B.Ch. Gopala Rao vs The Joint Collector and Others

Bhaskar Rao, J.—This writ petition gives rise to an important question of law relating to the exercise of power by the Joint Collector while disposing of an appeal that arose from the order of the Sub-Collector. The issues involved in this writ petition are, (i) whether the appellate authority exercising quasi judicial powers can call for remarks of the subordinate officers against whose orders the appeal is pending, and (ii) whether consideration of the remarks so submitted would vitiate the order rendered by the appellate authority.

The facts of the case in brief are: The petitioner is a fair-price shop dealer. The third respondent herein Mandal Revenue Officer, Vijayawada, visited the shop of the petitioner and sent up a report to the 2nd respondent herein Sub-Collector, Vijayawada, alleging certain irregularities. The second respondent, basing upon the report of the third respondent, passed an order on 3-10-1990 tentatively suspending the authorisation of the petitioner. Against that order, the petitioner preferred an appeal to the first respondent - Joint Collector, Krishna District, who by the impugned order, dismissed the appeal. Hence this writ petition.

The main contention urged by the learned counsel for the petitioner is that the first respondent erred in relying upon the parawise remarks sent by the 2nd respondent and that the first respondent, who is the appellate authority, being a quasi-judicial authority, cannot rely upon the said parawise remarks while passing the impugned order and, therefore, the impugned order cannot be sustained. In support of his contention, the learned counsel relies upon a decision of this court reported in Kalari Nagabhushana Rao Vs. The Collector, Panchayat Wing, Guntur and Others, wherein this court held:

"A judicial authority or a quasi-judicial tribunal has to exercise the statutory appellate powers by itself on a consideration of the material placed before it and on the representations made by the concerned parties without any interference from any outside authority."

The facts in the decision cited by the learned counsel are that the appellant therein was removed from the office of Sarpanch by the District Collector, Guntur for certain irregularities. On appeal to the State Government, the State Government called for parawise remarks from the Collector. The Government, relying upon the parawise remarks submitted by the Collector, dismissed the appeal. The appellant challenged that order in the High Court by filing a writ petition. A single judge of this court dismissed the writ petition. On appeal, a Division Bench of this court held thus:

"There is no specific provision relating to the procedure. But the Slate as a quasi-judicial appellate authority against the order of the District Collector under a statute. Such a statutory quasi-judicial appellate tribunal or authority should not either consult or consider any other opinion or view of either the Collector or any other authority while exercising its appellate powers. Any consultation with, or interference by the District Collector or any out side authority would vitiate the functioning of the appellate authority as an independent statutory quasi-judicial tribunal. In administrative matters an appellate authority might exercise its discretion to call for such remarks or reports. But such a procedure is not permissible in the case of exercise of its powers as a quasi-judicial appellate tribunal."

So holding, the Division Bench set aside the order of the learned Single Judge and remanded the matter to the Government for consideration of the matter afresh.

The facts of the aforesaid decision squarely apply to the facts of the present case. The impugned order clearly shows that the first respondent relied upon the parawise remarks sent by the second respondent, who passed the order suspending the authorisation of the petitioner. The first respondent thus erred in relying upon the remarks sent by the 2nd respondent. He ought to have applied his mind to the facts of the case independently before passing the impugned order without being influenced by the remarks of the second respondent. In this view of the matter, both the issues framed at the outset are to be answered, the former in the negative arid the latter in the positive.

The learned counsel nextly submits that a notification was issued calling for applications for appointment of fair-price shop dealers and a third party is likely to be appointed before the appeal is disposed of. The order passed is an order of suspension made tentatively. The authorities will not proceed with the appointment of another dealer without the appeal filed by the petitioner and now being remanded to the first respondent being disposed of.

The learned counsel nextly submits that the order of suspension passed by the second respondent is a final order and not an order passed pending enquiry. But a perusal of the order of the second respondent shows that it is not a final order and it was made tentatively. However, it is open to the petitioner to urge this point and any other point available before the first respondent.

Accordingly, writ petition is allowed. The impugned order is set aside. The matter is remanded to the first respondent for consideration and disposal afresh. The first respondents directed to dispose of the appeal afresh without reference to the parawise remarks submitted by the Second Respondent and after giving an opportunity to the petitioner. Pending disposal of the appeal, the authorities will not proceed with appointment of another dealer. No costs. Advocate''s fee Rs. 200/-.