Orissa High Court

Maa Saraswati Shg vs State Of Odisha And Others on 19 January, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P.(C) No.11 of 2019
                     (Through Hybrid mode)

 Maa Saraswati SHG                          ....              Petitioner

                                 -versus-
 State of Odisha and others                 ....        Opposite Parties


 Advocates appeared in this case:

 For petitioner           : Mr. M. K. Mohanty, Advocate
                            Mr. M. R. Pradhan, Advocate
                            Mr. T. Pradhan, Advocate
                            Mr. M. Mohanty, Advocate
                            Mr. G. N. Parida, Advocate

 For opposite parties     : Mr. Y.S.P. Babu, AGA

                              Mr. J. Pal, Advocate
                              Mr. C. Mohapatra, advocate for O.P.6

          CORAM: JUSTICE ARINDAM SINHA
                        JUDGMENT

19.01.2023

1. Petitioner says it is a Self Help Group (SHG). There was

requirement for supply of Chhatua and with reference to letter dated

17th July, 2018, issued by the Collector and oral order for wholesome

inquiry into all units of Pattamundai ICDS, there was inspection and

joint report dated 31st August, 2018 made by the Child Development

Project Officer (CDPO) and the Sub-Collector. Mr. Mohanty, learned

// 2 //

advocate appearing on behalf of petitioner demonstrated from the

report that his client was found to be a producing unit having

infrastructure facilities available, as well as facilitates to address

emergency and hygienic atmosphere. On such findings the CDPO and

the Sub-Collector recommended his client. On the same inspection and

by the same report it was found that private opposite party no.6, the

SHG engaged, was found to not have a producing unit nor facilities

available to address emergency nor hygienic atmosphere though

infrastructure facilities were available. In the circumstances, view

taken by the CDPO and the Sub-Collector in the report was 'not

recommended'. He submitted, the report was obtained by his client

upon making query under Right to Information Act, 2005.

2. A few days thereafter on 17th September, 2018, the Collector

along with District Social Welfare Officer (DSWO), the CDPO and

Sub-Collector were said to have again inspected available units for

procuring Chhatua. Paragraphs 2 and 3 from the report respectively

with reference to his client and opposite party no.6 are extracted and

reproduced below.

"2. MAA SARASWATI SHG:- THE SHG is situated in Balabhadrapur Village. Infrastructure and hygienic condition was good. All 12 members were present and the

WP(C) no.11 of 2019 // 3 //

member list has been displayed in the board. Collector asked the members regarding their income generating activities. The grinding machine has been installed. The members told that they are preparing turmeric power, green gram, besan etc. One educated girl is also coordinating this group. The SHG has availed loan from bank for preparing the above mentioned items.

3. MADANESWAR SHG:- THE SHG is situated in Madanpur Village of Madanpur GP. The formation date is 10/05/2004. The infrastructure facility is good and the SHG has installed all machineries such as grinding, roasting etc. for preparation of Chhatua but it is situated in the middle of the village. The collector interacted with the SHG. They told they are preparing turmeric Power, Chilly Power, Baddi, pampada and also displayed some items. From discussion it is ascertained that the SHG has availed 4 lakh loan for installing these machineries. They are 13 members out of 8 members belong to BPL families. "

He submitted, thereupon opposite party no.6 was engaged by

impugned order dated 5th October, 2018. Agreement dated 9th October,

2018 engaging opposite party no.6 clearly stipulated, as an essential

requirement that the SHG shall, before signing of contract, provide

security deposit equivalent to 5% of total value of production of Take

Home Ration (THR), Chhatua in a year. This essential condition was

waived. Furthermore, his client clearly stated in paragraph 7 in the writ

petition, private opposite party did not have food licence. He drew

WP(C) no.11 of 2019 // 4 //

attention to paragraph 11 in the counter, deponent of which was the

CDPO to submit, there is no denial. He relied on section 31 in Food

Safety and Standards Act, 2006, which says, inter alia, no person will

commence or carry on any food business except under a licence. He

submitted, there be interference in setting aside impugned engagement

order dated 5th October, 2018 and consequently said agreement

executed pursuant thereto.

3. Mr. Babu, learned advocate, Additional Government

Advocate appears on behalf of State. He had submitted, subsequent

enquiry was conducted by the Collector along with the DSWO, CDPO

and Sub-Collector. On their joint enquiry it was found that private

opposite party no.6 was most suitable and hence, selected for supplying

THR. It was appreciation of situation on the ground, by persons in

administration having authority. The decision is not open to judicial

review.

4. He submitted further, guidelines regarding engagement for

purpose of supplying THR does not require the administration to insist

on food licence. On query from Court he handed up revised guidelines

for implementation of THR - 2018. Guideline no.18 regarding

WP(C) no.11 of 2019 // 5 //

registration of SHGs under Food Safety and Standards Act, 2006 is

reproduced below.

"18. Registration of SHGs under FSSAI Act.

SHGs/SHG Federation engaged in production of THR come under the preview of the FSSAI Act. It is mandatory to ensure that the SHGs/SHG Federation are registered or licensed, as applicable, under the FSSAI Act or applicable Rules/Regulations. The SHGs engaged are to display the certificate in the premises of the THR unit."

5. Mr. Pal, learned advocate appeared on behalf of

opposite party no.6. He had submitted, on earlier occasion co-ordinate

Bench did not allow him to submit since, his client had not been

noticed on direction made. He wanted to file counter to disclose his

client's representation to the Collector saying that the inspection

report of 31st August, 2018 was made at instance of petitioner. We

had granted him adjournment to produce the representation. Today

Mr. C. Mohapatra, learned advocate appears and submits, all efforts

to contact his client (opposite party no.6), were to no avail. As such,

instructions were not had. In the circumstances, he is not in a position

to pray for further adjournment.

6. There does not appear to be any discrepancy regarding

inspection of parameters exhibited by petitioner as in first report dated

WP(C) no.11 of 2019 // 6 //

31st August, 2018 and subsequent report dated 17th September, 2018.

The parameters exhibited by petitioner appear to have been

consistently observed in both reports. However, so far as opposite party

no.6 is concerned, while it was found to not be a producing unit, nor

having facilities available to address emergency nor having hygienic

atmosphere as on 31st August, 2018, there was no reference to those to

imply remarkable improvement in the 16 intervening days, for it to

have been found to be better situated to supply and engaged to do so by

impugned engagement order dated 5th October, 2018.

7. There is no dispute regarding waiver of agreement clause

requiring engaged unit to put in security before execution of the

agreement. The administration thought fit to waive the requirement.

Furthermore, State in paragraph 11 of its counter did not say there was

no requirement of food licence. Pleadings made by the paragraph is

extracted and reproduced below.

"11. That in reply to the averments made in para-7 of the writ application, it is humbly submitted that, the O.P. No.6 after execution of agreement have applied for Food license before the competent authority which is under process. On the other hand the THR chhatua sample produced by the O.P. No.6 are being sent to State Food Testing Laboratory from the month of production of THR regularly. The testing

WP(C) no.11 of 2019 // 7 //

report also received at CDPO level and no adverse remarks has been noticed. There is no violation of terms of contract by the Opp. Party No.6 till date."

8. For reasons aforesaid, impugned engagement order dated 5th

October, 2018 is set aside and quashed. Consequently, agreement

executed pursuant to the engagement order is rendered void.