THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.7919 of 2007 DATE: 31st January, 2008 Between :- T. Adilakshmi .. Petitioner And The District Collector, Srikakulam, Srikakulam District And 3 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.7919 of 2007 ORDER:- 1. This Court issued rule nisi on 17-4-2007 and in W.P.M.P. No.10164/2007 made the following Order:- “The proceedings in Notification No.1698/2005-A, dt.31-3-2007 calling upon the applications to fill up permanent vacancy of Fair Price Shop Dealership in Yethurallapadu village,Kotabommali Mandal, Srikakulam District, may go on. But, no final orders appointing Fair Price Shop Dealership shall be issued.” 2. The petitioner – T.Adilakshmi filed the present Writ Petition for a Writ of Mandamus declaring the action of the respondents in filling up the vacancy of Fair Price Shop Dealership in respect of Yethurallapadu village under impugned Notification dt.31-3-2007 vide proceedings No.1698/2005-A is illegal, arbitrary and violation of Article 14 of the Constitution of India and contrary to the orders passed by the 2nd respondent in his proceedings D.Dis.227/2006/S2/dt.29-4-2006 as confirmed by the 1st respondent vide proceedings D.Dis.58/2007/S2, dt.8-3- 2007, without conducting enquiry as per the orders of the 2nd respondent dt.29-4-2006 as confirmed by the 1st respondent and consequently direct the respondents to conduct the enquiry as per the orders passed by the 2nd respondent dt.29-4-2006 as confirmed by the 1st respondent dt.8-3-2007 by setting aside the impugned notification vide proceedings No.1698/2005-A, dt.31-3- 2007 and pass such other suitable orders. 3. Sri S.Laxminarayana Reddy, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and would maintain that after an order of remand was made, the petitioner was not put on notice and there was no enquiry at all and hence, the order of remand had not been complied with. Without complying with the order of remand, proceeding further is illegal and also unsustainable. The learned Counsel also would maintain that even if the records produced, if carefully scrutinized, it is clear that there was no service of notice and the explanation put forth that since the petitioner being a non-resident, the affixion was done also cannot be accepted and hence, in the facts and circumstances of the case, the petitioner to be put on notice and proper enquiry to be conducted and then may be that the respondents to further proceed in accordance with law. 4. Per contra, the learned G.P. for Civil Supplies had pointed out to the statements which had been recorded relating to the aspect of the petitioner being a non-resident of the particular village and also had shown that, inasmuch as, the petitioner is a non-resident, the notice had been affixed and it should be taken as due and proper service of the petitioner. The learned G.P. for Civil Supplies also would maintain that the concept of leave is unknown to the relevant provisions of the Control Order and even otherwise, in the light of the clear material available, as reflected from the records, the further putting the writ petitioner on notice and calling for objections, if any, and conducting further enquiry on the aspect of the petitioner whether a resident or a non-resident, would a futile exercise, hence, the learned G.P. for Civil Supplies would contend that inasmuch as the impugned action is in accordance with law, the Writ Petition is liable to be dismissed. 5. Heard the Counsel. Perused the respective stands taken by the parties, the affidavit filed in support of the Writ Petition, the counter affidavit filed along with W.V.M.P.No.1449/2007 and the reply affidavit as well. 6. It is stated in the affidavit filed in support of the Writ Petition that the petitioner was appointed as Fair Price Shop Dealer for Yethurallapadu village in the year 2004 through the proceedings of the 3rd respondent in Rc.No.701/2004-A, dt.17-11-2004 and also stated that since then she had been distributing the essential commodities to the card holders in his village without there being any complaint. While so, on 27-8-2005, the petitioner had applied for leave of 3 months to the 3rd respondent through the 4th respondent as she was suffering with (DVB) bleeding due to pregnancy as she was advised by the Doctor to undergo treatment. It is further stated that the 4th respondent had requested the 3rd respondent in his proceedings Rc.No.235/2004/ASO, dt.29-8-2005 and leave may be granted for three months from 27-8-2005 and further requested in his letter that the neighbouring dealer Sri Gutta Dasu, Fair Price Shop Dealer of Peddabammidi may be placed as in-charge of her fair price shop in the leave period and accordingly leave has been granted. Further it is the case of the petitioner that she had undergone treatment at Kotabommati and her doctor advised her to take bed rest for three months and she was staying in her village along with her mother. After the leave period was completed, the petitioner wanted to apply further extension of her leave, meanwhile on 18-12-2005 the 3rd respondent had cancelled her authorization in proceedings Rc.No.1698/2005 without giving any show cause notice basing on the alleged report of the 4th respondent to the effect that the petitioner was not staying in the village without conducting any enquiry. It is further stated that the petitioner preferred appeal before the 2nd respondent against the orders i.e., cancellation of her authorization dt.18-12-2005 and that she had specifically stated in the memo of grounds of appeal that the 4th respondent without conducting any enquiry had reported to 3rd respondent that she was not residing in the village though she was very much staying in the village as she was bedridden for three months. Further it is stated that in the grounds of appeal that the 3rd respondent had cancelled petitioner’s authorization in his impugned order dated 18- 12-2005 under the provisions of A.P.S. (RDCS) Order 1973 which was repealed under Control Order 2001 which are came into force on 6-4-2001 by A.P.State Public Distribution System (Control) Order 2001. Further it is averred that without considering petitioner’s grounds of appeal, the 2nd respondent was pleased to remand the matter through his proceedings D.Dis. No.227/2006, dt.29-4-2006 to the 4th respondent directing him to conduct enquiry and take action in accordance with the provisions under Clause 12 (viii) of G.O.Ms.No.53, dt.6- 10-2003, though the order passed by the 3rd respondent is patently illegal. The petitioner preferred revision before the 1st respondent against the order passed by the 2nd respondent dt.29-4-2006 and that the 1st respondent without considering her grounds of revision that she was on medical leave and her authorization was cancelled on the alleged charge that she was not residing in the village though she was very much residing along with her mother as she was bedridden and without giving any show cause notice and was pleased to dismiss her revision in his proceedings D.Dis.No.58/2007/82, dt.8-3-2007. Further it is averred that the 3rd respondent without complying the orders passed by the 2nd respondent dt.29-4-2006 confirmed by the 1st respondent dt.8-3-2007 had issued notification No.1698/2005-A, dt.31-3-2007 to fill the Fair Price Shop Dealership, Yethurallapadu village, though petitioner’s cancellation of authorization is pending and without conducting any enquiry as per the direction of the 2nd respondent as confirmed by the 1st respondent, the same is illegal, arbitrary and violation of Article 14 of the Constitution of India and contrary to the orders of the respondents No.1 and 2. The 3rd respondent without giving any show cause notice had cancelled the authorization of petitioner basing on the alleged report of the 4th respondent which is bad in law. The Gram Panchayat Yethurallapadu has also passed resolution that the 4th respondent did not conduct any enquiry in the village and as such that itself clearly prove that the alleged report of the 4th respondent is false one, without conducting enquiry and consequent upon the orders dt.18-12-2005 passed by the 3rd respondent canceling the authorization of the petitioner without giving show cause notice as illegal. The petitioner also stated that she is distributing essential commodities in her village without there being any complaint and taking advantage of her medical leave, the 3rd respondent had cancelled her authorization at political instance on the alleged charge that she was not residing in the village though she was residing in the village. Certain further facts also had been narrated in the affidavit filed in support of the Writ Petition. 7. In the counter affidavit filed by the respondents, sworn to by the Revenue Divisional Officer, Tekkali, Srikakulam District, it is averred that the petitioner was appointed as Fair Price Shop Dealer vide proceedings Rc.No.701/2004A, dated 17-11-2004 and since then she distributing essential commodities up to 27-8-2005 and applied for leave for a period of three months w.e.f. 27-8- 2005, but the leave was not granted as there is no provision of leave under Control Order, 2001 and that to avoid inconvenience to the needy card holders and in view of proper functioning of P.D.System, the neighbouring Fair Price Shop Dealer was placed as additional charge, but the leave was not granted. Further it is stated that the petitioner applied for leave for three months w.e.f., 27-8-2005. The petitioner ought to have reported on 26-11-2005 i.e., after expiry of the period of her leave application. In fact, the petitioner got married in May, 2005 with one Ch.Mukunda Rao of Ramayyavalasa village of Polaki Mandal who is working in a private company at Hyderabad and on plea of leave, she left the village for Hyderabad and is living with her husband at Hyderabad. In the meanwhile, the villagers represented that the dealer left the village and the card holders are suffering due to absence of the dealer and as a result the essential commodities are not supplied to them in time. As such a show cause notice was issued to the Fair Price Shop Dealer by the Revenue Divisional Officer, Tekkali, vide Rc.No.1690/2005A, dt.2-12-2005 calling for written explanation/personal hearing within 7 days. It is further stated that the show cause notice could not be served on the petitioner since she is not residing in the village and was residing at Hyderabad with her husband and the same was reported to the Revenue Divisional Officer, and thereafter the authorization of the Fair Price Shop Dealer was cancelled by the Revenue Divisional Officer, Tekkali, vide proceedings Rc.No.1698/2005A, dt.18-12-2005. Further it is averred in para 5 of the counter affidavit that the petitioner got married in May, 2005 and that with an intention of running the fair price shop through a benami dealer, she applied for leave for a period of 3 months w.e.f., 27-8-2005 and left the village for Hyderabad where her husband is working in a private factory and the petitioner ought to have returned on 27-11-2005 but she did not turn up. Further it is stated that the show cause notice issued to the Fair Price Shop Dealer in Revenue Divisional Officer’s Rc.No.1698/2005A, dated 2-12-2005 could not be served as she is not residing in the village. Subsequently, the authorization of the Fair Price Shop Dealer was cancelled vide proceedings Rc.No.1698/2005A, dated 18-12-2005. It is also stated that as the petitioner left the village after getting marriage, she ought to have voluntarily relinquished her dealership in terms of clause 12 (xiii) of G.O.Ms.No.53, dt.6-10-2003. Further it is stated that questioning the orders of cancellation, Fair Price Shop Dealer preferred an appeal before the Joint Collector, Srikakulam and the Joint Collector, Srikakulam, remanded the matter by order dt.29-4-2006 directing the Mandal Revenue Officer, Kotabommali to conduct fresh enquiry and take action in accordance with the provisions under clause 12(xiii) of G.O.Ms.No.53, dt.6-10-2003. Accordingly, the Mandal Revenue Officer conducted fresh enquiry and submitted a report to the Revenue Divisional Officer, Tekkali, on 30- 11-2006 in which it has been stated that the orders of cancellation of authorization issued earlier by the Revenue Divisional Officer, Tekkali holds good. As these orders also could not be served on the petitioner since she is not available in the village, a panchanama was also been conducted in the village on 7-12-2006 and as such the action taken by the Department is valid and legal and is in terms of the Government Orders. It is also stated that the petitioner preferred a revision petition before the 1st respondent i.e., the Collector, Srikakulam against the orders of the 2nd respondent dated 29-4-2006 wherein the 2nd had remanded the matter to Mandal Revenue Officer for fresh enquiry and that the petitioner pleaded that she was on medical leave and her authorization was cancelled on the alleged charge that she was not residing in the village though she was very much residing along with her mother and without giving any show cause notice, the revision petition was dismissed on 8-3-2007. It is also averred that the authorization was cancelled vide proceedings Rc.No.1698/2005a, dt.18-12-2005 and on an appeal the Joint Collector issued proceedings D.Dis.No.227/2006, dt.29-4-2006 remanding the matter to the Mandal Revenue Officer with a direction to take action in accordance with the provisions of clause 12 (xiii) of G.O.Ms.No.53, dt.6-10-2003 and accordingly the Mandal Revenue Officer conducted enquiry and issued proceedings Rc.No.225/04 ASO, dated 6-12-2006 and as the orders could not be served due to non-residence of the delinquent dealer, the Mandal Revenue Officer conducted a panchanama in the village on 7-12-2006 and that afterwards i.e., after dismissal of the Revision Petition vide Collector’s proceedings D.Dis.No.58/2006 S2, dated 8-3-2007, a notification for filling up the vacancy was issued by the Revenue Divisional Officer, Tekkali on 31-3- 2007 vide Rc.No.1698/2005A, dated 31-3-2007. It is also averred in para 8 of the counter affidavit that the 4th respondent had conducted fresh enquiry in the village about the residence of delinquent dealer and issued proceedings Rc.No.225/04 ASO, dt.6-12-2006 and also conducted panchanama in the village on 7-12-2006 as the orders could not be served and as such the action taken by the Department in cancellation of authorization is legal. Further it is stated that the contention of the petitioner that taking advantage of medical leave, the 3rd respondent had cancelled her authorization at political instance on the alleged charge that she was not residing in the village though she was residing in the village and the 3rd respondent allowed to fill up the vacancy of Fair Price Shop Dealership, Yettullpadu village under impugned notification dated 31-3-2007 and as such she will put to irreparable loss and injury, is wrong and baseless. In this regard it is stated that the petitioner distributed essential commodities up to 27-8-2005 and afterwards she left the village for Hyderabad as she was already married duly applying for 3 months and afterwards she did not turn up. Further it is stated that the villagers made representations to the effect that the petitioner left for Hyderabad and that as the show cause notice issued by the 3rd respondent in Rc.No.1698/2005A dated 2-12- 2005 could not be served on the petitioner, the authorization was cancelled in terms of clause 12(xiii) of G.O.Ms.No.53 dated 6-10-2003. It is also stated that the notification for filling up the vacancy of the fair price shop was issued by the 3rd respondent in Rc.No.1698/2005A, dated 31-3-2007 as per the procedure laid down under P.D.System and that in view of the interim orders of this Court, the vacancy is not filled up. It is further stated that it is not correct to state that the notification dated 31-3-2007 vide proceedings Rc.No.1698/2005A is illegal, arbitrary and is violation of Article 14 of the Constitution of India and contrary to the Orders passed by the 2nd respondent in his proceedings D.Dis.No.227/2006 S2, dated 29-4- 2006 as confirmed by the 1st respondent vide proceedings D.Dis.No.58/2007 S2, dated 8-3-2007, without conducting enquiry as per the orders of the 2nd respondent. Further it is stated that on an appeal made by the delinquent dealer against the orders of cancellation of authorization vide proceedings Rc.No.1698/2005A, dated 18-12-2005, the 2nd respondent was pleased to issue orders in D.Dis.No.227/2006 S2, dated 29-4-2006 remanding the matter to the 4th respondent with a direction to conduct a fresh enquiry and to take action in accordance with the provisions under clause 12 (xiii) of G.O.Ms.No.53, dt.6-10-2003 and accordingly, a fresh enquiry was conducted and as the delinquent dealer was not residing in the village, the 4th respondent issued orders in proceedings Rc.No.225/04 ASO, dt.6-12-2006 in pursuance of the orders of the 2nd respondent. It is stated that as the delinquent dealer was not residing interest village, the orders could not be served and substitute service was made by affixing a copy of the order at her house and that to that effect a panchanama was conducted in the village on 7-12-2006. Further it is stated that the delinquent dealer filed a revision petition before the 1st respondent against the orders passed by the 2nd respondent in D.Dis.No.227/2006 S2, dated 29-4-2006 and the Revision Petition was also dismissed vide D.Dis.No.58/2007 S2, dated 8-3-2007 and as such, the 3rd respondent issued notification in Rc.No.1698/2005A, dated 31-3-2007 and as such the entire proceedings from cancellation of authorization of the Fair Price Shop Dealer till the issuance of notification is made in accordance with law. 8. In the reply affidavit filed, the averments made in the affidavit filed in support of the Writ Petition had been again repeated and the application made for leave and the prayer made relating to further extension also had been averred. Several facts relating to the preferring of revision and the other particulars again had been repeated. Further it is averred that it is also relevant to state that after leave was granted by the 4th respondent i.e., from 27-8- 2005, she could not immediately apply for extension of time as she was admitted in the hospital from 20-11-2005 to 20-12-2005 and a medical certificate is also been issued to that effect and as such her authorization has been cancelled by the 3rd respondent alleging that she was not residing at the village cannot be sustained. Further it is averred that the allegation made by the respondents in their counter affidavit that an enquiry has been conducted on 6-12-2006 by the 4th respondent in pursuance of the order passed by the 2nd respondent dated 29-4-2006 and the said orders could not be served on the petitioner due to not residing in the village is false one and the same is hereby denied. Further it is stated that the petitioner has been residing in the village since 2005 onwards and the Sarpanch of the village also issued certificate certifying that the petitioner has been residing in the village since 20-11-2005 to 22-6-2006 and as such when she was very much residing in the village, the question of conducting enquiry by the 4th respondent through his proceedings Rc.No.225/04ASO, dated 6-12- 2006 without giving any notice to her about the alleged conduct of enquiry by the 4th respondent does not arise and it is invented for the purpose of filing their counter. Further it is stated that it is relevant to state that thereafter in the month of June, 2007 the elections were held to the Gram Panchayat and the new Sarpanch and as well as Panchayat Secretary have also issued certificate dated 24-7-2007 and as such the allegation made in the counter affidavit filed by the respondents that the Mandal Revenue Officer conducted panchanama in the village on 7-12- 2006 it utterly false as panchanama cannot be conducted without knowledge of the Sarpanch and as well as Panchayat Secretary of the village and itself clearly establish that the alleged enquiry conducted by the 4th respondent on 6-12-2006 is false one and it is only created story. Further specific stand had been taken that after remand order was made by the 2nd respondent on 29-4-2006, no enquiry has been conducted by the 4th respondent as alleged in the counter till today and admittedly, the 1st respondent has dismissed the revision on 8-3-2007 confirming the order of the 2nd respondent dated 29-4-2006. The 3rd respondent, without complying the orders of the 2nd respondent dated 29-4-2006 as confirmed by the 1st respondent dated 8-3-2007, had issued the impugned notification No.1698/2005A dated 13-1-2007 to fill-up the Fair Price Shop Dealership of Yethirallapadu village though the issue of cancellation of authorization has been pending and the said action cannot be sustained, the same being illegal. 9. The learned Government Pleader for Civil Supplies had pointed out to the records produced before this Court, especially pages 49 to 54 and would maintain that the statements recorded and also the panchanama conducted would clearly go to show that due enquiry had been conducted and apart from this aspect of the matter, inasmuch as, the writ petitioner is a non-resident, the personal service on the writ petitioner could not be effected and hence in the light of the records produced, the service to be held to be sufficient and absolutely there is no non-compliance of principles of natural justice at all and in pursuance of the remand order, due enquiry had been conducted, the statements had been recorded, the panchanama also had been conducted in accordance with law and appropriate action had been taken and subsequent thereto only, the present notification had been issued. 10. However, the learned Counsel representing the Writ Petitioner had produced the medical certificate and also the resolutions of the Gram Panchayat dt.20-6-2006 and 24-7-2007. 11. On a careful analysis of the records produced before this Court, it appears that there is something fishy and no responsible person just like either Sarpanch or any other responsible person of the village had been a party either to the panchanama or no responsible villager as such had made any statement relating to the aspect that the petitioner is a non-resident of the village. Further emphasis had been laid on the Panchayat resolution and the other material produced before this Court and the petitioner is asserting before this Court that she continues to be the resident of the said village. In the light of the material produced before this Court after the order of remand was made, it is not in serious controversy that the petitioner was not served with any notice. No doubt, the explanation put forth is that inasmuch as the competent authority was unable to trace the writ petitioner, there was affixation and inasmuch as the writ petitioner is a non- resident of the village, being away from the village, the same to be taken as effective service or actual service in the eye of Law and hence, the order of remand in true spirit had been complied with. It is no doubt true that in the records produced, there is some material – certain statements said to have been recorded and also the panchanama, but equally the writ petitioner also is placing the material before this Court asserting that she continues to be the resident of the village and there are all manipulations. This Court is not inclined to express any opinion relating to these factual controversies. 12. However, yet another important aspect to be considered is that the provision of leave is unknown to the Control Order. However, it is being asserted by the writ petitioner that she applied for leave. As can be seen from the facts of the case, subsequent to this aspect, because an order of remand was made relating to the enquiry, whether the petitioner is a resident or not, this question though also is a crucial question, as far as this aspect is concerned, may be that further enquiry is necessary. It is needless to say that this aspect relating to whether such leave is permissible or not also may have to be gone into. However, on the over all facts and circumstances, being satisfied that the principles of natural justice had not been complied with, this Court is inclined to give one more opportunity. Let the competent authority put the writ petitioner on notice by serving the notice in accordance with law and let the writ petitioner submit the