THE HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.26942 of 2008 ORDER: 1 Petitioner is the fair price shop dealer of Pandikunta village, Vajrakarur Mandal, Anantapur District. He filed the present Writ Petition questioning the order of the Revenue Divisional Officer, Anantapur dated 05.02.2007 issued in proceedings No.D.Dis/D1-CS/1846/2006 by which the authorisation granted to the petitioner under the provisions of the Andhra Pradesh Public Distribution System (Control) Order, 2008 is cancelled. As against the said order the petitioner carried the matter in appeal before the Joint Collector and Additional District Magistrate, Anantapur, which was dismissed by proceedings No.K4/ATP/202/2007 dated 19.02.2008. 2 Basing on the representation of the cardholders of Pandikunta village complaining certain allegations against the petitioner, proceedings were initiated to cancel the authorisation of the petitioner as fair price shop dealer. The second respondent i.e. the Revenue Divisional Officer has issued a show cause notice dated 01.11.2006 calling for explanation from the petitioner on the following charges: Charge No.1: That the F.P. Shop dealer is distributing essential commodities at high prices i.e. Rice at Rs.5.50 per Kg instead of Rs.5.25. K.Oil at Rs.10.00 per Liter instead of Rs.9.50, Sugar at Rs.14.00 per Kg. Instead of Rs.13.50. Thereby the F.P. Shop dealer has violated Clause 22 (iv) of APSPDS (Control) Order, 2001 and condition 7 of F.P. Shop authorisation. Charge No.2: That the F.P. Shop dealer has not displayed the board showing scale and issued price of each commodity. Thereby the F.P. Shop dealer has violated clause 22(iv) of APSPDS (Control) Order, 2001 and condition 11 of F.P. Shop authorisation. Charge No.3: That the F.P. Shop dealer has not displayed the information on a notice board or at a permanent place in the F.P. Shop on daily basis regarding (a) List of BPL and APL/Anthyodaya/AP beneficiaries (b) Entitlement of essential commodities (c) Scale of issue (d) Retail issue prices, (e) Timing of opening and closing of the F.P. Shop (f) Stock of essential Commodities received during the month (g) Opening and closing stock of essential commodities (h) The authority of redressal of grievances etc. thereby F.P.Shop dealer has violated Clause 22(iv) of APSPDS (Control) Order, 2001. 3 The petitioner has filed a detailed explanation dated 09.11.2006 in which he has denied all the allegations. The Primary Authority has recorded a finding on charge No.1 against the petitioner stating that except filing the explanation, the delinquent fair price shop dealer did not try to disprove the allegations inspite of opportunity of personal hearing being given to him. It is stated that mere denying the allegation did not serve the purpose. Even with regard to the explanations offered for the charges 2 and 3, the primary authority disbelieved the version of the petitioner and recorded a finding that the charges held proved and ultimately cancelled the authorisation of the petitioner as fair price shop dealer of Pandikunta Village by order dated 05.02.2007. As against the said order of the Revenue Divisional Officer, the petitioner carried the matter by way of appeal before the Joint Collector-cum-Additional District Magistrate, Anantapur. The appellate authority, mainly on the ground that the enquiry was taken up by the Revenue Divisional Officer through the Civil Supplies Deputy Tahasildar in which the daughter of the petitioner stated that sugar was sold at Rs.14 per Kg, which is more than stipulated price and also by recording a finding that the petitioner has denied supply of rice to the cardholders, has dismissed the appeal preferred by the petitioner and confirmed the order of the Revenue Divisional Officer. 4 In this Writ Petition it is contended by the learned counsel for the petitioner that there are no valid reasons and material before the Primary Authority to cancel the authorisation of the petitioner as fair price shop dealer. It is further contended that when an explanation is filed denying the charge, it is for the respondents to consider the same and record a finding based on the material but it is not open for the respondents to cancel the authorisation by recording a finding that the petitioner has not disproved the same. 5 On the other hand, the learned Government Pleader for Civil Supplies contended that the petitioner has committed irregularities by selling the essential commodities of sugar, kerosene and rice at higher prices than prescribed, which charge is proved during enquiry in addition to the other charges framed against the petitioner and that the Primary Authority, by giving due opportunity to the petitioner, has cancelled the authorisation, which is also confirmed by the appellate authority by its order dated 19.02.2008 and hence there are no grounds to interfere with the same. 6 A perusal of the order passed by the 2nd respondent i.e. Revenue Divisional Officer, Anantapur, which is the Primary Authority, under which the authorisation of the petitioner was cancelled shows that the 2nd respondent has initiated proceedings based on a representation alleged to have been given by the cardholders mainly on three charges. Out of all the three charges it appears only the first charge is serious one in which it is alleged that the petitioner has sold rice at Rs.5.50 per Kg instead of Rs.5.25, Kerosene at Rs.10.00 per liter instead of Rs.9.50 and Sugar at Rs.14.00 per Kg instead of Rs.13.50 and thereby he violated Clause 22 (iv) of Andhra Pradesh Public Distribution System (Control) Order, 2001 and condition 7 of F.P. Shop authorisation. With regard to the said allegation, the petitioner has denied collecting any amount higher than the prescribed rates on the sale of rice, kerosene and sugar. The Primary authority by recording a finding that the petitioner did not try to disprove the allegation has passed the impugned order. When the allegation is made against the petitioner, it is for the respondents to record a finding based on the material in support of the conclusion. But when the petitioner has denied, no finding can be recorded holding that charge levelled against the petitioner is proved on the ground that the petitioner did not try to disprove the allegation. It appears from the finding recorded by the Primary authority that it has thrown the burden on the petitioner inspite of his specific explanation denying the charges and without any supporting material on this, the finding is recorded on charge No.1. 7 The charges 2 and 3 appear to be trivial in nature, which are with regard to display of board by providing information to the cardholders. The petitioner has denied the said charges also. Inspite of the same, based on the report of the enquiry officer, the said charges are held proved by the primary authority. Once the enquiry is initiated, it is for the respondents to record finding based on the explanation offered by the petitioner but not referring to the material, which is not supplied to the petitioner. Having regard to the fact that the explanation offered by the petitioner is not considered on the aforesaid charges, it cannot be said that the charges are held proved. It is also interesting to note that when there are only three charges framed against the petitioner by the Primary Authority, which are made basis for passing the order of cancellation of authorisation as against which the petitioner has preferred appeal before the appellate authority, the appellate authority has confirmed the order of cancellation of authorisation not only on the said three charges which were on record before the Primary Authority, but by introducing a new charge of supply of rice to some cardholders. When the same was not the charge and basis for cancellation order before the Primary Authority, it is not open for the appellate authority to introduce a new charge on his own and to record its finding without giving any opportunity of hearing to the petitioner on the said charge. Even with regard to charge No.1, the appellate authority also has not considered the matter in proper perspective and simply confirmed the charge on the ground that the enquiry was conducted by Civil Supplies Deputy Tahasildar’s Team, at the instance of the Revenue Divisional Officer. Unless the details of enquiry are referred to, naming the person from whom the petitioner has collected higher rates, it is not open for the respondents to take the extreme step of cancellation of authorisation on the ground that the enquiry was conducted by the Civil Supplies Deputy Tahasildar’s Team even without furnishing a copy of such report to the petitioner. When the petitioner is the dealer, there is no reason to record the statement of the daughter of the petitioner with regard to the selling of sugar at Rs.14.00 per kg. It is true that there is a power to cancel the authorisation as per the provisions of Andhra Pradesh Public Distribution System (Control) Order 2001, which was in force at that time. But such power has to be exercised by recording valid reasons in support of the charges framed against the delinquent dealer. But in the absence of any valid reasons, no authorisation could have been cancelled. 8 For the aforesaid reasons, the order of cancellation dated 05.02.2007 of the second respondent-Revenue Divisional Officer as confirmed by the appellate authority by proceedings in D.DisNo.K4/ATP/202/2007 dated 19.02.2008 of the first respondent are hereby quashed and the fair price shop authorisation granted to the petitioner is restored. The respondents are hereby directed to supply the essential commodities to the petitioner for the purpose of supplying the same to the cardholders henceforth. 9 The Writ Petition is accordingly allowed. No costs. ------------------------ R.Subhash Reddy, J. 21.09.2011 Kvsn