WP/27773/2005 of S.Adilakshmi Vs The District Collector on 28 December 2005

ORDER:

The petitioner is a fair price shop dealer in respect of Kolugodu village, GummagattaMandal, Anantapur District. The petitioner stated that she was appointed as a dealerof fair price shop to distribute the essential commodities on permanent basis. Whileso, the 3[rd] respondent suspended her dealership basing on the report of the 4[th]respondent without following the due procedure. Against which the petitioner filedan appeal before the Joint Collector, Anantapur and the Joint Collector by his orderdated 02-12-2004 while granting stay of the suspension order, remanded the matterto the Revenue Divisional Officer for disposal of the case as expeditiously aspossible. After the said orders, the third respondent issued a show cause noticedated 30-12-2004 making as many as five charges. It is stated that against the saidshow cause notice dated 30-12-2004, the petitioner appears to have been filed WritPetition No.25191/2004 and thereafter a representation dated 09-01-2005 and another explanation dated 19-01-2005 weremade. It appears that this Court in the said Writ Petition No.25191/2004 passed theorders on 30-12-2004 directing the Revenue Divisional Officer to proceed withfurther action, only, after giving a show cause notice. As the show cause notice was already issued on 30-12-2004 and the petitioner also filed representation andexplanation, the explanations have been considered and all the contents raised inthe explanation have been discussed and findings have been recorded by theRevenue Divisional Officer. In so far as charge No.1, it is held that the petitionermisused 28 quintals of food for work rice for his personal gain. So far as charge No.2is concerned, it is held that the petitioner has not distributed the AAY rice as per thequota to the card holders and issued 25 kgs of AAY rice, instead of 35 kgs, which isnot proved, but in so far as charge No.3 is concerned, it is held that the petitionerfound selling kerosene for higher rate of Rs. 0.50 paise per litre which is a graveirregularity. In so far as charge No.4 is concerned, it was held that the petitionerrefused to give rice for the named five card holders @ 10 kgs on the ground thatthere was no stock though sufficient stock was clearly available. In so far as chargeNo.5 is concerned, it is held that the petitioner has misused 500 litres of keroseneoil. Out of five charges, four charges were proved and after considering thepetitioner’s case, it is found that the petitioner has committed grave irregularity indistributing essential commodities and intended to distribute the same at higherrates and also misused 28 quintals of food for work rice and kerosene. Hence, fairprice shop dealership of the petitioner was cancelled by the Revenue DivisionalOfficer by his order dated 03-06-2005. Against the said order, petitioner filed an appeal before the JointCollector, Anantapur and the Joint Collector while dealing with all the contentionswith regard to every charge, confirmed the cancellation order by his order dated 06-12-2005. It is stated that as against the said order, petitioner filed a revision on 24-12-2005 questioning the order of the appellate authority. The petitioner has not evenquestioned the order of the appellate authority in this writ petition, as the impugnedorder of the third respondent has been merged in the order of the appellate authorityin RC.R/4/V No.358/05 dated 15-12-2005/Joint Collector, Ananthapur. Therefore, Iam of the opinion that the prayer in the writ petition is misconceived and questioningthe order of the Revisional authority, which has been merged with AppellateAuthority, is not permissible, without questioning the order of the Appellate Authority.

Arguments

Learned counsel appearing for the petitioner relied on the judgment of thiscourt in “ K. RADHA KRISHNA NAIDU v. DIRECTOR OF CIVIL SUPPLIES,HYDERABAD AND OTHERS wherein this court while considering the effect of theClause 28 of Andhra Pradesh Petrolium Products (Lincensing and Regulation of Supplies) Order, 1980 held that as per the proviso in Clause 28 of the said order,unless the licensee or the holder of registration certificate has been given areasonable opportunity for representing his case in writing and also having heard inperson against the proposed cancellation, the licence cannot be cancelled. It wasfurther held that the necessary material which was made as a base for issuing theshow cause notice would form part of the fundamental requirement of reasonableopportunity. Without furnishing such a document, asking the explanation of thepetitioner would be nothing but empty ritual. Whereas the relevant clauseauthorizing the appellate authority to cancel or suspend the FPS dealership is underClause 5(4) of the A.P. State Public Distribution System Control Order, 2001, whichreads as follows:

Clause 5(4): The appointing authority may at any time whether at the requestof the authorized fair price shop or authorized establishment or suo motu aftermaking such enquiry as may be deemed necessary and for reasons to be recordedin writing, add to, amend, vary, suspend or cancel the authorization issued ordeemed to be issued to him.

Though there is no specific provision to give reasonable opportunity, butprinciples of natural justice had applied.

Therefore, in the instant case show cause notice claimed as many as fivecharges have been framed giving particulars and specific irregularities calling uponthe petitioner to file his explanation and accordingly petitioner filed his explanation.Unless the petitioner makes a request to issue the copy of the report basing onwhich the show cause notice is issued, he cannot be furnished the copy of enquiryreport. However, in the instant case, neither the copy of the explanation nor theoriginal orders canceling the fair price shop dealership and the original order of theappellate authority has been filed, but only typed copies have been filed. In view ofthe aforesaid circumstances, I am of the opinion that the order as contemplatedunder clause 28 of A.P. Petroleum Order is different and it has been from that of theenquiry as contemplated under Clause 5(4) of the A.P. State Public DistributionSystem Control Order, 2001 wherein it was held that the appointing authority shallmake enquiry and pass orders by recording the reasons. In the instant case, reasonshave been recorded in the cancellation order after following the principles of naturaljustice. Therefore, I am of the opinion that the said judgment may not identical to thecase of the petitioner.

Learned counsel for the petitioner relied on another judgment of this court inM. SADASIVA SEKHAR v. DISTRICT COLLECTOR, KURNOOL AND OTHERSand that was the case arose after passing the final orders by the divisional authority.In the said case, the order of the appointing authority, appellate authority and therevisional authority were all questioned. In that case also, it was held that if anyspecific request has been made for giving reasonable opportunity as against theallegations, a reasonable opportunity of personal hearing in a particular manner andit is for them to give an oral hearing in a given case, but not in every case. As in thatcase, such an opportunity was not given causing prejudice to the dealer therein andthe orders passed by the Revisional authority-Joint Collector and the RevenueDivisional Officer were set aside remitting the matter to the R.D.O. But, in the instantcase, the petitioner was not challenged the appeal order and the revision waspending before the District Collector. Therefore, it is not open to the petitioner topursue the parallel proceedings.

Conclusion

Accordingly, the writ petition is dismissed. However, the District Collector,Ananthapur (Revisional Authority) is directed to dispose of the appeal, if any, filedand is pending in accordance with law by giving reasonable opportunity to thepetitioner within four weeks from the date of receipt of this order. No costs.

Dated: 28-12-2005RNS

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V. ESWARAIAH, J.