N. Lokesh vs The Commissioner for Food and Civil Supplies in Karnataka and Others

Ajit J. Gunjal, J.—The factual matrix of the case that can be summarized is as follows:

The petitioner along with respondents 4 & 5 was an applicant for authorisation of distribution of food grains. The Deputy Commissioner after considering the applications granted authorisation in favour of the petitions. The case of the petitioner is that based on the said authorisation and the order of the Deputy Commissioner the 3rd respondent has issued an Official Memorandum issuing necessary orders for distributing the foodgrains. The petitioner claims that he has invested huge amounts and has started a Fair Price Shop and has been running the same by taking delivery of the food commodities right from the date of the grant, that is on 2-9-2009. The petitioner has also made available the commodities distributed to the card holders in the month of October, 2009 along with the rejoinder. The applications of respondents 4 & 5 was rejection the ground that they were incomplete. Aggrieved by the said rejection respondents 4 & 5 are before the appellate authority. The appellate authority has granted an interim order of stay, staying the authorisation in favour of the petitioner the petitioner moves an application for vacating the interim order and also for taking up the matter by pre-poning the same. The appellate authority has issued the endorsement indicating that it is not in a position to hear the application for vacating the interim order as it is busy with the other work and the number of cases posted on subsequent days. Aggrieved by the order-passed by the appellate authority the petitioner is before this Court.

Incidentally it is to be noticed that the matter is set down for final hearing on 5-12-2009.This Court while directing notice to the respondent has passed the following order:

Emergent Notice re: rule.

Stay of the order dated 9-10-2009 (Annexure-L) for a period of two months from today. In the meanwhile, respondent No. 1 shall dispose of the appeal in No. CFS/Appeal/89/2009-10 pending before him.

List this Petition immediately after service of notice.

An application is moved by respondents 4 & 5 for vacating the interim order. Since hearing of the application for vacating is as good as hearing the main matter and hence the matter is posted today.

Mr. A.V. Gangadharappa, learned Counsel appearing for the petitioner submits and reiterates what has been stated in the memorandum of Writ Petition inasmuch as the application of respondents 4 & 5 was rejected on the ground of incomplete information. They have questioned the said authorisation in favour of the petitioner before the 1st respondent. He further submits that since pursuant to the order passed by the Deputy Commissioner the petitioner has lifted the food commodities and has been distributing the same. Hence, in these circumstances the question of suspending the authorisation would not arise.

Mr. H.C. Shivaramu, learned Counsel appearing for respondents 4 & 5 submits that before the grant of authorisation in favour of the petitioner, respondents 4 & 5 were distributing the food commodities albeit as an interim arrangement. He submits that the petitioner does not have a locus to file this Writ Petition inasmuch as the application was made as a Secretary of "Grahaka Vedike" and not in his individual capacity. Hence, the Writ Petition itself is not maintainable.

I have perused the impugned Endorsement issued by the appellate authority. Roth the Counsel addressed arguments on merits. But, however I dc not propose to go into the merits of the matter inasmuch as that might prejudice the case of either of the parties before the appellate authority. But, suffice it to say that the appellate authority was not justified in postponing the consideration of the application for vacating stay on the ground that due to paucity of time the same cannot be taken up for consideration Indeed, it is to be noticed that the authorisation in favour of respondents 4 & 5 prior to the calling for application was only on ad hoc basis inasmuch as applications were not called for grant of authorisation. Pursuant to the Notification both the petitioner as well as respondents 4 & 5 made applications for grant of authorisation, whether the rejection of the application of respondents 4 & 5 on the ground that they were incomplete or otherwise is a matter which is required to be considered by the appellate authority. But, however, enough material is placed before this Court by the petitioner to show that pursuant to the grant of authorisation the petitioner has lifted the commodities and has distributed the same. Indeed, Mr.Shivaramu, learned Counsel appearing for respondents 4 & 5 has pressed into service the communications issued by the 3rd respondent seeking clarification from the Deputy Commissioner regarding distribution of food grains. It is to be noticed that the said communication is produced at Annexure-R-3 which is dated 21-10-2009. Indeed, the said communication does not advance the case of the petitioner further inasmuch as the reference is only for seeking clarification whether the food commodities can be distributed to the petitioner for the month of October, 2009, indeed, the communication is on 21-10-2009, by that time, the food grains were distributed to the petitioner. Hence, the said communication would be of no consequence. Be that as it may, I am of the view that the interim order is operating as against respondents 4 & 5 and this Court had also directed the appellate authority to conclude the proceedings by 5-12-2009. Hence, I am of the view that the interim order granted by this Court will enure to the benefit of the petitioner, but,, however, the appellate authority is required to dispose of the appeal itself on the date fixed, that is 5-12-2009 or any other date which is convenient to the appellate authority.

In so far as the locus or the petitioner to file this Writ Petition is concerned the application filed by the petitioner is made available, no doubt contention is taken by the petitioner that the application was filed in his individual capacity and incidently he happens to be the Secretary of the said Society. Indeed, prima facie I am of the view that the petitioner does have a locus to file this Writ Petition. If the material other than which is made available before this Court is made available before the appellate authority to show that the application filed was not in his individual capacity but as a Secretary or vice versa the appellate authority is required to take note of the same.

With the above observations this Writ Petition is disposed off.