THE HON’BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION Nos.22221 and 11811 of 2009 COMMON ORDER: As the issue in both these Writ Petitions is inter- related, they are heard together and being disposed of by this common order. For the purpose of disposal, I refer to the facts and parties as referred to in Writ Petition No.11811 of 2009. The fifth respondent is an authorized fair price shop dealer for distribution of essential commodities to the cardholders of Nadendla Village and Mandal of Guntur District. The petitioners, who are the cardholders, have submitted a complaint to the third respondent – Revenue Divisional Officer, Narsaraopet, Guntur District, against the functioning of the fifth respondent as a fair price shop dealer, alleging that she has committed certain irregularities. On such complaint, the Special Deputy Tahsildar attached to the Office of the third respondent has enquired into the allegations levelled against the fifth respondent and he confirmed that by making false entries in the Public Distribution System Sales Register, she has diverted the rice pertaining to the six cardholders to the black market. Based on the said enquiry report, the third respondent passed order on 31.12.2007 in Rc.No.374/06- B cancelling her fair price shop authorisation in exercise of powers under Sub Clause 4 of Clause 3 of the Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973, framed under the provisions of the Essential Commodities Act, 1955. As against the said order of cancellation, the fifth respondent has filed appeal before the second respondent - Joint Collector, Guntur District, Guntur. There upon, the appellate authority vide his order, dated 15.11.2008 in A.C.D.DIS.No.1/2008-S7, allowed the same by setting aside order, dated 31.12.2007 passed by the third respondent, by recording findings that the Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973 was not in force, the charges levelled against the fifth respondent are not grave in nature and the third respondent has not passed a speaking order while cancelling the fair price shop authorisation of the fifth respondent. In Writ Petition No.11811 of 2009, the petitioners have questioned order, dated 15.11.2008 passed by the second respondent/appellate authority. At the same time, the fifth respondent has filed Writ Petition No.22221 of 2009 seeking a mandamus declaring the action of respondents 1 to 4 in not supplying the scheduled commodities to her for distribution of the same to the cardholders, as illegal and arbitrary. In Writ Petition No.11811 of 2009, this Court passed interim order of status quo on 17.06.2009. The said order continued all along. It is mainly the case of the petitioners that though the fifth respondent committed irregularities, the second respondent/appellate authority without recording any valid findings, by stating that the allegations levelled against the fifth respondent are not grave in nature, allowed the appeal preferred by her. It is the grievance of the fifth respondent that in spite of allowing her appeal by the appellate authority, there is no reason for not restoring the supplies on the authorisation held by her. Heard the learned counsel for the petitioners, the learned Assistant Government Pleader for Civil Supplies appearing for respondents 1 to 4 and the learned counsel for the fifth respondent. I have perused the orders passed by the second and third respondents. It is to be noticed that in view of enforcement of the Andhra Pradesh State Public Distribution System Control Order, 2001, the Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973 is not in force during 2007. In spite of the same, the third respondent passed order on 31.12.2007 cancelling the fair price shop authorisation of the fifth respondent, in exercise of powers under Sub Clause 4 of Clause 3 of the Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973, which is not in force as on the date of passing of such order. Apart from that, it is to be noticed that as per the Control Orders referred to above, the primary authority, who is empowered to pass an order of cancellation is the Revenue Divisional Officer. Further, it is open for the primary authority to call for a report from the Special Deputy Tahsildar whenever there is a complaint filed, and the report submitted by such Officer can be taken as basis for initiating the proceedings for cancellation. But, an ex parte report cannot be taken as sole basis for such cancellation without recording any valid finding on the allegations levelled against a dealer. Even from a perusal of order, dated 31.12.2007, it is clear that the third respondent solely basing on the Deputy Tahsildar’s report, which itself is an ex parte one, passed such order of cancellation. When an appeal is filed, it is open for the appellate authority to look into the gravity of the allegations, while examining the correctness or otherwise of the order of cancellation passed by the Revenue Divisional Officer. Even from a perusal of order, dated 15.11.2008, it is clear that the second respondent/appellate authority while considering the validity of order, dated 31.12.2007 passed by the third respondent, recorded findings that the third respondent passed the order of cancellation under the repealed Control Order, namely, Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973 and such order of cancellation is not a speaking one. It is also clear that the appellate authority in the absence of any direct evidence, recorded a finding that the allegations levelled against the fifth respondent are not grave in nature. In this view of the matter, when the allegation with regard to diversion of rice pertaining to the six cardholders to the black market is not proved by cogent and relevant evidence during enquiry, it cannot be taken as basis for passing an order of cancellation. In view of aforesaid reasons recorded by the second respondent/appellate authority, who is empowered to examine the correctness or otherwise of the order passed by the third respondent/primary authority as per the Andhra Pradesh State Public Distribution System Control Order, 2001, it is not open for the petitioners to attack on the order passed by the second respondent on the ground that the allegations levelled against the fifth respondent are grave in nature and such order is not correct. In that view of the matter, this Court is of the opinion that there are no grounds to interfere with order, dated 15.11.2008 passed by the second respondent/appellate authority. At the same time, it appears that in view of status quo orders passed by this Court in Writ Petition No.11811 of 2009, supply of essential commodities is not restored to the fifth respondent, who is the fair price shop dealer of Nadendla Village, and petitioner in Writ Petition No.22221 of 2009. As this Court has recorded a finding that there is no infirmity in order, dated 15.11.2008, passed by the second respondent/appellate authority, the fifth respondent is entitled to be supplied the essential commodities for distribution, on the fair price shop authorisation held by her. For the aforesaid reasons, Writ Petition No.11811 of 2009 is dismissed and Writ Petition No.22221 of 2009 is disposed of with the direction to respondents 1 to 4 to restore the supply of essential commodities to the fifth respondent/fair price shop dealer for distribution of the same to the cardholders on the authorisation held by her, in view of order, dated 15.11.2008. No order as to costs. ______________________ R.SUBHASH REDDY, J 15th DECEMBER, 2011. kvni