IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION No.47275/2014 (GM – EC) BETWEEN:
SRI B.V.MALLIKARJUNA S/O B.V.RUDRAPPA, AGED ABOUT 37 YEARS, BUSSANANHALLI VILLAGE, A.B. HUTTI POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577001. …PETITIONER (BY SRI CHANDRAKANTH R. PATIL, ADV.) AND:
1. THE STATE OF KARNATAKA REP BY ITS SECRETARY, DEPARTMENT OF FOOD AND CIVIL, M.S.BUILDING, BANGALORE-560 001.
2. THE COMMISSIONER, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, CUNNINGHAM ROAD, BANGALORE-560 001.
3. THE DEPUTY COMMISSIONER, DAVANAGERE-577001.
4. THE THASILDAR, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577001.
5. B.D.RANGASWAMY, S/O DURGAPPA, AGE MAJOR, R/O BUSSANAHALLI VILLAGE, A.B.HUTTI POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577001. …RESPONDENTS (BY SRI VASANTH V. FERNANDES, HCGP FOR R-1 TO R-4; SRI M.P.SINGRI, ADV. FOR R-5.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 09.07.2013 PASSED BY THE R-3 VIDE ANNEXURE-K.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The present writ petition is filed by the petitioner for a writ of certiorari to quash the impugned order dated 9.07.2013 passed by the 3rd respondent-Deputy Commissioner [Annexure-K] and the order dated 30.11.2013 passed by the 2nd respondent-Commissioner [Annexure-L], Department of Food and Civil Supplies, Cunningham Road, Bangalore, canceling the authorization granted to the petitioner for disbursement of food grains.
2. It is the case of the petitioner that he is a physically handicapped person and unemployed. The respondent No.5 is employed as a Bus agent and the wife of the respondent No.5 is an elected member of the village panchayath for a period of five years i.e., from 18.6.2010 to 2015. The respondent No.5 is taking undue advantage of the political power and on the influence of the political power, respondent No.5 has obtained illegal order from the respondent Nos.2 and 3.
3. It is further case of the petitioner that the 1st respondent-State of Karnataka issued a Notification on 12.10.1992 under the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992, inviting applications for allotment of authorization to start fair price shops/Depots in the entire State of Karnataka. In response to the said Notification, the petitioner filed an application on 10.6.2004 along with necessary documents to show that he is physically handicapped person and has passed P.U.C. and I.T.I. The 5th respondent and other applicants have also applied for the same.
4. The 5th respondent withdrew the application on 30.8.2004 as per Annexure-E. In pursuance of the application filed, the Deputy Commissioner by the order dated 18.10.2009 granted authorization in favour of the petitioner. Aggrieved by the said authorization granted by the Deputy Commissioner in favour of the petitioner, the 5th respondent filed an appeal before the 2nd respondent – Commissioner, Department of Food and Civil Supplies. After hearing both the parties, by the order dated 25.2.2012, the 2nd respondent allowed the appeal filed by the 5th respondent and set aside the authorization made in favour of the petitioner and remanded the matter to the Deputy Commissioner to reconsider the applications afresh.
5. In pursuance of the remand order passed by the Appellate Authority, the Deputy Commissioner considering the entire material on record, by the order dated 9.7.2013, cancelled the authorization made in favour of the petitioner and granted authorization in favour of the 5th respondent for distribution of food grains. Aggrieved by the said order, the present petitioner has filed an appeal No.37/2013-14 before the Commissioner of Food and Civil Supplies and after hearing both the parties, by order dated 30.11.2013, the Commissioner dismissed the appeal and confirmed the order passed by the Deputy Commissioner granting authorization in favour of the 5th respondent. Hence, the present writ petition is filed.
6. The 1st respondent-State of Karnataka has not filed any objections. The 5th respondent has filed objections to the main petition contending that the writ petition filed by the petitioner is not maintainable and liable to be dismissed. He further contended that in response to the Notification issued by the 1st respondent inviting eligible candidates for grant of authorization, the 5th respondent and three others including the present petitioner filed applications. The petitioner threatened the respondent No.5 with dire consequences, under coercion his signature was taken on a blank white paper, contents were written contending that the applicant/5th respondent is taking back the application filed by him. The petitioner and his father forcibly took the signature of the 5th respondent and filed an application seeking withdrawal of his earlier application stating that he is not able to run the food grains fair shop and therefore, he was forced to withdraw the application. Therefore, he was forced to file a complaint on 2.7.2004 before the Tahsildar, Channagiri, stating that he has not taken back the application.
7. It is further contended that the Tahsildar, Channagiri, issued a letter directing the respondent No.5 to file a complaint before the jurisdictional police about the black mail and to file necessary documents within three days. Thereafter, the 5th respondent filed a complaint before the Channagiri Police on 8.7.2004 against the petitioner and his father. The Channagiri police issued an endorsement directing the 5th respondent to approach the Taluk Tahsildar.
8. It is further contended that the Deputy Commissioner has not followed the procedure and not conducted proper enquiry and has not taken any action about the complaint filed by the respondent No.5 on 22.7.2004 as per Annexure-R10 and further contended that when the application was filed, the petitioner and his family members were residing in Bussenahalli village, Channagiri Taluk, Davanagere District, according to the Election Commission Voters List of 2009. Therefore, he was forced to file an appeal before the 2nd respondent Commissioner against the authorization made in favour of the petitioner. The Appellate Authority allowed the appeal and remanded the matter to the Deputy Commissioner. On remand, the Deputy Commissioner after holding an enquiry has come to the conclusion that the 5th respondent was forced to withdraw the application and proceeded to cancel the authorization made in favour of the petitioner and granted the same in favour of the 5th respondent. The said cancellation made by the Deputy Commissioner on the appeal filed by the petitioner came to be confirmed by the Appellate Authority, therefore, the learned counsel for the respondent No.5 sought to dismiss the writ petition.
9. I have heard the learned counsel for the parties to the lis.
10. Sri. Chandrakanth R Patil, learned counsel for the petitioner contended that the impugned order passed by the Deputy Commissioner as per Annexure-K, confirmed by the respondent No.2 Appellate Authority as per Annexure-L, are illegal and contrary to the material on record. He further contended that as on the date of the authorization made in favour of the petitioner on 18.10.2009, there was no application of the 5th respondent pending before the Deputy Commissioner as the same was voluntarily withdrawn on 30.8.2004 as per Annexure-E. In the absence of any application pending, the Deputy Commissioner was not justified in canceling the authorisation made in favour of the petitioner and granted authorization in favour of the 5th respondent without there being any application. The same was confirmed by the Appellate Authority.
11. He further contended that the petitioner is a physically handicapped person and unemployed. Priority has to be given to the petitioner under the Public Distribution System Control Orders. The 5th respondent is employed himself as a Bus Agent and his wife was elected as a member of the Village Panchayath for a period of five years from 18.6.2010 to 2015. The 5th respondent is high handed political person and on the influence of the political person, the order is passed by the Deputy Commissioner which is confirmed by the Commissioner. He would further contend that even on the alleged complaint, the jurisdictional police have not taken any action and issued endorsement to the 5th respondent even prior to the application filed by the petitioner on 10.6.2004 and withdrawal application was filed by the respondent No.5 on 30.8.2004. The learned counsel for the petitioner sought to allow the petition by setting aside the impugned orders passed by the Deputy Commissioner and confirmed by the Appellate Authority.
12. Per contra, the learned Government Advocate for the respondent Nos.1 to 4 sought to justify the impugned order passed by the Deputy Commissioner and confirmed by the Appellate Authority.
13. The learned counsel for the respondent No.5 sought to justify the order reiterating the averments made in the statement of objections.
14. Having heard the learned counsel for the parties, it is undisputed fact that in view of the Notification issued by the Deputy Commissioner, the petitioner, 5th respondent and others filed applications for grant of authorization. Admittedly, the 5th respondent filed an application for withdrawal on 30.8.2004 as per Annexure-E voluntarily and thereafter the Deputy Commissioner considering the entire material on record, by order dated 18.10.2009 Annexure-G granted authorization in favour of the present petitioner in respect of Bussenahalli and Muddenahalli for distribution of food grains and kerosene oil referring that the application given by the 5th respondent has been withdrawn voluntarily.
15. It is also not in dispute that the 5th respondent filed the application before the Tahsildar as per Annexure- E stating that he is withdrawing the application. Therefore, the respondent No.3 has passed an order dated 18.10.2009 by granting authorization in favour of the petitioner. Thereafter, the 5th respondent has filed an appeal before the 2nd respondent Commissioner. The Commissioner proceeded to allow the appeal mainly on the ground that the authorization made in favour of the petitioner seems to be prima facie unilateral and set aside the order passed by the Deputy Commissioner and remanded the matter. Very curiously, on remand, the Deputy Commissioner recorded a finding that the 5th respondent belongs to scheduled caste and passed SSLC and he is not involved in any criminal acts and has maintained in his account a sum of Rs.29,635/- and the Tahsildar has recommended the name of the 5th respondent for grant of authorization. He also pointed out that, by threatening, the signature of the 5th respondent was obtained by the petitioner and proceeded to cancel the authorization given in favour of the petitioner and remanded the matter to the 3rd respondent to consider the matter afresh in accordance with clause 5 (a), (b), (c) and 6 of the Karnataka Essential Commodities (Public Distribution System) Control order, 1992.
16. The 3rd respondent – Deputy Commissioner without considering the material on record in a proper perspective, passed an order canceling the authorization which was granted to the petitioner and further granted authorization in favour of the respondent No.5. Pursuant to the same, the petitioner filed an appeal before respondent No.2 and the respondent No.2 without considering the material on record and without considering the fact that the petitioner is already running the fair price shop from the year 2009, passed the impugned order confirming the order passed by the respondent No.3. Very strangely, the 5th respondent filed objections. At one breath at para.8 he has stated that he was threatened with dire consequences by the petitioner and under coercion his signature was taken on a blank white paper and contents were written contending that he is taking back the application filed by him and in another breath he has stated that his signature was obtained under threat.
17. I have carefully perused the statement of objections and annexures produced and the complaint made by the 5th respondent to the Tahsildar on 2.7.2004. In response to the same, the Tahsildar asked the 5th respondent to file a complaint before the concerned jurisdictional police. Thereafter, on 8.7.2004 he lodged a complaint before the jurisdictional police. Accordingly, the jurisdictional police issued the endorsement on 10.7.2004 stating that the dispute has to be resolved before the Tahsildar. Admittedly, the said endorsement issued by the jurisdictional police inspector on 10.7.2004 has reached finality. The 5th respondent has not taken any action against the endorsement nor challenged the said endorsement. Admittedly the withdrawal application was field by the 5th respondent on 30.8.2004 i.e., subsequent to the complaint and endorsement issued by the jurisdictional police.
18. It is clear from the material on record, as on the date of grant made in favour of the petitioner by the Deputy Commissioner on 18.10.2009, except the petitioner’s application no other application was pending. Admittedly, the Deputy Commissioner has not considered the endorsement issued by the jurisdictional police even before the withdrawal made by the respondent No.5 on 30.8.2004 as per Annexure-E and proceeded by erroneously cancelling the authorization made in favour of the petitioner and granted authorization in favour of the respondent No.5 even without there being any application. The Commissioner reiterated the said finding recorded by the Deputy Commissioner and proceeded to dismiss the appeal.
19. Both the authorities below have not noticed the fact that on the complaint made by the 5th respondent, jurisdictional police directed the 5th respondent to resolve the dispute before the Tahsildar and subsequently what happened is not forthcoming. Both the authorities have not considered that the application filed by the 5th respondent on 30.8.2004 has reached finality and it is not the case of the 5th respondent that subsequent to withdrawal, he has filed fresh application in respect of the Notification issued and the records do not disclose that subsequently he has filed any application. In the absence of any application filed and in view of withdrawal of the earlier application on 30.8.2004, cancelling the authroisation made in favour of the petitioner on 18.10.2009 and granting authorisation first time by the Deputy Commissioner on 9.7.2013 in favour of the respondent No.5 is without any basis. Therefore, the impugned order passed by the Deputy Commissioner affirmed by the Commissioner cannot be sustained and the matter requires re-consideration by the original authority i.e., the Deputy Commissioner in the light of the observations made by this court.
20. For the reasons stated above, writ petition is allowed. The impugned order passed by the Deputy Commissioner dated 9.7.2013 affirmed by the Commissioner dated 30.11.2013 are hereby quashed. The matter is remanded to the Deputy Commissioner to reconsider the matter afresh in the light of the Notification issued and in accordance with the provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 and pass orders strictly in accordance with law. It is the duty of the Tahsildar to make alternative arrangement till consideration is made by the Deputy Commissioner in accordance with law.
Ordered accordingly.
Sd/-
JUDGE Dvr: