Orissa High Court
Jibardhan Sahu & Others vs Collector on 17 July, 2013
Author: B.K.Nayak
Bench: B.K.Nayak
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NOS.5627 & 5982 OF 2013
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
In W.P.(C) No.5627/2013
Jibardhan Sahu & Others : Petitioners
-Versus-
Collector, Bargarh & Others : Opp.Parties
For petitioners : M/s.H.S.Mishra, A.K.Mishra &
R.Dash
For O.Ps.1 to 3 : Learned Additional Standing Counsel
For O.P. 4 : M/s.R.K.Sarangi & A.Parida
In W.P.(C) No.5982/2013
Sith Prasad Singh : petitioner
-Versus-
Collector, Bargarh & Others : Opp.Parties
For petitioner : M/s.H.S.Mishra, A.K.Mishra &
R.Dash
For O.Ps.1 to 3 : Learned Additional Standing Counsel
For O.Ps.4 to 7 : M/s.R.K.Sarangi & A.Parida
PRESENT:-
THE HONOURABLE MR. JUSTICE B.K.NAYAK
Date of argument : 17.07.2013 Date of judgment : 17.07.2013
2
B.K.Nayak, J.In both the writ petitions the very same order dated 19.2.2013 passed by the Collector, Bargarh in Misc. Case No.15/2012 under Section 6-A of the Essential Commodities Act has been challenged. This order has been annexed as Annexure-3 to W.P.(C) No.5627/2013 and Annexure-5 to W.P.(C) No.5982/2013. The former writ petition has been filed by five retailers of kerosene oil whereas the latter one has been filed by the sub-wholesaler of Dang Depot in the district of Bargarh. Therefore, both the writ petitions are heard together and disposed of by this common judgment.
2. For convenience the retailer-petitioners in W.P.(C) No.5627/2013 are described as "petitioners" hereinafter, whereas the petitioner in W.P.(C) No.5982/2013, who is the sub-wholesaler, has been arrayed as O.P.4 in the former writ petition and described as such.
3. Essential facts leading to filing of these writ petitions are detailed below :-
O.P.4 is a sub-wholesaler licensee for kerosene oil for Dang Depot in Bargarh District whereas the petitioners are retail licensees, who are to purchase kerosene oil from O.P.4 for sale on retail. On 3.10.2012 the Inspector of Supplies, Bargarh along with the A.C.S.O., Bargarh and the Inspectors of Supplies of Bhatli and Bijepur under Bargarh Block conducted a joint checking in the sub-wholesale depot 3 of O.P.4, who was then not present in the depot but his staff, Anil Harpal was present. The stock of kerosene in the depot was verified as per the book of accounts and 11370 litres of kerosene oil was found available in the depot but on verification of book of accounts, it was ascertained that 8780 litres of kerosene oil were in excess in the stock. The representative of O.P.4 was unable to state anything about the availability of excess stock of kerosene and said that his master (O.P.4) is to explain the detailed position. In absence of O.P.4, the Inspector of Supplies seized the stock of kerosene oil along with other materials, prepared seizure list and kept the seized 11370 litres of kerosene oil in zima of one Sith Prasad Singh under a zimanama. On the next date, i.e., 4.10.2012 the Inspector of Supplies, Bargarh submitted F.I.R. to the Collector, Bargarh, O.P.1 and also prayed for interim disposal of the seized kerosene in terms of Section 6-A(2) of the Essential Commodities Act.
4. It transpires from the impugned order that on 5.10.2012 interim disposal order was passed by the Collector, Bargarh and the seized kerosene having been sold, the sale proceeds of Rs.1,61,681/-
was deposited in the Treasury. After having submitted the F.I.R. to the Collector, Bargarh, the Inspector of Supplies, Bargarh continued with the investigation and finally submitted a final report on 10.10.2012 before the Collector, which has been annexed as Annexure-2 to W.P. (C) No.5627/2013.
4
The final report (Annexure-2) reveals that during interrogation of the Sub-Wholesaler (O.P.4), it came to light that the said Sub-Wholesaler received the kerosene oil stock on 28.9.2012 and on that date, the stock was verified by the Inspector of Supplies, Bargarh Block. About the availability of excess stock of 8760 litres of kerosene oil as per the book of accounts, O.P.4 explained that there was no excess stock of kerosene oil in the stock as because on 29.9.2012, he sold and issued 5900 litres to four retailers and on 30.9.2012 he sold 2800 litres to two other retailers and that those six number of retailers received the stock and signed in the Sale Register as well as in the Cash Memo as regards the receipt of kerosene oil but after receipt, the retailers expressed their difficulties for transportation of their purchased oil to their retail points due to non- availability of vehicles and other reasons. Thus, 8700 litres of kerosene oil found in excess belongs to the above six retailers, who received the same and have acknowledged receipt. It is further stated in the final report that the Inspector of Supplies during investigation verified the Sale Register maintained in the depot as well as the bill book and found that six retailers have signed in the Sale Register as well as in the Cash Memo on specified dates, as stated by the Sub- Wholesaler. He also cross-checked at the retail points of the retailers and interrogated them, who admitted to have received the stock of kerosene oil in the Sale Register of the Sub-Wholesaler depot on 5 payment of proper cost and signed in the Sale Register about such receipt but they were unable to transport the stock due to vehicle problem and other reasons as stated in their individual statements. Ultimately, the Inspector concluded that there was no allegation about any black-marketing from any retailer or from the general public and that his investigation finally revealed that the seized 8700 litres of kerosene oil belongs to six retailers. Accordingly, the Investigating Officer in his final report itself made a prayer to the Collector to take a decision and pass order to release the seized kerosene oil in favour of the six retailers.
5. The impugned order reveals that the present petitioners (retailers) have not been arrayed as parties in the confiscation proceeding. The order further reveals that the Investigating Officer- Inspector of Supplies was examined in the proceeding and stated that some of the retailers, namely, Dibyakishore Sahu (petitioner no.2) Laxmi Prativa Self Help Group (petitioner no.4) and Radharani Self Help Group (petitioner no.5) could not lift the stock, which they had received from the sub-wholesale point due to their illness and that Jibardhan Sahu and Gopinath Mohapatra (petitioner nos.1 & 3) could not lift the stock on the plea of illness and that the Secretary of Samaleswari Self Help Group (not a petitioner) also could not lift the stock of kerosene on the plea of illness.
6
The Collector, Bargarh held that there has been contravention of Orissa Public Distribution System (Control) Order, 2008 observing as follows :-
"The I.O. submitted his F.I.R. on 4.10.2012 and final enquiry report on 10.10.2012. The O.P. & Sub-wholesaler stated that the stock of 8700 litres of K.oil sold to six retailers was not lifted due to non-availability of transport facility. 5 out of 6 retailers stated otherwise as indicated below against each. Only one retailer i.e. Secretary, Samaleswari SHG, Khaliapali stated that he did not lift the stock for non-availability of vehicle.
Sl.No. Name of the retailer Quantity of K. oil Reason for non-lifting the
stated to have stock
purchased
1. Jibardhan Sahu, Bonda 1400 litres Suffering from Malaria
2. Gopinath Mohapatra,Turunga 1200 litres Busy in medical duty
3. Secretary, Laxmi Pratima
SHG, Bageibira 1000 litres Group head fell ill
4. Secretary, Radharani SHG,
Katapali 2300 litres -do-
5. Dibya Kishore Sahu, Patharia 1800 litres Wife fell ill
6. Secretary, Samaleswari SHG,
Khaliapali 1000 litres Non-availability of
transport vehicle
The I.O. did not clarify the above discrepancy of statement in his final enquiry repot. The O.P. failed to justify the retention of huge stock of K.oil which was sold as per his version on 29.9.2012 and 30.10.2012. After the stock is sold by the sub-wholesaler, lifting the same is responsibility of the retailers. When the Sub- wholesaler took the plea of non-availability of vehicle, 5 out of six retailers took the plea of health ground. On the other hand, he admitted retention of sold stock of K. oil. Hence, there is contravention of Odisha Public Distribution System (Control) Order, 2008."7
6. Learned counsel for the petitioners submits that the Investigating Agency of the Supply Department having submitted the final report that no case was made out, the Collector, Bargarh could not have passed the order of confiscation holding that there was contravention of Orissa Public Distribution System (Control) Order, 2008. He also submits that the materials submitted by the Investigating Agency reveal that the petitioners (retailers) had been issued with kerosene oil and that they have already paid the price for the same to the sub-wholesalers, and therefore, without impleading them as parties or issuing notice to them, the Collector could not have recorded the finding that the plea of the retailers for not physically lifting the issued kerosene oil should be rejected. It is also his submission that the impugned order does not disclose as to which Clause or particular provision of the Control Order has been violated, except stating that there has been a contravention of Control Order, which cannot be sustained.
7. Except submitting that the impugned order is an appealable order, and therefore, the writ petitions should not be entertained, the learned counsel for the State is unable to meet the other contentions raised on behalf of the petitioners. Admittedly, though initially the seizure was made and F.I.R. was drawn up and reported by the Investigating Officer (Inspector of Supplies, Bargarh) to the Collector, Bargarh, but subsequently final report was submitted 8 indicating that there was no violation of any provision of Control Order. In his evidence before the Collector, the Investigating Officer also supported the final report made by him and stated about the pleas taken by the petitioners as well as the wholesaler and also the entries with regard to the receipt of kerosene oil by the retailers from the wholesalers on payment of price thereof. The only bone of contention was the non-lifting of kerosene oil physically by the retailers from the depot of the sub-wholesalers. The pleas raised by the retailers giving reasons for their inability to physically lift the stock issued to them have been disbelieved by the Collector only on the ground that such pleas are not entirely supported by the sub- wholesaler, who stated that the retailers told them about transport problems and some other reasons. The sub-wholesaler has no direct knowledge about the truth of the reasons assigned by the retailers to him for not lifting the kerosene oil issued to them. That by itself can be a ground to disbelieve the individual reasons ascribed by the retailers themselves while their statements were recorded by the Investigating Officer. However, the plea of one of the retailers having been accepted by the Collector, Bargarh, the kerosene oil issued in his favour has been directed to be released. Therefore, there was no reason on the part of the Collector to disbelieve the explanation offered by the petitioners.
9
8. In any event the Investigator having submitted the final report, there is no allegation of contravention of any Control Order either against the sub-wholesaler or against the retailers and therefore, the Collector, Bargarh should have dropped the confiscation proceeding.
9. The impugned order also does not show as to which provision of the Orissa Public Distribution System (Control) Order, 2008 has been violated and in what manner. The petitioners having not been put to notice about any alleged violation, there should not have been any proceeding for confiscation of the seized kerosene oil. To continue the confiscation proceeding even after submission of the final report was without jurisdiction.
10. Although an order passed under Section 6-A of the Essential Commodities Act is appealable to the Government under Section 6-C of the Act, there being no prosecution for any alleged violation of any Control Order and the retailers having not at all been given opportunity to put forth their case, the availability or an alternative remedy of appeal is no bar to decide the lis in these writ petitions.
11. For the reasons stated above, the impugned order is quashed. It is directed that the cost of the kerosene oil purchased by each of the petitioners in W.P.(C) No.5627/2013 shall be released in 10 favour of the petitioner-retailers within a period of three months from the date of communication of this order.
Both the writ petitions are accordingly allowed.
..............................
B.K.Nayak, J.
Orissa High Court, Cuttack.
The 17th July, 2013/manoj, P.A.