Disposed

Venkatesh Naik v. the Commissioner

Karnataka HC19 Feb 2021WP/15575/2017

Case brief

AI extract

What is this about?

In this writ petition under Articles 226 and 227 of the Constitution, the Karnataka High Court addressed the maintainability of a challenge against the suspension of a fair price shop license. The Court found that since an effective remedy exists under Section 17 of the relevant Control Order, but the filing was with the wrong appellate authority, it directed the transfer of the pending appeal.

What did the court decide?

The appeal pending before the Commissioner shall be transferred to the Deputy Commissioner (2nd respondent) for disposal without being influenced by the earlier orders.

Venkatesh Naik Vs the Commissioner — Service and Employment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF FEBRUARY, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.15575 OF 2017 (GM-PDS)

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BETWEEN :

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VENKATESH NAIK S/O CHANDRA NAIK AGED ABOUT 44 YEARS, RESIDENT OF BHARATH COLONY, 10^TH CROSS, DAVANAGERE - 577 003.

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... PETITIONER

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(BY SRI.HARISH KUMAR.M.S, ADVOCATE)

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AND :

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THE COMMISSIONER DEPARTMENT FOOD, CIVIL SUPPLY AND CONSUMER AFFAIRS GOVERNMENT OF KARNATAKA CUNNINGHAM ROAD, BANGALORE - 560 001.

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THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT DAVANAGERE - 577 001.

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THE ASSISTANT DIRECTOR

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DEPARTMENT OF FOOD, CIVIL SUPPLY

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AND CONSUMER AFFAIRS DAVANAGERE DISTRICT DAVANAGERE - 577 001.

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... RESPONDENTS

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(BY SRI.P.B.ACHAPPA, AGAFOR R1 TO R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT SUSPENDING THE LICENSE NO.114/98-99 DTD.27.3.2017 VIDE ANNEXC. AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner as assailed the order passed by the Deputy Commissioner, the 2^nd respondent suspending the license having authorization No.114/1998-99 dated 27.03.2017 vide Annexure.C. Petitioner is holder of the license authorized to distribute food grains to the residents of the Bharath Colony, Davanagere, vide authorization No. 114/1998-99. Petitioner was running fair price shop without any lis for 19 years by way of

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distributing food grains to the public without any blemishes or any complaint from any quarter.

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This being the state of affairs 3^rd respondent-

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The Assistant Director of Department of Food , Civil Supply and Consumer Affairs, Davangere filed a complaint before the jurisdictional police contending that one Chigatageriayappa had stocked the food grains meant for distribution to the card holders in a public place and the said Chigatageriayappa had kept the coupon and card of some of the card holders of the Fair Price Shop run by the petitioner and illegally taken the food grains on behalf of them. The total food grains said

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to have been seized by the department was Rice-2.90 quintal, 13 kg Sugar, 13 kg Salt, 13kg Palm oil, and 13 kg green gram. It was alleged that the said Chigatageriayappa with the help of the petitioner had taken these food grains from the Fair Price Shop.

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On the basis of the complaint registered by

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the 3^rd respondent, jurisdictional Police registered FIR against the said Chigatageriyappa and petitioner herein for the offences punishable under Section 3 and 7 of the Karnataka Essential Commodities Act, 1955 and under Section 34 and 420 of IPC. Thereafter Chigatageriyappa was arrested and released on bail.

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The 3^rd respondent filed a report before the Deputy Commissioner, 2^nd respondent on 27.03.2017 and sought for action to be taken against the petitioner under provisions of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016. There is no allegation made against the petitioner in the said complaint for having violated any of the provisions of the Act, except stray sentences that the petitioner had helped chigatageriyappa to procure food grains of different card holders.

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5. Based on the report of 3^rd respondent 2^nd

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respondent passed an order for conducting an enquiry to be held under Section 12(2) of the Karnataka Essential Commodities (Public Distribution System) Control Order, 2016 and suspended the license of the petitioner. Pursuant to the order dated 27.03.2017 3^rd respondent proceeded to attach the cards of the petitioner’s Fair Price Shop to the Fair Price Shop held by one Manjulamma.

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Petitioner being aggrieved by the order passed by 2^nd respondent-Deputy Commissioner filed an appeal before 1^st respondent. Thereafter the appeal has not been taken up and hence the petitioner is before this Court invoking the extraordinary discretionary jurisdiction under Article 226 of the Constitution of India.

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Sri.Harish Kumar.M.S, learned counsel for the petitioner contends that the complaint registered against Chigatageriayappa has nothing to do with the petitioner and the petitioner is not involved in the malpractice or illegal activity in distribution of Food grains in the Fair Price Shop. He contends that even according to the complaint all allegations are made against Chigatageriyappa and apart from making stray statement that the petitioner has helped Chigatageriyappa to procure the food grains of different card holders, there is no specific allegations of malpractice or misuse against the petitioner herein. Learned counsel further contends that as the 1^st respondent-Commissioner was not sitting appeal was not taken up hence having no other alternative efficacious remedy; petitioner has approached this Court for immediate and urgent relief.

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Per contra, learned Additional Government

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Advocate representing the respondents contends that primarily writ petition would not be maintainable for the reasons that alternative efficacious remedy is available under the Karnataka Essential Commodities (Public Distribution Control Order) 2016. He contends that under Section 17 the appeal provision is provided to be filed before the Appellate Authority. He further contends that factual aspects which are involved cannot be gone into by this Court under Article 226 of the Constitution of India, as the same requires to be decided after conducting enquiry. He supports the order passed by the 2^nd respondent and the contends since already appeal

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has been filed by the petitioner before the 1^st respondent, he has to go before the Appellate Authority to exhaust his remedy before approaching this Court. Hence, he seeks for dismissal of the writ petition.

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Having heard the learned counsel for the

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petitioner and learned AGA, it is not in dispute that the petitioner was the licensed distributor of the Fair Price Shop. Based on the complaint by the 3^rd respondent the license came to be suspended. It is an admitted fact that the petitioner has approached the 1^st respondent by way of filing appeal under Section 17 of the aforesaid Act which has not been considered till date. It is submitted across the Bar by the learned AGA that where the Appellate Authority would be the Commissioner, for 2^nd respondent to consider the appeal but in the present case on hand as rightly submitted by the learned counsel for the petitioner, impugned order at AnnexureC is passed by the 2^nd respondent-Deputy Commissioner and therefore he has preferred an appeal before the 1^st respondent-Commissioner of Department of Food Civil Supplies, Government of Karnataka. There is force in the submission of the learned counsel for the petitioner that when the impugned order is passed by the 2^nd

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respondent-Deputy Commissioner he could not have obviously gone before the very same 2^nd respondent to file an appeal, who has passed the impugned order. Therefore, rightly he challenged the same before the 1^st respondent-Commissioner as there could be bias if the very same Deputy Commissioner had to dwell upon the same matter. Be that as it may, it is submitted that the officer who passed order Annexure-C is not any more sitting as Appellate Authority.

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Therefore in the interest of the both the

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parties and considering the fact that there is alternative efficacious remedy under Section 17 of the Act, I am of the considered opinion that ends of justice would be met if the petitioner is directed to address his grievances before the 2^nd respondent to seek redressal in accordance with law. Though the petitioner has filed an appeal before the 1^st respondent-Commissioner, the petitioner would be at liberty to either file a fresh appeal

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or get the appeal transferred pending before the 1^st respondent to 2^nd respondent for adjudication as per law. In view of the same certain directions required to be given in this petition.

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The appeal pending before the Commissioner shall be transferred to the 2^nd respondent for disposal in accordance with law. The 2^nd respondent shall deal with the appeal without being influenced by the earlier orders at Annexure-C. The petitioner will be entitled to the benefit of interim order granted by this Court, till disposal of the application, if any, filed before the Appellate Authority, Commissioner. It is needless to mention that this Court has not expressed any opinion with regard to the merits of the matter.

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Accordingly, writ petition is disposed off.

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Sd/JUDGE

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RKA

Venkatesh Naik v. the Commissioner

Case brief

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What did the court decide?

Venkatesh Naik v. the Commissioner

Case brief

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