Orissa High Court
Maa Jagadamba Women Self vs State Of Odisha And Others on 17 November, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.29119 of 2023
Maa Jagadamba Women Self
Help Group, Chancher ....... Petitioner
-Versus-
State of Odisha and others ....... Opp. Parties
For Petitioner : Mr. M.K. Panda,
Advocate
For Opp. Parties : Mr. B. Panigrahi,
Addl. Standing Counsel
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CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing & Judgment: 17.11.2023
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S.K. Mishra, J. The present Writ Petition has been preferred
challenging the order dated 23.11.2022 passed by the Sub-
Collector, Bhawanipatna as at Annexure-2, vide which the
PDS license of the Petitioner-WSHG was cancelled and the
confirming order dated 21.07.2023 passed by the Collector,
Kalahandi in Misc. Case No.15 of 2023 as at Annecure-5.
2. The brief background facts which lead to filing of
the Writ Petition is that the Petitioner, which is a Women Self
Help Group (WSHG), was assigned with the work of
distribution of PDS commodities by the Competent Authority
since 2003. Without any objection from any corner, the
Petitioner-WSHG is peacefully discharging its duties and
responsibilities as per the guidelines of the Government of
Odisha. However, at the instance of the Sarapanch of
Chancher, Gram Panchayat, who made some false and bald
allegations against the Petitioner-WSHG, the B.D.O., Kesinga,
enquired into the matter and without examining the
beneficiaries and/or the real complainants, submitted a
report before the Sub-Collector, Bhawanipatna. On the basis
of the said report, the Sub-Collector, Bhawanipatna issued a
Show Cause Notice to the Petitioner vide letter dated
11.11.2022. In response to the same, a reply was submitted
by the Petitioner. Thereafter, Sub-Collector, Bhawanipata,
without giving any reasonable opportunity of hearing and not
providing a copy of the Enquiry Report to the Petitioner and
without appreciating the Reply submitted by it, mechanically
passed a cryptic Order dated 23.11.2022 to withhold the
distribution of PDS commodities through the Petitioner-
WSHG.
3. Being aggrieved by the said Order dated
23.11.2022, passed by the Sub-Collector, Bhawanipatna, the
Petitioner preferred an Appeal before the Additional District
Magistrate, Kalahandi, in terms of Clause-19 of the Odisha
Public Distribution System (Control) Order, 2016, shortly, 'the
Order, 2016', which was registered as Misc. Case No.03 of
2022. After hearing the parties, the Additional District
Magistrate, Kalahandi, vide Order dated 07.02.2023 had been
pleased to set aside the Order dated 23.11.2022 passed by
the Sub-Collector, Bhawanipata and directed to resume the
supply of commodities in favour of the Petitioner-WSHG.
Pursuant to the said order, the Sub-Collector, Bhawanipatna,
vide letter dated 22.03.2023 wrote to the Court Officer,
Collectorate, Klahandi, to place the matter before the
Collector, Kalahandi to review the Order dated 07.02.2023
passed by the Additional District Magistrate, Kalahandi in
Misc. Case No.03 of 2022 in terms of Clause-20 of the Order,
2016, which was registered as Misc. Case No.15 of 2023. The
Collector, Kalahandi, without appreciating the facts and
circumstances of the case and the materials available on
record and without causing any independent enquiry into the
matter, mechanically allowed the review application filed by
the Sub-Collector, Bhawanipatna. Vide order dated
21.07.2023, the Collector, Kalahandi, nullified the order
passed by the Additional District Magistrate, Kalahandi, in
Misc. Case No.03 of 2022 upholding the order dated
23.11.2022 passed by the Sub-Collector, Bhawanipatna.
Hence, this Writ Petition.
4. The ground to challenge the impugned order
passed by the Collector, Kalahandi is that, he has no power of
review of the order passed by the Additional District
Magistrate, Kalahandi and to decide the said issue as the
Second Appellate Authority. The entire exercise of power by
the Collector, Kalahandi, is arbitrary and being passed
without any authority, is vitiated and liable to be quashed.
5. Mr. Panda, learned Counsel for the Petitioner,
drawing attention of this Court to the provisions under
Clauses-19 and 20 of the Order, 2016 submits, 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
Order, 2016, may prefer an Appeal before the Appellate
Authority within thirty days of receipt of the said order. In
case an Appeal is preferred, the same shall not be disposed of
unless the aggrieved person has been given a reasonable
opportunity of being heard in person.
6. Mr. Panda further submits, the Authority
competent to hear Appeals under Clause-19 of the Order,
2016 preferred against the order of the Licensing Authority,
may suo motu or on a reference made to it, can call for the
record of the Licensing Authority and also review the said
order in terms of Clause-20 of the Order, 2016, and pass
appropriate order as may be passed by it, if an appeal
preferred before it under Clause-19. However, in the present
case, though the Appellate Authority so also the Reviewing
Authority is the A.D.M., Kalahandi, the Collector, Kalahandi,
exercised the power of review under Clause-20 of the Order,
2016 to test the correctness of the order passed by the
A.D.M., Kalahandi, under a misconception that he is the
Authority to decide and hear the issue as to legality of an
order passed by the A.D.M., Kalahandi, under Clause-19 of
the Order, 2016. Hence, correctness of order passed by the
A.D.M., Klahandi, being beyond the authority of the Collector,
Kalahandi, the order passed by him is void and is liable to be
set aside. In view of such submission made by the learned
Counsel for the Petitioner, for ready reference, Clauses-19 &
20 of the said Order, 2016 are extracted below:
"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.
20. Review- The authority competent to
hear appeals against the order of the
Licensing Authority referred in Clause 19 may
'suo motu' or on a reference made to it, call for
the record of the Licensing Authority, review
the order passed by the Licensing Authority
and pass such order as may be passed by it if an
appeal preferred before it under Clause 19, as it
may deem appropriate:
Provided that no order shall be passed
against a licensee under this clause without giving
an opportunity of being heard to the person
concerned."
(Emphasis supplied)
7. Learned Counsel for the Petitioner drawing
attention of this Court to the operative portion of the
impugned order passed by the Collector, Kalahandi submits,
the said Misc. Case No.15 of 2023 was allowed solely on the
ground that the order passed by the A.D.M., Kalahandi is not
judicious and constitutional in view of the Notification
No.14512 dated 21.07.2016. Since there is an allegation in
the Writ Petition as to non-disclosure of the said Notification
to the Petitioner by the Collector, Kalahandi before passing of
the impugned order so also the Sub-Collector, Bhawanipatna,
who is the Review Petitioner in Misc. Case No.15 of 2023, the
said Notification being the crux of the matter, this Court vide
order dated 21.09.2023 directed the State Counsel to cause
production of the said Notification dated 21.07.2016. On
being so directed, an Affidavit has been filed by the State/
Opposite Party on 5th October, 2023 enclosing thereto the said
Notification dated 21.07.2016. Learned Counsel for the
Petitioner admits to have received a copy of the said
Notification on 03.10.2023. The said Notification is extracted
below:
"GOVERFNMENT OF ODISHA
FOOD SUPPLIES AND CONSUMER WELFARE DEPARTMENT
******
NOTIFICATION
No.09561/00022016 14512/ Dated, Bhubaneswar the 21.07.2016
09-17-10-47/16
In exercise of the power conferred by Clause 19 of Chapter-V of
the Orissa Public Distribution System (Control) Order, 2016 the State
Government do hereby appoint the Officers mentioned below to exercise
the powers and perform the duties of Appellate Authority on the subject
mentioned against them.
1. Government in FS & C.W. In case of license of State Level
Department Transport Contractor
2. Secretary to Government, In case of license of SK Oil
Food Supplies & Consumer wholesaler/level I H & T contractor/H &
Welfare Department T contractor for sugar Zonal Depot
3. Collector of the Districts In case of licenses of retailers and level II
H & T Contractor within their district
By order of the Governor
Sd/-
(P.K. Mohapatra)
(Principal Secretary to Government)"
(Emphasis supplied)
8. It is well revealed from the contents of the said
Notification dated 21.07.2016, as extracted above, the State
Government in exercise of power conferred under Clause-19
of Chapter-V of the Order, 2016, appointed the Officers
mentioned in the said Notification to exercise the power and
perform the duties of Appellate Authority on the subject
mentioned against them. From the contents of the said
Notification, it is further revealed that the Collector of the
districts have been empowered in terms of the said
Notification dated 21.07.2016 to act as Appellate Authority in
case of license of retailers and level-II H & T contractors
within their district.
9. In view of the said admitted position so also
Notification dated 21.07.2016, learned Counsel for the
Petitioner submits, since his client was not aware about
existence of such Notification, was under a bona fide
impression that Additional District Magistrate, Kalahandi is
the Appellate Authority to challenge the order dated
23.11.2022 passed by the Sub-Collector, Bhawanipatna
under the Order, 2016. Accordingly, the petitioner-WSHG
preferred an Appeal. Neither the A.D.M., Kalahandi himself
nor the Sub-Collector, Bhawanipatna, whose order was under
challenge and was a party to Misc. Case. No.03 of 2022,
pointed out before the A.D.M., Kalahandi as to lack of
authority to act as Appellate Authority in terms of Clause-19
of the Order, 2016.
10. Mr. Panda further submits, when his client's
Appeal was pending before the A.D.M., Kalahandi, the
Opposite Party/Sub-Collector, Bhawanipatna never disclosed
before the said Authority about the present Notification dated
21.07.2016, for which the A.D.M., Kalahandi, passed the
order dated 07.02.2023 in Misc. Case No.03 of 2022 in favour
of the present Petitioner dealing with the issue in details on
merit. However, for the first time, the said Notification was
disclosed before the Collector, Kalahandi without supplying a
copy of the same to the present Petitioner, based on which the
Collector, Kalahandi passed the impugned order dated
21.07.2023. Mr. Panda further submits, since the Petitioner
was under a bona fide impression that A.D.M., Kalahandi, is
competent to act as the Appellate Authority under Clause-19
of the Order, 2016, the Writ Petition be disposed of giving
liberty to the Petitioner-WSHG to approach the Collector,
Kalahandi by filing a fresh Appeal in terms of Clause-19 of the
Order, 2016 in view of the Notification dated 21.07.2016. Mr.
Panda further submits, since the Appeal has to be preferred
within thirty days, appropriate order be passed directing the
Appellate Authority to condone the delay in preferring such
Appeal.
11. Admittedly, the Collector, Kalahandi, is the
Appellate Authority as well as Reviewing Authority in terms of
Notification dated 21.07.2016. As is revealed from the
impugned order, without entering into the merit of the case,
the Collector, Kalahandi passed the impugned order on
technical ground as to lack of jurisdiction by the A.D.M.,
Kalahandi to act as the Appellate Authority in terms of Order,
2016 read with Notification dated 21.07.2016. That apart,
letter dated 22.03.2023 of the Sub-Collector, Bhawanipatna,
addressed to the Court Officer, Collectorate, Kalahandi, well
demonstrates that a prayer was made vide the said
communication to place the matter before the Collector and
District Magistrate, Kalahandi for review of the order dated
07.02.2023 (wrongly mentioned as 07.02.2022) passed by the
A.D.M., Kalahandi in Misc. Case No.03 of 2022 and a copy of
the Notification dated 21.07.2016 was enclosed to the said
letter as Annexure-G. Neither a copy of such letter/review
application with enclosures was marked to the Petitioner-
WSHG while sending the same to the Court Officer,
Collectorate, Kalahandi nor the same was supplied to the
Petitioner during pendency of Misc. Case No.15 of 2023,
before passing of the impugned order dated 21.07.2023. The
Petitioner came to know about the said Notification and stand
of the Sub-Collector as to incompetency of the A.D.M.,
Kalahandi to hear Appeal under Clause-19 of the Order, 2016
only after received a copy of the same from the learned State
Counsel, being so directed by this Court.
12. From the provisions of Clauses-19 & 20 of the
Order, 2016, it is amply clear that the Appellate Authority so
also Reviewing Authority is the same. Though the A.D.M.,
Kalahandi has no authority to exercise power under
Clause-19 of the Order, 2016, without taking such a stand
before the A.D.M., Kalahandi as to his incompetency to act as
the Appellate Authority and without challenging the said
order passed by the A.D.M., Kalahandi before this Court to be
without jurisdiction, the Sub-Collector, Bhawanipatna, wrote
a letter to the Court Officer, Collectorate, Kalahandi for review
of the order passed by the A.D.M., Kalahandi. On being so
approached, the said letter was treated to be an application
for review in terms of Clause-19 of the Order, 2016 and
registered as Misc. Case No.15 of 2023. The Collector,
Kalahandi, though has limited power to review the order
passed by the Sub-Collector under Clause-17 of the Order,
2016, passed the impugned order as at Annexure-5, without
applying mind as to his own competency to deal with the said
issue under Clause-20 of the Order, 2016. The order passed
by the Sub-Collector, Kalahandi was confirmed with an
observation that in view of the Notification dated 21.07.2016,
order passed by the A.D.M., Kalahandi, is without any
authority.
13. In view of the discussions made above so also
provisions enshrined under the Order, 2016, as detailed
above, the Writ Petition stands disposed of with liberty as
prayed for. The Petitioner-WSHG may prefer an Appeal before
the Collector, Kalahandi, within two weeks from the date of
supply of the certified copy of this order along with an
application for condonation of delay. If such an Appeal with
petition to condone the delay is moved within the time
granted by this Court, the Collector, Kalahandi, shall do well
to deal with and dispose of the application for condonation of
delay keeping in mind the provision under Section 14 of the
Limitation Act, 1963 and thereafter dispose of the Appeal in
accordance with law giving opportunity to the Petitioner of
personal hearing in terms of sub-clause (4) of Clause-19 of
the Order, 2016. The entire exercise has to be concluded
within two months from the date of preferring the Appeal.
14. Needless to mention here that if no interim
arrangement has been made by the authority concerned in
the meantime for distribution of PDS commodities in favour of
the beneficiaries, to ensure smooth and uninterrupted supply
of PDS commodities, the Petitioner-WSHG shall be permitted
to continue with the distribution of PDS commodities until the
Appellate Authority (the Collector, Kalahandi) takes a decision
on the Appeal, if preferred by the Petitioner-WSHG in terms of
the above observation.
15. Urgent certified copy of this Judgment be granted
on proper application as per rule.
...................................
Signature Not Verified S.K. MISHRA, J.
Digitally Signed
Signed by: PRASANT KUMAR PRADHAN
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 20-Nov-2023 18:28:27
High Court of Orissa, Cuttack
The 17th November,, 2023 /Prasant
