Orissa High Court
Mahendra Sahu vs State Of Orissa And Others ...... ... on 11 December, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.39644 of 2023
Mahendra Sahu ....... Petitioner
-Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner : Mr. S.K. Sarangi, Senior Advocate
and Mr. A.K. Nayak, Advocate
For Opp. Parties : Mr. J. Katakia,
(Addl. Govt. Advocate)
(for O.P. Nos. 1 to 5)
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CORAM: JUSTICE SANJAY KUMAR MISHRA
______________________________________________________________
Date of Judgment: 11.12.2023
______________________________________________________________
S.K. Mishra, J.
1. The Petitioner, who has been appointed as a Retailer to deal
with distribution of PDS commodities, has preferred this Writ Petition with
the following prayer:
" PRAYER
That the petitioner, therefore, humbly prays that your
Lordships shall graciously be pleased to admit this writ
application and issue Rule Nisi directing the opposite parties to
show cause:
(a) As to why the Opp. Parties shall not be directed to
revoke the suspension of PDS license of the petitioner;
and
(b) As to why they shall not be directed to allow the petitioner
to lift the quota of Antordaya Rice and Kerosene oil for
distribution amongst the consumers; and
(c) And to pass such other order or orders, as this Hon'ble
Court deems fit and proper in the facts and circumstances;
And on their failure to show cause or on showing
insufficient cause, His Lordships shall graciously be pleased to
make the said Rule the said Rule absolute by way of issuance of a
writ of Mandamus or any other appropriate writ or writs, order or
orders as this Hon'ble Court deems fit and proper."
(Emphasis supplied)
2. Though this matter has been listed under the heading "Fresh
Admission, on consent of the learned Counsel for the Parties, the matter is
taken up for hearing and final disposal.
3. Heard Mr. Sarangi, learned Senior Counsel being assisted by
Mr. A.K. Nayak, learned Counsel for the Petitioner so also Mr. Katakia,
learned AGA for the State Opposite Party Nos.1 to 5.
4. Mr. Sarangi, learned Senior Counsel for the Petitioner drawing
attention of this Court to the documents appended to the Writ Petition
submits, based on false allegations made by few villagers, the Authority
concerned i.e. Sub-Collector-Cum-Licensing Authority, Puri (Opposite Party
No.3), vide letter dated 08.11.2023 has approved the proposal given by the
B.D.O., Satyabadi for tagging of the Petitioner retailer under
Dasbidhyadharpur G.P. Further, since October, 2023, the supply of PDS
commodities to the Petitioner has been stopped by the Marketing Inspector
without any notice or giving any opportunity to the Petitioner before taking
such action.
5. Mr. Sarangi further submits, after obtaining the documents
under the Right to Information Act, 2005, it came to the notice of the
Petitioner that the said action has been initiated against him based on false
allegations made by few villagers. On being asked to Show Cause by the
Opposite Party No.3, the Petitioner has already submitted his explanation on
23.11.2023, followed by another explanation dated 25.11.2023 with regard
to alleged irregularity in supply of kerosene and the same are pending for
consideration with the Opposite Party No.3.
6. Mr. Sarangi, learned Senior Counsel submits, though a prayer
has been made to revoke the suspension of PDS license of the Petitioner and
there is a provision of Appeal in terms of Clause-19 of the Public
Distribution System (Control) Order, 2016, shortly, the Order, 2016, no
action has yet been taken for suspension or cancellation of PDS license of the
Petitioner in terms of Clause-17 of the Order, 2016. That apart, from
October, 2023, the supply of PDS commodities to the Petitioner has been
abruptly stopped by the Marketing Inspector without any notice. Also, action
has been contemplated against his client to cancel the PDS license, being
motivated by a false allegation made by few villagers. The Petitioner, being
remediless, has approached this Court in form of present Writ Petition.
7. In view of such submissions made by the learned Senior
Counsel for the Petitioner, before delving in to the issue involved in the
present lis, this Court thinks it apt to reproduce below the Clause-17 of the
Order, 2016), which deals with consequences for contravention of conditions
of license or Control Orders:
"17. Contravention of conditions of licence or Control orders.
- (1) No holder of a license issued under this Order, or his agent or
servant or any other person acting on his behalf or placed by him
in physical charge of stock shall contravene any of the terms or
conditions of the license or of any control Order issued under the
Act.
(2) If any such person contravenes any of the said terms or
conditions, without prejudice to any other action that may be taken
against him/her, the license shall be cancelled and the security
deposit may be forfeited in full or in part:
Provided that no order shall be made under this clause
unless the licensee has been given a reasonable opportunity of
stating his case and if he desires of personal hearing against the
proposed cancellation and forfeiture.
(3) Upon compliance with all obligations under the license by
the licensee, the amount of security deposit or such part thereof,
which is not forfeited as aforesaid, shall be refunded to the
licensee after termination of the license by the Licensing
Authority.
(4) The Licensing Authority may, by order, without giving
prior notice to the Dealer, suspend the license of a Dealer, if a
proceeding under sub-clause (1) has been initiated against the
dealer, and the said Licensing Authority is satisfied that it is
not in the interest of the smooth operation of the Public
Distribution System to allow the Dealer to handle the PDS
stocks.
Explanation. - For the purpose of this sub-clause, the
proceedings under sub clause (1) shall be deemed to have been
initiated on the date of issue of the show-cause notice by the
Licensing Authority.
(5) No prior show cause notice would be required for
withholding the allocation of quota to any licensee for a period
not exceeding sixty days pending enquiry or investigation
against the licensee, if the Licensing Authority has reasons to
believe that the licensee has not maintained proper and correct
accounts in respect of the quota allocated to him earlier or has
diverted the Public Distribution System stocks or committed
any other irregularities.
(Emphasis supplied)
8. Any person aggrieved by an order of the Licensing Authority
passed in terms of Clause-17 of the Order, 2016, may prefer an Appeal as
provided in Clause-19 of the Order, 2016. The said Clause is also extracted
below for ready reference :
"19. Appeal. - (1) Any person aggrieved by an order of the
Licensing Authority refusing to grant or renew or reissue a
license or suspending or cancelling a license or forfeiting the
security deposit or withholding the allocation of quota under
the provisions of this order may prefer an appeal before the
Appellate Authority within thirty days of the date of receipt of the
order.
(2) The memorandum of appeal should be accompanied by a
copy of the license of the appellant and a copy of the order against
which appeal has been preferred.
(3) Any appeal preferred after the expiry of the aforesaid period
may be summarily rejected by the Appellate Authority.
(4) No such appeal shall be disposed of unless the aggrieved
person has been given a reasonable opportunity of being heard
in person.
(5) Pending disposal of an appeal, the Appellate Authority
may direct that the order of the Licensing Authority, against
which the appeal is preferred, shall not take effect until the
appeal is disposed of."
(Emphasis supplied)
9. From the said provisions, as extracted above, it is amply clear
that in terms of sub-Clause- (4) under Clause-17 of Order, 2016, the
Licensing Authority is competent to suspend the license of a dealer without
giving prior notice, if a proceeding under sub-Clause (1) has been initiated
against the dealer and the Licensing Authority is satisfied that it is not in the
interest of the smooth operation of PDS commodities. That apart, in terms of
sub-Clause- (5), without prior Show-Cause Notice, the allocation of quota of
any licensee can be withheld for a period not exceeding sixty days pending
enquiry or investigation against the licensee, if the Licensing Authority has
reason to believe that the licensee has not maintained proper and correct
accounts in respect of the quota allocated to him earlier or has diverted the
PDS stocks or committed any other irregularities. Admittedly, no action has
yet been taken against the Petitioner in terms of sub-Clauses (2) or (4) in
Clause- 17 of the Order, 2016.
10. At this stage, it would be appropriate to extract below the
relevant portion from the Show Cause Notice dated 17.11.2023, as to the
irregularities allegedly committed by the Petitioner.
" As per the enquiry report of M.I., Satyabadi Block, you have
committed irregularities as mentioned below:-
1. You have not displayed updated stock & price declaration board
at your retail centre.
2. You have misappropriate Q.3.15 AAY rice of AAY ration card
bearing no.26110710421 for 9 (nine) months through
unauthenticated bill in e-PoS device after death of card holder
Mani Behera.
3. You have not maintained visitors register at FPS point.
4. You have not submitted monthly report return of your FPS to
the undersigned."
11. As it seems from the documents appended to the Writ Petition,
the Authority concerned has acted in terms of sub-Clauses (4) and (5) in
Clause-17 of the Order, 2016, before taking any action in terms of sub-
Clauses (2) and (4) of the Order, 2016. Hence, this Court is of the view that
there is no illegality to stop supply of PDS quota in favour of the petitioner
since October, 2023 and accord approval of the tagging proposal given by
the B.D.O., Satyabadi to avoid PDS dislocation. This Court is of further
view that the Writ Petition is premature and not maintainable.
12. At this stage, Mr. Sarangi , learned Senior Counsel makes an
innocuous prayer to direct the Opposite Party No.3 to deal with the replies
submitted by the Petitioner dated 23.11.2023 (Annexure-5) so also Petition
dated 25.11.2023 (Annexure-7) and dispose of the same within a stipulated
time frame.
13. Mr. Katakia, learned Additional Government Advocate for the
State-Opposite Party Nos.1 to 5 has no objection to such prayer of Mr.
Sarangi, learned Senior Counsel.
14. Accordingly, without expressing any opinion on merit, the Writ
Petition is disposed of with a direction to the Opposite Party No.3 to deal
with the said replies submitted by the Petitioner and dispose of the same in
accordance with law within a period of four weeks from the date of
production of the certified copy of this Order.
Since there is no endorsement in the so called replies annexed to
the Writ Petition as Annexures 5 and 7, the Petitioner is directed to produce a
copy of this Writ Petition with annexures along with the certified copy of this
order before the Authority concerned within two weeks hence. On being so
submitted, the Authority concerned shall do well to deal with and dispose of
the same within the period as directed above.
15. Urgent certified copy of this order be granted on proper
application as per rules.
(S.K. MISHRA)
JUDGE
Orissa High Court, Cuttack
Dated, 11th December, 2023/Padma
Designation: Personal Assistant
Location: ORISSA HIGH COURT, CUTTACK
Date: 13-Dec-2023 07:14:48
