THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.6738 of 2007 Date: 27.01.2011 Between: B. Subrahmanyam … Petitioner and District Collector, Nellore District, Nellore and others. … Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.6738 of 2007 ORDER : The petitioner, who has suffered cancellation of authorization to run a Fair Price Shop, has filed this writ petition challenging the order in revision passed by the 1st respondent-District Collector, Nellore District in Rc.E.396/2004, dated 07.03.2007 confirming the order in appeal passed by the 2nd respondent-Joint Collector, Nellore District in D.Dis.(E)1471/2002, dated 29.10.2003 and the order of the original authority, the 3rd respondent-Revenue Divisional Officer, Vidavalur Mandal, Nellore District in Rc.J.2740/2001, dated 18.03.2003. 2. The petitioner is an authorized Fair Price Shop dealer in respect of Shop No.27 of Vidavalur Village and Mandal, Nellore District. Earlier, when the 4th respondent-Mandal Revenue Officer, Vidavalur Mandal, stopped supply of essential commodities to his shop, the petitioner had filed W.P.No.11782 of 2002 seeking continuation of the supplies. During the pendency of the said writ petition, a show cause dated 23.01.2002 along with an order suspending the authorization pending enquiry was served on the petitioner on 03.07.2002. Despite the interim order dated 09.07.2002 in the said writ petition, as the supplies were not restored, the petitioner filed another writ petition in W.P.No.23465 of 2002 challenging the prolonged suspension of authorization and the said writ petition was allowed by order dated 28.11.2002 with a direction to the respondents therein to supply the commodities. In the meantime, as against the interim order dated 09.07.2002 passed in W.P.M.P.No.14531 of 2002 in W.P.No.11782 of 2002, the respondents filed appeal W.A.No.1153 of 2003. Inasmuch as show cause notice had already been issued to the petitioner on 03.07.2002, the said writ appeal and the writ petition were dismissed as infructuous. 3. Further, the 2nd respondent had separately initiated action against the petitioner under Section 6-A of the Essential Commodities Act, 1955 (for brevity “the E.C. Act”) for confiscation of the commodities seized from the shop. In the said proceedings, the 2nd respondent, by an order dated 28.05.2002 confiscated the entire stock of the petitioner, including rice, sugar and kerosene. Against the said proceedings, the petitioner preferred an appeal under Section 6-C of the E.C. Act, being Criminal Miscellaneous Appeal No.73 of 2002 before the Court of Sessions, Nellore Division, Nellore. The said appeal was allowed in part by order dated 19.03.2004. While setting aside the order of confiscation in respect of rice and sugar, in respect of kerosene, the confiscation was restricted to 29 litres instead of 44 litres. 4. In the meanwhile, the 3rd respondent-Revenue Divisional Officer, who is the original authority, passed order in Rc.J.2740/2001, dated 18.03.2003 cancelling the authorization of the petitioner for the charges enumerated therein. Aggrieved by the same, the petitioner has preferred an appeal before the 2nd respondent-Joint Collector, Nellore, and on dismissal of the same, the petitioner preferred a revision before the 1st respondent-District Collector. The revision petition was also dismissed by order dated 12.06.2004. Against the said order, the petitioner preferred W.P.No.11578 of 2004 and this Court, by order dated 20.09.2006, while setting aside the order dated 12.06.2004, remanded the matter to the 1st respondent to pass appropriate orders taking into consideration the orders passed in Crl.Misc.Appeal No.73 of 2002, dated 19.03.2004 and the orders in S.C.No.38 of 2003 on the file of the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Nellore. Upon such remand, the 1st respondent passed the impugned order dated 07.03.2007, afresh, in effect and in substance, confirming the order of cancellation passed by the appellate authority dated 29.10.2003 and the original authority dated 18.03.2003. It is against these orders, the petitioner has filed the present writ petition. 5. Heard Sri V. Sudhakar Reddy, learned counsel appearing for the petitioner as well as the learned Government Pleader for Civil Supplies appearing for the respondents and perused the impugned orders. 6. As mentioned earlier, though show cause notice was dated 23.01.2002, admittedly, the same was served to the petitioner on 03.07.2002. A perusal of the said notice shows that the petitioner was called upon to submit explanation and was permitted to peruse the records and explain by appearing in person on 11.02.2002. Evidently, the petitioner could not have either submitted the explanation or appeared in person on the said date, as the show cause notice itself was served on 03.07.2002. 7. Despite the said glaring irregularity, it appears that the 3rd respondent passed orders on 18.03.2003, observing that the petitioner did not offer his explanation. The said order shows that the following charges were alleged against the petitioner. “CHARGE: 1. On verification of book balances and comparison with that of the ground stocks found excess of 57 K.Gs of PDS Rice. 2. The person present has not produced any License under APSCD (L&D) Orders, 1982 and License under APPP(CRS) Order, 1980. 3. He did not maintain the sealed samples of food grains at F.P. Shop. 4. He did not maintain the Price list on notice board. 5. He did not maintain the complaint register. 6. The dealer is quite irregular in distribution of commodities to the card holders and diverted into black market for illegal grains. 7. 10 unused K.Oil coupon books found during the verification (Nos. 10916, 10917, 10949, 10960, 10967, 10994, 11131, 11203, 11208 and 11228). 8. Sri B. Subrahmanyam, F.P. Shop dealer, Shop No.27 of Vidavalur Village and Mandal is involved in a Criminal Case.” 8. The 3rd respondent, even while referring to the orders dated 25.08.2002 of the 2nd respondent-Joint Collector, under Section 6-A of the E.C. Act, confiscating the stock, passed orders, the relevant portion of which reads as under: “Hence Sri B. Subrahmanyam, the F.P Shop dealer, Shop No. 27 was involved in a Criminal case in Crime No. 105/2001, U/s 290, 323 of I.P.C and 3(1) Clause(X) of SCs and STs (P.A) Act.1989. The Joint Collector, Nellore in his Re.B/18/2002, dated 28/05/2002 has finalized the 6-A case pending against the above dealer by confiscating the entire seized stocks which clearly shows that the F.P Shop dealer has contravened the conditions laid down in the authorization issued to him under APSC (RDCS) Order, 1973. His further continuance may leads hindrance both to the card holders and administration. Hence it is not desirable to continue him as F.P Shop dealer any longer. Further he himself has tendered his resignation stating that he is not able to run the F.P Shop due to B.P and Sugar. Therefore, basing on the material available on record, I hereby order for cancellation of authorization held by Sri B. Subrahmanyam, F.P. Shop dealer, Shop No.27 of Vidavalur Mandal under Clause 17 of APSCD (RDCS) Order, 2001.” 9. From the above, it is evident that the 3rd respondent cancelled the authorization on the grounds that the petitioner was involved in a criminal case for the offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and that he was found guilty in the proceedings under Section 6-A of the E.C. Act and that the petitioner had tendered resignation earlier. 10. Evidently, the 3rd respondent did not find the petitioner guilty in respect of the charges 1 to 7 enumerated above. It can, therefore, safely be said that the petitioner was exonerated of the said charges, except charge No.8 relating to his involvement in a criminal case. 11. Before the 2nd respondent-appellate authority, namely the Joint Collector, the petitioner inter alia contended that the 3rd respondent had passed orders without giving reasonable opportunity and that he was involved in a petty case, which had not even reached the stage of trail. However, the appellate authority passed the following order. “Heard the arguments of the advocate for the appellant and perused the connected records. As seen from the records it evident that the appellant is involved in criminal case which is violation of APSPDS Control Order, 2001 and further orders were issued in 6-A case against the appellant confiscating the entire seized stock to the Government. Further 10 unused Kerosene oil coupon books found during verification.” 12. A perusal of the said order also would show that the involvement of the petitioner in a criminal case and the orders of confiscation under Section 6-A of the E.C. Act are the grounds for dismissal of the appeal. Thus, the charges 1 to 7 were not invoked against the petitioner even by the 3rd respondent. 13. As mentioned earlier, in W.P.No.11578 of 2004 the matter was remitted for reconsideration. Upon such remand, the 1st respondent-revisional authority found that the petitioner was acquitted for the offences under the SCs and STs (Prevention of Atrocities) Act, 1989, but on the only premise that the appeal filed under Section 6-C of the E.C. Act relating to confiscation of the stock was partly allowed and the petitioner was not let off with clean chit, dismissed the revision petition. This order of revision also would disclose that except on the ground of involvement of the petitioner in a criminal case, the other charges enumerated above were neither invoked nor proved against him. 14. In the circumstances, the only point that arises for consideration is whether the impugned orders that are passed on the sole ground that the petitioner suffered an order of confiscation under the provisions of the E.C. Act are sustainable? 15. The authorization to run the Fair Price shop is granted to the petitioner under the provisions of the A.P. State Public Distribution System Control Order. At the relevant point of time, Control Order, 2001 was in force. Clause 5 thereof deals with the issue of authorization and the proceedings relating thereto, including the suspension or cancellation. Under Clause 5(4) of the said Control Order, the appointing authority may, at any time, at the request of the authorized Fair Price shop dealer or authorized establishment or suo motu after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, add to, amend, vary, suspend or cancel the authorization issued or deemed to be issued to him under the said clause. Notwithstanding anything contained in sub-clause (3) and (4), where a Fair Price shop dealer has been convicted by a Court of law in respect of contravention of any order made under Section 3 of the Essential Commodities Act, 1955 relating to any of the commodities mentioned in the scheduled to this Order, the appointing authority shall, by order in writing, cancel his authorization. 16. The proviso to the said clause postulates that if such conviction is set aside in any appeal or revision, the appointing authority may, on an application, re-issue the authorization. 17. From a reading of the said clause, it is evident that in order to invoke the said provision, it is essential that a dealer should have been convicted for contravention of any order made under Section 3 of the E.C. Act and such cancellation could be made only by an order in writing. 18. In the instant case, as noticed above, the involvement of the petitioner in a criminal case for the offences under SCs and STs (Prevention of Atrocities) Act cannot be a ground for an action against the authorization. Even otherwise, admittedly, the petitioner was also acquitted for the said offences. Therefore, this ground invoked by the original and the appellate authorities cannot be countenanced. 19. The only ground, which has been pressed against the petitioner, is that he had suffered an order of confiscation, though partly, under Section 6-C of the Act for possessing excess stock of kerosene. In order to appreciate whether this ground could validly be invoked against the petitioner, it must be seen whether any such charge had been framed by the original authority against the petitioner in the impugned proceedings. In this regard, the charges enumerated above would evidently show that there was no such charge against the petitioner relating to possessing of excess stock of kerosene. Charge No.7, which relates to some un-used kerosene coupons, would, in no way be construed as a charge as to the possession of excess stock of kerosene. The petitioner was not even apprised of this charge in the show cause notice, nor was he provided an opportunity to face such charge before the original authority. Even during the proceedings in the appeal, the petitioner was not confronted with the said charge. Framing a charge and affording opportunity to the person to explain are the basic principles of natural justice. Demonstrably, the petitioner has suffered punishment without complying the said principles. A reference to the allegation at the revisional stage cannot cure the violation of the basic principles occurred at the primary stage. 20. For the foregoing reasons, the impugned orders are unsustainable and the same are liable to be set aside. 21. Accordingly, the writ petition is allowed setting aside the impugned order passed by the 1st respondent dated 07.03.2007, confirming the orders passed by the 2nd respondent dated 29.10.2003 and the order of the 3rd respondent dated 18.03.2003. There shall be no order as to costs. _________________________ JUSTICE NOUSHAD ALI 27.01.2011. Msr/SP THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.6738 of 2007 27.01.2011 (Msr/SP)