The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.669 of 2014 Durjay Ku. Panigrahi …. Petitioner State of Orissa and others …. Opposite Parties Mr. S. Mohapatra-1, Advocate -versus- Mr. S. Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 10.02.2023 05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned counsel for the Opposite Parties. 3. The present writ petition has been filed by the Petitioner with the following prayers:- therefore prays “The petitioner, that your Lordships may be pleased to consider the facts stated in the writ petition, may further be pleased to issue notice to the opposite parties, calling upon them to show-cause as to why this writ application shall not be allowed. The order passed by the learned Collector, Balasore in E.C. Case No.24 of 2013 under annexure-6 shall not be quashed; If the opposite parties fail to show-cause or show insufficient cause the writ application may be allowed and the order passed by the learned Collector, Balasore in E.C.. Case No.24 of 2013 under Annexure-6 may be // 2 // quashed; And may order/orders, direction/directions as this Hon’ble Court deems fit and proper in the facts and circumstances of the case;” appropriate pass 4. It is submitted by learned counsel for the petitioner that being aggrieved by the illegal action of the Collector, Balasore in confiscation of wheat stocks of the petitioner, thereafter rejecting the claim of the petitioner to get back the stock vide order dated 01.01.2014 by the Collector, Balasore in E.C. Case No.24 of 2013 under Annexure-6, the petitioner has approached this Court by filing the present writ petition. 5. It is further submitted by learned counsel for the petitioner that the wheat has been transported in the truck that was later on seized and confiscated by the Opposite Parties, which is no way connected with the PDS commodities. Accordingly, the petitioner approached the Secretary of the concerned department. On the direction of the Secretary of the concerned department, an enquiry was conducted and in the said enquiry report has been submitted to the Commissioner-cum-Secretary, Government of Orissa, Food, Supplies and Consumer Welfare Department on 04.12.2013. 6. On perusal of the enquiry report under Annexure-5, it appears that neither the Police nor the C.S. staff were able to prove the seized stock was being transported for contravention of Clause-3(1) of OPDS Control Order, 2008 as such, the same was diverted from the PDS channel. Further, it has been observed that the said enquiry report that in any dealer can buy, sell, transport, dispose wheat and wheat products after removal of Specified Food Stuffs Order 2002 and no license / permit is required under any order issued under the // 3 // E.C. Act. Finally, it has been observed by the Enquiring Officer is failed to prove that the wheat has been carried in protect his PDS commodities that has been diverted unauthorizedly. Accordingly, it was suggested that the Collector, Balasore is required to give reasonable opportunity to the petitioner before passing final order under Section 6(A) of E.C. Act and further S.P. Balasore was requested to direct the I.I.C., I.A. P.S. to complete the investigation within fifteen days by providing opportunity to the petitioner and file a final investigation report with further direction to the petitioner to cooperate with such investigation and submit all required documents. After submission of the enquiry report, the Collector, Balasore took up the matter for hearing and vide his order dated 01.01.2014 under Annexure-6 in E.C. Case No.24 of 2013, the stock of wheat were confiscated and to put for auction. 7. A counter affidavit has been filed on behalf of the Opposite Parties. Learned counsel for the State referring to para-11 of the counter affidavit submitted that it has been stated that the squad has not stated that the investigation in the matter has been stopped and further previous observation of the Collector, Balasore speaks volume of the evidenced basing on which confiscation order was passed. Accordingly, learned counsel for the State submits that the order under Annexure-6 is perfectly legal. Further referring to para-7 of the said counter affidavit, learned counsel for the State also submits that the rate of purchase of wheat by the petitioner is less than the rate of sale by the FCI which is pointer that the court of Collector, Balasore has taken note of while passing confiscation order. He further submits that no trader would like to sale the stock at a price which is lower than the purchase price and thereby incurred // 4 // loss in the transaction. Therefore, Collector, Balasore has reasons to believe that the stock of wheat which was seized and confiscated has been diverted that the PDS channel. Accordingly, learned counsel for the State submits that the Collector has not committed any illegality by passing the order. Accordingly, the writ petition is devoid of merit and the same should be dismissed. 8. Having heard learned counsel for the parties and on careful examination of the pleadings and the materials placed before this Court, this Court finds that the order passed by the Collector is surmises and conjectured. Moreover, final investigation of the police as has been suggested in the enquiry report has not been conducted and it concluded at least no reference in the impugned order with regard to final investigation report is found. Thus, this Court observed that there is conflict decision taken by the Collector, Balasore with regard to the enquiry report. There is no material available on record to come to the conclusion that whether stock was being diverted from the PDS channel. In such view of the matter, this Court is of the considered view that the impugned order dated 01.01.2014 is unsustainable in law and the same is hereby set aside. The matter is remanded back to the Collector, Balasore to pass fresh order taking into consideration the enquiry as well as final investigation report of the police after providing opportunity of hearing to the petitioner and by taking into consideration the documents to be filed by the petitioner in support of his contention in accordance with law within a period of two months from the date of production of certified copy of this order. The Collector, Balasore shall act upon the production of certified copy of this order and disposed of by passing a speaking and reasoned order. Any decision // 5 // so taken on the same shall be communicated to the petitioner within a period of two weeks thereafter. It is further directed that the sale proceed from the auction which has been kept separately in pursuant to interim order passed by this Court shall be subject to final order to be passed. In the event the petitioner is succeed, the amount shall be refunded 9. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra ) Judge