It stands to reason and good sense that if a person is involved in a serious crime, he shall not be permitted or allowed to function as a fair price shop dealer. If a person has been involved in a criminal case and he has been pursuant thereto confined to judicial custody for 18 days, as had happened in this case, the distribution of essential commodities to the card holders gets impaired completely. Further, the authorization of a fair price shop dealer cannot be transferred and one is required to keep the shop open through out the month except on declared holidays and distribute the stock to the card holders. If a person is involved in any crime and is also confined to judicial custody, then, the fair price shop has to be closed. On behalf of the authorized fair price shop dealer, no one can run or manage the shop. Therefore, in public interest also, the authorization of a fair price dealer, who is involved in a criminal case, is liable to be considered for suspension or cancellation as the case may be by the appointing authority.

THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

WRIT PETITION No.7626 of  2012  

20.03.2012

Ch.Venkanna

The Joint Collector ( Civil Supplies)Warangal, Warangal District & two others.

Counsel for the Appellant:  Sri A.Prabhakar Rao

Counsel for the respondents: G.P for Civil Supplies
                                                                       
< Gist:

> Head Note:

?  CITATIONS:

1.2011 (1) ALT 485

ORDER  

        This writ petition is filed by a fair price shop dealer of Shop No.40,
Peddanagaram Village, Narsimhulupeta Mandal, Warangal District, challenging the 
validity of the orders passed on 31st December, 2011 by the Revenue Divisional
Officer,  Mahabubabad suspending with immediate effect the authorization issued
in favour of the writ petitioner for running and maintaining a fair price shop
as he was involved in a criminal case, pursuant to which he was suspended and
remanded to judicial custody for 18 days.
        The case of the petitioner is that he was a regular fair price shop dealer
of Shop No.40, Peddanagaram Village, Narsimhulupeta Mandal, Warangal District,
and he was unnecessarily involved in Cr.No.94 of 2011 by the rival group in the
village and on the pretext that he was remanded to judicial custody for a spell
of 18 days, the Revenue Divisional Officer has passed the impugned order
suspending the authorization issued earlier in favour of the petitioner.
        Heard Sri A.Prabhakar Rao, learned counsel for the writ petitioner and
learned Assistant Government Pleader for Civil Supplies.
        Learned counsel for the writ petitioner would submit that the petitioner
has not contravened any of the conditions contained in the Andhra Pradesh  State
Public Distribution System (Control)  Order, 2008 (for short "PDS Control
Order") nor was any case booked against him for violation of the provisions
contained under the Essential Commodities Act, 1955 and hence, the authorization
issued in favour of the petitioner could not have been suspended  at all by the
Revenue Divisional Officer.  It is further contended that as per Clause 5 (7) of
the afore mentioned order, the authorization of a fair price shop dealer is
liable to be cancelled if he has been  convicted by a Court of law in respect of
contravention of any order made under Section 3 of the Essential Commodities
Act, 1955 relating to any of the conditions mentioned in the  Schedule to the
PDS Control Order.  However, if such conviction is set aside in appeal or
revision, the appointing authority is  required to issue re-authorization to
such a person and it is therefore contended  by the learned counsel for the writ
petitioner that the petitioner's involvement in some other offence could not
have provided a reasonable basis for action to be taken against the petitioner
resulting in suspension of his authorization.  It is contended that Cr.No.94 of
2011 was booked for the offences said to have been committed under Sections 418,
420, 406, 409, 468, 471 and 120-B of IPC and they have nothing to do with any of
the scheduled commodities or any of the orders made in pursuance of Section 3 of
the Essential Commodities Act and hence his authorization could not have been
suspended.
        Learned counsel has also placed reliance upon the judgment rendered by
this Court in Banoth Ramesh v. State of A.P.1 wherein it is held that in the
absence of any provision bringing about automatic termination of the
authorization on account of pendency of a criminal case, the petitioner cannot
be deprived of his right to run the fair price shop on the mere allegation of
registration of a criminal case, that too on a charge, which is unconnected with
the running of the fair price shop.
        It is a fact that the writ petitioner is not proceeded against  for any
alleged violation of the orders made in terms of Section 3 of the Essential
Commodities Act, 1955, per se. But, however, the PDS Control Order, 2008 dealt
with all aspects relating to selection and appointment and continuance of
dealers for fair price shops, nominated retailers, hawkers and other similar
establishments. It is also true that Clause 5 of the aforementioned Order dealt
with levy of penalty that can be imposed.  Clause 5 (5) clearly authorizes that
the appointing authority, which expression has been defined in Clause 2 (d) of
the Order, may at any time whether at the request of the authorized fair price
shop dealer/nominated retailer/hawker or authorized establishment or suo motu
after making such enquiry as may be deemed necessary and for reasons to be
recorded in writing, add to amend, vary, suspend or cancel the authorization
issued or deemed to be issued to him under this clause.   It is also true that
Clause 5 (7) makes it clear that if any of the fair price shop dealer/ nominated
retailer/hawker has been convicted by a Court of law in respect of contravention
of any Order Under Section 3 of the Essential Commodities Act, 1955 relating to
any of the conditions mentioned in the Schedule to the said Order, the said
appointing authority shall by order in writing cancel his authorization.  The
proviso added there to makes the position clear that in case such conviction is
set aside in appeal or revision, the appointing  authority may on application in
Form No.1   made by the person whose  authorization has  been cancelled, re-
issue the authorization to such a person.
        To my mind there is a distinction existing between a situation arising
under Clause 5 (5) and 5 (7).  Clause 5 (5) gives scope for the appointing
authority suo motu to take action  against  a fair price shop dealer/nominated
retailer/hawker or authorized establishment after conducting such enquiry as is
necessary in the matter and for reasons to be recorded in writing may add to,
amend, vary suspend or cancel the authorization.     Thus Clause 5 (5) gives
room for taking action resulting in cancellation of an authorization for reasons
which have larger implication of public interest.
        Per contra, Clause 5 (7) can be invoked by the appointing authority for
cancellation of the authorization only in the event of conviction by a Court of
law in respect of contravention of any order made under Section 3 of the
Essential Commodities Act,1955 resulting to any of the conditions mentioned in
the Schedule to the PDS Control Order.  The PDS Control Order listed out 12
items in it's schedule.  Therefore, Clause 5 (7) comes into operation only in
the event of a conviction by a competent Court of law but not otherwise and that
too when the offence is said to be arising out of contravention of any of the
orders made in terms of Section 3 of the Essential Commodities Act, 1955
concerning any of these 12 items listed.
        It will be appropriate to notice that Clause 19 of the PDS Control Order
requires the authorized fair price shop dealers to follow the conditions
stipulated in Para -2 of the Annexure I of the said order.  It will be important
to notice that Annexure-I comprises of two paragraphs.  First paragraph dealt
with eligibility criteria for below poverty line families, while  paragraph No.2
listed out other conditions to be observed by the fair price shop dealer.
Paragraph No.2 (5) of annexure-I will have some bearing on the controversy at
issue and hence it is proper to extract the same herein below.
        "The authorization issued under the order shall be liable for suspension
or cancellation as the case may be, if the Fair Price Shop dealer/nominated
retailer/hawker is involved in any criminal case or when any case under
Essential Commodities Act, 1955 or any other similar law is pending against
him/her."

        The above quoted condition clearly indicates that the authorization of a
fair price shop dealer is liable for suspension or cancellation as the case may
be, if such a fair price shop dealer is involved in any criminal case or when
any case under Essential Commodities Act, 1955 or any other similar law is
pending against him/her.  Therefore, it is more than clear that paragraph No.2
(5) of Annexure-I read with Clause 19 of the PDS Control Order enables the
appointing authority to take into account the conduct of a fair price shop
dealer who is involved in any crime not necessarily connected with the Essential
Commodities Act or any order made in accordance with Section 3 thereof.
Unfortunately, this particular provision has not been pointedly drawn to the
attention of the learned Single Judge who dealt with Banoth Ramesh's case
(referred to supra).    On the contrary, learned Assistant Government Pleader
has made a confessional statement at Bar that there is no provision in the PDS
control order to allow the conduct of a dealer's involvement in any other crime
to be take note of.
        It stands to reason and good sense that if a person is involved in a
serious crime, he shall not be permitted or allowed to function as a fair price
shop dealer. If a person has been involved in a criminal case and he has been
pursuant thereto confined to judicial custody for 18 days, as had happened in
this case, the distribution of essential commodities to the card holders gets
impaired completely.  Further, the authorization of a fair price shop dealer
cannot be transferred and one is required to keep the shop open through out the
month except on declared holidays and distribute the stock to the card holders.
If a person is involved in any crime and is also confined to judicial custody,
then, the fair price shop has to be closed. On behalf of the authorized fair
price shop dealer, no one can run or manage the shop.  Therefore, in public
interest also, the authorization of a fair price dealer, who is  involved in a
criminal case, is liable to be considered for suspension or cancellation as the
case may be by the appointing authority.
         I therefore do not find any justifiable reason to admit this writ
petition or grant the relief prayed for in this writ petition.
        But, however, the learned counsel for the petitioner submits that he has
already preferred an appeal against the orders passed by the Revenue Divisional
Officer suspending the authorization of the petitioner, pointing out as to how
he has been implicated in the criminal case by a rival group in the village and
it must be left to the appellate authority as to whether the facts and
circumstances of the case really warrant suspension of the authorization of the
fair price shop dealer at all.  It is needless for me to observe that the
appellate authority and for that matter, if approached even the appointing
authority, is entitled to independently apply its mind as to whether the facts
and circumstances of the case do really warrant suspension of the authorization
of the writ petitioner and pass appropriate orders on his appeal, uninfluenced
by any of the observations made in this case.
        With this, the writ petition is dismissed. No costs.



______________________________    
NOOTY RAMAMOHANA RAO, J        
Dated: 20-3-2012