also perused the order passed by the RevenueDivisional Officer, dated 03.06.2011, issued inRc.No.1334/2009D. A perusal of the said order showsthat except the vague allegation made by the members of the welfare committee, there is no specific allegationagainst any of the dealers. The allegation itself ismisappropriation of certain quantities of kerosene oil fromAugust 2008 to July 2009 by all the fair price shop dealersin Vizianagaram Mandal. Even as per the findingsrecorded by the Revenue Divisional Officer, it is clear thatthe reports sent by the Deputy Tahsildars werecontradictory. The impugned order for recovery is passedmainly basing on the personal inquiry conducted by theRevenue Divisional Officer herself on 09.03.2011 and22.03.2011. In the impugned order, it is categoricallystated that she interacted with the representatives ofcardholders with regard to misappropriation of keroseneoil from August 2008 to July 2009 and the same revealedthat only 2 litres of kerosene oil was supplied to thecardholders instead of 3 litres, and thus, the dealers havemisappropriated 1 litre of kerosene oil on each card. It isclear from the order itself that no cardholder has deposedanything in support of the allegations made against thepetitioners. Based on the interaction with therepresentatives of cardholders, the 3[rd] respondent is notempowered to collect any penalty under Clause 17(c) ofthe Control Order. It is true that as per the said clause, ifthere is diversion or misappropriation of any commoditysupplied for distribution under the public distributionsystem, the authorities are empowered to impose penaltyequivalent to three times the difference between the market rate and the public distribution system rate of thecommodity diverted, but, unless there is specific evidence,penalties cannot be collected. When there is allegationthat cardholders were not supplied the prescribed quantityof kerosene oil, unless an inquiry is conducted in thepresence of the affected parties by recording theirstatements, it is not open for the respondents to order forrecovery of any penalties as contemplated under theControl Order. Merely based on the interaction with therepresentatives of cardholders, no penalty can be leviedon the petitioners. As the impugned orders for recovery ofpenalty are solely based on the inquiry conducted by theRevenue Divisional Officer on 09.03.2011 and 22.03.2011by interacting with the representatives of card holders, thesame are liable to be set aside. It is also to be noticedthat when specific notices are issued, explanations werealready filed by the fair price shop dealers. In that view ofthe matter, without making any reference to suchexplanations filed by the dealers, by merely basing on theinteraction with the representatives of cardholders on09.03.2011 and 22.03.2011, the impugned order ispassed. Therefore, the impugned order and theconsequential demand notice issued by the respondentsare liable to be set aside.

For the aforesaid reasons, both the writ petitions areallowed and the impugned order dated 03.06.2011,passed by the 3[rd] respondent in Rc.No.1334/2009, and the consequential order of recovery, issued in Lr.No.27/2009/CS, dated 16.06.2011, by the 4[th]

respondent, are set aside. No costs.

As a sequel, the miscellaneous petitions, if any,pending in both the writ petitions, shall stand closed.

__________________________

R. SUBHASH REDDY, J

28[th] December 2012

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