The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C). No.15733 of 2024 Namita Behera ....... Petitioner State of Odisha & others ....... Opposite Parties -Versus- For Petitioner : Mr. A. K. Biswal, Advocate For Opposite Parties Addl. Standing Counsel : Mr. S. S. Mohapatra, ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA ------------------------------------------------------------------------------------- Date of Hearing & Judgment: 02.07.2024 -------------------------------------------------------------------------------------- S.K. MISHRA, J. The Petitioner, who has been appointed as Fair Price Shop Retailer for Village Jayadevkasaba, has approached this Court in form of present Writ Petition with a prayer to quash the Show Cause Notice dated 27.06.2024 given by the Sub-Collector- cum-Licensing Authority Balasore, (Opposite Party No.3). Vide the said notice, the Petitioner has been asked to submit her reply within 5 days of receipt of the said notice as to why the PDS Retailer License shall not be suspended/cancelled and disciplinary action shall not be initiated against the Petitioner for W.P.(C). No.15733 of 2024 Page 1 of 9 alleged contravention of various provisions of the Odisha PDS (Control) Order, 2016, shortly, “Control Order,2016”, as has been detailed in the said notice. A further prayer has been made seeking for a direction to allow the Petitioner to lift the quota allotted in her favour for the month of July to September, 2024. 2.
Legal Reasoning
Mr. Biswal, learned Counsel for the Petitioner submits, as per the information gathered through website of Food Supplies & Consumer Welfare Department, which has been annexed to the Writ Petition as Annexure-2 series, though the quota for the quarter from July to September, 2024 has already been shown to be allotted in favour of the Petitioner, but the same is yet to be disbursed in favour of the Petitioner. 3. Mr. Biswal further submits, the quota is being released in favour of the PDS Retailers by 29th of the preceding month of each quarter and for the quarter July to September, 2024, the quota should have been released in favour of the Petitioner by 29th June, 2024 as per the usual practice. Though no such communication has been made to the Petitioner, as per the instruction received, without making any communication to the said effect, the Authority concerned has withheld the allocation of quota in favour of the Petitioner on the ground of issuance of W.P.(C). No.15733 of 2024 Page 2 of 9 Show Cause Notice dated 27.06.2024, which is impugned in the present Writ Petition. 4. A query being made by this Court, learned Counsel for the Petitioner submits, since no communication has yet been made to the Petitioner as to withholding the allotted quota in her favour, the Petitioner could not prefer an Appeal, as contemplated under sub-Clause 1 of Clause 19 of the Control Order, 2016. 5. Mr. Biswal further submits, even if the Petitioner prefers an Appeal, there is every possibility that the Appellate Authority may not give reasonable opportunity of hearing to the Petitioner, including the interim protection, for which the Petitioner was being compelled to approach the writ court for redressal of her grievance. 6. Mr. Biswal submits, as per the instruction received from the Petitioner, though, vide notice to show cause dated 27.06.2024, the Petitioner was given 5 days’ time to submit her reply, today she has applied to the Sub-Collector-Cum- Licensing Authority, Balasore, to supply her the basis to issue the impugned Show Cause Notice dated 27.06.2024, enabling her to submit her reply effectively and she will do the needful only after W.P.(C). No.15733 of 2024 Page 3 of 9 getting the information and documents from the Licensing Authority. 7. So far as allegation of non-release of allotted quota from July to September, 2024, as at Annexure-2 series without any communication, Mr. Mohapatra, learned Additional Standing Counsel for the State, refuting such submission made by the learned Counsel for the Petitioner to be incorrect, submits that the Authority concerned has a right to withhold the allocation of quota in favour of the PDS Retailer even without issuing any notice in terms of sub-Clause 5 of Clause-17 of the PDS (Control) Order, 2016. 8. Mr. Mohapatra further submits, the Writ Petition deserves to be dismissed in limine as the prayer made in Writ Petition to set-aside the Show Cause Notice dated 27.06.2024 is premature, vide which the Petitioner has only been asked to show cause, which she is yet to submit and the Licensing Authority shall follow due procedure in terms of various provisions under the Control Order, 2016, before taking any coercive action, if any, against the Petitioner. 9. In view of the submissions made by the learned Counsel for the parties, it would be apt to reproduce below clause 17 and 19 of the Control Order,2016:- W.P.(C). No.15733 of 2024 Page 4 of 9 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. If any such person contravenes any of (2) the said terms or conditions, without prejudice to any other action that may be license shall be taken against him, the 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. the license of a Dealer, (4) The Licensing Authority may, by order, without giving prior notice to the Dealer, suspend 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 the sub- cause-1 shall be deemed to have been initiated on the date of issue of the show cause notice by the Licensing Authority. (5) No prior show cause notice would be required for withholding the allocation of quota to any licensee for a period not W.P.(C). No.15733 of 2024 Page 5 of 9 licensee, exceeding sixty days pending, enquiry or investigation against the 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 or Public Distribution System committed any other irregularities. stocks 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.
Decision
(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. Pending disposal of an appeal, the (5) 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. (Emphasis supplied) 10. From the provisions, as contemplated under Clause-17 of Control Order, 2016, extracted above, it is amply clear that for contravention of conditions of license or provisions under Control Order,2016, the license of a PDS Retailer can be cancelled. But before doing so, the licensee has to be given a W.P.(C). No.15733 of 2024 Page 6 of 9 reasonable opportunity to state his or her case and if the Retailer desires for personal hearing against the proposed cancellation and forfeiture, an opportunity of personal hearing has to be given to the Retailer. That apart, Sub-Clause 5 of Clause 17 also empowers the Authority concerned to withhold the allocation of quota to any licensee for a period of not exceeding sixty days pending inquiry or investigation against the licensee. 11. Further, Sub-Clause 1 under Clause 19 of the Control Order, 2016 provides that any person aggrieved by an Order of the Licensing Authority, including the decision to withhold the allocation of quota under the provisions of the Control Order, 2016, can prefer an Appeal before the Appellate Authority within 30 days from the date of receipt of the Order. 12. Admittedly, in view of the provisions under Sub-Clause 1 of Clause 17, read with explanation under Sub-Clause 4 of Clause 17 of the Control Order, 2016, a proceeding has already been initiated against the Petitioner for alleged contravention of various provisions under the Control Order, 2016. Sub-Clause 5 of Clause 17 mandates that no prior Show Cause Notice should be required for withholding the allocation of quota to any licensee for a period of not exceeding 60 days, pending inquiry or investigation against the licensee. Hence, this Court is of the W.P.(C). No.15733 of 2024 Page 7 of 9 view that the Authority concerned has power to withhold the allocation of quota in favour of the Petitioner-Retailer without notice, as the allegation made in the impugned Show Cause Notice is with regard to committing certain irregularities in Public Distribution System(PDS). 13. Hence, at this stage, this Court is not inclined to interfere, so far as the prayer made in the Writ Petition for quashing of the Show Cause Notice dated 27.06.2024, as at Annexure-3, so also prayer for a direction to the Opposite Parties to allow the Petitioner to lift the allocated quota in her favour for the quarter July to September, 2024. 14. In view of the above, it is made clear that in addition to rendering her response to the Show Cause Notice dated 27.06.2024, the Petitioner may prefer an Appeal before the Appellate Authority at appropriate stage challenging such action of the Authority concerned for withholding the allocation of quota, if such communication is made to her. 15. It is made further clear that if such an Appeal is preferred by the Petitioner, the Appellate Authority shall do well to give reasonable opportunity of hearing to the Petitioner in terms of Sub-Clause 4 of Clause 19 of the Control Order, 2016 and may also consider her interlocutory application, if any, in W.P.(C). No.15733 of 2024 Page 8 of 9 terms of Sub-Clause 5 of the Clause 19 of the Control Order, 2016. 16. Needless to mention here that if the Petitioner files her reply in response to the Show Cause Notice dated 27.06.2024, the Licensing Authority shall proceed further in terms of the provisions enshrined under Clause 17 of the Control Order, 2016. If the Licensing Authority proposes to cancel or forfeit the PDS license of the Petitioner, it shall do well to give reasonable opportunity to the Petitioner to state her case and if she so desires, give her chance of personal hearing. 17. With the said observation, the Writ Petition stands disposed of. 18. Urgent certified copy of this order be granted on proper application as per rules. ….…….…………… S.K. Mishra, J. Orissa High Court, Cuttack. The 2nd July, 2024/ Monalisa Signature Not Verified Digitally Signed Signed by: MONALISA SWAIN Reason: Authentication Location: High Court of Odisha Date: 05-Jul-2024 17:05:15 W.P.(C). No.15733 of 2024 Page 9 of 9