IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 21204 of 2005 Between: A. Brahmananda Reddy S/o Sira Reddy R/o Ramapuram Village, Peddavaduguru Mandal, Ananthapur District ..... PETITIONER AND 1 The District Collector, Anantapur 2 The Joint Collector, Ananthapur 3 The Revenue Divisional Officer, Ananthapur .....RESPONDENTS 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 order or direciton, more particularly in the nature of writ of Certiorari to call for the records relating to proceedings No. D. Dis NO. K4/ATP/472/2005, dt 1-7-2005 on the ﬁle of the District Collector, Ananthapur and consequently quash the orders passed by the 3rd respondent vide proceedigns No. D. Dis NO. D1/Cs/972/2004, dt 2-2-2005 which was conﬁrmed by the 2nd respondnet vide proceedigns No. c. No. Kr/ATP/147/05, dated 27-3-2005 and the orders of the 1st respondent vide proceedings No. D.Dis. No. Kr/ATP/472/2005, dt 1-7-2005 in the interest of justice. Counsel for the Petitioner: MR.P.NAGENDRA REDDY Counsel for the Respondents: GP FOR CIVIL SUPPLIES The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.21204 of 2005 ORDER: The petitioner is Fair Price Shop (FPS) dealer of Ramapuram Village, Peddavaduguru Mandal, Ananthapur District. On a report of the Mandal Revenue Oﬃcer (MRO) of said Mandal stating that cardholders complained against the petitioner and requested necessary action, the authorization of the petitioner was suspended. He was called upon to explain the following charges. Charge 1: That the F.P. Shop dealer is supplying Essential Commodities to the cardholders for 4 to 5 days in a month thereby the dealer ﬂouted the instructions of the authorities. Charge 2: That the F.P. Shop dealer is distributing rice and Kerosene oil at higher rates than the rate ﬁxed by the Government thereby the F.P. Shop dealer violated the condition of the F.P. Shop authorization. Charge 3: That the F.P. Shop dealer is distributing the lesser quantities to the cardholders and diverting the savings to black market for his personal gains thereby the F.P. Shop dealer a contravened Cl.17© of APS PDS (Control) Order, 2001. Charge 4: That the F.P. Shop dealer is not maintaining sales and stock register for rice and kerosene oil thereby the F.P. Shop dealer contravened Cl.22 (VII) of APS PDS (Control) Order, 2001. Charge 5: That the F.P. Shop dealer has not supplied the Kerosene oil for the month of 2/04 to 6/04, but he has shown closing balances as Nil and thereby the F.P. Shop dealer diverted Kerosene oil to black market thereby F.P. Shop dealer contravened Cl.17© of APS PDS (Control) Order, 2001 and condition 4(I)(II) of F.P. Shop authorization. The petitioner submitted explanation. After considering the explanation, the Revenue Divisional Oﬃcer (RDO), third respondent herein – competent authority passed orders on 02.02.2005 cancelling the authorization of the petitioner recording a ﬁnding that the petitioner committed grave irregularities in distribution of essential commodities. The petitioner ﬁled an appeal before second respondent unsuccessfully. He also ﬁled revision before ﬁrst respondent was also dismissed on 01.07.2005, aggrieved by which instant writ petition is filed. A counter-aﬃdavit is ﬁled opposing the writ petition after referring to various proceedings taken out by the petitioner issued by the authorities under the Andhra Pradesh State Public Distribution System Control Order, 2001 (Control Order, for brevity) refusing and not inclining to grant stay. It is, however, not necessary to refer to all of them as there is no dispute between the parties. Learned counsel for the petitioner submits that the orders of the lower authorities are vitiated for the reason that no enquiry as contemplated under clause 5(4) of Control Order was initiated. Secondly he submits that the authorities shifted the burden of disproving the charges and therefore, committed irregularities. Per contra, learned Assistant Government Pleader for Civil Supplies submits that RDO has conducted a detailed enquiry and when the appeal was pending before the Joint Collector, adequate opportunity was given to the petitioner to produce evidence, but he failed to do so. Secondly referring to Section 14 of the Essential Commodities Act, 1955 (EC Act, for brevity) he submits that burden of proving that he has distributed the commodities in accordance with the conditions of authorization/licence lies on the petitioner whenever irregularities are pointed out. The petitioner failed to discharge the burden and therefore, there is no error in the orders passed by RDO as well as other authorities. Clause 5(4) of Control Order is to the eﬀect that appointing authority i.e., RDO may “make such enquiry as may be deemed necessary” and recording reasons may amend, suspend or cancel the authorization. It also further provides that notwithstanding anything contained in Sub-Clauses (3) and (4) of Clause 5 of Control Order where FPS dealer is convicted by the Court of law in respect of contravention of any order made under Section 3 of EC Act, the appointing authority may cancel the authorization which can only be reconsidered on conviction being set aside by the criminal appellate Court. RDO no doubt has to conduct enquiry before cancelling the authorization. What is the nature of enquiry to be conducted? There cannot be any doubt that as the cancellation results in civil consequences compliance with rule of audi alteram partem is mandatory. After issuing show cause notice the delinquent may or may not submit explanation to the charges in respect of which the show cause notice was issued, after receiving the show cause notice clause 5(4) of Control Order does not contemplate any enquiry as is suggested by learned counsel for the petitioner. What is the nature of enquiry to be conducted by RDO? This question was considered by this Court in M.Sadasiva Sekhar v District Collector[1]. After referring to Clause 3(4) of the Andhra Pradesh Scheduled Commodities (Regulation of Distribution By Card System) Order, 1973 (which was superseded by Control Order 2001) and various binding Supreme Court precedents, this Court laid down as under. The above sub-clause confers power on the appointing authority to suspend or cancel the authorization subject to conducting enquiry and recording reasons. The phrase “after making such enquiry as may be deemed necessary” makes it plain that discretion is vested in the appointing authority as to the nature, method and manner of conducting enquiry as is deemed necessary. There can be no hard and fast rule that in every case of suspension or cancellation, the appointing authority should aﬀord an opportunity of being heard to the fair price shop dealer {See M.P.Industries Ltd. v. Union of India (AIR 1966 SC 671)}. No doubt, the word “enquiry” into the allegations against a dealer has a broad connotation and takes in its fold an opportunity of ﬁling explanation to the parties and/or aﬀording a right of hearing. Because the Legislature used the words “such enquiry as may be deemed necessary”, we have to give a restricted meaning to the phrase and leave it to the appointing authority whether or not the fair price shop dealer should be heard. It is not possible to accept the submission of the learned counsel for the petitioner and supply the words so as to make sub- clause (4) of Clause 3 read ‘providing opportunity of being heard’. A perusal of the order of the original authority would show that he has considered every charge with reference to the explanation and recorded ﬁndings. The same would certainly amount to enquiry. As observed by the appellate authority RDO has conducted more than adequate enquiry before cancelling the authorization. When the matter was pending before appellate authority, opportunity was given to the petitioner to produce stock and sales registers and he did not produce the same. These were very relevant with reference to charges 4 and 5 which alleged that the petitioner did not maintain stock and sales registers for rice and kerosene oil and has not supplied kerosene oil for the period from February, 2004 to June, 2004. The production of necessary registers would have been clinchingly shown the truth or otherwise of the allegations. The petitioner, having failed to produce necessary material before original authority or appellate authority, cannot now be heard in that aspect. When show cause notice is issued it is incumbent on the part of the petitioner to explain and produce necessary material, but he did not do so. The writ petition is devoid of merits and the same is accordingly dismissed. No costs. _____________ (V.V.S.RAO, J) 21st October, 2008 GHN To 1 The District Collector, Anantapur 2 The Joint Collector, Ananthapur 3 The Revenue Divisional Officer, Ananthapur 4 2CCs to 5 2CD copies Form-NIC-OGS/WP{TRT} [1] 2003 (3) ALT 68