THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.11793 of 2007 Dated:17.01.2008. Between: Maddi Venkata Swamy. .. Petitioner. And The Revenue Divisional Officer, Narsapur, West Godavari District and others. .. Respondents. THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.11793 of 2007 ORDER: Heard Sri P.R.K.Amarendra Kumar, learned counsel representing the writ petitioner, learned Government Pleader for Civil Supplies representing respondents 1 and 2 and Sri C.Ramchandra Raju, learned counsel representing respondent No.3. 2. The counsel on record had taken this Court through the respective pleadings of the parties, the affidavit filed in support of the writ petition, the counter affidavit filed by R-1 and R-2 and also R-3 as well and also the reply affidavit. The counsel also had placed before this Court the order made in writ petition No.7010 of 1998. 3. The writ petition is filed for a Writ of Mandamus declaring the action of the respondents in not releasing Kerosene Oil for supply to the White Card Holders allotted to the petitioner’s shop as illegal, arbitrary and contrary to the provisions of A.P.Public Distribution System Control Order, 2001 and consequentially direct the respondents to permit the petitioner for supply of Kerosene Oil to the White Card Holders allotted to the petitioner’s shop No.38 of Bhimavaram Town without intervention of the 3rd respondent and to pass such suitable orders. 4. It is stated in the affidavit that the petitioner was appointed as a Fair Price Shop Dealer No.38 of Bhimavaram Town, West Godavari District. The respondents issued authorization under clause (5) of the A.P.Public Distribution System control order 2001 (hereinafter for short referred to as “the Control Order, 2001”), Authorization No.374/2003 and same was renewed upto 31.03.2009. While granting authorization, the respondents allotted 440 Pink Cards and 550 White Cards for supply of the commodities i.e., Rice, Sugar and Kerosene. As per the schedule allotted by the 2nd respondent, the petitioner has to supply the four litres of kerosene for White Card Holders i.e., 550 x 4 = 2200 liters and one litre for Pink Card Holders i.e., 440 x 1 = 440 liters to the card holders. It is further averred that in Bhimavaram Urban, there are 43 Fair Price Shops and the respondents release the stock as per the allotment in respect of Sugar, Rice and Kerosene to all the Fair Price Shop Dealers, except the petitioner’s shop. The reasons best known are that the respondents released only rice and sugar as per the allotment, but allotted only 440 litres of Kerosene to the petitioner’s shop for supply to the Pink Card Holders. The respondents supplied Kerosene through 3rd respondent, who is unauthorized person, without appointing him as a Fair Price Shop Dealer to supply Kerosene for White Card Holders allotted to the petitioner’s shop. Except the petitioner’s shop, there is no such allotment to other shops existing in Bhimavaram Urban under the control of the 2nd respondent. As per the statement showing Kerosene allotment for the month of May, 2007 of Bhimavaram Urban Mandal, it clearly shows that the respondents supplied kerosene to the card holders allotted to the petitioner’s shop through 3rd respondent. It is relevant to mention at this juncture that though the petitioner was appointed as a Fair Price Shop Dealer in Bhimavaram Town long back, no such incident occurred that he has committed any irregularity during the distribution of commodities to the card holders attached to his shop. But the reasons best known are that the respondents supplied Kerosene Oil to the White card holders attached to the petitioner’s shop through 3rd respondent, who is unauthorized person, without having authorization under the provisions of the Control Order, 2001. Though the petitioner approached the respondents and requested them to allot kerosene oil to supply the same to White Card Holders attached to his shop, the respondents did not consider the same. This kind of action on the part of respondents 1 and 2 for supply of Kerosene through 3rd respondent, who is unauthorized person, to the White Card Holders attached to the petitioner’s shop is highly illegal, arbitrary and contrary to the provisions of the Control Order, 2001. In such circumstances, the petitioner approached this Court by filing the present writ petition. 5. In the counter affidavit filed by respondents 1 and 2, sworn to by the 2nd respondent-Tahsildar, it is stated that kerosene oil is being allotted to petitioner’s shop No.38 for supply on 432 pink cards @ one litre on each card and the remaining kerosene oil relating to the said shop is being allotted to the shop of Sri Potula Rama Chandra Rao-3rd respondent herein, the kerosene dealer (Hawker), for supply on 677 white ration cards and AAY cards @ four litres on each Ration Card from the year 1981 onwards. Both the petitioner (Fair Price Shop dealer of shop No.38) and respondent No.3, the kerosene dealer (Hawker), have been distributing PDS items since 1983 onwards. It is further stated that the 3rd respondent herein, being Hawker, was issued kerosene retail license for supply on household supply cards as per G.O.Rt.No.419 Food & Agriculture (C.S.IV) Department, dated 19.04.1983, and as per Government Memo No.1584/C.S.II/94 F & C.S. (CS) Department, dated 26.04.1994, by attaching White Ration Cards of 38th F.P.Shop and, accordingly, the PDS kerosene oil is being allotted to the 3rd respondent, being hawker, for supply on White Ration Cards allotted to F.P.Shop No.38 of Bhimavaram town. The retail license of the 3rd respondent herein was cancelled in Bhimavaram M.R.O.’s proceedings No.676/97 (CS), dated 29.06.1997, for having committed certain irregularities in distribution of kerosene oil and for violation of clause 12(1) (ii) of A.P.Petroleum Products (L&R) Order, 1980 and condition No.3 & 5 of retail kerosene license granted to him. On an appeal filed by the 3rd respondent, the R.D.O., Narasapur dismissed the appeal, and on the second appeal filed by him, the Joint Collector, West Godavari, Eluru, intimated to him in D.Dis.CS1/775/98, dated 21.02.1998, that according to clause 31 of licensing order, no second appeal lies on the order of the R.D.O., Narasapur. Aggrieved with the orders of R.D.O., Narasapur, and Joint Collector, West Godavari, Eluru, the 3rd respondent had filed W.P.No.7010 of 1998 before this Court and this Court issued interim orders in WPMP.No.8550 of 1998 in W.P.No.7010 of 1998 for his continuation as Hawker. In view of the interim orders of this Court, the retail license of the dealer (3rd respondent) herein was restored in Narasapur R.D.O’s ROC.No.556/98(E), dated 30.03.1998, pending issue of final orders by this Court in WP.No.7010 of 1998. It is stated that a counter affidavit was also filed in WP.No.7010 of 1998 in this Court in December, 1998. WP.No.7010 of 1998 was dismissed by this Court for non-prosecution on 22.10.2002. Again the orders issued by this Court dismissing WP.No.7010 of 1998 on 22.10.2002 was set aside in WPMP.No.28542 of 2002, dated 22.11.2002 and the writ petition was restored to its file. WP.No.7010 of 1998 was allowed on 27.11.2003 by this Court. In view of interim order delivered in the writ petition No.7010 of 1998, kerosene oil is being allotted to the hawker, the 3rd respondent herein, till date, for supply on the White Ration cards of F.P.Shop No.38 of Sri Maddi Venkata Swamy, the petitioner herein. Subsequently, since the writ petition is allowed, respondent no.3 is continued with the supply. According to condition No.8 and 11 of authorization issued under clause (5) of the Control Order 2001, the petitioner herein is bound to distribute on sale on supply cards whatever the quantities of commodities allotted to his shop as per norms in vogue, but he should not insist or compel the allotment of any PDS item relating to the area, and hence, in view of these facts, kerosene oil cannot be allotted to the petitioner’s shop No.38 for distribution on 677 white cards and AAY ration cards. In such circumstances, it was prayed that the writ petition be dismissed. 6. The 3rd respondent filed counter affidavit taking a stand that he obtained kerosene Retail License (Hawker License) in the year 1981 for supply of kerosene for White Ration Card Holders and AAY cardholders. Ever since then, this respondent has been supplying kerosene under Hawker License to the cardholders without any blemish on record. The petitioner, who is a Fair Price Shop Dealer, was issued license in the year 2003, subject to this respondent’s Hawker License being allotted kerosene for supplying pink cardholders. The petitioner has no right whatsoever to claim kerosene quota meant for White Card Holders, which was allotted to this respondent. The authorization of the petitioner is totally different from this respondent’s kerosene Hawker License. Further, it is stated that the petitioner never raised any objection against the kerosene quota being supplied to this respondent under Hawker License. This respondent’s license is much earlier to the authorization of the petitioner and as such the petitioner’s entitlement for kerosene quota is in exclusion of the kerosene allotted to this respondent. Whenever kerosene Hawker Licenses have been granted, the Fair Price Shop Dealers who have been granted authorization are subject to Kerosene Hawker licenses. The petitioner, being the Fair Price Shop Dealer, is only entitled to supply other essential commodities and the kerosene meant for Pink Card Holders. The authorities never cancelled the Kerosene Hawker Licenses for allotment of entire kerosene quota to Fair Price Shop Dealers. It is also further stated that this Court allowed W.P.No.7010 of 1998, which was filed by this respondent against the illegal cancellation of his license, and the said order became final. 7. In the reply affidavit filed by the petitioner, in reply to paragraph 2 of the counter affidavit of respondents 1 and 2, it is stated that Sri Pothula Rama Chandra Rao, respondent No.3, is only a Hawker (seller of kerosene roaming through the streets), but not a fair price shop dealer having authorization issued by R.D.O., Narsapuram, under clause (5) of the Control Order, 2001. He has got license under A.P.Petroleum Products (L & R) Order, 1980 as Hawker, since 1983 onwards and it is not mentioned whether the said license was renewed till date or not. According to the license issued to respondent No.3, under A.P.Petroleum Products (L & R) order 1980, as hawker, he is not entitled to sell Kerosene as Dealer Shop No.38, and as such, by action of respondent Nos.1 & 2 in allotting Kerosene oil to petitioner’s shop i.e., Shop No.38 for suppling the same to 432 Pink Card holders at one litre each and remaining kerosene oil to the hawker Sri Pothula Rama Chandra Rao, who is the 3rd respondent herein, for supply on 677 white cards and AAY cards at four litres each from the year 1981 onwards (which is not correct) is against the Rules. It is also not correct to say that the 3rd respondent has been distributing PDS items since 1983 onwards. In fact, the 3rd respondent is distributing kerosene oil basing on license since 1983 onwards and he never distributed PDS items relating to foodstuffs, sugar and edible oil under the Essential Commodities Act, 1955. 8. Further, in reply to paragraph 3 of respondent Nos.1 and 2 counter, it is stated that it is not correct to say that the 3rd respondent herein, being a hawker, was issued kerosene retail license for supply on household supply cards as per G.O.R.T.No.419 Food and Agriculture (CSIV) Department, dated 19.04.1983, and as per Government Memo No.1584/CS/II/94 F&CS(CS) Department, dated 26.04.1984, by allotting white ration cards of 38th fair price shop only, which is relating to the petitioner, though there are other 42 fair price shops in Bhimavaram Town and, accordingly, the PDS kerosene oil is being allotted to respondent No.3, as hawker, for supply on white ration cards allotted to the FP shop No.38 of Bhimavaram Town. Respondent Nos.1 & 2, in the counter filed by them, have stated that according to condition No.8 & 11 of authorization issued under clause (5) of the Control Order, 2001, the petitioner herein is bound to distribute on supply cards, whatever the quantities of the commodities are allotted to his shop as per the norms in wage, but he should not insist or compel the allotment of any PDS items relating to the area, which was not laid down in condition No.8 & 11, hence, the version is not correct. Condition No.8 is that the holder of the authorization shall, whenever he supplies any commodity make entries in the supply part of the consumer indicating the exact quantity delivered and the date of delivery in the space provided in the supply card. As per condition No.11, the holder of the authorization shall comply with any direction that he may be given to him by the appointing authority i.e., Collector/RDO/MRO/ASO in regard to sale of sugar, sale of schedule commodities, and in regard to the maintenance of accounts, keeping of the register return and issue of receipts and such other matters. Now the practice in wag to distribute essential commodities, basing on coupons issued to Shop No.38, the petitioner has got authorization No.374/2003 issued by the RDO, NSP renewed upto 31.03.2009 for authorized fair price shop or stockiest in the jurisdiction of 38/BVRM/Town Door No.7-1-29/2, Bhimavaram relating to Foodstuffs, sugar, Edible oils, Petroleum products issued under the E.C.Act, 1955. The petitioner was allotted to distribute kerosene at one litre each only to Pink card holders, whereas respondent No.3 was allotted to distribute four litres each to 677 white card holders and AAY card holders. Respondent Nos.1 and 2 have not shown any valid proof or authority that kerosene was distributed at four litres each to white card holders and AAY card holders relating to petitioner’s shop i.e., shop No.38, when the petitioner distributed kerosene to 432 pink card holders at one litre each. The action of respondent Nos.1 and 2 in distributing kerosene oil on 677 white cards and AAY cards relating to shop No.38 of the petitioner, who has got authorization and who is entitled to sell all the essential commodities as in the case of other 42 dealers, is illegal and against the rules framed under the statute. These are the respective stands taken by the parties. 9. It is no doubt true that the 3rd respondent filed W.P.No.7010 of 1998 and the learned Judge of this Court allowed the same. This Court issued Rule nisi on 08.06.2007. 10. In the light of the facts and circumstances and also in the light of the respective stands taken by the parties, liberty is given to the writ petitioner to file appropriate representation before the concerned District Collector, West Godavari District within a period of four weeks and let the District Collector, West Godavari District, consider the same and pass appropriate orders, within a period of eight weeks thereafter. 10. The writ petition is disposed of accordingly. No order as to costs. _________________ (P.S.NARAYANA,J) Dt. 17.01.2008. v v