Disposed

T.Nagin Kumar Senapaty v. State of Odisha

Orissa HC26 Feb 2024WP(C)/3827/2016

Case brief

AI extract

What is this about?

Challenge to suspension of a wholesale kerosene license under the Odisha PDS (Control) Order, 2008. The Court held Clause-14(3) requires neither notice nor supply of the satisfaction report, and since the license had expired by efflux of time, the petition became infructuous but liberty was given to seek renewal.

What did the court decide?

No interference with suspension order; liberty to apply for renewal within four weeks, to be decided by Collector, Ganjam within two months with communication of outcome within two weeks thereafter.

T.Nagin Kumar Senapaty Vs State of Odisha — Writ and Judicial Review | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No.3827 of 2016

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T. Nagin Kumar Senapati ....... Petitioner -VersusState of Odisha & ors. ....... Opposite Parties For Petitioner : Mr. A.K. Patra, Advocate For Opposite Parties : Mr. J. Katikia, AGA ................... CORAM: JUSTICE SANJAY KUMAR MISHRA ___________________________________________________________ Date of Hearing and Judgment: 26.02.2024 ___________________________________________________________ S.K. MISHRA, J. 1. This writ petition has been preferred with a prayer to quash the order of suspension dated 06.08.2015 as at Annexure-3, vide which the Opposite Party No.2 (Collector, Ganjam) ordered to suspend the wholesale kerosene license of the Petitioner. A further prayer has been made to pass an order directing the authority concern to allow the Petitioner to continue as kerosene wholesale dealer in his place of business at Rambha.

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2. Opposing to the said prayer made in the writ petition, the State has filed the Counter Affidavit, in response to which the Petitioner has also filed the Rejoinder Affidavit.

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3. Mr. Patra, learned Counsel for the Petitioner drawing attention of this Court to the impugned order dated 06.08.2015 as at Annexure-3 submits, in terms of Clause-14 (3) of the Odisha Public Distribution System (Control) Order, 2008, shortly, “Control Order, 2008”, even though a proceeding is initiated against the dealer in terms of Clause 14 (1) of the said Control Order, 2008, it is obligatory on the part of the licensing authority to be satisfied that during pendency of the said proceeding, it may not be in the interest of the smooth operation of the Public Distribution System to allow the dealer to handle the PDS stocks. But, while issuing the impugned order dated 06.08.2015, no reason has been assigned in the said order.

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4. Mr. Patra further submits, though on the very same day a show cause notice was issued to the Petitioner for cancelation of his license for alleged contravention of various clauses under the Control Order, 2008, till date no communication has been made to the Petitioner regarding the outcome of the said proceeding initiated against the Petitioner, for which he was debarred from preferring an appeal in terms of Clause-17 of the Control Order,

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2008, which is akin to the Clause-19 of the OPDS (Control) Order, 2016.

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5. Mr. Patra submits, no reason was assigned before issuing the order of suspension in terms of Clause-14 (3) of the Control Order, 2008. Unless the licensing authority is satisfied that the conduct of the dealer is such that the smooth operation of the Public Distribution System may hamper, no order can be passed in terms of Clause-14 (3) of the Control Order, 2008. Since, the impugned order is lacking with such observation, the same being contrary to the provision/pre-condition enshrined under Clause14 (3) of the Control Order, 2008, deserves interference, despite there being provision of appeal prescribed under clause-17 of the Control Order, 2008.

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6. Mr. Patra submits, even though there is a mention

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regarding the satisfaction of the authority concern, as indicated in the office order dated 06.08.2015, but the so called report was never supplied to the Petitioner. Further, the said report has not been enclosed to the Counter Affidavit filed by the State, based on which the licensing authority allegedly being satisfied, ordered for suspension of the license of the Petitioner. Relying on the order of this Court in Saroj Kumar Tripathy vs. Collector, Sambalpur & ors. reported in 2010 (I) OLR 446, Mr. Patra

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further submits, the writ court has jurisdiction to deal with the grievance of the Petitioner.

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7. In response to such submission made by the learned Counsel for the Petitioner, Mr. Katikia, learned AGA for the StateOpposite Parties, drawing attention of this Court to the Office Order dated 06.08.2015 submits, the Collector & Licensing Authority, Ganjam, Chhatrapur, while passing such order has categorically mentioned that on being satisfied by the Report, ordered for suspension of the license in terms of Clause-14 (3) of

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the Control Order, 2008 with immediate effect and it is incorrect to say that there is no such observation made in the impugned suspension order date 06.08.2015.

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8. Mr. Katikia further submits, the suspension of license can

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be in vogue till the validity period of license, which ended on 31.03.2016. Hence, by efflux of time, the writ petition has

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become infructuous. He further submits, though no specific stand has been taken in the Counter Affidavit, in view of the provisions enshrined under Clause-17 (2) of the Control Order, 2008, instead of preferring an appeal against the suspension order dated 06.08.2015, the Petitioner has approached the writ court. Hence, the writ petition is not maintainable.

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9. Mr. Katikia submits, for the first time such a point is being agitated by the learned Counsel for the Petitioner regarding nonsupply of Report, based on which the Collector, being satisfied, passed the order of suspension. No ground has been taken in the writ petition that because of non-supply of report so also non fulfillment of the pre-condition enshrined under Clause-14 (3) as to the order of suspension is bad. Hence, there was no occasion on the part of the State to disclose the said report in the counter

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based on which the licensing Authority issued office order dated

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06.08.2015 ordering to suspend the wholesale SK Oil License issued in favour of M/s Senapati Traders, Rambha. The stand of

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non disclosing the said report in the Counter Affidavit is also misconceived.

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10. In view of such submission made by the learned Counsel for the parties, it would be apt to reproduce below the Clause-14 (1), 14 (3) and 17 of the OPDS (Control) Order, 2008.

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Contravention of conditions of

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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 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

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and the security deposit may be forfeited in full or in part:

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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.

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XXX XXX XXX

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(3) The licensing authority may by a written order, suspend the license of a dealer, if a proceeding under subclause (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 subclause. 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.

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Appeal . - (1) All appeals under this order shall lie before the Appellate Authority.

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(2) Any person aggrieved by an order of the Licensing Authority refusing to grant or renew or reissue a licence or suspending or cancelling a licence or forfeiting the security deposit or withholding the allocation of quota under the provisions of this order may prefer an appeal before the Appellate Authority within thirty days of the date of receipt of the order.

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(3) The memorandum of appeal should be accompanied by a copy of the license of the appellant and a copy of the order appealed against.

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(4) Any appeal preferred after the expiry of the aforesaid period may be summarily rejected by the Appellate Authority.

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(5) No such appeal shall be disposed of unless the aggrieved person has been given a reasonable opportunity of stating his/her case in writing and being heard in person.

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(6) Pending disposal of an appeal, the Appellate Authority may direct that the order of the licensing authority, against which the appeal is preferred, shall not take effect until the appeal is disposed of.

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(Emphasis Supplied)

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11. Based on the submissions made by the learned Counsel for

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the parties as detailed above and on perusal of the provisions enshrined under Clause-14 & 17 of the Control Order, 2008, vis-

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a-vis the impugned office order dated 06.08.2015 as at annexure-3, this Court is of the view that there being no provision under Clause 14 (3) of the Act to supply the basis on which the authority concerned got satisfied before issuance of the order of suspension, the submission made by the learned Counsel for the Petitioner as to non supply of report and prayer

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for interference with the impugned order on the said ground is misconceived and not acceptable. Rather, the said clause provides, no prior notice is necessary before passing any order under Sub-clause-3 of Clause-14 before issuance of the suspension order.

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12. In view of such specific provision, the Petitioner had no right to ask for a copy of the report, based on which the licensing authority, being satisfied, issued the impugned order dated 06.08.2015. Admittedly, show cause notice dated 06.08.2015

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was issued to the Petitioner in terms of Clause 14 (1) of the Control Order, 2008. Proviso under the said clause mandates that no order shall be made under the said clause, unless the licensee has been given a reasonable opportunity of stating his

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case and if he so desires of personal hearing against the proposed cancellation & forfeiture, such opportunity has to be extended to the licensee.

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13. Though there is no interim order staying further proceeding pursuant to show cause notice dated 06.08.2015 as at Annexure-3 and there was no legal bar to proceed further by the licensing authority pursuant to the said show cause notice dated 06.08.2015, till date no communication has been made to the Petitioner intimating him about outcome of the said proceeding. As the license was valid till 31.03.2016, this Court is of the view that the said proceeding initiated against the Petitioner U/s 14 (1) of the Control Order, 2008 has become infructuous.

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14. This Court is of further view that, since the license of the Petitioner was in vogue till 31.03.2016, the impugned order of suspension of his license was in force till the expiry of the licensing period and by efflux of time, the prayer made in the writ petition has also become infructuous and needs no interference.

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15. However, it is made clear that this order will not prevent the Petitioner to approach the licensing authority for renewal of his wholesale SK Oil license bearing No.-08/ 2008-09. If the Petitioner approaches the authority concern for renewal of his license within four weeks hence, it shall be dealt with and disposed of by the Opposite Party No.2 (Collector, Ganjam) in terms of various provisions under the Odisha PDS (Control) Order, 2016, which is in vogue now, within a period of two months from the date of receipt of such application for renewal of license and the outcome of the same shall be communicated to the Petitioner within two weeks thereafter.

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16. With the said observation, the writ petition stands disposed of.

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….…...……………..

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S.K. Mishra, J.

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Signature Not Verified

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Orissa High Court, Cuttack. Dated, 26^th February, 2024/ Banita

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Digitally Signed

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Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 01-Mar-2024 19:07:42

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T.Nagin Kumar Senapaty v. State of Odisha

Case brief

What is this about?

What did the court decide?

T.Nagin Kumar Senapaty v. State of Odisha

Case brief

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