W.P.(C) No. 13759 of 2016. Case: Gambharimunda Grama Panchayat Vs State of Orissa and Ors.. High Court of Orissa (India)

Case NumberW.P.(C) No. 13759 of 2016
CounselFor Appellant: Sukanta Kumar Dalai, Adv. and For Respondents: Deepak Kumar, Addl. Standing Counsel
JudgesS.K. Sahoo, J.
IssueConstitution of India - Articles 243G, 243N, 254, 254(1), 254(2), 40; Essential Commodities Act, 1955 - Section 3; National Food Security Act, 2013 - Sections 12(2)(e), 2(23), 2(4), 44(Z3); Orissa Grama Panchayats Act, 1964 - Sections 19, 26(3), 44, 44(Z3)
Judgement DateJanuary 13, 2017
CourtHigh Court of Orissa (India)


S.K. Sahoo, J.

  1. Heard Mr. Sukanta Kumar Dalei, learned counsel for the petitioner, Mr. Deepak Kumar, learned counsel for the State and Mr. Pradipta Kumar Mohanty, learned Senior Advocate for the opposite parties Nos. 5 and 6.

    The petitioner Gambharimunda Grama Panchayat represented through its Sarpanch Kanchan Dei has filed this writ application challenging the office order No. 1943 dated 27.07.2016 (Annexure-1) issued by opposite party No. 4, Block Development Officer, Banapur for allotment of stock of PDS items rice and wheat in favour of two private retailers i.e. opposite parties Nos. 5 and 6, for distribution among the PHH and AAY beneficiaries under National Food Security Act, 2013 (hereafter 'NFS Act') for the month of August 2016 with a further prayer to direct the concerned opposite parties to allow the petitioner Grama Panchayat to carry on distribution of PDS items.

  2. It is the case of the petitioner that as per the licence given by the competent authority for distribution of PDS items, the petitioner Grama Panchayat was distributing such items smoothly among the villagers entitled to get the same. As per impugned order under Annexure-1, the opposite party No. 4 allotted rice and wheat from the monthly quota of the Grama Panchayat for distribution in favour of opposite parties Nos. 5 and 6 to some families of village Gambharimunda without the knowledge of the Grama Panchayat which is contrary to the provisions of the Orissa Public Distribution System (Control) Order, 2016 (hereafter "2016 Order"). It is the further case of the petitioner that since the Grama Panchayat was dealing with PDS items of more than 150 quintals, as per the notification dated 21.04.2012 issued by Government of Odisha, Food Supplies and Consumer Welfare Department, the petitioner appointed one Jogan Sahayak for management of the distribution affairs. The Hon'ble Supreme Court while adjudicating Writ Petition (C) 196 of 2001, passed an order constituting a committee to be headed by Hon'ble Mr. Justice D.P. Wadhwa, Former Judge, Supreme Court of India, to look into the maladies affecting the proper functioning of the public distribution system (PDS) and to suggest remedial measures. Justice Wadhwa committee visited the State of Odisha and made nineteen recommendations to improve the public distribution system in the State. It was suggested, inter alia, that the appointment of the dealers has to be made in a transparent manner and the system of appointment of private dealer has to be abolished. It is further case of the petitioner that the NFS Act which came into force on 05.07.2013 was enacted to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. It is stated that Chapter V of NFS Act deals with reforms in targeted public distribution system and section 12(2)(e) states that the Central and State Government shall endeavour to progressively undertake necessary reforms in the targeted public distribution system in consonance with the role envisaged for them in the Act and the reforms shall include preference to public institutions or public bodies such as Panchayats, self-help groups, cooperatives, in licensing of fair price shops and management of fair price shops by women or their collectives. It is the case of the petitioner that the opposite party No. 4 has contravened the provisions of NFS Act and 2016 Order and appointed private retailers like opposite parties Nos. 5 and 6 for distribution of PDS items in village Gambharimunda. It is also highlighted that similar provisions are available in the Targeted Public Distribution System (Control) Order, 2015 (hereafter '2015 Order') relating to giving preference to public institutions or public bodies such as Panchayats, self help groups, cooperative societies in the matter of licensing of fair price shops. Therefore, in the matter of grant of licence and appointment of dealer, preference has to be given to the institutional dealers like Grama Panchayats, followed by woman self-help groups, co-operative society and other self-help groups. It is stated that on extraneous consideration, two private persons like opposite parties Nos. 5 and 6 have been appointed as retailers and allotted with PDS items for distribution by the opposite party No. 4 which is contrary to the sprit of the Constitution of India and also in gross violation of the recommendations made by Hon'ble Justice Wadhwa Committee as well as the provisions of NFS Act and 2015 Order and 2016 Order and therefore, Annexure-1 should be quashed as illegal, arbitrary, mala fide and unconstitutional.

  3. Counter affidavit was filed on behalf of opposite party No. 2, Collector, Khurda and opposite party No. 3, Sub-Collector, Khurda on dated 25.08.2016 wherein it is stated that the allotment under NFS Act for the month of August 2013 were issued in favour of opposite parties Nos. 5 and 6 who had got licences as per the recommendation of the opposite party No. 4 and both of them were dealing with the PDS commodities as per Government guidelines. It is stated that as per Clause-4 of 2016 Order, both the institutional dealers as well as private individuals can be issued with PDS licence for dealing with PDS Commodities. A further affidavit was filed on 11.01.2017 by the opposite parties Nos. 2 and 3 in Court indicating therein that the opposite parties Nos. 5 and 6...

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