(Prayer: This Petition is filed under Article 226 of the Constitution of India, with a prayer to quash the impugned Order dated 03.01.2015 passed by the R-3 at Annx-Q and quash the Order dated 09.07.2014 passed by the R-1 at Annx-M).
1. The petitioner is before this Court assailing the order dated 03.01.2015 and the order dated 09.07.2014 at Annexures-Q and M respectively.
2. The petitioner is granted licence/authorization to distribute the essential commodities to the card holders of Hanchguly and Halasoor villages keeping the FDP point at Hanchguly village where the major number of card holders are residing. The authorization which had been granted from the year 1994-95 has been renewed from time to time. The allegation against the petitioner initially made was that during the month of May 2013, essential commodities for distribution was drawn but instead of transporting it to FPD point at Hanchguly village, the same was sought to be stocked in the Government School at Halasooru village which was not authorized. It is in that light action has been initiated and the authorization had been suspended. The petitioner claiming to be aggrieved by such suspension of the authorization had filed an appeal before the Appellate Authority and the Appellate Authority had directed the Deputy Commissioner to conclude the proceedings at the earliest. Despite the same since the proceedings was not concluded and the suspension of the authorization was continued, the petitioner once again filed an appeal. It is at that stage Deputy Commissioner passed an order impugned as at Annexure-M to the petition canceling the authorization. At the stage when the suspension of the authorization and the cancellation of the authorization was considered by the Deputy Commissioner, certain other discrepancies said to have been committed by the petitioner was also incorporated and the same was made as the basis to cancel the authorization. The appeal filed by the petitioner to the Appellate Authority was rejected by the order dated 03.01.2015 at Annexure-Q to the petition. It is in that light the petitioner is before this Court assailing the said orders.
3. The respondents have filed their detailed objection statement referring to the action that was required to be taken against the petitioner. It is contended that the petitioner had violated the terms and conditions which had been imposed at the time of granting the authorization and the violations that had been noticed has been delineated in paragraph 9 of the objection statement. In that light, it is contended that the Deputy Commissioner after taking note of these aspects and also taking into consideration the complaint which had been filed against the petitioner at Kodihalli Police Station under the provisions of the Essential Commodities Act has arrived at the conclusion that the licence (authorization) is to be cancelled and in that view it is contended that the order is justified. It is their further contention that the Appellate Authority has thereafter taken into consideration all these aspects of the matter and not having found infirmity in the order passed by the Deputy Commissioner has upheld the same and in that view both the orders do not call for interference.
4. In the light of the rival pleadings, I have heard the learned counsel for the petitioner and the learned Government Advocate and perused the petition papers.
5. From the documents on record, the initiation of the proceedings is indicated with regard to the allegation that had been made against the petitioner of stocking the essential commodities at an unauthorized place though FPD point was at Hanchguly. In that regard, the mahazar dated 16.05.2013 (Annexure-F) is the basis on which the essential commodities were seized and the action under the Essential commodities Act by lodging Police complaint was initiated. In the said process, the allegation as made against the petitioner required consideration by the Deputy Commissioner. The petitioner while contending that the allegation made against the petitioner is not justified, has referred to the payment details as at Annexure-D to contend that though the amount is stated to have been paid on 15.05.2013 at 16.47 hours, the said amount had not been paid by the petitioner nor had the petitioner taken delivery of the essential commodities since according to the petitioner, the petitioner who was unwell had submitted a letter earlier as at Annexure-B dated 27.04.2013 enclosing a Medical certificate wherein he had been advised rest and in that light had indicated that he would not be in a position to operate the FPD point for a period of one month and therefore the essential commodities would not be drawn by him. In that view, it is contended that there was no reason for the petitioner to have paid the amount, but it is a conspiracy hatched to discredit the petitioner and cancel the authorization by such method.
6. It is the further contention of the petitioner that though such explanation had been put forth, instead of considering the same in accordance with law, the Deputy Commissioner in the process of consideration has incorporated certain other allegations against the petitioner alleging the same to be contrary to the terms and conditions of the authorization and has accordingly passed the order. The manner in which the proceedings has been considered by the Deputy Commissioner has also been referred to by the learned counsel for the petitioner by pointing out to the order sheet that at the first instance though a different authority had heard the matter, the subsequent incumbent has proceeded to pass the order and insofar as the contention that had been urged by the petitioner, the same has not received consideration. A further reference is also made to the order of the Appellate-Authority wherein only the allegation with regard to the violation of the terms and conditions had become a part of the order without there being a show cause notice and opportunity to the petitioner.
7. Learned Government Advocate would no doubt seek to contend that apart from the objection statement the records would contain the manner in which the proceedings had been initiated. Therefore, some opportunity be granted. In that regard it is to be noticed that the petition while was heard on 21.04.2016 this Court had taken note of this aspect of the matter and had also indicated that if there is any other material in that regard, the same be brought before this Court but no additional material is made available.
8. Be that as it may, if the documents in relation to making an appropriate consideration is available with the respondents, that is an aspect which will have to be taken note after this Court examines the position and if a re-examination by the authority becomes necessary. In that regard, a perusal of the order passed by the Appellate Authority would disclose that the entire emphasis to come to the conclusion with regard to the essential commodities being found at a different place though FPD point is at Hanchguly is based on the mahazar that was drawn. With regard to the fact that the stock was found at Halasoor in the school and in that regard a mahazar has been drawn is also the accepted position but the question is with regard to the relevance of the same.
9. The basic question that would arise is as to whether the essential commodities had been drawn at the instance of the petitioner or on the petitioner having paid the amount and the instructions being issued to be delivered at that place. The Deputy Commissioner as well as the Appellate Authority were at the outset required to take note of this aspect of the matter as to who has deposited the amount with the TAPCMS. Thereafter the said TAPCMS would deliver the essential commodities to the FPD point. The petitioner contends that the deposit has not been paid by him and no instructions have been issued by him to deliver the essential commodities either at FPD point or at a different place. In that light, apart from the mahazar that was drawn to indicate that the material was available at a different place, the enquiry that was required to be conducted by the Deputy commissioner as well as the Appellate Authority was to find out the person who had paid the amount to the TAPCMS and had signed the vouchers for withdrawal of the essential commodities from that place and instructions if any issued by any person to deliver at Halasoor instead of Hanchguly. It is only thereafter the finger could have been pointed out against the petitioner for having violated the terms of authorization more particularly in a circumstance when the petitioner relies on the documents which are dated prior to the date when he addressed the letter about his being unwell and having indicated that the essential commodities would not be lifted by him which coincides with the date on which the amount is said to have been paid and the commodity is said to have been drawn.
10. That apart insofar as the other allegations that have formed a part of the order passed by the Deputy Commissioner as well as the Appellate Authority, such consideration could have been made only after issuing an appropriate show cause notice to the petitioner and calling for explanation from the petitioner in that regard. If such explanation had been filed, the allegation was required to be established in the enquiry to be held by the authorities. Therefore these basic aspects are to be taken into consideration by the Deputy Commissioner as well as the Appellate Authority. Hence, the order in the manner it has been presently passed would not be justified.
11. Therefore, the order dated 09.07.2014 passed by the Deputy Commissioner at Annexure-M and the order dated 03.01.2015 at Annexure-G are quashed. However, liberty is reserved to the respondents to issue a fresh show cause notice to the petitioner incorporating all these aspects in detail, seek for explanation and based on the explanation, including with regard to the manner in which the amount was paid and the instructions was issued for delivery of the essential commodity at a different place be examined and thereafter fresh orders be passed, if necessary.
In terms of the above, the petition stands disposed of.