The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17060 of 2023 Prakash Chandra Nayak …. Petitioner Mr.B.S.Mishra, Advocate -versus- State of Odisha and others Opposite Parties Mr.P.C.Das, A.S.C.. Mr.Anupam Rath, Advocate for the intervener …. Order No. 04. CORAM: JUSTICE A.K. MOHAPATRA ORDER 28.08.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned
Legal Reasoning
distributed to the Consumers. Prima facie, it appears that there was no shortage and as such the misappropriation as alleged is not correct. Further, on perusal of the Counter Affidavit, it appears that the F.I.R. has been lodged against the Petitioner under Annexure-N/3 to the Counter Affidavit Such FI.R. has been lodged by one Marketing Inspector of Bari Block. The said F.I.R. was registered on 28.04.2023 as Bari P.S. Case No.144 of 2023. 9. Be that as it may, this Court on a careful examination of Rule 19 of the OPDS (Control) Oder, 2016 is of the considered view that the aforesaid Control Order provides for appeal against the cancellation/suspension or non-renewal of PDS license before the appellate authority within a period of 30 days from the date of receipt of that order. Since the Petitioner has not approached the appellate authority by filing an appeal, this Court is of the considered view that since the order of cancellation of license is an appealable order and the relief sought for by the Petitioner are consequential to such cancellation order, this Court is of the view that the Petitioner should have approached the appellate authority before approaching this Court by filing the present Writ Petition. In such view of the matter, this Court
Arguments
Additional Standing Counsel and Mr.Anupam Rath, learned counsel for the intervener. Perused the pleadings as well as materials on record. 3. The present Writ Petition has been filed with the following prayer: “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit this Writ Application to the extent; i) To direct the Opp.Party No.3 to allow the Petitioner to continue as P.D.S. retailer in Kalamatia G.P. of Bari Block and to quash the advertisement dated 26.04.2023 under Annexure-6. And pass any other order(s), direction(s) as this Hon’ble Court may deem fit and proper.” 4. The background facts of the present case in short is that the Petitioner was initially appointed as a PDS Retailer in respect of Kalamatia G.P. of Bari Block in the district of Jajpur. Thereafter, the PDS license of the Petitioner was suspended vide letter dated 26.05.2022 of the ACSO, Jajpur in view of the report dated 10.05.2022 and 21.05.2022 containing allegations against the Petitioner that the // 2 // Petitioner did not cooperate with the authority while conducting enquiry with regard to the stock at the time of lifting of PMGKAY rice which was kept for distribution amongst the beneficiaries for the month of May, June and July, 2022 and that the Petitioner has not kept the sample rice for verification of the general public. It has also been stated that the Petitioner had submitted a show cause reply on 20.06.2022 before the Sub-Collector. Pursuant to the show cause notice by the Sub- Collector, Jajpur on 26.05.2022. It is further submitted that the PDS Retailer licence of the Petitioner was placed under suspension on dated 26.05.2022 while issuing show cause notice against the Petitioner. The authorities finally decided the issue against the Petitioner and fixed a liability of Rs.24,04,421.00 towards the misappropriated PDS commodities. Accordingly, the Petitioner was directed to deposit the said amount before the authority. 5. Learned counsel for the Petitioner at this juncture contended that action has been taken against the Petitioner on the basis of enquiry which was conducted behind the back of the Petitioner and the Petitioner has not been given any show cause or to participate in the enquiry. On perusal of the Writ Petition, it appears that the Petitioner being aggrieved the action of Opposite Party No.3 not allowing the Petitioner to continue as PDS Retailer in respect of Kalamatia G.P. under Bari Block with a prayer to quash the advertisement dated 26.04.2023 under Annexure-6. On perusal of the order dated 26.04.2023 under Annexure-6, it appears that the same is an advertisement inviting applications from the interested persons for supply of PDS commodities in respect of Kalamatia G.P. under Bari Block in the district of Jajpur. W.P.(C) NO.12236 OF 2023 : 6. This Writ Petition was preferred by the Petitioner earlier with a prayer for a direction to Opposite Party no.2 to allow the Petitioner to // 3 // continue as PDS retailer in Kalamatia G.P. of Bari Block and further direct the Opposite Parties to verify the sale register of the Petitioner and not to take any coercive step to recover Rs.24,04,42100. On a careful scrutiny of the said Writ Petition, this Court observes that there is no prayer in the Writ Petition challenging either the suspension or termination of PDS Retailer license. The only prayer is for a direction to continue as a PDS Retailer and not to take any coercive action for recovery of the aforesaid alleged amount. 7. W.P.(C) No.17060 of 2023 and W.P.(C) No.12236 of 2023 have been filed by the self same Petitioner On a careful consideration, this Court observes in both the Writ Petition, the Petitioner has neither challenged the suspension order nor the termination or cancellation of PDS Retailer license. In W.P.(C) No.17060 of 2023, a Counter Affidavit has been filed on behalf of the Opposite Parties. On a careful examination of the background facts found that letter under Annexure- E/3 reveals that certain allegations have been made before Block Development Officer regarding non-submission of monthly declaration Forms for last three months. Therefore, the case of the Petitioner was not recommended for the financial year 2022-23 for PDS renewal license. The very same letter also reveals that again a recommendation was made for renewal of his retailer for the financial year 2022-23 considering the past performance of the Petitioner was satisfactory. In such view of the matter, the ACSO called for a monthly declaration form from the Inspector of Supplies, Bari. The Marketing Inspector, Bari Block submitted report before the Sub-Collector, Jajpur pointing out many deficiencies on the part of the Petitioner. The Sub-Collector- cum-Licensing authority vide his letter also asked the Petitioner to submit relevant records for verification. On verification of such record, the Sub-Collector, Jajpur vide letter dated 24.11.2022 found that an amount of Rs.24,04,420.50 has been misappropriated and directed the // 4 // Petitioner to deposit the same vide his letter dated 18.04.2023 under Annexure-M/3. While the matter stood thus, the Sub-Collector-cum- Licensing Authority, Jajpur passed an order indicating therein that the Petitioner was asked to deposit the misappropriated amount of PDS commodities. Due to non-deposit of the cost of PDS commodities and as per the Clause-17 of the OPDS(Control) Order 2017 the Licensing Authority have been pleased to cancel the PDS license of the Petitioner with immediate effect. 8. Mr.Anupam Rath, learned counsel appearing for the Intervener as well as the learned Additional Standing Counsel appearing for the State submitted before this Court that the Petitioner has not challenged the order dated 18.04.2023 passed by the licensing authority-cum-Sub- Collector, Jajpur cancelling the license of the Petitioner. Therefore, learned counsel appearing for the Opposite Parties as well as the Intervener submitted before this Court that the order cancelling the Petitioner’s license be set aside and the relief sought for in both the Writ Petitions cannot be granted to the Petitioner. Accordingly, the Writ Petitions should be dismissed. It is also contended that the order canceling or suspending the license is an appealable order under Rule 19 of the OPDS (Control) Order 2016. It was further contended by the learned counsel for the Opposite Parties that the Petitioner has admittedly not preferred any appeal before the appellate authority by invoking the provisions of OPDS ( Order) 2016. In this context, learned counsel for the Petitioner submitted that the order of cancellation of license is an arbitrary and illegal order inasmuch as the Licensing Authority while taking such a decision has not been taken into consideration, the report submitted by the Marketing Officer dated 20.07.2022 (Annexure-L/3) which reveals that on physical verification of FPS point of the Petitioner and the Secretary Co-operative Society, Bari, Bagda on 25.05.2022 both the retailers were found that the PDS // 5 // commodities stock shown in the Register for the month of May, June and July, 2022 tallies with the record. On verification of the e-POS device and Books of Account it was ascertained that there was no PDS stock laying with them. Accordingly, copies of the physical verification report were forwarded to the Sub-Collector along with the letter of the Marketing Inspector dated 20.07.2022. On perusal of the physical verification report of the stock in respect of the Petitioner as forwarded by the Marketing Inspector, it appears that the opening balance as shown on 25.01.2012 deals with the total stock as well as the stock
Decision
deems it proper to dispose of the Writ Petition at the stage of admission by granting liberty to the Petitioner to file an appeal under Rule 19 of // 6 // the OPDS(Control) Order, 2016 along with an application for condonation of delay. In the event such an appeal is filed accompanied by an application for condonation of delay, the Collector, Jajpur, Opposite Party No.2 shall do well to condone the delay in approaching the appellate authority and take up the appeal of the Petitioner on its own merit. Further, liberty is granted to the Petitioner to move any interim application under sub-Rule 5 of Rule 19 of the of the OPDS(Control) Order,2016 . In the vent such an application is filed, the same shall be considered by Opposite Party No.2 as expeditiously as possible preferably within two weeks from the date of filing of such application. It is needless to mention here that while considering the appeal of the Petitioner the Opposite Party No.2 shall do well to consider all the grounds available to the Petitioner as has been raised by the Petitioner in his appeal memo and the appeal of the Petitioner shall be disposed of by passing a speaking and reasoned order after taking into all the aforesaid aspects involved in the present Writ Petition including the report submitted by the Marketing Inspector. The Opposite Party No.2 shall do well to provide an opportunity of hearing to any other parties, who are likely to be affected by the order passed by the appellate authority. The decision so taken by the appellate authority be communicated to the Petitioner within a period of 10 days thereafter. 10 With the aforesaid observation the Writ Petition stands disposed of. 11. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 01-Sep-2023 16:38:52