The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.34290 of 2023 Basanta Kumar Nayak ....... Petitioner State of Odisha & others ....... Opp. Parties -Versus- For Petitioners : Miss P. Naidu, Advocate For Opp. Party Nos.1 to 5 : Mr. B. Panigrahi, Addl. Standing Counsel For Opp. Party No.6
Legal Reasoning
: Mr. A.K. Behera, Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing & Judgment: 14.03.2024 --------------------------------------------------------------------------------- S.K. Mishra, J. The Petitioner, who was appointed as a Composite Retailer, under PDS for Gamu Centre to deal with control commodities for distribution to the consumers in Ward Nos.5 to 11 of village Gamu and allotted with Fair Price Shop Code No.1302P007, has approached this Court with a prayer to set aside the order dated 21.09.2023 passed by the Collector, Jajpur (Opposite Party No.2) in Misc (PDS) Appeal No.97 of 2023, basically on the ground that the said order was passed without complying the provisions enshrined in Sub-Clause (4) of Clasue-19 of the Odisha Public Distribution System (Control) Order, 2016, shortly, ‘Control Order, 2016’ and before passing of the said order by the Appellate Authority, the Petitioner was never noticed to have his say. Specific averments to the said effect have been made in various
Decision
paragraphs, including paragraph-14 of the Writ Petition, that before passing of the impugned order dated 21.09.2023, neither any notice was served on the Petitioner nor he was ever heard in terms of Sub-Clause (4) of Clause-19 of the Control Order, 2016. 2. The State has filed its Counter Affidavit dealing with said allegations made in the Writ Petition and the so called notice dated 07.09.2023 given to the Petitioner has been annexed to the Counter Affidavit as Annexure-F/4. The contents of the said notice being relevant, are extracted below: “To The Member of petitioner & O.P. No.4 Take Notice that the above noted Misc case has been admitted & posted to 21.09.2023 for hearing. So you are hereby directed to appear before my Court on 21.09.2023 at 11.00 A.M. either in W.P.(C) No.34290 of 2023 Page 2 of 6 person or through your legal representative with written notes of submission along with relevant papers and to take part in the hearing. Case to 21st day of September-2023. Sd/- Collector, Jajpur” 3. The allegation with regard to non-service of notice on the Petitioner has been specifically dealt with in Para-11 of the Counter Affidavit filed by the State, which is extracted below: “11. That, in reply to the averments made in Paras-12 to 15 of the writ petition, it is humbly submitted that the allegation of the petitioner regarding non-service of notice is not correct. Notice was duly issued to the present petitioner as O.P. No.4 vide Memo No.530(2) Dtd.07.09.2023 in the misc(PDS) Appeal No.97/2023. But he did not turn up to attend the Court on 21.09.2023. As a result of which order was passed after personal hearing by the Sub-Collector, jajpur in absence of the present petitioner. Hence the Para deserves no merit for consideration. Copy of the Memo dated 07.09.2023 is annexed herewith as Annexure-F/4” (Emphasis supplied) 4. In view of the specific allegation made in the Writ Petition as to non-service of notice, this Court is of the view W.P.(C) No.34290 of 2023 Page 3 of 6 that the State-Opposite Parties ought to have dealt with the said issue with specific averments supported with documentary evidence that the notice dated 07.09.2023 was duly served on the Petitioner. Rather, it has been mentioned in Para-11 of the Counter that notice was duly issued to the Petitioner, who was arrayed as Opposite Party No.4 in Misc (PDS) Appeal No.97 of 2023. However, there is no specific averments in the Counter as to what was the mode of communication of the said notice dated 07.09.2023 and the materials before the Appellate Authority to satisfy himself that the notice was duly served on the present Petitioner (Opposite Party No.4 before the Appellate Authority) before the date fixed for hearing i.e. 21.09.2023. 5. Needless to mention here that Sub-Clause (4) of Clause 19 of the Control Order, 2016 mandates that no such Appeal preferred under Sub-Clause (1) under the said Clause shall be disposed of unless the aggrieved person has been given a reasonable opportunity of being heard in person. The State has failed to demonstrate before the Court that before hearing of Misc (PDS) Appeal No.97 of 2023, the Petitioner (Opposite Party No.4 before the Appellate Authority) was duly W.P.(C) No.34290 of 2023 Page 4 of 6 noticed and the same was duly served on him before the date fixed for hearing, which was fixed to 21.09.2023. Hence, this Court is of the view that, the order passed by the Appellate Authority which was admittedly passed without hearing the present Petitioner, being contrary to the provisions under Clause 19(4) of the Control Order, 2016 is bad and liable to be set aside. 6. Accordingly, the order dated 21.09.2023 passed in Misc (PDS) Appeal No.97 of 2023, as at Anenxure-4, is hereby set aside and quashed. Matter is remitted back to the Appellate Authority to re-hear the said Appeal giving due opportunity of hearing to the Petitioner (Opposite Party No.4 before the Appellate Authority) so also the present Opposite Party No.6, who is the Appellant in Misc. (PDS) Appeal No.97 of 2023, and dispose of the same in accordance with various provisions of the Control Order, 2016 as expeditiously as possible, preferably within a period of six weeks from the date of production of the certified copy of this order. In order to avoid delay so also notice to the parties to the said Appeal, this Court directs that both the present Petitioner so also Opposite Party No.6 shall appear before the W.P.(C) No.34290 of 2023 Page 5 of 6 Collector, Jajpur, who is the Appellate Authority on 3rd of April, 2024 either in person or through their legal representatives and file the certified copy of this order. On doing so, the Collector, Jajpur (Opposite Party No.2) shall proceed further and conclude the Misc. (PDS) Appeal No.97 of 2023 within the period, as directed above. 7. With the aforesaid observations and directions, the Writ Petition stands disposed of. No order as to cost. …….….……………… S.K. MISHRA, J. High Court of Orissa, Cuttack The 14th March, 2024 /Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Mar-2024 11:41:36 W.P.(C) No.34290 of 2023 Page 6 of 6