P. Hanumantha Rao Vs. the Chief Rationing Officer and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orderp. venkatarama reddy, j.1. the petitioner who was granted an authorisation to run the fair price shop no. 682 situate at bagh amberpet, hyderabad, has filed this writ petition questioning the order of suspension dated 17-6-1993 passed by the 2nd respondent. in the said order, it is stated that the asst. supply officer reported that the vigilance cell has registered a case under section 6a of the essential commodities act against the petitioner on detecting certain irregularities on 10-6-1993 and arrested the dealer. it is then stated as follows:'in view of prima facie evidence, i hereby order for the suspension of authorisation issued to run the f.p. shop no. 682 under clause 3(4) until finalisation of the 6-a case in the court of the chief rationing officer, hyderabad.'the household supply cards were tagged on to f.p. shop no. 682. an appeal against the order was preferred to the chief rationing officer, who is the 1st respondent herein, on 21-6-1993. the petitioner also sought for stay of operation of the order dated 17-6-1993. as no orders are said to have been passed by the appellate authority, the present writ petition is filed.2. i have heard the learned govt. pleader for civil supplies at the stage of admission.3. though the exact control order under which the power of suspension has been invoked is not mentioned, it is obviously the andhra pradesh scheduled commodities (regulation of distribution by card system) order, 1973. clause 3(4) of the said order provides for amendment, variation, suspension or cancellation of the authorisation issued to the dealer. the suspension contemplated thereunder is a finalorder of suspension passed after due enquiry. indisputably it does not take within its fold the suspension pending enquiry as an interim measure. suspension pending enquiry is not specifically provided for. however, it can be taken as an implied or ancillary power vested in the authority empowered to exercise the power of cancellation or suspension as envisaged by sub-clause (4) of clause 3.4. if the order in question is construed to be a final order under clause 3(4), the same cannot be sustained having regard to the fact that the impugned suspension was made ex parte without giving any opportunity of showing cause against the proposed suspension. apart from the principles of natural justice, sub-clause (4) of clause 3 itself speaks of an enquiry. thus, the impugned order is liable to be set aside as being violative of the principles of natural justice and the mandatory requisite of enquiry as contemplated by clause 3(4), if the impugned order is treated as an order passed under clause 3(4). on the other hand, notwithstanding the incorrect mention of the source of power, the order in question can be said to have been passed as an interim measure pending enquiry or investigation, against the petitioner the impugned order still suffers from certain legal informities. except referring to the report of the asst. supply officer and the filing of the case against the petitioner by the vigilance cell for certain irregularities' nothing is stated in the impugned order regarding the prima facie violations of the control order or the conditions of the authorisation. the mere fact that the vigilance cell officials registered a case against the petitioner and arrested him, was perhaps found sufficient to direct immediate suspension of the licence and there is no other dication in the impugned order. it is axiomatic that an authority to whom statutory power is vested has to apply his mind independently and to reach a conclusion-prima facie or otherwise whether any order is to be passed in exercise of that power. the prima facie satisfaction must be that of the 2nd respondent but not that of the vigilance officials. it may be that while exercising the power of suspension pending further enquiry, the adverse material which has come to light in the course of investigation by the vigilance officials can be taken into account. but there should not be mechanical exercise of power based merely on a report that a vigilance case has been filed against the petitioner. secondly interim suspension of the authorisation cannot be made on the ground of mere pendency of 6-a enquiry. there is no such provision in the control order. in the very nature of things, interim suspension is meant only to facilitate further enquiry under the provisions of the control order and it would only be a prelude to take final action under clause 3(4) by way of suspension for a specific period or cancellation of the authorisation. the 2nd respondent obviously fell into error in assuming that so long as proceedings under section 6a were pending against the petitioner, the suspension of the dealer's licence should be an automatic consequence. in the present case, though nearly two months have elapsed since the date of passing the suspension order, no steps have been taken so far to initiate the enquiry as a step-in-aid to pass final orders under clause 3(4). obviously the 2nd respondent does not want to do anything more than suspending the licence until and unless the case under section 6a is disposed of. such an action cannot be countenanced in law. suspension of the authorisation cannot go on for an indefinite length of time linking it up with the outcome of the proceedings under section 6a. no doubt the material which formed the basis for initiating action under section 6a of the essential commodities act by the vigilance cell can also form the basis for initiation of the proceedings under clause 3(4) of the control order. but, without contemplating to take any such proceedings, it is not open to the 2nd respondent to pass a blanket order allowing the suspension to remain in force until section 6a proceedings are finalised.5. for these reasons, i quash the impugned order of suspension and direct that the petitioner shall be permitted to run the fair price shop subject to the observance of the usual conditions. however, it is open to the 2nd respondent or other competent authority to initiate proceedings for cancellation or suspension as per clause 3(4) on the ground of violation of any specific provision of the control order or the conditions of authorisation and to take appropriate decision after giving due opportunity to the petitioner. the writ petition is accordingly allowed. no costs.6. the learned government pleader has submitted that the petitioner has already preferred an appeal under clause 17 and in view of the availment of the alternative remedy, no interference is called for under article 226 of the constitution. however, as no order in the appeal or in the application for stay has been passed so far and the suspension order is either violative of the principles of natural justice or without jurisdiction as indicated supra, i am inclined to think that this is a fit case for interference under article 226 of the constitution.

Judgment:
ORDER

P. Venkatarama Reddy, J.

1. The petitioner who was granted an authorisation to run the Fair Price Shop No. 682 situate at Bagh Amberpet, Hyderabad, has filed this Writ Petition questioning the order of suspension dated 17-6-1993 passed by the 2nd respondent. In the said order, it is stated that the Asst. Supply Officer reported that the Vigilance Cell has registered a case under Section 6A of the Essential Commodities Act against the petitioner on detecting certain irregularities on 10-6-1993 and arrested the dealer. It is then stated as follows:

'In view of prima facie evidence, I hereby order for the suspension of authorisation issued to run the F.P. Shop No. 682 under Clause 3(4) until finalisation of the 6-A case in the Court of the Chief Rationing Officer, Hyderabad.'

The household supply cards were tagged on to F.P. Shop No. 682. An appeal against the order was preferred to the Chief Rationing Officer, who is the 1st respondent herein, on 21-6-1993. The petitioner also sought for stay of operation of the order dated 17-6-1993. As no orders are said to have been passed by the Appellate Authority, the present Writ Petition is filed.

2. I have heard the learned Govt. Pleader for Civil Supplies at the stage of admission.

3. Though the exact Control Order under which the power of suspension has been invoked is not mentioned, it is obviously the Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973. Clause 3(4) of the said Order provides for amendment, variation, suspension or cancellation of the authorisation issued to the dealer. The suspension contemplated thereunder is a finalorder of suspension passed after due enquiry. Indisputably it does not take within its fold the suspension pending enquiry as an interim measure. Suspension pending enquiry is not specifically provided for. However, it can be taken as an implied or ancillary power vested in the authority empowered to exercise the power of cancellation or suspension as envisaged by Sub-clause (4) of Clause 3.

4. If the order in question is construed to be a final order under Clause 3(4), the same cannot be sustained having regard to the fact that the impugned suspension was made ex parte without giving any opportunity of showing cause against the proposed suspension. Apart from the principles of natural justice, Sub-clause (4) of Clause 3 itself speaks of an enquiry. Thus, the impugned order is liable to be set aside as being violative of the principles of natural justice and the mandatory requisite of enquiry as contemplated by Clause 3(4), if the impugned order is treated as an order passed under Clause 3(4). On the other hand, notwithstanding the incorrect mention of the source of power, the order in question can be said to have been passed as an interim measure pending enquiry or investigation, against the petitioner the impugned order still suffers from certain legal informities. Except referring to the report of the Asst. Supply Officer and the filing of the case against the petitioner by the Vigilance Cell for certain irregularities' nothing is stated in the impugned order regarding the prima facie violations of the Control Order or the conditions of the authorisation. The mere fact that the Vigilance Cell officials registered a case against the petitioner and arrested him, was perhaps found sufficient to direct immediate suspension of the licence and there is no other dication in the impugned order. It is axiomatic that an authority to whom statutory power is vested has to apply his mind independently and to reach a conclusion-prima facie or otherwise whether any order is to be passed in exercise of that power. The prima facie satisfaction must be that of the 2nd respondent but not that of the Vigilance Officials. It may be that while exercising the power of suspension pending further enquiry, the adverse material which has come to light in the course of investigation by the Vigilance Officials can be taken into account. But there should not be mechanical exercise of power based merely on a report that a vigilance case has been filed against the petitioner. Secondly interim suspension of the authorisation cannot be made on the ground of mere pendency of 6-A enquiry. There is no such provision in the Control Order. In the very nature of things, interim suspension is meant only to facilitate further enquiry under the provisions of the Control Order and it would only be a prelude to take final action under Clause 3(4) by way of suspension for a specific period or cancellation of the authorisation. The 2nd respondent obviously fell into error in assuming that so long as proceedings under Section 6A were pending against the petitioner, the suspension of the dealer's licence should be an automatic consequence. In the present case, though nearly two months have elapsed since the date of passing the suspension order, no steps have been taken so far to initiate the enquiry as a step-in-aid to pass final orders under Clause 3(4). Obviously the 2nd respondent does not want to do anything more than suspending the licence until and unless the case under Section 6A is disposed of. Such an action cannot be countenanced in law. Suspension of the authorisation cannot go on for an indefinite length of time linking it up with the outcome of the proceedings under Section 6A. No doubt the material which formed the basis for initiating action under Section 6A of the Essential Commodities Act by the Vigilance Cell can also form the basis for initiation of the proceedings under Clause 3(4) of the Control Order. But, without contemplating to take any such proceedings, it is not open to the 2nd respondent to pass a blanket order allowing the suspension to remain in force until Section 6A proceedings are finalised.

5. For these reasons, I quash the impugned order of suspension and direct that the petitioner shall be permitted to run the Fair Price Shop subject to the observance of the usual conditions. However, it is open to the 2nd respondent or other competent authority to initiate proceedings for cancellation or suspension as per Clause 3(4) on the ground of violation of any specific provision of the Control Order or the conditions of authorisation and to take appropriate decision after giving due opportunity to the petitioner. The writ petition is accordingly allowed. No costs.

6. The learned Government Pleader has submitted that the petitioner has already preferred an appeal under Clause 17 and in view of the availment of the alternative remedy, no interference is called for under Article 226 of the Constitution. However, as no order in the appeal or in the application for stay has been passed so far and the suspension order is either violative of the principles of natural justice or without jurisdiction as indicated supra, I am inclined to think that this is a fit case for interference under Article 226 of the Constitution.