Andhra HC (Pre-Telangana)
Manda Visweswara Rao And Ors. vs D. Venkateswara Rao And Ors. on 21 February, 2002
Equivalent citations: 2002(2)ALD659, 2002(3)ALT234
JUDGMENT S.R. Nayak, J.
1. These writ appeals are filed by certain kerosene hawkers, seven in number, and directed against the order of the learned single Judge dated 14-11-2000 in Writ Petition Nos. 7831 and 7832 of 1996. By the order under appeal, the learned single Judge, placing reliance on the judgment of another learned Judge of this Court in Writ Petition Nos. 9203 and 13134 of 1995 and 820 of 1994 dated 18-3-1996, disposed of the writ petitions directing the respondent-authorities to supply kerosene to the card holders through the petitioners (authorised Fair Price Shop Dealers) in terms of the policy decision of the Government contained in G.O. Rt. No. 479, Food and Agriculture (CS.IV) Department, dated 19-4-1983, the Circular Lr. No. B2/934/GT, dated 1-1-1987 issued by the Commissioner of Civil Supplies, Hyderabad and the Government Memo No. 1584/CS. II/94, Food and Civil Supplies (CS) Department, dated 26-4-1994 and also in the light of the judgment of the learned single Judge in Writ Petition No. 9203 of 1995 and batch dated 18-3-1996. Hence these writ appeals by the aggrieved kerosene hawkers assailing the validity and correctness of the order of the learned single Judge.
2. Sri B. Adinarayana Rao, learned Counsel appearing for the appellants, would contend that the directions issued by the learned single Judge are ex facie illegal and such directions could not have been issued. Learned Counsel would maintain that there is no bar for the respondent-authorities to grant licences to the kerosene hawkers to distribute kerosene to the consumers and on the other hand, G.O. Rt. No. 479, dated 19-4-1983, the Circular dated 1-1-1987 and the Government Memo dated 26-4-1994 themselves clearly indicate that the respondent-authorities are vested with necessary power to grant licences to the kerosene hawkers also. On the other hand, Sri P.R. Prasad, learned Counsel appearing for the authorised Fair Price Shop Dealers would contend that the instructions contained in the above G.O, Rt. No. 479, the circular and the Government Memo clearly go to show that the respondent-authorities wanted to discontinue the licensing of kerosene hawkers and distribute kerosene to the card-holders through authorised Fair Price Shop Dealers and in that view of the matter, no exception can be taken to the directions issued by the learned single Judge of this Court in Writ Petition No. 9203 of 1995 dated 18-3-1996.
3. We find considerable force in the contention of the learned Counsel for the appellants. Before considering the contentions of the learned Counsel for the appellants, the reliefs sought in the writ petitions be noted. The relief sought in Writ Petition No. 7831 of 1996 is as follows:
"Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus directing the respondents herein to supply the kerosene to the card-holders only through fair price shop dealers including the petitioners."
The relief sought in Writ Petition No. 7832 of 1996 is as follows:
"Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus directing the respondents herein to supply the kerosene to the card-holders only through fair price shop dealers including the petitioners."
4. In both the writ petitions, the petitioners sought a direction to the respondent-authorities to supply kerosene to the card-holders only through fair price shop dealers and not through any other agency or the kerosene hawkers. Although Sri P.R. Prasad, learned Counsel appearing for the fair price shop dealers, at the time of hearing, would submit that such a relief was not intended in the writ petitions, that is not acceptable to us, particularly because, even in the body of the writ affidavits the petitioners have made such a request. For instance, in para 4 of the writ affidavit filed in Writ Petition No. 7831 of 1996, the petitioners state as follows:
"In fact as per the policy decision and in view of declaring the kerosene as scheduled commodity it has to be distributed only through the F.P Shops and the third parties cannot be allowed to supply to the cardholders."
5. Therefore, the first question that arises for decision is whether the law has imposed any bar on the respondent-authorities to grant licences to the kerosene hawkers to distribute kerosene to the consumers/card-holders. According to the writ petitioners, there is such ban and that ban could be deduced from G.O. Rt. No. 479 dated 19-4-1983, the Circular dated 1-1-1987 and the Memo dated 26-4-1994. In the context of this specific plea and argument, it becomes necessary to examine the above instruments to find out whether there is such a bar or not. Before adverting to these administrative instructions issued by the Government from time to time, it needs to be emphasised that under the Andhra Pradesh Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973 ( for short 'the Order'), it is not obligatory that all essential commodities should be distributed only through authorised Fair Price Shops. Clause 2(b) of the Order defines the term 'authorised fair price shop' as follows:
"Authorised fair price shop" means a retail dealer appointed or authorised or approved by or on behalf of the State Government and includes a shop set up by the State Government, a State Government Undertaking or a Corporation wholly owned by the State Government or a co-operative Society for the benefit of Scheduled Castes or Scheduled Tribes under a Government Scheme under Clause 3 for sale of all or any of the Scheduled Commodities.
Explanation :--On the commencement of this Order, in any area, every dealer who was appointed, authorised or approved by or on behalf of the State Government as approved retailer or by any other designation and whose appointment, authorisation or approval was in force in respect of any of the Scheduled Commodities immediately before such commencement, shall be deemed to be an authorised fair price shop in that area in respect of those commodities for the purpose of this Order, unless otherwise directed by the State Government or the Collector concerned".
6. As could be seen from the definition of the term 'authorised fair price shop', it is permissible for the Government and Governmental authorities to sell all or any of the scheduled commodities through authorised fair price shops. In other words, it is not that the order imposes an obligation on the respondent-authorities to sell all scheduled commodities to the card-holders or consumers only through fair price shops and not otherwise. Therefore, we find that there is no statutory bar for the respondent-Government authorities to grant licences to the kerosene hawkers to distribute kerosene to the consumers. If there is no such bar under the statute, the next question is whether such a bar is created by administrative instructions contained in G.O. Rt. No. 479, dated 19-4-1983, the Circular dated 1-1-1987 and the Memo dated 26-4-1994.
7. The Government of Andhra Pradesh issued G.O. Rt. No. 479, dated 19-4-1983 containing guidelines to regulate the distribution of kerosene to the consumers and the card-holders and the relevant part of it reads as follows:
"The Government after careful examination of the matter issued the following guidelines:
1. That all these Hawkers who were genuinely selling kerosene as on 1-3-1983 and whose record is clean may be considered for attaching cards and giving a specific place of business where they can sell their kerosene as in Guntur, Vijayawada and Visakhapatnam.
2. The quote to be given would be decided by the Collectors on the above basis of the cards attached as they do for the nominate retailers and fair price shops.
3. Those who have already gone out of business will not be considered.
4. A close watch shall be kept on the Hawkers and the interests of the consumers shall be safeguarded.
5. In course of time Collectors should aim at converting the Hawkers into regular nominated retailers with shops and try to arrange for them from the various loaning programmes in the district the necessary credit for establishing them in regular business as nominated retailers in particularly those Hawkers who show that they are capable of good conduct. This is very important and this should be help out as an incentive and on the basis of good reports they should be converted into regular nominated retailers with necessary institutional finance provided.
6. The system of Hawkers should not be further expended by adding any new Hawkers, but only those who were actually in the business as on 1-3-1983 should be considered and complete steps put to any further Hawkers being added.
7. Necessary licences etc., should be given and all the conditions applying to nominated retailers should apply to the Hawkers. The interest of consumers shall be kept permanent in dealing with any representatives of Hawkers.
8. The District Collectors in the State and Chief Rationing Officer, Hyderabad are requested to follow the above guidelines."
8. The above guidelines make it very clear that the Government has not prohibited granting licences to the kerosene hawkers. It permits the authorities to grant licences to the kerosene hawkers also. This G.O. was followed by the Circular dated 1-1-1987 issued by the Commissioner of Civil Supplies, which reads as follows:
"It has come to the notice of the Government that in some cases consumers have to travel in lone distance even upto 5 km. For kerosene, though there is a F.P Shop located in a place nearer to their residence. Obviously in such cases the F.P Shop is not entrusted with distribution of Kerosene. In order to facilitate the consumers to get kerosene from the F.P. Shops also along with other essential commodities, the A.P. Scheduled Commodities (Regulation of Distribution by Card Systems) Order, 1973 was amended to include kerosene as one of the items to be sold through F.P. Shops G.O. Rt. No. 1050 F&A (CS.II) Department, dated 24-7-1987.
The Collectors/Chief Rationing Officer, Hyderabad may take action to distribute kerosene through F.P. shops wherever necessary in order to ensure that consumers are not required to travel long distances, for a single commodity viz., kerosene. They are also requested to take special attention to ensure that in case where the consumers have to travel long distances supply of kerosene from the F.P shops located nearer to their residence is ensured."
9. The latest policy of the Government in the matter of distribution of kerosene is contained in Government Memo. No. 1584/ CS.II/94 dated 26-4-1994, which reads as follows:
"In the reference 1st cited, orders were issued that those hawkers who were genuinely selling kerosene as on 1-3-1983 and whose record might be clean might be considered for attaching cards and giving specific place of business where they could sell kerosene. It was also made clear that such hawkers could be converted as nominated retailers and that there should be no further expansion of hawkers.
It has now come to the notice that still in some districts hawkers in kerosene are still existing without licence.
The intention of the Government is to make available all essential commodities including kerosene from one roof i.e., the fair price shop. However, since the hawkers have been dealing in kerosene since a long time, Government are of the view that such of the hawkers who are existing as on date may be licensed. They should be attached the cards of the fair price shops, which do not have kerosene. These licensed hawkers should keep their push carts at the fair price shops and deliver kerosene on cards, duty maintaining accounts and records as per conditions of licence.
All the Collectors shall ensure that such of the hawkers who are distributing kerosene without any licence as on date are licensed immediately with the conditions stipulated above. The Collector and Chief Rationing Officer, Hyderabad are also informed that there should not be any appointment of new hawkers in future. They are also informed that there should not be any appointment of new kerosene retailers (N.Rs) also in future."
10. Para 3 of the above Government Memo makes it very clear that the hawkers who were existing as on the date of the issuance of the Memo may also be licensed. Thus, it is quite clear that none of these administrative instructions issued by the Government from time to time prohibit grant of licenses to the hawkers. The Circular dated 1-1-1987 also does not impose any bar on the respondent-authorities in granting licences to the hawkers. On the other hand, as pointed out supra, the administrative instructions clearly provide that the hawkers who are existing as on the date of issuance of the Government Memo dated 26-4-1994 may also be licensed. In that view of the matter, the relief sought by the writ petitioners to issue directions to the respondent-authorities to distribute kerosene only through authorised fair price shop dealers and not to grant licences to hawkers to distribute kerosene, cannot be granted. It is well settled that no mandamus will lie to an authority unless it is shown that the authority is bound by a legal obligation to do a thing or refraining from doing a thing and it has breached such obligation. The writ petitioners have utterly failed to trace the obligation of the respondent authorities not to permit the hawkers to distribute kerosene to the card-holders/consumers, with reference to any law or administrative instructions issued by the Government.
11. The writ petitioners have not given necessary material particulars in the writ affidavits to demonstrate that the respondent-authorities have granted licences to certain hawkers in breach of the administrative instructions contained in the above Circular and Memo. In the absence of such material particulars, even the limited writ would not go to the respondent-authorities to cancel the licences granted to such hawkers. The allegations made by the writ petitioners in the affidavit that in breach of the guidelines, the respondent-authorities have granted licences to the hawkers, if we may say so, is as vague as it could be and they lack in material particulars.
12. In the result and for the foregoing reasons, we allow these writ appeals and set aside the order of the learned single Judge dated 14-11-2000 in Writ Petition Nos. 7831 and 7832 of 1996 and dismiss those writ petitions with no order as to costs.