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2016 DIGILAW 1106 (ORI)

Mohanty Trading & Co. v. State of Odisha

2016-11-16

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. The petitioners, who are the empanelled dealers under the State Agriculture Policy 2013 and are authorized to distribute pump sets under “the guidelines for sanction and disbursement of subsidy on pump set”, have filed this writ application impugning the communication dated 22.07.2015 in annexure-3 purportedly issued on the basis of the minutes of the review meeting dated 13.07.2015 held under the Chairmanship of the Chief Secretary, Odisha wherein a decision has been taken that supply of 40,000 pump sets during 2015-16 shall be made by a sole supplier, i.e., the Odisha Agro Industries Corporation Ltd.(OAIC). By such decision, the petitioners having been deprived of their rights to supply pump sets to the farmers of Jagatsinghpur district under the Scheme of the Government, have sought for quashing of the same being violative of Article 19(1)(g) of the Constitution of India. 2. The brief facts of the case are that the Government of Odisha has been issuing its State Agricultural Policy from time to time. The initial policy was issued in the year 1996, which was modified in the year 2008, and the policy which is in existence, and in consideration for the purpose of this case, is one issued in the year 2013. The guidelines for sanction and distribution of subsidy on pump sets under the Agricultural Policy, 2013 have been issued, which are filed as Annexure-2 to the writ petition. The admitted fact is that all the petitioners herein are registered dealers for supply of 1.5 HP single phase electric pump sets for the district of Jagatsinghpur. The list of registered dealers, which includes the names of all the 58 petitioners, has been filed as Annexure-1 to the writ petition. Along with such registered dealers, opposite party no.3-Odisha Agro Industries Corporation (OAIC) is one such dealer. Each dealer has been registered for distribution of pumps of particular manufacturers, and also the particular models of pumps of such manufacturers. The opposite party no.3-OAIC is also a registered dealer for five manufacturers. Different petitioners herein are dealers of different manufacturers of pump sets, which may be one, two, three or more manufacturers. Admittedly, opposite party no.3- OAIC is not the registered dealer of all the manufacturers. Some of the petitioners are registered dealers of manufacturers, other than the five, for which OAIC is the dealer. 3. Different petitioners herein are dealers of different manufacturers of pump sets, which may be one, two, three or more manufacturers. Admittedly, opposite party no.3- OAIC is not the registered dealer of all the manufacturers. Some of the petitioners are registered dealers of manufacturers, other than the five, for which OAIC is the dealer. 3. It is not disputed that as per the guidelines issued by the State Government, it is mandatory that for supply of pump sets on subsidy, the supplier should be a registered dealer. As per the policy, 40,000 pump sets are to be supplied to the farmers with 50% subsidy, limited to Rs.15,000/- only for each pump set. In pursuance of the said policy, a review meeting on crop and weather situation was held on 13.07.2015 under the chairmanship of the Chief Secretary, Odisha, of which the opposite party no.2-Commissioner-cum-Director of Agriculture & Food Production, Odisha was also a member. In the said meeting, certain decisions were taken, which were recorded in para-7 of the minutes of the said meeting. Sub-para (vi) of para-7, being relevant for the purpose of this case, is reproduced below:- “40,000 pump sets will be distributed to the farmers, with priority to the rain deficit areas, at usual subsidy by end of August, 2015.” 4. By an order dated 22.07.2015, which is impugned in this writ petition, opposite party no.2 Commissioner-cum-Director of Agriculture & Food Production, Odisha wrote to opposite party no.3-Managing Director, OAIC stating therein that as per the decision taken in the review meeting held on 13.07.2015, it was decided to supply 40,000 pump sets during 2015-16 under subsidy and that OAIC would be the sole supplier of all such pump sets. For ready reference, the said communication dated 22.07.2015 is being reproduced below: “DIRECTORATE OF AGRICULTURE & FOOD PRODUCTION: ODISHA: BHUBANESWAR No.2 M (12) 91/15 24370/Agril, Date : 22.07.2015 To The Managing Director, Odisha Agro Industries Corporation, Odisha, Bhubaneswar. Sub. : Modalities for supply of pump sets during 2015-16. Sir, Please find enclosed herewith the minutes of the review meeting on crop and weather situation held on 13.07.2015 under the Chairmanship of the Chief Secretary, Odisha (Annexure-1). In the said meeting, it has been decided to supply 40000 pump sets during 2015-16 under subsidy. OAIC will be the sole supplier of all such pump sets. Sir, Please find enclosed herewith the minutes of the review meeting on crop and weather situation held on 13.07.2015 under the Chairmanship of the Chief Secretary, Odisha (Annexure-1). In the said meeting, it has been decided to supply 40000 pump sets during 2015-16 under subsidy. OAIC will be the sole supplier of all such pump sets. In this regard, in order to finalise the modality and to fine tune the pump set tracking system software, a meeting was held under the Chairmanship of the Commissioner-cum-Director, Agriculture on 17.07.15 at 10.30 AM in the conference hall of the Directorate. The proceedings of the said meeting are enclosed herewith at Annexure-2, where in the modalities and action points to be followed have been outlined. You are requested to take immediate steps for effecting supply of the pump sets in view of the urgency. The district wise targets will be intimated to you separately. Encl. : AS ABOVE (Annexure 1 & 2) Yours faithfully, Commissioner-cum-Director of Agriculture & Food Production, Odisha Memo No. 24371/Date 22.07.2015” Interestingly, it is admitted between the parties that the opposite party no.2-Commissioner-cum-Director of Agriculture & Food Production, Odisha is himself the Managing Director of OAI Copposite party no.3. 5. The submission of learned counsel for the petitioners is that OAIC could not have been chosen as the sole supplier of 40,000 water pump sets, to the exclusion of the other registered dealers, such as the petitioners. The contention is that OAIC was one of the registered dealers and could have only been treated at par with other registered dealers, and the order passed by opposite party no.2 Commissioner-cum-Director of Agriculture & Food Production, Odisha for supply of 40,000 water pump sets only by the OAIC, is discriminatory and is liable to be quashed. It is further contended that the signatory of the order dated 22.07.2015, who was the Commissioner-cum-Director of Agriculture & Food Production, Odisha, was himself the Managing Director of OAIC to whom the letter was addressed, and the same amounts to one hand giving benefit to the other hand to the exclusion of other eligible parties, who are entitled to the benefit of the policy. Learned counsel for the petitioners thus submitted that the order is biased and mala fide and passed only for benefiting OAIC, which could at best be treated at par with other registered dealers. Learned counsel for the petitioners thus submitted that the order is biased and mala fide and passed only for benefiting OAIC, which could at best be treated at par with other registered dealers. It is also submitted that it is for the farmers to purchase the water pump sets from any one of the registered dealers, and for this the farmers would have a choice of the model and the manufacturers of the water pump sets. It is thus contended that since the OAIC is the dealer of only five manufacturers and that too of some of their models and not all models, the choice of the farmers has thus been limited, as other dealers are registered for selling pumps of other manufacturers also, which the farmers will not be able to purchase under the scheme. According to the petitioners, all this has been done only in order to benefit the OAIC through the signatory of the impugned order, who was himself the Managing Director, OAIC. Learned counsel for the petitioners submitted that OAIC is the dealer of the manufacturers, namely, Greaves Cotton, Kirloskar Brothers, Mahendra Pumps, Southern Agro Engine (P) Ltd. and USHA International Limited, whereas the petitioners are dealers of the aforesaid manufacturers, as well as other manufacturers like Sabar Industries Pvt. Ltd., V-Guard Industries Ltd, Mascot Pump Ltd., Angel Pumps (P) Limited, Tecmo Industries, Best Pumps (Ind.) Pvt. Ltd., Lagajjar Machineries Pvt. Ltd and CRI etc., of which opposite party no.3-OAIC is not a dealer. It is thus contended that by the impugned order dated 22.07.2015 the choice of the farmers to purchase the pumps which they find to be efficient, has been limited. It is further contended that in the minutes of the review meeting on crop and weather situation held on 13.07.2015 under the Chairmanship of the Chief Secretary, Odisha, a decision was taken to supply 40,000 pump sets during 2015-16 under subsidy by the sole supplier-Odisha Agro Industries Corporation. The minutes of the meeting held on 13.07.2015 has been annexed in Annexure-B to the counter affidavit filed by opposite parties no.1 and 2. The minutes of the meeting held on 13.07.2015 has been annexed in Annexure-B to the counter affidavit filed by opposite parties no.1 and 2. Nowhere such decision has been taken to supply 40,000 pump sets during 2015-16 under subsidy scheme only by the Odisha Agro Industries Corporation Ltd. Thus, the authority which issued impugned letter dated 22.07.2015, who is the Commissioner-cum-Director of Agriculture & Food Production, Odisha was functioning as the Chairman-cum-Managing Director of Odisha Agro Industries Corporation, has issued such letter unilaterally. Consequentially such letter suffers from bias and prejudice. Therefore, the same deserves to be quashed. 6. Per contra, Mr. B. Bhuyan, learned Addl. Govt. Advocate has submitted that the petitioners would not have any vested right to supply the water pump sets under the policy, as no dealer would have a right to sell its good when a Government authority takes a decision to allow only one dealer to supply the product. It has been submitted that though the petitioners may be registered dealers, since opposite party no.3 is a government organization and was also registered as a dealer, the State Government has rightly chosen that supply of all the pumps be made only through opposite party no.3. He has, however, not denied the fact that the signatory of the impugned order dated 22.07.2015, who is opposite party no.2, was himself the Managing Director of the OAIC in whose favour the order has been passed. It has also not been denied that opposite party no.3- OAIC is not a dealer of all the manufacturers of water pump sets, of which the petitioners are registered dealers. In support of his submission, he has relied on a decision of the apex Court in the case of Krishnan Kakkanth v. Government of Kerala and others, (1997) 9 SCC 495 . 7. Sri B. Baug, learned counsel for opposite party no.3-OAIC has submitted that though it may be true that opposite party no.2 is the Managing Director of opposite party no.3, however, since opposite party no.3 is a government company, the order dated 22.07.2015 is perfectly justified as the government has a right to supply the products through its own corporation. He has, however, not denied the fact that all the petitioners are registered dealers and also that opposite party no.3 is the registered dealer of only five manufacturers, whereas the petitioners are registered dealers of other manufacturers also. He has, however, not denied the fact that all the petitioners are registered dealers and also that opposite party no.3 is the registered dealer of only five manufacturers, whereas the petitioners are registered dealers of other manufacturers also. He has, however, submitted that the supply of water pump sets has been completed and that the scheme has come to an end on 10.11.2016. He also submitted that W.P.(C) (PIL) No.17812 of 2015, which was filed by some of the farmers of the locality for the same cause of action, having been dismissed on 01.10.2015, the present writ petition is not maintainable being hit by the principle of constructive res judicata and, as such, the same is liable to be dismissed. 8. We have heard Sri Ashok Mohanty, learned Senior Counsel along with Sri A.A. Das and Sri S.K. Dalai for the petitioners; as well as Mr. B. Bhuyan, learned Addl. Govt. Advocate appearing for the State-opposite parties no.1 and 2; Sri B. Baug, learned counsel for opposite party no.3-OAIC and Sri Karunakar Jena, learned counsel for opposite party no.4. Pleadings between the parties have been exchanged and with consent of learned counsel for the parties, this writ petition is disposed of finally at the stage of admission. 9. In view of the aforementioned pleaded facts, the primary question that falls for consideration in this writ petition is as to whether a dealer for supply of water pump sets, registered under the scheme of the Government, could have any vested right to claim for supply of pump sets under the scheme. The other question involved in this case would be that, whether the Government would have a right to assign only one of such registered dealers to supply the pump sets to the farmers, ignoring the rights of the other registered dealers. 10. The basis of issuance of Annexure-3, the letter dated 22.07.2015, by the Commissioner-cum-Director of Agriculture & Food Production, Odisha is the minutes of review meeting on crop & weather situation held on 13.07.2015 under the Chairmanship of the Chief Secretary, Odisha. In the said meeting it has been decided to supply 40,000 pump sets during 2015-16 under subsidy and Odisha Agro Industries Corporation will be the sole supplier of such pump sets. In the said meeting it has been decided to supply 40,000 pump sets during 2015-16 under subsidy and Odisha Agro Industries Corporation will be the sole supplier of such pump sets. The minutes of meeting held on 13.07.2015 are available on record which has been filed by opposite parties no.1 and 2 in their counter affidavit filed on 03.11.2015 as Annexure-B at page 70. In paragraph-7 thereof the following decisions emerge to be taken: “7. After a detailed discussion, the following decisions were taken:- (i) The Agro Advisory prepared in consultation with the OUAT along with the information on availability of different kinds of certified seeds (variety-wise and location-wise) shall be made available through Doordarshan/Print Media/Website for information of farmers. (ii) Balanced use of fertilizers shall be promoted among the farmers through mass campaign and awareness programme a well as wide publicity through print & electronic media. (iii) Video conferencing shall be conducted jointly by the Agriculture & Co-operation Department involving DDAs & DRCS at the District level to sort out the problems relating to smooth supply and lifting of fertilizers by the PACS. (iv) The obstructions in movement of fertilizer by the Truck Owner’s Association must be resolved at the district level with t he intervention of Collectors. The matter shall be brought to the notice of the Chief Secretary, Odisha in case the problem remained unresolved in any district. (v) For distribution of pulse, oilseed and vegetable minikits in the eventuality of an exigent situation, the Commissioner-cum-Director of Agriculture & Food Production, Odisha shall empanel the seed suppliers after checking the availability of certified seed stocks with them. The seed stocks shall be kept in readiness for procurement at the time of exigency and Government approval to the effect shall be taken in advance. (vi) 40,000 pumpsets will be distributed to the farmers, with priority to the rain deficit areas, at usual subsidy by end of August, 2015. (vii) The availability of pump sets in different Agro Service Centre (ASC) shall also be ascertained and publicised so that those can be hired by the farmers in exigency. (viii) The M.D., OLIC and Special Secretary, Energy Department shall jointly work out a plan to ensure energisation of 13,000 Deep Bore Wells by 15th August, 2015 for which farmers’ share has been received and work order issued by OLIC. (viii) The M.D., OLIC and Special Secretary, Energy Department shall jointly work out a plan to ensure energisation of 13,000 Deep Bore Wells by 15th August, 2015 for which farmers’ share has been received and work order issued by OLIC. (ix) Efforts will be made for sanction of DRI loans to 20,000 beneficiaries, who have not yet deposited their share towards the Bore Wells. ACS, Finance will request the Commercial Banks and SLBC Convenor to expeditiously advance such DRI loans. (x) The Contingent Action Plan shall be prepared by the Panchayati Raj Department for establishment of water harvesting structures, diversion weirs etc. in consultation with the Agriculture Department. (xi) The irrigation programme made for the current Kharif season shall be reviewed jointly by the Water Resources Department & Agriculture Department and the information shall be transmitted to the farmers. (xii) Crop Demonstrations are to be conducted on zero tillage and use of drum seeders with the sprouted paddy seeds and these techniques be made popular among the farmers quickly by the Directorate of Agriculture & Food Production to mitigate and kind of moisture stress situation. The meeting ended with vote of thanks to the Chair & participants. This issues with the approval of Chief Secretary, Odisha.” A glimpse of the aforementioned decisions would show that nowhere any decision has been taken that the Odisha Agro Industries Corporation would be the sole supplier of all such 40,000 pump sets during 2015-16 under subsidy. Thereby, the order impugned dated 22.07.2015 in Annexure-3 stated to be issued basing on such minutes of review meeting dated 13.07.2015 is contrary to the materials available on the record. More so, the very same person, who was functioning as Commissioner-cum-Director of Agriculture & Food Production, Odisha and discharging the duty of Chairman-cum-Managing Director of Agro Industries Corporation, having issued the impugned order in his dual capacity, the order would suffer from bias and prejudice by the authority concerned. In Secy. To Govt., Transport. Deptt. V. Munuswamy Mudaliar, 1988 Supp SCC 651 : AIR 1988 SC 2232 , the apex Court explained the term “bias” as follows: “A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. In Secy. To Govt., Transport. Deptt. V. Munuswamy Mudaliar, 1988 Supp SCC 651 : AIR 1988 SC 2232 , the apex Court explained the term “bias” as follows: “A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. The test for bias is whether a reasonable intelligent man, fully apprised of the circumstances would feel a serious apprehension of bias.” In Rattan Lal Sharma V. Managing Committee, Dr Hari Ram (Co-Education) Higher Secondary School, AIR 1993 SC 2155 : (1993) 4 SCC 10 , the apex Court interpreted the word “bias” as follows: “A predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias. Personal bias is one of the three major limbs of bias namely pecuniary bias, personal bias and official bias.” In State of W.B. v. Shivananda Pathak, AIR 1998 SC 2050 : (1998) 5 SCC 513 , the apex Court defined “bias” as follows: “Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartiality in a particular case. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute or policy bias etc.” 11. Apart from the above, the petitioners in the writ petition have specifically pleaded in paragraph-16 of the writ petition to the following effect: “16. That, after being verified the facts of the game it was learnt one Dr. P.K. Meherda who is now holding post of Commissioner-cum-Director, Agriculture Department so also Managing Director, Agro Industry Corporation and he is the sole authority to take all the decisions with an malafide intention to misappropriate public money and the policy which has been adopted by him is contrary to the Agriculture Policy, 2013 and loss of Rs. 12 crores is a great concerned of the State.” Opposite parties no.1 and 2 have not given any specific reply to paragraph-16 of the writ petition, rather in paragraph-8 of their counter affidavit it has been stated as follows: “8. 12 crores is a great concerned of the State.” Opposite parties no.1 and 2 have not given any specific reply to paragraph-16 of the writ petition, rather in paragraph-8 of their counter affidavit it has been stated as follows: “8. That in reply to the averments made in Paragraph-15 to 19 of the writ petition, the deponent humbly submits that the farmers are free to choose the make and model of the pump sets. During 2015-16, as per revised guidelines approved by Govt., the lowest of the offered/approved/indicative prices have been fixed for the purpose of subsidy and in view of OAIC, being the exclusive supplier, model wise rates have been fixed for sale after negotiation with the Manufacturers, as the Corporation will first procure and supply the models as per farmers’ choice. It is also humbly submitted that the Managing Director, Odisha Agro Industries Corporation Ltd. Has issued the expression of Interest (EOI) for empanelment of Manufactures of oil/electric pump sets with an objective to facilitate the farmers to select specified quality pump sets at reasonable price across the State. The Managing Director, OAIC on behalf of the farmers has called for the best offer price from the Manufacturers of pump sets in the said EOI. The best negotiated price has been fixed with 18 Manufacturers, as per the EOI and OAIC was supplying the models at the best negotiated price. The need for empanelment through EOI has been clearly mentioned in the EOI document. Farmers’ community need not have to pay more as mentioned in the writ petition.” Similarly, in paragraph-12 of the counter affidavit filed by opposite party no.3 in reply to paragraph-16 of the writ petition it has been stated as follows: 12. That as regards the averments and assertions made in paragraph-15 to 19 of the writ petition, it is humbly stated that the farmers are free to choose the make and model of pump sets and in this regard, the petitioners should not be worried and prejudiced since they are no way concerned with the choice of the farmers. That as regards the averments and assertions made in paragraph-15 to 19 of the writ petition, it is humbly stated that the farmers are free to choose the make and model of pump sets and in this regard, the petitioners should not be worried and prejudiced since they are no way concerned with the choice of the farmers. The lowest price has been fixed for the purpose of subsidy and the OAIC Limited being the exclusive supplier, model wise rates have also been fixed for sale of the pump sets of different makes and it has been directed that the OAIC Limited will procure and supply models of pump sets as per the choice of the farmers. 12. On the basis of the pleadings available on record, there is no specific denial made by the opposite parties to the fact pleaded in paragraph-16 of the writ petition as mentioned (supra). Furthermore, in the order dated 01.10.2015 passed in W.P.(C) (PIL) No.17812/ 2015, which was filed by some of the farmers of the locality, though it has been noted in paragraph-3 thereof that- “It is alleged by the petitioner that one Dr. P.K. Meharda is holding the post of commissioner-cum- Director agriculture & Food Production as also the post of Managing director, Odisha Agro Industries corporation Ltd. and he is the sole authority who has taken all the decisions with mala fide intention to misappropriate public money in contravention of the State Agriculture Policy, 2013. It is alleged that more than Rupees One Hundred twenty crores in supply of 40,000 pump sets through opposite paty No.3 (OAIC) with average difference of Rs.3000/- apiece not only amounts to misappropriation of public money but it will directly go to the pockets of some officials. It is submitted that the quotations from other dealers are quoting the same amount for the same brand and capacity of the pump, but their prices are inclusive of some accessories. Although it is repeatedly alleged that the decision of the opponents is contrary to the State agriculture Policy, 2013, it is not clearly pointed out how the distribution of pumps through OAIC is violating the policy.” in regard to the same, no finding has been given in the said order. Although it is repeatedly alleged that the decision of the opponents is contrary to the State agriculture Policy, 2013, it is not clearly pointed out how the distribution of pumps through OAIC is violating the policy.” in regard to the same, no finding has been given in the said order. Therefore, applying the principle discussed above to the present context, the order impugned in annexure-3 suffers from the person bias of the authority concerned, as it has been passed by the very same person while discharging his duty in dual capacity. In view of such, we are of the considered view that the order impugned in annexure-3 dated 22.07.2015 cannot sustain in the eye of law. 13. Reliance has been placed by learned Additional Government Advocate on Krishnan Kakkanth (supra) wherein the apex Court has held that a citizen has no fundamental right to insist on Government or any other individual to do business with him. In that case, the Government circular directing that farmers or agriculturists of certain districts opting to receive financial assistance under a Government scheme for purchase of pump sets would be obliged to purchase the pump sets from approved dealers of the Government, was the subject matter of challenge. But in the case at hand, the fact that opposite party no.3 is one of the registered dealers is not disputed. It is also not disputed that the farmers have a right to purchase the water pump sets of their choice from the registered dealers and that the policy did not contemplate restricting the supplies to be made by any one particular registered dealer. Once a dealer fulfils all the conditions and has been registered with the government for supply of water pump sets under the scheme of the Government, he acquires a vested right to do business in that regard as a registered dealer. The position of a registered dealer is distinct from that of a private dealer. The apex Court was dealing with the case of the farmers in Krishnan Kakkanth (supra), wherein it has been held that the private dealers would not have a right under the scheme of the Government. It was not a case where registered dealers having been discriminated vis-à-vis one registered dealer. There is no dispute that a private dealer would not have the same right as that of a registered dealer. It was not a case where registered dealers having been discriminated vis-à-vis one registered dealer. There is no dispute that a private dealer would not have the same right as that of a registered dealer. But once a dealer is registered for some business purpose, he does acquire a right to do business and denial of the same to such registered dealers by permitting only one registered dealer to do all the business, to the exclusion of other registered dealers, cannot be justified in law. 14. A contention was raised that in view of the decision already taken by a Division Bench of this Court on 01.10.2015 dismissing W.P.(C) (PIL) No.17812/2015 filed by the farmers, the present writ petition at the instance of the approved notified dealers, for the same cause of action, is not maintainable and hit by the principle of constructive res judicata. Section 11 of the Code of Civil Procedure, 1908 deals with res judicata. Section 141 of the same Code deals with miscellaneous proceedings. Explanation thereto clearly states that in this section, the expression “proceeding” includes proceeding under order IX, but does not include any “proceeding” under Article 226 of the Constitution. Therefore, though the procedure envisaged under the Code of Civil Procedure is not applicable to the proceeding under Article 226 of the Constitution of India, it is held that the underlying principles therein are applicable while deciding the matter in accordance with law. On perusal of the said judgment dated 01.10.2015 passed in W.P.(C) (PIL) No.17812/ 2015, it appears that this Court was not inclined to interfere with the scheme, guidelines or modalities devised for their execution, on the basis of unsubstantiated allegations and baseless adverse inferences. As such, the farmers are not the persons aggrieved so as to maintain the PIL which has been dismissed by this Court vide order dated 01.10.2015. But, the present writ petition, which has been filed by the respective approved registered dealers is not a PIL, but by those who have been empanelled and registered to supply the pump sets to the farmers, and excluding their rights, if authority decides to allow supply of pump sets to only one individual registered dealer, namely, Odisha Agro Industries Corporation, that itself affects the rights of the petitioners to trade, which is a fundamental right as enshrined under Article 19(1)(g) of the Constitution of India. Thereby, the petitioners, being the persons aggrieved, have every right to maintain the writ petition before this Court and at their instances, if the writ petition is entertained, it cannot be said that the present writ petition is hit by the principle of constructive res judicata. In Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 , while considering Section 11 of the Code of Civil Procedure, the apex Court held as follows: “Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. (para 20) Res judicata means “a thing adjudicated”, that is, an issue that is finally settled by judicial decision. The Code deals with res judicata in Section 11, relevant portion of which is extracted below (excluding Explanations I to VIII): “11. Res Judicata–No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” (Para21) Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue: (i) The matter must be directly and substantially in issue in the former suit and in the later suit. (ii) The prior suit should be between the same parties or persons claiming under them. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (ii) The prior suit should be between the same parties or persons claiming under them. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (v) The court trying the former suit must have been competent to try the particular issue in question. (para 22) To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression “former suit” refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. Explanation IV provides that: “Explanation IV–Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of “matter directly and substantially in issue”. (Para 23.) Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if it was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to have been claimed on the same cause of action but not claimed.” Applying the principles discussed above to the present case, this Court is of the considered view that the writ petition is not hit by the principles of constructive res judicata, as the parties are different, claims are different, and also subject matter of the dispute is different from that of W.P.(C)(PIL) No.17812/2015 dismissed on 01.10.2015. 15. On facts what we find is that in the counter affidavit the averments made by opposite party no.2 and the opposite party no.3 are at variance, although both the counter affidavits have been sworn on the same date, i.e., 03.11.2015. In paragraph-9 of the counter affidavit of opposite party no.2, it has been stated that- “by 19.08.2015, target (Quota) had already been released for 36557 pump sets out of 40000 earmarked for 2015-16. Permits had also been issued in respect of a total of 9000 pump sets as on 29.10.2015”. Whereas counter affidavit filed by opposite party no.3, in paragraph-14 it has been averred that- “in view of the urgency of the matter of supply of pump sets within the specified period, the present Opposite Party No. 3 may be allowed to continue the supply of the balance 31000 numbers of pump sets to the farmers”. On the same date, one averment is made by opposite party no.2 that 36557 pump sets have been released out of 40000 earmarked for 2015-16, whereas opposite party no.3 states that the OAIC be allowed to supply balance 31000 out of 40000 pump sets. Interestingly, both the opposite parties are headed by the same person, although the counter affidavit has been filed by different officials. 16. Interestingly, both the opposite parties are headed by the same person, although the counter affidavit has been filed by different officials. 16. From the above, it is made clear that opposite party no.2 was all out to favour opposite party no.3 in total disregard to the Agricultural Policy, 2013 and guidelines issued there under, which cannot be sustained in the eye of law. 17. In view of the discussion made hereinabove, we answer the two questions involved in this case in favour of the petitioners and are of the view that the writ petition deserves to be allowed, and is accordingly allowed. The order dated 22.07.2015 passed by opposite party no.2-Commissioner-cum-Director of Agriculture & Food Production, Odisha is quashed. In case all the supplies have yet not been made, the farmers shall be at liberty to purchase the water pump sets under the subsidy scheme of the government from the petitioners, who are all registered dealers for the district of Jagatsinghpur. No order to cost.