Andhra HC (Pre-Telangana)
Santhammatalli Mahilasakthi Sangam ... vs The Govt., Of A.P., Rep., By Its District ... on 26 September, 2014
Author: Sanjay Kumar
Bench: Sanjay Kumar
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL Nos. 970 OF 2014 AND batch
26-09-2014
Santhammatalli Mahilasakthi Sangam (DWCRA),East Godavari District...Appellant
The Govt., of A.P., rep., by its District Collector,Kakinada &
others....Respondents
Counsel for Appellant: Sri G. Krishna Murthy
Counsel for respondent Nos.1-3: Government Pleader for Civil Supplies
Counsel for respondent No.4 : Sri K. Venkatesh
<GIST:
>HEAD NOTE:
? Cases referred
1. 2011 (4) ALD 294
2. 2010 (3) ALD 198
3. 2007 (4) ALD 388 (FB)
4. (2009) 5 SCC 791
5. (2010) 5 SCC 23
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL Nos. 970 and 1034 of 2014
DATE: .09.2014
This Court made the following:
COMMON JUDGMENT:(Per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta) Both the appeals are taken up for hearing analogously, as by these two appeals common judgment and order dated 13.03.2014 passed by the learned Trial Judge in W.P.Nos.10860 and 16346 of 2010 has been assailed.
2. It appears that two separate appeals were preferred as above two writ petitions were filed by the appellant herein.
3. By W.P.No.10860 of 2010 (hereinafter referred to as first writ petition) order dated 10.03.2009 passed by the 1st respondent herein, and consequential order dated 03.03.2010 followed by order dated 13.04.2010 passed by the 2nd and 3rd respondents respectively were challenged. By W.P.No.16346 of 2010 (hereinafter referred to as second writ petition) order dated 12.06.2009 passed by the 3rd respondent authorizing the 5th respondent herein to act as fair price shop dealer in respect of shop No.34 of Vetlapalem Village, Samalkot Mandal, East Godavari District was challenged.
4. By the impugned judgment and order the learned Trial Judge disposed of two writ petitions finally on consent of the parties deciding the matter on merit while hearing the application for vacating interim order made by the 5th respondent. Bereft of all details of the fact, we just record the relevant facts to dispose of the appeals.
5. The 5th respondent in W.A.No.1034 of 2014 was appointed as dealer of fair price shop No.34 of Vetlapalem Village, Samalkot Mandal, East Godavari District sometime prior to 2005. Thereafter, prior to April, 2005 disciplinary proceedings was to be initiated on the ground of shortage of stock of rice of a particular grade, in connection therewith it was suspended. Accordingly, as a temporary measure, the appellant herein was appointed as dealer in respect of the same shop by order dated 13.04.2005 and from time to time on extension temporary arrangement continued till 2015. Eventually, the authorization of the 5th respondent as a dealer was cancelled by an order dated 12.10.2005 by the 2nd respondent. The 5th respondent preferred appeal unsuccessfully to the Joint Collector against this order, as he by order dated 09.02.2008 rejected the appeal. The 5th respondent thence filed revision application to the District Collector, who, ultimately, passed an order dated 10.03.2009 accepting the request for revision. By this order the revisional authority asked the 3rd respondent, who is the first authority, to review and re-consider the 5th respondents case for restoration of dealership, who, by order dated 03.03.2010 restored the dealership of the 5th respondent and consequently temporary appointment of the appellant was cancelled.
6. It appears from the records that during the pendency of the writ petition being W.P.No.16346 of 2010, pursuant to the interim order passed by the learned Trial Judge, the order of restoration of dealership of the 5th respondent was stayed and temporary appointment of the appellant was renewed. The 5th respondent challenged the order renewing the temporary order of appointment and at the same time also made an application for vacating the interim order. The learned Trial Judge dismissing both the writ petitions held that the temporary appointment was an alternative measure and it did not create any right in favour of the appellant and it was held that the moment the dealership of the 5th respondent was restored, the right of the appellant ceased. It was also held by the learned Trial Judge that though the appellant is having locus to challenge the order of restoration of dealership of the 5th respondent, however, she could have preferred a revision application being an aggrieved person within the meaning of clause 21 of the A.P. State Public Distribution System Control Order, 2001 (hereafter referred to as Control Order).
7. In these appeals, it is contended before us by the learned counsel for the appellant that by the order of the revisional authority the right of the appellant is seriously affected, as temporary order of appointment has been cancelled. According to him, this temporary appointment has been renewed till 2015 and in any event had the dealership of the 5th respondent not been restored, this temporary order of appointment would have continued as a matter of course. The revising authority, without giving any opportunity of hearing, passed an order asking the first authority to restore the dealership of the 5th respondent. The revision application filed by the 5th respondent was admittedly beyond the stipulated period of time and more so without condoning the delay expressly. In any event, the power of condonation is not provided in the said clause-21 of the Control Order.
He asserts further that it was judicially held by a learned Single Judge of this Court in the case of Akula Veeraiah vs. Commissioner of Civil Supplies, A.P., Hyderabad and others that the revising authority, being the 2nd respondent herein, is not a civil Court and therefore provisions of Section 5 of the Limitation Act have no application. It was further held that the provisions of the Control Order do not empower the 2nd respondent to entertain a revision petition beyond the prescribed period of limitation. Hence, the order of the 2nd respondent allowing the prayer for revision and issuing a direction upon the 1st respondent to restore the dealership of the 5th respondent is nullity and without jurisdiction. He would argue that the order of restoration of the dealership issued by the Revenue Divisional Officer is without any reason. He argued in this context with support of the judgment of the learned Single Judge in the case of K. Santha Kumar vs. Revenue Divisional Officer, Madanapalle, Chittoor District and others that executive order like the present one requires reasons and in the absence thereof it does not stand to scrutiny and is a ground for invalidating. His further contention on the question of locus standi is that the person holding authorization of temporary dealership is also an aggrieved person within the meaning of clause 21 of the Control Order and to support his contention he has cited a Full Bench decision of this Court in the case of M. Vanaja vs. B.Balaseshanna and others .
8. The learned counsel for the 5th respondent while supporting the judgment and order of the learned Trial Judge contended that the appellant has no subsisting right to challenge the order of restoration of dealership of the 5th respondent, as order was passed in its favour as an ad hoc and temporary measure and in fact the Control Order nowhere empower to issue order of temporary appointment of dealership. The moment the restoration of dealership is made by a valid order, the appellant ceases to have any right. As far as the power of condonation is concerned, he argues that clause 21 of the Control Order nowhere provides any restriction prohibiting exercise of power of condonation. In other words, the said provision nowhere excludes the applicability of the provision of Sections 4 to 24 of the Limitation Act, 1963 as mentioned in Section 29(2) of the said Act.
9. The learned counsel for the State supports the argument of the learned counsel for the 5th respondent and submits that it is true that there is no express provision empowering the authority to issue temporary order of appointment, but as matter of convenience this measure is taken the moment disciplinary action coupled with suspension order, are taken and this temporary arrangement continues till finalization of disciplinary action. She also disputes the contention that the revising authority has no power to condone the delay.
10. Before we consider the respective contentions of the learned counsel on the merit of the case, we think it proper to examine whether the revising authority has any power to condone the delay in the context of the provision of clause 21 of the Control Order and as also ruled by the learned Single Judge in the case of Akula Veeraiah (supra). We therefore reproduce the provisions of clause 21 of the Control Order, which reads as follows:
21. Revision:-
(i) Any person aggrieved by an order under Clause 20(1)(i) may, within thirty days from the date of communication to him/her of such an order, prefer a revision to the Commissioner of Civil Supplies, Andhra Pradesh, Hyderabad:
Provided that no order shall be passed under this clause unless the aggrieved person has been given a reasonable opportunity of representing his/her case.
(ii) Pending disposal of the revision, the District Collector in the districts and the Commissioner of Civil Supplies in respect of Hyderabad district, may direct that the order under revision shall not have effect until the revision is disposed of.
It is clear from sub-clause (i) of Clause 21 of the Control Order that a revision application has to be made within thirty days from the date of communication to the person aggrieved. In this case, the revision application was made indisputably beyond thirty days from the date of communication of the order. It is clear from the aforesaid clause 21 that there is no express power of condonation of delay, nor there is provision at the same time to exclude applicability of Sections 4 to 24 of the Limitation Act, 1963 by virtue of sub- section (2) of Section 29 of the said Act. In this context, we feel it expedient to reproduce the provision of sub-section (2) of Section 29 of the Limitation Act, which reads as follows:
29. Savings:-
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
11. Upon reading of sub-section (2) of Section 29 of the Limitation Act, it is manifest that Section 5 of the Limitation Act will be applicable consequently enforceable if there is no express exclusion of applicability of the same, as indisputably the said Control Order is the local law if not special one. We therefore hold that reading of both the provisions, Section 5 will have application and consequently the revising authority is empowered to condone the delay. The learned Trial Judge in the reported decision (supra) without deciding this aspect of the matter has held that revisional authority has no power to condone the delay, simply following the judgments of the Honble Supreme Court rendered in the case of Commissioner of Customs and Central Excise vs. Hongo India Private Limited and another and Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission and others .
12. We have carefully read the judgment of the Honble Supreme Court in the case of Chhattisgarh State Electricity Board (supra). It appears the Honble Supreme Court while considering the number of its decisions rendered earlier including the decision in the case of Commissioner of Customs and Central Excise (supra), which is also relied on by the learned Single Judge in the above referred cases, held, amongst others, that the reading of provision of special statute if expressly or by necessary implication exclude the applicability of Sections 4 to 24 of the Limitation Act then Section 5 of the said Act will not have any application. The Honble Supreme Court in Chhattisgarh State Electricity Board (supra) has examined this aspect and in paragraph 27 of the report it is held that Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which provides that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. The Honble Supreme Court found that the provision of Section 125 of the Electricity Act and its proviso clearly excluded the applicability of Section 5 of the Limitation Act by virtue of Section 29(2) thereof. In paragraph 32 of the report, it was ruled as follows:
In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.
13. We have already discussed that Clause 21 of the Control Order does not contain similar provision like Section 125 of the Electricity Act. Therefore, we hold that the learned Trial Judge has missed the correct ratio of the above two decisions of the Honble Supreme Court. Consequently, while overruling the contention of the learned counsel for the appellant that above decision of the learned Single Judge on this aspect is not the correct legal position; we conclude that revising authority by virtue of Section 29(2) of the Limitation Act has power to condone the delay under Section 5 of the Limitation Act.
14. When the revising authority has entertained the application and passed order on merit, it shall be considered that the revising authority is deemed to have condoned the delay. It has been incorrectly argued that the 3rd respondent has not given any reason to pass order of restoration of dealership of the 5th respondent as the order of revisional authority has nowhere provides for recording reasons nor the 1st respondent is obliged to record the reasons for restoration of dealership.
According to us reason is not required to be recorded every where, whenever any adverse decision is taken entailing civil and evil consequences, recording reasons is mandatory as part of compliance of natural justice. In this case the appellant was not party nor its alleged rights was called for any decision. We think that the revising authority while reviewing the entire matter came to the conclusion that the appellate authority did not consider that there had been no lapse nor negligence on the part of the 5th respondent, and in fact the shortage of stock was explained properly. So there cannot be any other reason for restoration of the dealership, as the revising authority has recorded the reasons, the 1st authority is not required to find other grounds.
15. While coming to the merit of the case, we are in full agreement with the learned Trial Judge that the appellant does not have any subsisting right to challenge the order of restoration of dealership of the 5th respondent as temporary appointment, in our view, when it is taken as an alternative measure. It is always contingent upon final decision in relation to the right of dealership of the 5th respondent. Even if dealership of the 5th respondent was not restored, the appellant would not have dealership on permanent basis under above Control Order.
16. Hence, both the appeals fail and the same are accordingly dismissed. Miscellaneous petitions, if any, pending in these appeals shall stand closed. No order as to costs.
___________________ K.J. SENGUPTA, CJ.
___________________ SANJAY KUMAR, J.
Date: 26.09.2014