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2010 DIGILAW 398 (ORI)

Bharat Chandrad Baliarsingh v. State of Orissa

2010-06-23

R.N.BISWAL

body2010
JUDGMENT R.N. BISWAL, J. — In all the writ petitions, the petition¬ers have prayed to quash the letter dated 5.3.2010 issued by the Collector, Nayagarh to the Sub-Collector, Nayagarh and the office order dated 8.4.2010 issued to all the B.D.Os under Nayagarh district and to direct the authority to renew their retail/sub-wholesale licences. The reliefs sought for in all the writ peti¬tions having been same, the following common judgment is passed thereon. 2. The petitioners are retailers/storage agents in respect of Essential Commodities under the Orissa Public Distribution System in different sale centres under Nayagarh district. They applied for renewal of their licenses, but while such applica¬tions were pending consideration, the Collector, Nayagarh (oppo¬site party No.2) vide letter dated 5.3.2010 directed the Sub-Collector, Nayagarh to see that from 1st April, 2010 all the G.P. headquarters shall have PDS retail points which are to be handed over to the Sarpanchs with tagging of minimum 500 cards. The Sarpanch may decide independently to hand over retailership to an existing reliable retailer or hand over to the SHG or run the shop through the GP itself. In his Office Order dated 8.4.2010 he instructed all the B.D.Os. to impress upon the G.Ps to take up responsibility of Public Distribution system and to direct the G.Ps to obtain licence from the Sub-Collector-cum-Licensing Au¬thority on deposit of licence fee of Rs.2000/- and security deposit @ Rs.1000/- per G.P. by way of Treasury Challan as per Clause 7 and 8 of O.P.D.S. (Control) Order, 2008 and some other instructions. It is the specific case of the petitioners that the State Government in Food Supplies & Consumer Welfare Department vide letter dated 22.3.2010 issued to all the Collectors of the State, directed that licenses of the Sub-Wholesalers of Kerosene Oil which are valid up to 31.3.2010, may be renewed for a period of four months with effect from 1.4.2010 as per conditions laid down in O.P.D.S. (Control) Order 2008 subject to their satisfac¬tory performances. It was further directed that in case of re¬tailers, the renewal of their licenses may be as per the O.P.D.S. (Control) Order 2008 for a period of one year with effect from 1.4.2010. Despite issue of such notification by the Government the Collector, Nayagarh (opposite party No.2) issued the order dated 8.4.2010 and the letter dated 5.3.2010 which are arbitrary and illegal. Despite issue of such notification by the Government the Collector, Nayagarh (opposite party No.2) issued the order dated 8.4.2010 and the letter dated 5.3.2010 which are arbitrary and illegal. Hence the writ petitions to quash the letter dated 5.3.2010 and the office order dated 8.4.2010 of the Collector, Nayagarh and to direct the licencing authority to renew their li¬cences. 3. Opp. party Nos. 2 and 3 in their Counter contended that the opp. party No. 2 has exercised his power within the scope and ambit of Orissa Public Distribution System (Control) Order, 2008 as well as instructions issued by the Govt. in Food Supplies and Consumer Welfare and Panchayatiraj Department from time to time. He did not violate the order dated 22nd March, 2010 of the Govt. of Orissa, Food Supplies and Consumer Welfare Department by issuing letter dated 5.3.2010 and office order dated 8.4.2010 and as such prayed to dismiss all the writ petitions. 4. Learned counsels appearing for the petitioners submit¬ted that as defined under Sub-clause (k) of Clause 2 of the O.P.D.S. (Control) Order, 2008, the licensing authority means, an officer appointed by the Government to exercise the powers and perform the duties of licensing authority. As per the notifica¬tion dated 29.3.2008 issued by the Govt. of Orissa in Food Sup¬plies and Consumer Welfare Department, the District collectors have been empowered to grant wholesale license within the local limits of their jurisdiction. In the same notification Sub-Col¬lectors are authorized to grant retail license within their re¬spective jurisdiction. But by the impugned letter dated 5.3.2010, the Collector, Nayagarh usurped the power of the Sub-Collectors in selecting the retailers and vested the same to the Grama Panchayats, which is against the tenet of law. On perusal of the letter dated 5.3.2010 of the Collector issued to the Sub-Collector Nayagarh, it is found that on the visit of the Commis¬sioner-cum-Secretary, F.S. & C.W. Department to various PDS retail points, it was found that retailership has been granted to all and sundry in violation of Govt. guidelines. In some places, the retailers are tagged only to 20 to 30 cards which is not viable. As such, illegal retailership should be cancelled. If, in fact, some retailers have been appointed to distribute P.D.S. commodities to 20 to 30 beneficiaries only, against the Govt. guidelines. In some places, the retailers are tagged only to 20 to 30 cards which is not viable. As such, illegal retailership should be cancelled. If, in fact, some retailers have been appointed to distribute P.D.S. commodities to 20 to 30 beneficiaries only, against the Govt. norm that one retailer should be appointed for 2000 population in plain area and 1000 population in hilly and inaccessible areas, this part of the instruction vide letter dated 5.3.2010 cannot be said as illegal. But he instruction that: “Starting from 1st April 2010 all the G.P. Head quarters shall have PDS retail points which are to be handed over to the Sarpanches with tagging of minimum 500 cards. The Sarpanch may decide independently to hand over retailership to an existing reliable retailer or hand over to the S.H.G. or run the shop through the G.P. itself” cannot stand. The Sarpanch cannot be allowed to act as licensing authority. 5. With regard to the office order dated 8.4.2010 of the Collector, Nayagarh, instructing all the B.D.Os. of the district to direct the Gram Panchayats to obtain licence from the Sub-Collector-cum-Licensing Authority on deposit of licence fee of Rs.2000/- and security deposit @ Rs.1000/- per G.P. by way of treasury challan as per Clause 7 and 8 of OPDS (Control) Order, 2008, learned counsels for the petitioners submitted that the said order was illegal. According to them, no doubt as per sub-clause 3 of Clause 4 of Orissa P.D.S. (Control) Order 2008, first preference for appointment and for grant licence as retailer would be given to the Gram Panchayats, followed by Women SHGs, Co-operative Societies and other SHGs. There are also Govt. notifications to that effect. But, the Collector cannot compel the Gram Panchayats to act as retailers. On the other hand, learned Addl. Govt. Advocate contended that in view of Clause 4(6) of the OPDS (Control) Order, 2008, the Licensing Authority should make efforts to replace private dealers with institutional dealers like Gram Panchayats, SHG, Co-operative Societies etc. Moreover, section 44 (z-3) of the Orissa Gram Panchayat Act, 1964 stipulates that it is the duty of Gram Panchayat to under¬take, control and administer and be responsible for public dis¬tribution system. Moreover, section 44 (z-3) of the Orissa Gram Panchayat Act, 1964 stipulates that it is the duty of Gram Panchayat to under¬take, control and administer and be responsible for public dis¬tribution system. So, in view of the provisions contained under Clause 4(6) of O.P.D.S. (Control) Order, 2008 read with Section 44 (z-3) of the G.P. Act and different notifications issued from time to time by the Govt. in Panchayatraj Department, the Collec¬tor is competent to pass the office order dated 8.4.2010. 6. There is no second opinion that the Gram Panchayats should be given preference to get retailership of P.D.S. commodi¬ties. Clause 4(6) of Orissa Public Distribution System (Control) Order, 2008 lays down that the Licensing Authority shall make efforts to replace private dealers with institutional dealers like Gram Panchayats, SHG, Co-operative Societies etc. In accord¬ance with the said provision, direction has been given by the Collector, Nayagarh to the B.D.Os. in para No. 1 of the office order dated 8.4.2010 to impress upon the Gram Panchayats to take up responsibility of Public Distribution System. In the next para, she directed the Gram Panchayats to obtain licenses from the Sub-Collector by observing due formalities. So, it can be inferred from office order dated 8.4.2010 that the B.D.Os shall impress upon the Gram Panchayats to take responsibility of Public Distribution System and if the Gram Panchayats or some of the Gram Panchayats are willing to obtain the licence, they can obtain it by complying due formalities. In the considered opinion of this Court, it can not be inferred from the office order dated 8.4.2010 that all the Gram Panchayats shall obtain licenses even against their willingness. So, I am not inclined to quash the aforesaid office order. 7. Learned counsel for the petitioners further submitted that the petitioners applied for renewal of their licenses during the statutory period, but the same have not yet been disposed of. They further submitted that Govt. of Orissa in Food Supplies and Consumer Welfare Department vide order dated 22.3.2010 instructed to all the Collectors of the State to see that the licenses of the Sub-whole sellers of Kerosene oil, which are valid upto 31.3.2010, may be renewed for a period of four months with effect from 1.4.2010 as per conditions laid down in O.P.D.S. (Control) Order 2008, subject to their satisfactory performances. In case of retailers, the renewal of their licenses may be done as per the O.P.D.S. (Control) Order 2008 for a period of one year with effect from 1.4.2010. Despite such order the licenses of the petitioners were not renewed. In this respect, learned Addl. Govt. Advocate contended that since Block Level Advisory Commit¬tees of Nayagarh District were constituted on 17.4.2010 and performance reports of the retailers have been called for by the Licensing Authority/Sub-Collector, Nayagarh, the said order could not be complied with. He further submitted that as per clause 6(3) of the OPDS (Control) Order, 2008 every application for renewal of licence is required to be made along with the original copy of licence at least 45 days before the date of expiry of the said licence. Further Clause 7(4) of the said order envisages that the application shall be accompanied by receipted treasury challan in token of payment of prescribed fees. The petitioners have not applied for renewal of their licences within the stipulated time and their applications are not accompanied with receipted Treas¬ury challans. The veracity of this submission is denied by learned counsel appearing for the petitioners. 8. In the result, the portion of the letter dated 5.3.2010- “starting from 1st April 2010 all the G.P. Head quar¬ters shall have PDS retail points which are to be handed over to the Sarpanches with tagging of minimum 500 cards. The Sarpanch may decide independently to hand over retailership to an existing reliable retailer or hand over to the S.H.G. or run the shop through the G.P. itself” is hereby quashed. It is ordered that if the petitioners have applied for renewal of their licences within the stipulated period along with receipted treasury challans in token of payment of prescribed fees, their renewal application and application, if any made by any of the Gram Panchayats shall be considered together by the competent Licensing Authority within 15 days from the date of receipt of this order in accord¬ance with law. If in the meantime any Gram Panchayat has already been granted licence under the O.P.D.S. (Control) Order, 2008 in respect of any sale centre, it shall not be disturbed. Accordingly all the writ petitions stand disposed of. Petitions disposed of.