WP/18394/2004 of Smt.B.M.Indiramma, Vs The Mandal Revenue Officer, on 30 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

THURSDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE GODA RAGHURAMWRIT PETITION NO : 18394 of 2004

Between:

Smt.B.M.Indiramma, w/o B.M.Ranganna,

Nandini Mahila Sangam, Velugu DPIP, Fair Price Shop Dealer, Adavigollapalli Village, Settur Mandal, Ananthapur District.

AND

..... PETITIONER

1 The Mandal Revenue Officer, Settur Mandal, Ananthapur District.

2 The Revenue Divisional Officer, Ananthapur.

3 O. Sudamani W/o. Anandappa

Adavigollapalli village, Settur Mandal, Anantapur dist.

(R3 is impleaded as per court order dt. 24-11-2004 in WPMP 27700 of 2004).

.....RESPONDENTS

Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will be pleased toissue an appropriate writ, order or direction mostly one which is in the nature of writof mandamus declaring the proceedings Rc.No.1753/2004/F, dated 26-08-2004 ofthe 2nd respondent is illegal, irregular, arbitrary, unconstitutional, violative ofprinciples of natural justice, unjustified and unsustainable and set aside the sameholding that the petitioner is entitled to continue as fair price shop dealer ofAdavigollapalli Village, Settur Mandal, Ananthapur District Counsel for the Petitioner: MR.P.VEERA REDDY

Counsel for the Respondents No. 1 &2 : GP FOR CIVIL SUPPLIES

Counsel for the Respondent No.3: MR. K.G. KRISHNA MOORTHY

The Court made the following :

Oral order:-

Heard the learned counsel for the petitioner, learned Government for 1[st] and 2[nd]respondents and the learned counsel representing the 3[rd] respondent.

The writ petition is filed challenging the order of the 2[nd] respondent dated 26-08-2004 removing the petitioner permanently from the dealership of the fair price shopof Adavigollapalli, Settur mandal, Anantapur district. The District Collector,Anantapur, by his proceedings dated 27-06-2003 sanctioned a new fair price shopfor Adavigollapalli village, by bifurcating the existing fair price shop at Bachehallivillage of Settur mandal. Considering the proposals of the 1[st] respondent forappointment of a temporary fair price shop dealer for the new fair price shop, thepetitioner was considered eligible and as per the resolution of the District FoodAdvisory Committee, Anantapur and on the basis of the recommendation of the 1[st]respondent, was appointed as a temporary fair price shop dealer of the village.While so, the impugned order was issued removing her permanently from thedealership. In the order impugned, it is recorded that the petitioner had committedcertain irregularities.

“1. The F.P. Shop dealer is selling the rice which was allotted to her to Rs.5-50 paise whereas the Government fixed as Rs. 5-25 paise. Since 5 monthsshe is selling.

2. The M.R.O. noticed that since 5 months she did not supply the rice for 5card holders.”

The impugned order was passed without notice or opportunity to the petitioner andthe order terminates her authorization to run the fair price shop permanently.

Pursuant thereto, by the orders of the 2[nd] respondent dated 04-10-2004, the 3[rd]respondent was appointed temporarily as fair price shop dealer of the village in thevacancy caused by the removal of the petitioner.

The impugned order permanently removing the petitioner from the dealershipof Adavigollapalli village fair price shop was passed by the 2[nd] respondent withoutnotice or opportunity to the petitioner and recording that the removal order is passedon account of the irregularities committed by the petitioner. No such order bringingabout a termination of her authorization on the ground of misconduct could havebeen issued by the 2[nd] respondent without compliance with the principles of naturaljustice. Besides affecting the petitioner’s legitimate expectation to function as fairprice shop dealer on a temporary basis till a permanent arrangement is made forrunning the fair price shop, the impugned order casts a stigma on the petitioner. It is,therefore, essential for the 2[nd] respondent to have issued her a notice and affordedher atleast a minimul opportunity to rebut the allegations made against her beforethe impugned order was passed. The 3[rd] respondent was temporarily appointed dueto the vacancy caused by the aforesaid illegal removal of the petitioner.

The learned counsel for the 3[rd] respondent contends, placing reliance on adecision of a Division Bench of this Court inB. MAHESWARAMMA Vs. M.RAMASUBBAMMA([1]), that removal of the petitioner from the temporary dealershipof a fair price shop on the ground of misconduct, is not illegal and that a temporarydealer is not entitled to any opportunity. A person, who has committed irregularitiesin the running of a fair price shop and that too a temporary fair price shop dealer, isnot entitled to any notice or opportunity before termination of such temporarydealership, is the substance of the 3[rd] respondent’s contention on the basis of theaforesaid judgment.

The facts, in brief, that fell for consideration of this court in Maheswaramma’s case(supra) are that the dealership of a fair price shop was suspended, pending inquiry.The aggrieved dealer filed a writ petition challenging the order of suspension of herauthorization. A learned single Judge granted an interim order permitting thepetitioner to function as a dealer. As against the said interim order, the person, whowas appointed temporarily to run the shop in the vacancy caused by the suspensionof the permanent dealer, filed the writ appeal challenging the interim order granted by the learned Single Judge. It is in these circumstances that the Division Bench ofthis court observed that an interim order ought not to have been granted by thelearned single Judge, as a person, who had been subjected to a disciplinary actionfor wrong doing, ought not to be allowed to function in the office under an interimorder granted by the court. As it is not the interest of the party alone, but the publicinterest of which is utmost importance, the Division Bench held, it was not a fit casefor exercise of the discretion of granting an interim order.

The aforesaid decision has no application to the facts of this case. The authorizationof the petitioner has been permanently cancelled. The temporary authorization of thepetitioner to run the fair price shop has been permanently cancelled on the recordedground that she had committed the specified irregularities in the running of the shop.The irregularities recorded to have been committed by the petitioner are thus thefoundation for the exercise of the power of cancellation of the petitioner’sauthorization. No such recording or conclusion that the petitioner had committed theirregularities could have been arrived at without complying with the principle ofnatural justice – Audi alteram partem. This fundamental principle of natural justice isthe safeguard against arbitrary or callous exercise of power.

The impugned order is unsustainable. It is accordingly set aside. It is,however, open to the 1[st] and 2[nd] respondents to proceed against the petitioner, if thecircumstances so warrant, in accordance with law and after following the dueprocedure.

The writ petition is allowed, as above. There shall be no order as to costs.

_________________________

GODA RAGHURAM, J

Dt. 30-12-2004Pvks/*

That Rule nisi has been made absolute, as above.

Witness the Hon’ble Sri Devinder Gupta, the Chief justice on this the 30[th] dayof December, two thousand and four.

To

1 The Mandal Revenue Officer, Settur Mandal, Ananthapur District.

2 The Revenue Divisional Officer, Ananthapur.

3. 2CCs to the Government Pleader for Civil Supplies, A.P. High Court Buildings,Hyderabad. (OUT).

4. 2CD copies

Form-NIC-OGS/WP{RS}