K.Surendra Babu vs State Of Andhra Pradesh & Others

M. Ganga Rao, J

The petitioner who is a Fair Price Shop Dealer of Shop No.47, Illuru Kothapet Village, Banaganapple Mandal, Kurnool District filed these Writ Petitions for the following reliefs:

(1) W.P.No.8924 of 2016 is filed questioning the impugned notification vide proceedings RC.No.A/2636/2015 dated 13.11.2015 issued by the Revenue Divisional Officer, Nandyal, Kurnool District inviting applications to appoint Fair Price Shop Dealer on permanent basis in respect of Fair Price Shop No.47, Illuru Kothapet Village, Banaganapalle Mandal. Kurnool District;

(2) W.P.No.14713 of 2016 is filed questioning the impugned endorsement dated 24.4.2015 of the Revenue Divisional Officer, Nandyal, Kurnool District whereby the renewal of Fair Price Shop authorization was rejected; and

(3) W.P.No.12582 of 2017 is filed questioning the impugned proceedings Rc.No.(A)/2636/2015 dated 23.11.2016 issued by the Revenue Divisional Officer, Nandyal appointing the 6th respondent as Fair Price Shop Dealer of Shop No.47, Illuru Kothapet Village, Banaganapalle Mandal, Kurnool District on permanent basis as illegal, arbitrary and contrary to the provisions of the Andhra Pradesh State Public Distribution (Control) Order, 2008.

In all these three writ petitions, the petitioner and respondents are one and the same and issue raised in these Writ Petitions relate to Fair Price Shop No.47 of Illuru Kothapet Village, Banaganapalle Mandal. Kurnool District. The issue raised in these Writ Petitions are inter related and overlapping each other. Hence, these three Writ Petitions are heard together and are disposed of by this common order.

The petitioner claims that he was appointed as Fair Price Shop Dealer of Shop No.47 of Illuru Kothapet Village, Banaganapalle Mandal, Kurnool District on permanent basis and he was issued authorization and the same was renewed from time to time. He is distributing the essential commodities to the cardholders without any complaint. But the counter filed by the 4th respondent states that the petitioner was appointed as Fair Price Shop Dealer of Shop No.47 of Illuru Kothapet Village, Banaganapalle Mandal, Kurnool District on temporary basis and the shop was maintained by the incharge dealer. When the District Collector, Kurnool issued proceedings Rc.CS3/145/2014 dated 06.04.2015 directing the Revenue Divisional Officers in the District, including the Revenue Divisional Officer, Nandyal to report on non filling up of the Fair Price Shop vacancies, accordingly, the Revenue Divisional Officer, Nandyal directed all the Tahsildars in the Division to furnish the vacancy position of Fair Price Shops and also the Fair Price Shop dealers who are appointed on temporary basis and the shops maintained by the incharge dealers. All the Tahsildars in the Revenue Division of Nandyal, including the Tahsildar of Banaganapalle where the Fair Price Shop in question is falling within the Banaganapalle Mandal have submitted proposals. After receipt of the vacancy position of Fair Price Shops, an endorsement was issued to all the Fair Price Shops vide proceedings Rc.No.2636/CS/2016 dated 5.11.2015 informing that as per the guidelines issued in G.O.Ms.No.4 dated 19.2.2011, the temporary dealers and vacant Fair Price Shops shall be attached to the neighboring Fair Price Shops and that the temporary dealers have no right to continue. The Revenue Divisional Officer, Nandyal has issued Notification calling for applications to fill up the vacant Fair Price Shops on regular basis, including the petitioner’s. Fair Price Shop No.47 of Illuru Kothapet Village, Banaganapalle Mandal, Kurnool District, by the impugned notification Rc.No.A/2636/2015 dated 13.11.2015. Aggrieved by the issuance of the notification, the petitioner filed W.P.No.8924 of 2016 along with W.P.M.P.No.11308 of 2016. This Court, on 23.03.2016, passed an order in W.P.M.P.No.11308 of 2016 to the effect that as long as the authorization of the petitioner is subsisting, he shall be allowed to distribute the essential commodities to the cardholders, in accordance with the Andhra Pradesh State Public Distribution Control Order, 2008. The petitioner submitted an application for renewal of his Fair Price Shop authorization on 31.03.2015. The 4th respondent Revenue Divisional Officer, Nandyal by the impugned endorsement dated 24.4.2015 rejected the application for renewal on the ground that the permanent orders of appointment as Fair Price Shop Dealer is not attached. Being aggrieved by the impugned endorsement, the petitioner filed W.P.No.14713 of 2016 along with W.P.M.P.No.18303 of 2016. This Court, by order dated 27.4.2016 in W.P.M.P.No.18303 of 2016 granted an interim order directing the respondents to permit the petitioner to run the Fair Price Shop, pending further orders in the Writ Petition. In pursuance to the interim order, the petitioner is being continued as Fair Price Shop Dealer.

In all the writ petitions the 4th respondent filed counter along with vacate petitions mainly contending that the petitioner was appointed as temporary Fair Price Shop Dealer. The petitioner has no right to continue as Fair Price Shop Dealer permanently. As per GO.Ms.No.4 dated 19.2.2011, all the temporary dealers, vacant Fair Price Shops attached to the neighboring Fair Price Shops and the temporary dealers have no right to continue at the time of filling up of vacant Fair Price Shops on regular basis. As directed by the District Collector, Kurnool to fill up the vacant Fair Price Shops attached to the neighboring Fair Price Shops and temporary dealers shall be treated as vacancies. To fill up the vacant Fair Price Shops on permanent basis, the 4th respondent issued Notification 13.11.2015 to fill up the Fair Price Shops on permanent basis. Because the petitioner is a temporary Fair Price Shop Dealer, the notification was issued as per G.O.Ms.No.4 dated 19.2.2011. An application for renewal was submitted but the same was not accompanied by appointment order appointing him permanently and the same was rejected. In pursuance of the notification, selection process was completed as there is no stay of notification in W.P.No.8924/2016 filed questioning the said notification. The 6th respondent was selected as Fair Price Shop Dealer following the procedure subjecting him to written test and interview. The appointment order dated 23.11.2016 was issued to the 6th respondent and the same is the subject matter in W.P.No.12582 of 2017. The petitioner being a temporary Fair Price Shop Dealer, the same was intimated by the Tahsildar, Banaganapalle and a report was called for by the Revenue Divisional Officer as per the orders of the District Collector to fill up the vacancies of Fair Price Shops on permanent basis. The 4th respondent has not filed any documentary evidence to show that the petitioner was appointed on temporary basis, except the report submitted by the Tahsildar.

Smt Thota Suneetha, learned counsel for the petitioner would contend that the petitioner was appointed as permanent Fair Price Shop Dealer of Shop No.47 of Illur Kothapet village, Banaganapalle Mandal, Kurnool District around 12 years back before filing of W.P.No.12582 of 2017, which was filed on 06.04.2017. The petitioner was existing Fair Price Shop Dealer. As authorized Fair Price Shop Dealer as defined under Clause 2 (6) of the Andhra Pradesh Public Distribution System Control Order, 2001 (in short “the Control Order, 2001”), he is deemed to be a Fair Price Shop Dealer and authorization was issued initially vide proceedings Rc.E.618/2004 dated nil-07.2004 and the same is valid for two years ending 31st March. At page 35 and 36, a copy of the authorization was filed but the same is not legible and neatly typed copy was filed at Pages 31, 32 and 33. It appears that authorization was renewed from time to time, lastly on 31.3.2013. Hence, the application for renewal was filed in 2015. Another copy of authorization under Clause 5 (8) of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 in Lr.No.LR-FP03037117 dated 16.2.2014 was issued to the petitioner. This authorization is valid for a period of two years ending 31st March. A statement showing the particulars of Fair Price Shops in Kurnool District as on December, 2010 is filed at Page No.32, wherein at Sl.No.47 I.Kothpeta Ward No.4 was shown and the name of the dealer was shown as K. Surendra Babu and the type of appointment was shown as “permanent”. Based on the said statement, learned counsel for the petitioner empathetically submits that the petitioner was appointed as permanent Fair Price Shop Dealer, but whereas as per the report submitted by the Tahsildar, Banaganapalle with regard to vacant Fair Price Shop, the petitioner’s Fair Price Shop No.47 of Illur Kothapet Village, Banaganapalle Mandal was shown as temporary dealer is running the Fair Price Shop.

Sri S. Laxminarayana Reddy, counsel appearing for the 6th respondent in W.P.No.12582 of 23017 submits that the pursuant to the notification dated 13.11.2015 issued by the 4th respondent, the 6th respondent being eligible and qualified to be appointed as Fair Price Shop Dealer applied for the same and the 6th respondent was selected and appointed as Fair Price Shop Dealer after subjecting him to the written test and interview. The petitioner being a temporary Fair Price Shop Dealer has no right to continue permanently. He has no right to question the appointment of the 6th respondent. Against the appointment of the 6th respondent, appeal is available to the petitioner and without availing the same, the petition is not maintainable.

Considering the facts and circumstances of the case and submission of the counsel and perusal of the record, this court found that there is no valid documentary proof with regard to appointment of the petitioner as Fair Price Shop Dealer of Shop No.47 of Illuru Kothapet Village, Banaganapple Mandal, Kurnool District on permanent basis or on temporary basis as initially authorization was granted in the year 20004. Subsequently, the same was renewed from time to time and also another authorization was issued in the year 2014. As the petitioner claims that he was appointed as permanent Fair Price Shop Dealer 12 years prior to filing of the Writ Petition No.12582 of 2017 filed on 6.4.2017, it is deemed that the petitioner was appointed as Fair Price Shop Dealer and running the Shop since 2004. By that time the provisions of the Control Order, 2001 was in operation. The petitioner ought to have been appointed as per the provisions of the Control Order, 2001. The petitioner claims that since the appointment is under the provisions of Clause 2 (6) of the Control Order, 2001, he is deemed to be an authorized Fair Price Shop Dealer cannot be countenanced, as the petitioner was appointed in the year 2004 under the provisions of the Control Order, 2001. In the absence of the clear and valid documentary evidence with regard to proof of appointment of the petitioner on permanent basis or on temporary basis, the only evidence placed before this Court is the report submitted by the Tahsildar, Banaganapalle indicating the petitioner as temporary dealer and it is treated is vacant Fair Price Shop and as per the provisions of G.O.Ms.No.4 dated 19.2.2011, a Fair Price Shop has to be filled up on permanent basis and the petitioner’s counsel relied upon the statement showing the particulars of Fair Price Shops in Kurnool District as on December, 2010 which is filed at Page No.32, wherein at Sl.No.47, I.Kothpeta Ward No.4 was shown and the name of the dealer was shown as K. Surendra Babu and the type of appointment was shown as “permanent”. Except these two documents and authorization issued in the year 2004 and 2014, there is no clear cut evidence to show that the petitioner was appointed on permanent basis or on temporary basis. If the petitioner is appointed permanent basis, issuance of notification for filling up the vacancy does not arise and he is entitled for renewal of authorization. But under clause 5 (6) of the Control Order 2001, renewal application has to be accompanied with the appointment order, but the petitioner failed to submit the appointment order and the renewal application was rejected treating the Fair Price Shop as vacant and notification was issued. The impugned proceedings are valid and legal as per the provisions of the Control Order, 2001. It would be decided only based on the appointment of the petitioner whether on permanent or temporary basis as per the provisions of the Control Order, 2001, which needs to be examined with reference to the original records. This Court while sitting under Article 226 of the Constitution of India generally won’t go for detailed enquiry with reference to the evidence placed before it, even though the documents are placed before it and disputed questions of fact do arise for consideration. As contended by the learned Assistant Government Pleader for Civil Supplies, all the impugned proceedings assailed in these Writ Petitions are appealable before the appellate authority. Hence, in the interest of justice, this Court felt it appropriate to dispose of these Writ Petitions, giving liberty to the petitioner to approach the appellate authority within a period of four (4) weeks from the date of receipt of a copy of this order and on receipt of such appeals, the appellate authority is directed to consider the same on its own merits with reference to the records and pass appropriate reasoned order after giving an opportunity to the petitioner, as expeditiously as possible within a period of four (4) weeks thereafter and communicate the same to the petitioner. During the pendency of the appeals, the respondents are directed to continue the petitioner as Fair Price Shop Dealer to distribute the essential commodities to the cardholders. In the event of non filing of appeal, the respondents are at liberty to proceed with appointment of the 6th respondent as Fair Price Shop Dealer. Accordingly, all the three Writ Petitions are disposed of. There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.