I MANGA RAJU Vs. DISTRICT COLLECTOR NELLORE

JUDGEMENT

(1.) HEARD the Counsel on record and perused the respective stands taken by the parties and perused the records produced before this Court.

(2.) THIS Court ordered Notice before admission on 9-5-2007 and granted interim suspension for a period of six weeks. On 19-6-2007, the following order was made :

(3.) THE brief facts which ultimately paved the way for filing of the present Writ Petition are as hereunder. Pursuant to a notification issued in the year 1984, the petitioner and several others had submitted applications for temporary appointment as Fair Price Shop dealer for Shop No. 19, now renumbered as shop No. 27. The 3 respondent by his proceedings dated 21 -4-1984 appointed the petitioner and the 6 respondent as Fair Price shop Dealers by splitting the said shop into two. Thereafter, the said proceedings were questioned in Appeals and the issue thereof underwent chequered history of Appeals, revisions, Writ Petitions and Writ Appeal. Ultimately the said litigation culminated in the Judgment of this Court dated 6-7-1984 in w. P. No. 13887 of 1984 thereby directing that the Shop in question should be treated as a single shop without bifurcation and the consideration with respect to the said appointment shall be confined between the petitioner and the 6 respondent. The said judgment dated 6-7-1984 became final and consequently the 1 respondent considered the inter se merits of the petitioner and the 6 respondent by proceedings dated 30-4-1989 and appointed the petitioner as Permanent fair Price Shop Dealer for the said shop. It is also stated that the 6 respondent again preferred W. P. No. 8213/1990 against the appointment of the petitioner and the same was dismissed by Judgment dated 18-6-1990. Aggrieved by the said Judgment, the 6 preferred W. A. No. 808/90 and the Division bench of this Court by Judgment dated 12-7-1990 set-aside the Judgment of the single Judge and directed that it is open for the authorities to renotify the same and invite applications and consider the claims thereof and pass necessary orders of appointment. It is also stated that consequently by notification dated 15-4-1991, applications for the Dealer of the Shop in question on permanent basis were invited. Pursuant to the same, 19 applicants including the petitioner and the 6 respondent submitted applications and upon considering the merits and demerits of all the applicants, the 3rd respondent by proceedings dated 15-6-1991, appointed the petitioner as permanent Fair price Shop Dealer for the said Shop. Thereafter, no Appeals were filed and thus giving a momentary quietus to the issue. It is also further stated that since 1984 till date i. e. , for the past 23 years, the petitioner had been distributing the commodities in the said shop without any complaint or blemish except one inspection by the Vigilance Department on 17-3-1993 and the said proceedings ended in favour of the petitioner and even the said inspection was made on the basis of several complaints lodged by the 6th respondent. It is also further stated that the 6th respondent in collusion with the 4 respondent, who also had been impleaded in person as 5 respondent, conceived a plan to bifurcate the shop in question. In pursuance thereof, the 4 respondent took steps in trying to get resolution recorded by Food Advisory committee of the area and in the said process, he had handed over the said record to the 6 respondent to facilitate him to obtain signatures of the Chairman, Kavali municipality, who is one of the members of the said Committee. On coming to know of the same, the petitioner made representation dated 9-9-2006 to various authorities bringing the aforesaid facts and the past history to their notice and requested them to prevent foisting of such a resolution passed to the said effect. In view of the said representation dated 9-9-2006, the 4 respondent developed animosity against the petitioner and in pursuance thereof, he had inspected the shop of the petitioner on 1-11-2006 at 9 p. m. and alleged non-existing variations in stock against the petitioner and submitted a report to the 3 respondent in this regard. The 3 respondent basing on the said report, in turn placed the authorisation of the petitioner under suspension by proceedings dated 5-11 -2006 served on the petitioner on 14-11-2006. Questioning the same, the petitioner filed w. P,no. 26004/2006 and this Court while admitting the said Writ Petition on 15-12-2006 passed interim orders suspending the proceedings dated 5-11 -2006. While the matters stood thus, in the first week of April 2007, the petitioner came to know that the 1 respondent had issued proceedings dated 17-3-2007 bifurcating the Shop in question into four and while retaining one with the petitioner, directed one out of the other three shops to be given to the 6 respondent by way of converting his licence of conventional dealer (Nominated Retailer) as Fair Price shop Dealer in accordance with the guidelines issued by the Government. It is also stated that with great difficulty, the petitioner obtained a copy of the said proceedings and from a perusal of the same, it is evident that the 6th respondent had submitted a representation in 2006 and basing on the said representation the respondents 3 and 4 had submitted reports for dividing the Shop in question into four shops. Consequently, basing on the said representation and reports, the proceedings dated 17-3-2007 were issued. Immediately, the petitioner made representation on 14-4-2007 to the respondents 1, 3 and 4 and requested them to cancel or withdraw the proceedings dated 17-3-2007. Here itself it may be stated that it appears several representations had been made by the father of the writ petitioner, a retired Revenue official and also by the writ petitioner as well. It may be appropriate to have a glance at the representation dated 22-5-2007 of the writ petitioner and the contents thereof read as hereunder : <FRM>JUDGEMENT_338_ALT1_2008Html1.htm</FRM> Sri A. Radhakrishnaiah of Vengalrao nagar, Kavali was originally Kerosene nominated Retailer up to April, 07 and he was distributing kerosene to some card holders of Vengalrao Nagar, Kavali upto April, 2007. Even then he was allotted excess quantity of kerosene than other N. Rs. in Kavali Town according to the latest policy of kerosene distribution irregularly ordered by the Joint Collector, Nellore without competency as per the orders of the government in force till then. However, the changed policy of Kerosene distribution is in force in Kavali municipality. This Sri A. Radhakrishnaiah is converted and appointed as a F. P. Shopdealer by the Revenue Divisional officer, Kavali to the bifurcated F. P. Shop No. 27c with the result, he can no longer be treated as a Kerosene N. R. It is also important to note that his illegal appointment as F. P. Shop Dealer made by the Revenue Divisional Officer, kavali has been suspended by the hon'ble High Court, A. P. Hyderabad on 9-5-2007 and the said High Court wire order was received by the Tahsildar, kavali on 10-5-2007. It is learnt in the office of the District Supply Officer. Nrllore that the Collector. Nellore has ordered on 21 -5-2007to implement the said High Court orders without further delay on the report submitted by the tahsildar. Kavali soliciting instructions as to the further course of action to be taken on the High. Court wire orders and a phone message was issued to the concerned from the office of the District supply Officer. Nellore. Hence the said sri A. Radhakrishnaiah cannot be treated either as F. P. Shop Dealer or as kerosene N. R. since there is no acceptable and valid order from any competent authority for his reversion to his earlier Nominated Retailership. Presumption and assumptions will not play any role in such statutory functions. His F. P. Shop dealership is temporarily suspended in the Writ Petition filed by me, but it may finally be decided in favour of this Sri A. Radhakrishnaiah (N. R. ). Hence till the Writ Petition no. 10104/2007 is finally disposed off, this Sri A. Radhakrishnaiah is neither a f. P. Shop Dealer nor a Kerosene N. R. Hence he shall not be allotted any quantity of Kerosene and that portion of kerosene may be allotted to the regular f. P. Shop Dealer of original Shop No. 27 of Kavali Town, so as to enable such of the card holders at least to draw all kind of E. Cs. including kerosene from one shop at least for some time unto the final disposal of the Writ Petition no. 10104/2007. I request the Tahsildar, Kavali to consider this aspect judicially at least now and do justice to myself and some card holders attached to me and to this sri A. Radhakrishnaiah N. R. upto 4/07 forgetting all earlier factual relationship between the Tahsildar and sri A. Radhakrishnaiah, Kerosene N. R. Be pleased to consider judiciously. Yours sincerely, sd/- (I. Mangaraju)Dealer of original F. P. Shop no. 27 of Kavali Town, kavali it is also stated that the petitioner came to know that the 3 respondent issued consequential proceedings dated 3-4-2007 thereby allotting one of the three shops, Shop no. 27 (C), to the 6 respondent and issued notification in newspapers on 16-4-2007 inviting applications for appointment with respect to the other newly bifurcated two shops along with several other Shops in the division. The said two shops had been shown at Serial Number 19 (27-A) and 20 (27-B) of the said notification. It is specifically averred that the impugned proceedings dated 17-3-2007 is in violation of mandatory procedure prescribed in this regard. As per the procedure, the Food Advisory Committee of an area in question is required to consider all the aspects of public distribution through fair Price Shop Dealers including bifurcation. It is in fact specifically provided that genuine necessity for the said bifurcation has to be considered and only thereupon they have to take a decision by way of resolution and communicate the same to the competent authorities viz. , respondents 1 and 3, and only thereupon the 1 respondent is required to take consequential steps to execute the said resolution. In the case on hand, it is reliably learnt that no such resolution is passed and in fact the said issue had not even cropped up before the Food Advisory committee and hence the same is illegal and arbitrary. It is also averred that the impugned action of the respondents especially the 4th respondent is a malafide one for the sale reason that he had initiated the whole affair in collusion with at the instance of and to unlawful benefit of the 6 respondent and it is more than evident from the chronology of events since 1984. It is also further stated that the whole affair had been initiated or instigated by the 6 respondent who had taken it as a prestige issue and had been relentlessly working behind the scene since 1984. The chronology of events substantiates the contention of the petitioner and the same also discloses that the said shop had been driven to various Appeals, Revisions, Writ petitions and Writ Appeals. In spite of the same, the said issue had been finally settled by more than one proceeding to be more specific on two occasions viz. , on 2-5-1989 and on 15-6-1991 and still the 6 respondent had been attempting the same through the officers who were posted to the post of the 4 respondent including the 5 respondent and hence the malafides are writ large in the case in question. It is also stated that the very fact that the 6 respondent was straight away given appointment without even considering whether he qualifies vis-a-vis the guidelines issued in this regard. As per the guidelines even for conversion of nominated retailer licence to that of Fair Price Shop Dealer, he is required to be within the age of 18 to 40 years and more over he should be a pass in 10 Class. The 6 respondent's date of birth even going by his document is 15-7-1947 and thus he is 59 and odd years old as on the relevant date. Further, the said document only discloses that he is only 9 passed. In fact, the first wife of the 6 respondent had retired from service of Health department of A. P. about four years back and these facts clearly establish that the respondents ought not to have initiated the entire proposal at the instance of the 6 respondent who is deriving sadistic pleasure. The impugned action of the respondents is not independent by application of mind by the Food Advisory Committee or the respondents. It is further stated that the respondents ought to have noticed that the alleged order dated 19-6-2006 of the High court passed in W. P. No. 13095/2006 is with respect to some other individual and even according to the said orders, it is only to consider their cases as per the guidelines in vogue in this regard and there is no positive direction to automatically convert any kerosene dealers into Fair Price Shop Dealers irrespective of the eligibility criteria. Further, it is also stated that the respondents ought to have noticed that the petitioner's shop is within a kilometer of all the card holders who are attached to his shop which is in accordance with the guidelines in this regard and the petitioner had been distributing the stocks without any complaint except one frivolous allegation pending before this Court and that too at the instance of the respondents 5 and 6. It is also further stated that the anxiety and the speed at which the action was initiated also discloses the malafides of the 5 respondent for the reason that the 6 respondent is also in the same ward as the petitioner i. e. , Municipal Ward No. 18 and the same was completely overlooked. Further, it is averred that the respondents also ignored the economic viability of the Fair Price Shop in question while initiating the impugned action. The total sales of the shop in question is Rs. 2,03,613/- as against the purchase value of Rs. 1,98,192. 57. Thus the difference thereof constitutes the gross profit of rs. 8,520. 43. The expenses per month comes to Rs. 7500/-, thus leaving a net profit of rs. 1,020. 43. The aforesaid calculations are made as per the allotments for the month of april 2007. It is also relevant to mention that kavali is I Grade Municipality and the expenses will be on the higher side compared to rural areas. If the ultimate profit for unbifurcated shop is Rs. 1,020/-, then the profit for the said shop bifurcated numbering into four will be negligible. As per the guidelines, the respondents are required to consider the aspect of viability also and even on the said ground, the action of the respondents is arbitrary and illegal. The respondents ought to have noticed that the government issued instructions in Circular dated 25-2-2006 directing all the Collectors (CS)/cro, Hyderabad not to transfer any card or cards from any of the Fair Price shops till the completion of the process of registration of new cards. The said instructions are still in vogue and in spite of the same, the respondents initiated the impugned action. As per the said notification dated 16-4-2007, the last date for receiving the applications is 4-5-2007 in so far as two shops are concerned. In so far as the alleged shop allotted to the 6 respondent is concerned, till date he had not been allotted any stocks and the petitioner is distributing the stocks as on date in respect of the shop in question which the petitioner had been doing since 1984. The distribution would be starting only after 10 of every month. Therefore if the impugned proceedings of the respondents are not sustained, the petitioner will be put to irreparable loss and serious hardship for the reason that the petitioner discontinued his B. A. Final year and his family consists of himself, his wife, daughter and son who are studying degree and intermediate respectively. In such circumstances, the writ petitioner approached this Court praying for the appropriate reliefs which had been specified supra.