THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.22406 of 2006 Date : 23-1-2008 Between : Nellore Nagara Fair Price Shops Dealers Welfare Association, Nellore represented by its President M.S.S. Girija Rao s/o.late Venkatasubbaiah .. Petitioner and The Government of Andhra Pradesh, Represented by its Secretary (Civil Supplies) Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.22406 of 2006 ORDER: 1. This Court issued rule nisi on 1-11-2006. 2. Heard Sri Kowturu Vinay Kumar, Counsel representing the petitioner and the learned Assistant Government Pleader for Civil Supplies representing the respondents. 3. The Writ Petition is filed for a Writ of Mandamus declaring the inaction of the 3rd respondent in implementing the order issued by the 2nd respondent in proceedings CCS Ref.No.PDS II(3)/6493/04 dated 27-3- 2006 with regard to allotment of kerosene quota in respect of new cards (Irish cards) in favour of Fair Price Shop Dealer of Nellore as illegal, arbitrary, without jurisdiction apart from being violative of principles of natural justice and to pass such other suitable orders. 4. It is stated that in memo No.1584 dated 26-4- 1994 issued by the Government it was specifically mentioned that “no appointment of any new hawkers and policy of the Government is to distribute all the commodities under one roof” i.e., Fair Price Shop. It is further stated that though the authorities across the State are not appointing kerosene hawkers in view of the said policy, in Nellore District kerosene is still being allotted to the hawkers in respect of new ration cards contrary to the aforesaid instructions. It is further stated that in respect of Krishna District the concerned Fair Price Shop Dealers Welfare Association had filed W.P.No.2047/04 before this Court and the said Writ Petition was disposed of on 21-11- 2005 directing the 2nd respondent-Commissioner to consider the representations made by the said Association in the light of observations made earlier in W.P.No.9203/95 and the relevant orders/circulars issued by the Government from time to time. As per the said directions issued by this Court, the 2nd respondent had issued order dated 27-3-2006 after hearing both the parties and examining all the issues. Further, it is stated that directions were issued to all the District Collectors for attachment of all new cards to Fair Price Shops only in view of the earlier instructions dated 15-11-2003 and 23-10-2005. Consequently the Krishna District Joint Collector had issued a Circular dated 6-8-2006 stating “new cards issued under Irish images should be attached to the Fair Price Shop Dealers for making monthly allotment of PDS Kerosene”, which clearly indicates that all the commodities including kerosene are to be distributed under one roof i.e., Fair Price Shop only. Further, in order to avoid any inconvenience to the existing kerosene hawkers, the aforesaid proceedings contemplate only new cards being attached to the Fair Price Shops for the purpose of distribution of PDS kerosene without distributing the old cards already allotted to the hawkers. As such there will not be any difficulty for the authorities to implement the said instructions. The will have to implement the instructions of the Government to attach all the new cards to the Fair Price Shop dealers only for the purpose of distribution of kerosene without depriving the rights of the kerosene hawkers in respect of their old cards. Further, as per the Government memo, the District Administration cannot appoint any new hawker and all new cards will have to be attached to the Fair Price Shops only. Once the proceedings had been issued as per the directions issued by this Court, it is the duty of the District Administration to implement the said proceedings without any delay. Otherwise, the object of the Memo dated 26-4-1994 and the consequential circular will be defeated. The strengthening of Public Distribution System through Fair Price Shop is the policy of the Government. Further it is stated that while in respect of hawkers there are no prescribed regulations regulating the distribution of kerosene, the Fair Price Shop dealers have to distribute the kerosene and other commodities as per the authorizations issued under the Control Order 2001. It is also further stated that despite specific instructions, not only is the 3rd respondent not implementing the aforesaid instructions but also had made arrangements contrary to the instructions by allotting 65% of the kerosene to the hawkers and 35% to the Fair Price Shop dealers which is contrary to the aforesaid memo and the circulars. In spite of the representations to the respondents the 3rd respondent is implementing the proceedings issued by the 2nd respondent dated 27-3-2006. The impugned inaction of the 3rd respondent in implementing the proceedings issued by the 2nd respondent is illegal, arbitrary and violative of principles of natural justice. The members of the petitioner-Association are entitled for kerosene quota in respect of new cards. Earlier in W.P.No.9203/95 dated 18-3-1996 filed by kerosene hawkers there was a direction stating that the Collector shall not allot quantity over and above 2800 lts., kerosene to each hawker. That was the maximum limit prescribed for allotment of the quota and no where this Court directed the authorities to allot 2800 lts., of kerosene to them. Now the entire scenario had changed because of withdrawal of kerosene quota in respect of pink cards and also reduction of kerosene quota by the Government and as such taking into account the present situation and the directions issued by this Court, the Commissioner had issued the proceedings dated 27-3-2006. In such circumstances, the writ petitioner approached this Court by way of the present Writ Petition. 5. A counter affidavit is filed wherein it is stated that the Government had issued directions in Memo No.1584/CS-II/94 (P&CS Department) dated 26-4-1994 that the Collectors shall ensure that such of those hawkers who are distributing the kerosene without licence as on the date are issued licences immediately and the cards of the F.P. Shops which are not issued kerosene have to be allotted and that the hawkers have to deliver kerosene to card holders at the location of F.P. shop by keeping push cart at that place. There were lot of claims and counter claims in this regard by the Fair Price Shop Dealers on one hand and the conventional kerosene dealers on the other hand. Finally, the District Collector, Nellore after having discussions with both the Associations of the F.P. Shop Dealers and the conventional dealers had issued proceedings in C.1874/90 dated 21-5-1988 to the effect that the kerosene in Nellore Municipalityshall be allotted between the kerosene conventional dealers Nellore town and F.P. Shops in the ratio of 65:35 for the distribution of the card holders. Thereafter the same system had been adopted and is in continuation. As regards the instructions of the Commissioner of Civil Supplies issued in PDS II(3)6493/04 dated 27-3-2006 as instructed to the Collector (C.S.) Krishna to follow the instructions issued by the Government from time to time with regard to convention of nominated retails into F.P. Shops attachment of new cards to F.P. shops only duly keeping in view the distance of the residence of the card holders and the economic viability of the F.P. Shops concerned, the said instructions were issued only to the Collector (C.S.) Krishna and in fact no copy is marked to the Collector (C.S.) Krishna of any other District including Nellore District. As far as the directions issued by the Government are concerned that if a vacancy arises pertaining to an F.P. Shop due to resignation tendered by the dealer, death of the dealer or due to cancellation of the authorisation of the dealer, the F.P. Shop has to be allotted to the conventional dealer if he is eligible to be appointed as the F.P. Shopdealer and that if a conventional dealer resigns or dies or licence issued to a conventional dealer is cancelled, the cards shall be allotted to the F.P. shop concerned, these instructions are being followed scrupulously in Nellore municipal area where alone the conventional dealers are existing in the District. Further it is stated that the Government in Memo No.1584 dated 26-4-1994 had specifically directed that no appointment of any new hawkers shall be done and no fresh licence issued to the hawkers/conventional dealers in the District. Further it is stated that the kerosene is being issued to the conventional dealers and the F.P. Shop dealers in the ratio of 65:35 from 1998. In fact, after computerization, the ration cards were issued during July 2005 to December 2005 and there was lot of variation in the number of cards attached to the various F.P. Shops and hence as requested by the F.P. Shop Dealers, rationalization/equalization of number of cards among various F.P. shops were effected to the satisfaction of all the Fair Price Shop Dealers. While doing so also, the ratio of 65:35 was strictly adhered to as is in operation from the year 1998. The Commissioner of Civil Supplies had issued specific directions to the Collector (C.S.) Krishna and a copy of the proceedings of the Commissioner were not marked to the Collector (C.S.) of other Districts including Nellore District. Thus, the implementation of the instructions issued to the Collector (C.S.) Krishna cannot be issued to Nellore District in the absence of such constructions to other Districts. Further, the problem varies from District to District and there is no change in the pattern of allotment of cards to F.P. Shops and conventional dealers from the year 1998 onwards. Further it is stated that the instructions from the Commissioner, Civil Supplies, issued in circular instructions Ref.No.PDS-II(3)10427/2006 dated 23-3-2006 to the effect that if a vacancy arises pertaining to an F.P. shop due to resignation tendered by the dealer, the death of the dealer or due to cancellation of the authorisation of the dealer, the F.P. shop has to be allotted to the conventional dealer if he is otherwise eligible to be appointed as the dealer of F.P. Shop. There are further instructions that if a conventional dealer resigns or dies or licence issued to a conventional dealer is cancelled are being followed scrupulously in Nellore Municipal Area where alone the conventional dealers existed so as to bring card holders under one umbrella as it is not possible to remove the existing conventional dealers and in due course of time, automatically all card holders are covered under one umbrella. Further, the averments made that the instructions are to be followed by the respondents are therefore incorrect. 6. In similar circumstances, a batch of Writ Petitions in W.P.No.17523/2006 and batch had been disposed of by this Court on 8-10-2007 and the relevant portion reads as hereunder : “…..However, strong reliance had been placed on the decision of Division Bench of this Court in Manda Visweswara Rao and others Vs. D.Venkateswara Rao and others (2002(2) ALD 659 (D.B.). It is also not in serious controversy that a policy decision had been taken by the Government to bring in even the distribution of kerosene under the roof of the Fair Price Shop Dealerships. However, further decision had been taken that as far as eligible Kerosene Hawkers are concerned, in a phased manner they are to be absorbed or to be accommodated as Fair Price Shop Dealers depending upon the vacancies. It is stated that preference may have to be given to such Kerosene Hawkers subject to the eligibility criteria. The relevant Government Orders and the Circulars also had been referred to. In the light of the facts and circumstances, this Court is of the considered opinion that especially in the light of the decision of the Division Bench Manda Venkateswara Rao’s case (referred supra) it may not be just and proper to disturb the existing quota of kerosene and the cards attached to the Kerosene Hawkers. It may be that in due course, depending upon the Circulars governing the field and also in the light of the policy such Hawkers may be absorbed as the regular Fair Price Shop Dealers. The main grievance of such Fair Price Shop Dealers who had been appointed is that despite the policy of the Government to bring in even the kerosene distribution under one roof i.e., under the roof of the Fair Price Shop Dealership, even in case of the fresh cards, no such Kerosene quota is being allotted to the fresh Fair Price Shop Dealers. This Court is not inclined to express any opinion relating to factual controversies which had been narrated in detail in the affidavits filed in support of the respective Writ Petitions. However, it is made clear that status quo existing as on today relating to the kerosene quota and the cards which had been already allotted to the Kerosene Hawkers and also in relation to the present Fair Price Shop Dealers to be maintained till appropriate decision is taken by the concerned District Collectors of the Districts concerned. The writ petitioners are given liberty to make appropriate representations within a period of four weeks from the date of receipt of this order and let the concerned District Collectors take appropriate decision in this regard taking into consideration all the facts and circumstances and also the decision of the Division Bench referred to supra. The concerned District Collectors to take appropriate decision in this regard within a period of four weeks thereafter. As already specified above, till then status quo existing as on today relating to the Kerosene quota and the Cards in relation thereto to be maintained. Accordingly, the Writ Petitions are disposed of. No order as to costs”. Inasmuch as the petitioner also is placed in similar fact situation, the Writ Petition is disposed of giving liberty to the petitioner to make appropriate representation within a period of four weeks from the date of receipt of this order to the District Collector, Nellore and let the District Collector, Nellore take into consideration all the facts and circumstances and also the decision of the Division Bench specified above and take appropriate decision in this regard within a period of four weeks thereafter. As already specified above, till then status quo existing as on today relating to kerosene quota and the cards in relation thereto to be maintained. 7. The Writ Petition is accordingly disposed of. No costs. _________________ Justice P.S.Narayana Date : 23-1-2008 AM