Orissa High Court
Ganeswar Sahoo vs State Of Odisha & Others ..... Opposite ... on 16 July, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.2154 of 2024
Ganeswar Sahoo ...... Petitioner
-Versus-
State of Odisha & others ..... Opposite Parties
For Petitioner : Mr S. Misahra,
Advocate
For Opp. Parties : Mr. P.K. Rout,
Addl. Government Advocate
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing & Judgment: 16.07.2024
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S.K. Mishra, J.
1. The Petitioner, who has been appointed as the P.D.S. retailer to distribute the P.D.S. commodities in Bandalo Gram Panchayat, has preferred the Writ Petition seeking a direction from the Court to the Sub-Collector, Jajpur (Opposite Party No.2) to allow him to supply P.D.S. commodities to the beneficiaries/consumers of Bandalo Gram Panchayat with a further prayer to direct the authority concerned to dispose of his representation, as at Annexure-6, as expeditiously as possible, which is pending before the Opposite Party No.2.
2. The factual matrix of the case, as pleaded in the Writ Petition, is that the Petitioner along with others were selected as P.D.S. retailers. Vide general notice dated 07.06.2022, objections were invited from general public to be submitted between 08.06.2022 to 18.06.2022. Since no complaint was received pursuant to the said notice dated 07.06.2022, the Sub-Collector, Jajpur, vide order dated 16.11.2023, communicated to the Petitioner that he has been provisionally selected for appointment as P.D.S. retailer in Bandalo Retail Centre under Bandalo Gram Panchayat of Korei Block, pursuant to notice dated 16.12.2021 and 07.06.2022 and the decision of the three members committee meeting held on 14.11.2023. Pursuant to the said communication, the Sub-Collector & Licensing Authority, Jajpur (Opposite Party No.2) directed the Petitioner to deposit the required amount towards license fee, security and undertaking W.P.(C) No.2154 of 2024 Page 2 of 17 vide Office Order dated 18.11.2023 and the Petitioner was allowed to carry out the P.D.S. business in Korei Block area, in the scheduled place. Thereafter, the Petitioner deposited the required fees in shape of bankers cheque dated 20.11.2023 and the authority concerned was pleased to issue FPS code in favour of the Petitioner vide Code No.1308P161 which was duly approved by the Food Supply & Consumer Welfare Department (Opposite Party No.1). Thereafter, the authority concerned gave a list of 544 ration card holders to the Petitioner to supply P.D.S. commodities to the said beneficiaries. However, no further action was taken pursuant to issuing the list of beneficiaries in favour of the Petitioner. Being remediless, the Petitioner gave a representation to the Sub-Collector, Jajpur (Opposite Party No.2) ventilating his grievance and ultimately preferred the present Writ Petition for inaction of the authority concerned to act on the said representation.
3. The State has filed Counter Affidavit opposing to the allegation made in the Writ Petition. Paragraphs W.P.(C) No.2154 of 2024 Page 3 of 17 No.5 to 8 of the said Counter, being relevant, are extracted below:
"5. That, in reply to the averments made in Para-1 of the writ petition; it is humbly submitted that, after receipt of the representation of 132 nos consumers of Bandalo G.P., the Sub-Collector, jajpur as the Licensing Authority has withdrawan the consumers list from the petitioner though BDO, Korei and again tagged the said list with an old retailer Nathuram Das of Bandalo G.P. for smooth distribution of PDS commodities. Hence, the allegation made by the petitioner that the Sub-Collector, OP No.2 has illegally and arbitrarily withdrawn the consumers list from the petitioner is not true. Copy of the representation dated 10.12.2023 is annexed herewith as AnnexureA/4.
6. That, in reply to the averments made in Paras-3 to 7 of the writ petition, it is humbly submitted that, the Annexures-1 to 4 series filed by the petitioner in this writ petition are matter of documents and records. The same has been issued only as per provision under order 17(4) of O.P.D.S. (Control) 2016 which states that the Licensing Authority has power to suspend the license of a dealer without giving any prior notice to him, if the Authority is satisfied that it is not in the interest of the smooth operation of the P.D.S. system to allow the dealer to handle the P.D.S. stock. So these paras have no meaning to challenge the action of the licensing Authority and is liable to be dismissed being devoid of merit.
7. That, in reply to the averments made in Paras-8 to 10 of the writ petition, it is humbly submitted that, after receipt of representation with consumer number from 132 beneficiaries of Bandalo G.P. and giving importance to the opinion of PDS beneficiaries, the list of consumers has been withdrawn from the petitioner for smooth W.P.(C) No.2154 of 2024 Page 4 of 17 distribution of P.D.S. commodities in Bandalo G.P. Hence these para deserves no merit for consideration and are liable to be dismissed being devoid of merit.
8. That, basing upon the grievance of the P.D.S. beneficiaries dated 10.12.2023 the Licensing Authority has exercised his power under Order-7(4) of OPDS (Control) 2016 and considering for smooth operation of PDS commodities has been pleased to allow one Nathuram Das to distribute the PDS commodities in place of the petitioner."
(Emphasis supplied)
4. In response to the Counter filed by the State, the Petitioner has filed Rejoinder Affidavit reiterating therein that the Licensing Authority (Opposite Party No.2) neither suspended nor cancelled the P.D.S. license of the Petitioner. Though there is an averment in the Counter Affidavit as to acting in terms of Clause 17(4) of the Odisha Public Distribution System (Control) Order, 2016, shortly, 'Control Order, 2016', there was no intimation regarding suspension of his license nor any proceeding was initiated against him in terms of sub-clause (1) of Clause 17 of the Control Order, 2016. Since no suspension or any cancellation order has been issued in favour of the Petitioner, he is unable to prefer any Appeal W.P.(C) No.2154 of 2024 Page 5 of 17 in terms of provision prescribed under clause-9 of the Control Order, 2016. The Authority concerned is intentionally harassing the Petitioner without any cogent reason and without following due procedure to justify such action. So far as the allegations made by some of the P.D.S. beneficiaries, in order to annul the said complaint to be false and baseless, copy of the minutes of meeting dated 14.11.2023 has been annexed to the Rejoinder as Annexure-7. Relevant paragraphs of the said Minutes, being relevant for adjudication of the present lis, are extracted below.
"MINUTES OF THE MEETING OF THREE MEMBERS COMMITTEE HELD ON 14.11.2023 AT 4.00 P.M. IN THE OFFICE CHAMBER OF THE SUB-COLLECTOR, JAJPUR FOR APPOINTMENT OF PDS RETAILER IN KOREI BLOCK xxxx xxxx xxxx Earlier meeting was held on 16.09.2022 for selection of retailer in the place of Bandalo under Bandalo G.P. In the said meeting it was decided that the final decision will be taken after receipt of the Inquiry report from the BDO, Korei for the purpose. Accordingly the BDO, Korei intimated in this office vide letter No.674 dt.11.07.2022. Basing on the inquiry report of BDO, Korei in his letters vide No.1552 dt. 19.04.2023 & 2194 dt. 25.05.2023 and placed before the committee for finalization of retailership of Bandalo. On examination of reports of concerned BDO, it W.P.(C) No.2154 of 2024 Page 6 of 17 was came to notice that the allegation made against Sri Ganeswar Sahu who applied for retailership in Bandalo retail centre was false & fabricated. Then the BDO, Korei had been asked to submit the joint field verification report of Bandalo retail centre vide L.No.778 dt. 30.06.2023. The BDO, Korei has submitted the joint field verification report vide L.No.5763 dt. 03.08.2023 with their recommendation to appoint Sri Ganeswar Sahoo as a PDS retailer in Bandalo under Bandalo G.P. as he has adequate godown for storage of PDS commodities. He is financial sound and good in nature. The Behaviour towards public is very satisfactory.
In view of the above the committee unanimously accepted the proposal of BDO, Korei to appoint Sri Ganeswar Sahoo as a retailer in the Bandalo retail centre of Bandalo G.P."
(Emphasis supplied)
5. As is revealed from the joint representation, which is appended to the Counter Affidavit as Annexure-A/4, some of the beneficiaries gave representation to the B.D.O., Korei opposing to the appointment of the Petitioner as the new retailer on the ground that since long they are lifting the P.D.S. commodities from the previous retailer namely, Nathuram Das and the present Petitioner is in the habit of misbehaving with public and is a drug addicted person.
W.P.(C) No.2154 of 2024 Page 7 of 17
6. A stand being taken in the Counter regarding acting in terms of Clause 17(4) of the Control Order, 2016 so also allegation of the Petitioner in the Rejoinder as to not following due procedure prescribed under Clause 17(4) of Control Order, 2016, this Court, vide order dated 06.05.2024, permitted the State to file Additional Affidavit. Paragraphs-3 & 4 of the said order dated 06.05.2024 are extracted below for ready reference.
"3. Para-6 of the Counter Affidavit filed by the State, being relevant, is extracted below, for ready reference:-
"6. That, in reply to the averments made in Paras-3 to 7 of the writ petition, it is humbly submitted that, the Annexures-1 to 4 series filed by the petitioner in this writ petition are matter of documents and records. The same has been issued only as per provision under order 17(4) of O.P.D.S. (Control) 2016 which states that the Licensing Authority has power to suspend the license of a dealer without giving any prior notice to him, if the Authority is satisfied that it is not in the interest of the smooth operation of the P.D.S. system to allow the dealer to handle the P.D.S. stock. So these paras have no meaning to challenge the action of the licensing Authority and is liable to be dismissed being devoid of merit."W.P.(C) No.2154 of 2024 Page 8 of 17
4. In view of the such stand taken in the Counter Affidavit, a query being made as to whether the PDS License of the Petitioner has been suspended or any proceeding under sub-clause(1) of clause-17 has been initiated against the Petitioner, since the said issue has not been specifically dealt in the Counter, learned State counsel prays for a short adjournment to take instruction and file additional affidavit, if so required. Prayer for adjournment is allowed."
7. On being so permitted, an Additional Affidavit has been filed on 17.05.2024 reiterating the facts detailed in the Counter. Apart from that, the report of the Inspector of Supplies, Korei, has been annexed to the Additional Affidavit as Annexure-B/4 series along with the hand written joint representation of some of the beneficiaries, which is different from the joint representation, appended to the Counter as Annexure-A/4. The contents of the report submitted by the Inspector of Supplies, Korei, addressed to the Block Development Officer, Korei is extracted below:
"To The Block Development Officer, Korei Sub: Submission of inquiry report on the representation of Sri Ramesh Chandra Senapati and others of Bandalo G.P. W.P.(C) No.2154 of 2024 Page 9 of 17 Sir, As per your kind direction, I proceeded to the Bandalo village under Bandalo G.P. to substantiate the fact of allegation petition filed by Sri Ramesh Chandra Senapati & others of Bandalo G.P. on dtd. 31.01.2024. After reaching at the spot first I contacted some of the petitioner. During my inquiry it was ascertained that most of the PDS beneficiaries of that area are willing to take their PDS commodities from Sri Nathram Das instead of the new retailer namely Sri Ganeswar Sahoo as the tagged retailer Sri Nathuram Das has distributed the PDS commodities regularly to them. They also stated that the retailer Sri Das is very sincere and there is no any disturbance at the time of distribution of PDS commodities. The statement of public is enclosed herewith for your kind information and necessary action.
Yours faithfully, Encl: As above Inspector of Supplies, Korei"
8. As it seems from the Report submitted by the Inspector of Supplies, Korei, the authority concerned has acted based on the joint representation of some of the beneficiaries out of 544 beneficiaries. Neither in the statement of public attached to the said Report nor in the said report, as extracted above, it has been indicated that the Petitioner is having bad conduct and is a drug addicted person. The only reason assigned in the said W.P.(C) No.2154 of 2024 Page 10 of 17 report submitted by the Inspector of Supplies, Korei, is that some of the beneficiaries are willing to take P.D.S. commodities from the previous retailer namely, Sri Nathuram Das on the ground that Nathuram Das has distributed the P.D.S. commodities regularly to them and he is very sincere and there is no disturbance at the time of distribution of P.D.S. commodities.
9. Admittedly, pursuant to the selection of the Petitioner as P.D.S. retailer of Bandalo Gram Panchayat and supplying him the list of 544 beneficiaries, no reason has been communicated to him thereafter till date not to act further pursuant to the said selection and his appointment as retailer. Rather, after filing of the Writ Petition, such a stand has been taken in the Counter so also in the Additional Affidavit to justify the action of the authority concerned not to act further for release of P.D.S. commodities for its smooth distribution in favour of the beneficiaries. In view of the stand taken in the Counter so also Additional Affidavit filed by the State- W.P.(C) No.2154 of 2024 Page 11 of 17 Opposite Party, it would be apt to extract below Clause- 17 of the Control Order, 2016 for ready reference:
"17. Contravention of Conditions of License 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, the license shall be cancelled and security deposit shall be forfeited in full or in part:
Provided that no such 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.
W.P.(C) No.2154 of 2024 Page 12 of 17 (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."
10. From the provisions enshrined under Clause- 17 of the Control Order, 2016, it is amply clear that no holder of a license issued under the said Order, 2016 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. If any such person contravenes any of the said terms or conditions, without prejudice to any other action that may be taken against him, the license shall be cancelled and security deposit shall be forfeited in full or in part. Proviso to sub- clause (2) of Clause 17 of the Control Order, 2016 prescribes that no such order shall be made under the said clause unless the licensee has been given a reasonable opportunity of stating his case and personal W.P.(C) No.2154 of 2024 Page 13 of 17 hearing, if he so desires, against the proposed cancellation and forfeiture. Similarly, sub-clause (4) under clause 17 of the Control Order, 2016 mandates that 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 (PDS) to allow the Dealer to handle the PDS stock. However, sub-clause (5) under Control Order, 2016 prescribes that 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 PDS stocks or committed any other irregularities. W.P.(C) No.2154 of 2024 Page 14 of 17
11. Clause-18 of the Control Order, 2016 prescribes as to cancellation of license in case of contravention of the provisions enshrined under clause 17 of the Control Order, 2016. Similarly, Clause-19 of the Control Order, 2016 prescribes as to preferring an Appeal against the action taken in terms of Clause-18 of the Control Order, 2016. Admittedly, in the Counter so also Additional Affidavit, filed by the State in terms of order dated 06.05.2024, none of the grounds, as prescribed under Clause-17 of the Control Order, 2016, has been agitated to justify such stand excepting sub-clause (4) of Clause-17 of the Control Order, 2016, which prescribes as to suspension of license of a Dealer, 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 the public distribution to allow the Dealer to handle the P.D.S. stock. Admittedly, no proceeding has been initiated against the Petitioner, as provided under sub-clause (1) and his license was never suspended. Hence, this Court W.P.(C) No.2154 of 2024 Page 15 of 17 is of the view that the State Authority has failed to substantiate its action to withdraw the list of consumers allotted in favour of the Petitioner and allow Nathuram Das, the previous retailer to distribute the PDS commodities in place of the Petitioner, that to based on the suggestion of some of the beneficiaries.
12. This Court is of further view that representation of some of the beneficiaries to the authority concerned to continue with the old retailer namely, Nathuram Das of Bandalo Gram Panchayt cannot be a ground to withheld the supply of P.D.S. commodities to the Petitioner, who was duly selected in accordance with the provisions prescribed under the Control Order, 2016 without any allegation against him and after inviting objections from general public.
Admittedly, no action has been taken against the Petitioner in terms of any of the sub-clauses of Clause-17 of the Control Order, 2016. The stand taken in the Counter so also in the Additional Affidavit to annul the selection and appointment of the Petitioner, who has W.P.(C) No.2154 of 2024 Page 16 of 17 been appointed as PDS retailer, being contrary to the provisions of the Control Order, 2016 is not acceptable. Accordingly, the Sub-Collector, Jajpur (Opposite Party No.2), who is the Licensing Authority, is directed to act pursuant to the order dated 18.11.2023 issued by him, followed by the list of beneficiaries supplied to the Petitioner vide FPS Code number and name "1308P161- Ganeswar Sahoo" as at Annexure-5 at the earliest, preferably with a period of four weeks hence and ensure release of PDS quota in favour of the Petitioner enabling him to distribute the same in favour of the beneficiaries as per the list provided to him.
13. With the aforesaid observation and direction, the Writ Petition stands disposed of. No order as to cost.
14. Urgent certified copy of this order be granted on proper application.
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S.K. MISHRA, J.
High Court of Orissa, Cuttack The 16th July, 2024 /Prasant Signature Not Verified Digitally Signed W.P.(C) No.2154 of 2024 Signed by: PRASANT KUMAR PRADHAN Page 17 of 17 Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 25-Jul-2024 16:13:31