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2011 DIGILAW 546 (ORI)

Maa Banadurga WSHG v. State of Orissa

2011-11-03

S.K.MISHRA

body2011
ORDER 03.11.2011 — Heard learned counsel for the petitioner and the learned Addl.Government Advocate. Grievance of the petitioner, which is a Women Self Help Group, operating in the name of Maa Banadurga WSHG, is that they were continuing as PDS distributor for entire Banibhusanpur Gram Panchayat and without any notice to them the license to deal with rice and other materials has been withdrawn as per Annexure-1 and they were only retained as Kerosene oil retailer only for six villagers. Learned counsel for the petitioner relies on the reported case of M/s. Sarala Distributors, Baro v. Collector, Kendrapara and others, 1995 (II) OLR 290, wherein it has been laid down that in exercise of powers under Clause 11 of the Kerosene Control Order, the Collector could not withdraw the area of operation from one licensee and give it to another licensee. It merely vests the power in the appropriate authority to issue any dealer in all matters including the purchase, sale or storage for sale or distribution of Kerosene and the licensing authority in this behalf is not questioned. The question for consideration in that writ application was as to whether during the continuance of a term of license the licensing authority can withdraw the area of operation of the licensee either in part or in full, in which event it would amount to cancellation of the license so far as withdrawn portion of the area of operation is concerned. Clause 10 states that cancellation or suspension of a license for breach of terms and conditions of the licensee and contravention of the provision of the Kerosene Control Order. There also it has been provided that an order cancelling or suspending the license or the certificate shall be made without giving the dealer an opportunity of being heard and without recording the reasons for such order. Similar provision appears in at Rule 14 of the Orissa Public Distribution System (Control) Order, 2008, which is reproduced below for appreciation: “14. Contravention of conditions of licence or control orders - No holder of a licence 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 licence or of any Control Order issued under the Essential Commodities Act. If any such person contravenes any of the said terms or conditions, without prejudice to any other action that may be taken against him/her, the license shall be cancelled and the security deposit may be forfeited in full or in part : Provided that no 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. xxx” Learned Addl.Government Advocate drew attention of the Court that the Sub-Collector, Boudh has passed the impugned order in view of the fact that the WSHG has no infrastructure like weighing scale used in weighing the essential commodities, panchayat membership like the S.C.S. and no audited account and balance sheet. Therefore, the license to distribute of P.D.S. rice has been withdrawn from the petitioner. If such is the case, nothing prevented to the Sub-Collector from issuing notice to the petitioner to show cause before cancellation of the order. It is not disputed that no opportunity of showing cause has been issued to the petitioner before cancellation of the licence to the P.D.S. rice and the petitioner’s representatives were not heard in the manner. Since there is a clear violation of the proviso to sub-clause (1) of Clause 14 of the Orissa Public Distribution System (Control) Order, 2008, the order as at Annexure-1 is unsustainable and accordingly, the same is quashed. The writ application is accordingly allowed. It is directed that the petitioner Maa Banadurga WSHG shall continue to distribute the P.D.S. items and Kerosene oil as they were doing prior to passing of Annexure-1. However, this order will not be a bar against any further proceeding taken by the authorities strictly in accordance with the provisions of the Control Order. Accordingly, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Application allowed.