Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 484 (ORI)

Anup Kumar Jain v. Collector, Bolangir

2013-12-09

B.K.NAYAK

body2013
ORDER 1. Heard learned counsel for the petitioner and the learned Additional Government Advocate. 2. Perused the records. 3. Order dated 11.07.2013 under Annexure-1 passed by the Collector, Bolangir suspending the wholesaler licence of the petitioner in respect of S.K.Oil is the subject matter of challenge in this writ application. 4. Learned counsel for the petitioner submits that the reason given for suspension in the suspension order is due to irregular distribution of S.K.Oil by the petitioner for which an FIR has been lodged in the Police Station by the Inspector of Supplies, Patnagarh. Inviting attention of this Court Clause 14 of the Orissa P.D.S. (Control) Order, 2008, he submits that under Sub-clause (3) of the said clause suspension of the licence of the licensee is permissible only where a proceeding under Sub-clause (1) of Clause 14 i.e. for cancellation of licence has been initiated for the reason as mentioned in Sub-clause (1). He also submits that for initiation of a proceeding for cancellation of licence, a show-cause notice to the licencee is mandatory. But no show cause notice has been issued to the petitioner. 5. Learned Additional Government Advocate on the other hand submits that the impugned order in fact one under Sub-clause (4) of Clause 14 which indicates that no prior show cause is required for withholding the allocation of quota to any licensee for a period not exceeding 60 days pending enquiry or investigation against the licensee, if the Licensing Authority has reason to believe that the licensee has not maintained proper and correct accounts in respect of the quota allotted to him earlier or has diverted the PDS stocks or committed any irregularity. It is also his submission that order of suspension of licence is appealable under Clause 17 of the said Control Order and the writ petition should not be entertained since the petitioner has not availed the alternative remedy. 6. Clause 14 of the Orissa P.D.S. (Control) Order, 2008 provides as under: "14. Contravention of conditions of licence or control orders - (1) 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 or 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 licence 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. (2) Upon compliance with all obligations under the licence 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 licence by the licensing authority. (3) The licensing authority may by a written order, suspend the license of a dealer, if a proceeding under Sub-clause (1) of this clause 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. No prior notice will be necessary before passing any order under this sub-clause. Explanation - For the purpose of this sub-clause, the proceedings under Sub-clause (1) shall be deemed to have been initiated on the date of issue of the show cause notice by the licensing authority. (4) No prior show cause notice would be required for withholding the allocation of quota to any licensee for a period not exceeding 60 days pending enquiry or investigation against the licensee, 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 PDS stocks or committed any other irregularities." 7. Apparently the impugned order is not one under Sub-clause (4) withholding the allocation of quota of the petitioner. Clause (4) does not contemplate suspension of license, but merely provides for withholding of allocation of quota for a maximum period of 60 days pending enquiry or investigation against the licensee for the reasons stipulated in the said sub-clause. Evidently the impugned order is not one under Sub-clause (4) of Clause 14 of the Control Order. 8. Clause (4) does not contemplate suspension of license, but merely provides for withholding of allocation of quota for a maximum period of 60 days pending enquiry or investigation against the licensee for the reasons stipulated in the said sub-clause. Evidently the impugned order is not one under Sub-clause (4) of Clause 14 of the Control Order. 8. The only provision of suspension of license is sub-clause (3) of Clause 14 which indicates that only one circumstances, i.e., when a proceeding for cancellation of license under Sub-clause (1) of Clause 14 has been initiated. No time limit or duration for suspension has been stipulated in the statute. Any order of suspension without any reference to initiation of a proceeding for cancellation of a licence by the authority would be without jurisdiction. In the impugned order there is no reference for initiation of proceeding under Sub-clause (1) of Clause 14 of the Control Order for cancellation of licence of the petitioner. The impugned order is, therefore, without jurisdiction which cannot be sustained and non-filing of appeal by the petitioner would not be a bar for entertaining this writ petition. 9. Accordingly, I allow the writ petition and quash the suspension order under Annexure-1. The petitioner shall not be debarred from lifting his quota due to the passing of the impugned order, which is quashed. 10. The writ petition is accordingly disposed of. 11. Issue urgent certified copy. Petition disposed of.