A.K. Parichha, J.
1. That facts leading to the present Writ Petition in substance is that due to cancellation of licence of one M/s. Raja Ram Agency of Padampur Block, one Md. Zaved, who was operating as Kerosene Oil Sub-Wholesaler of Khuntapali under Gaisilat Block of Padampur Sub-Division, was given additional charge of Padampur Block on 12.09.2001 by way of an interim arrangement. In the meantime, Opposite Party No. 1 issued a set of guideline vide its letter dated 24.2.2005 (Annexure-1) to all Collectors stipulating therein inter alia that no person or family member shall be granted any licence as a sub-wholesaler/wholesaler/retailer for S.K. Oil, if either he or any of his family member is in business of S.K. Oil. In that letter, it was specifically mentioned that the appointment of new kerosene Oil sub-wholesaler shall be made only after inviting application for a period of two weeks. Pursuant to this guideline Opposite Party No. 2 directed Sub-Collector, Padampur to initiate process of selection for appointment of kerosene Oil Sub-wholesale dealer for Padampur Block and accordingly the Sub-Collector made an advertisement inviting application under Annexure-2 from interested persons. The Petitioner and 8 others applied for the said Sub-wholesale dealer. After making necessary scrutiny of the applications, the Sub-collector recommended the name of three applicants including the Petitioner to Opposite Party No. 2 and Opposite Party No. 2 after considering the recommendation of the Sub-Collector appointed the Petitioner as Sub-wholesaler dealer of S.K. Oil for Padampur Block vide Order Dated 19.07.2007 (Annexre-4). Md. Zaved who, by an interim arrangement, was functioning as Sub-wholesaler of Padampur Block challenged the appointment of the Petitioner on regular basis before this Court in W.P.(C) No. 9386 of 2005 and prayed for a direction to appoint him as kerosene Oil, Sub-wholesaler, Padampur Block. After hearing the parties this Court disposed of the Writ Petition with a direction to Opposite Party No. 2 to enquire as to whether the Petitioner satisfies the stipulation made in the guidelines and qualifies to be appointed as sub-wholesaler. The Opposite Party No. 2 was also directed to enquire into the allegations available against Md. Zaved and to decide the question of appointment of sub-wholesaler in respect of Padampur Depot depending on finding of the enquiry. Pursuant to the direction of this Court, Opposite Party No. 2 enquired into the matter and in the result recorded a finding that Md. Zaved is not eligible to be appointed a sub-wholesaler at Padampur Block and also that the Petitioner does not fulfil the conditions contained in paragraph-7 of the guidelines as she and her husband's brother-Manoranjan Sahoo are members of one house and living in a joint mess and Manoranjan was already holding a licence of Sub-wholesaler point in Sargibahal. He accordingly canceled the licence of the Petitioner observing that the Petitioner who is another member of the same family cannot be allowed to hold licence as sub-wholesaler in kerosene Oil. The Petitioner has prayed for quashing of the said order of the Collector dated 7.12.2005. Opposite Party Nos. 2 and 3 filed a joint counter affidavit wherein they supported the finding an order of the Collector dated 7.12.2005. They claim that the Petitioner as well as Md. Zaved were given opportunity of hearing and for production of materials and on consideration of those materials and submissions the order was passed giving reasons. It is also stated in the counter affidavit that there is no scope of interfering with the order under Annexure-7, as the same is neither arbitrary nor violative of the principle of natural justice. It is also noted that an appeal forum being available under Clause-14 of the Orissa public Distribution System (Control) Order, 2002 (herein after referred to as 'PDS Order 2002'), Writ Petition is not maintainable. The Opposite Party No. 4 filed counter affidavit supporting the plea of Opposite Party Nos. 2 and 3.
2. Mr. S. Mishra, Learned Counsel for the Petitioner submits that the Petitioner was not given opportunity of hearing and production of evidence in the inquiry by the Collector. He also states that it was not proper on the part of the Collector to hold that there was no partition between Manoranjan and husband of the Petitioner and that they are living in the same house by simply relying on the entries of the voter list. According to him, the order in Annexure-7 is not correct and, therefore, it should be quashed. He also argued that the order of cancellation of the Sub-dealership licence of the Petitioner does not come within the scope of Clause-10 of the P.D.S. Order, 2002 and is therefore, not appealable under Clause 14.
3. Mr. Sangram Das, Learned Additional Standing Counsel submits per contract that the order under Annexure-7 itself shows that both parties were heard and evidence produced by both the parties was assessed by the Collector and therefore, there was no violation of principle of natural justice. He states that this Court in exercise of power under Article 226 of the Constitution cannot delve into rival claims of the parties and disputed question of fact and that for adjudication of such dispute Appellate forum as provided under Clause 14 of the OPDS (Control) Order is available.
4. Mr. P.K. Nanda, Learned Counsel for intervenor-Opposite Party No. 4 reiterates the submission of Learned Additional Standing Counsel.
5. The contents of Annexure-7 show that pursuant to the direction of this Court in W.P.(C) No. 9386 of 2005, the Collector, Baragarh took up the enquiry in course of which besides hearing the allegations against Md. Zaved raised by President, Zilla Parishad, he also heard about the scope of appointment of Petitioner as sub-wholesaler for Supreme Kerosene Oil. It is clearly indicated in the order that Learned Counsel for the parties were heard at length and the documents produced by the parties were perused. Further more, the contents and implication of the documents were also discussed in the order. That being so, there is no scope of saying that opportunity of hearing was not given to the Petitioner in the enquiry and that principle of nature justice was violated.
6. Admittedly, Manoranjan sahoo, who is younger brother of the husband of the Petitioner, holds a licence of sub-wholesaler point in Sargibahal. In the letter No. 4525 dated 24.2.2005 amongst other guidelines there is a guideline in paragraph-7 as follows:
Person who themselves or whose family members and/or close relatives have interest in the business of Superior kerosene (S.K.O)- whether P.D.S. or non-P.D.S. whether as wholesaler/sub-wholesaler/retailer and/or in the business of petroleum products like Motor Spirit (petrol) or High Speed Diesel (diesel) or the ownership of commercial transport vehicle like bus, truck, mini-truck etc. and/or of trawler/fishing boats etc. should not be granted license as sub-wholesaler/wholesaler/retailer for the superior kerosene Oil (S.K.O.).
Family members and close relatives for the purpose of these guidelines shall mean all dependent members of family of the applicant, whether livening with him or not, and parents/siblings and other relatives who are residing in the same house and have common mess with the applicant and/or have business association with the applicant irrespective of fact whether they are dependent on the applicant or not.
7. The intention behind this guideline is to prevent concentration of licence for sale of kerosene Oil in one family. Hence, by the guideline grant of more than one licence to one family was deprecated. While there was allegation that the Petitioner and her husband's brother, Manoranjan live in one house and are members of one family, the Petitioner's plea was that they are already separate. This controversy is a pure question of fact and on factual enquiry the Collector came to the conclusion that the Petitioner and her husband's brother, Manoranjan belong to one family. Such disputed question of fact is not to be tested in a Writ Petition, as the scope of enquiry or assessment of evidence is not available to a Writ Court.
Clause 14 of the OPDS Order 2002 provides a forum of appeal. The provision reads as follows:
14. Appeal-(1) All appeals under this order shall lie before the Appellate Authority.
(2) Any person aggrieved by an order of the Licensing Authority refusing to grant or renew or re-issue a licence or suspending or canceling a licence under the provisions of this order may prefer an appeal within thirty days of the date of receipt of the order.
(3) Any Appeal preferred after the expiry of the aforesaid period may be summarily rejected by the Appellate Authority.
(4) No such appeal shall be disposed of unless the aggrieved person has been given a reasonable opportunity of stating his case in writing and being heard in person.
(5) 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.
8. According to this provision any person aggrieved by an order of Licensing Authority may prefer an appeal to the Appellate authority appointed by the State Government as noted in Clause 2(c) of the OPDS/order, 2002. Learned Counsel for the Petitioner states that cancellation of the licence after enquiry under direction of the High Court does not amount to an order of cancellation as per Clause 10 of the OPDS Order, 2002 and, therefore, the order under Annexure-7 is not appealable. This submission is untenable as because Sub-clause (2) of Clause 14 of the OPDS Order, 2002 provides that any person aggrieved by an order of the Licencing Authority canceling a licence can appeal against such cancellation.
9. It is to be noted that the order of cancellation is pursuant to the provision of the OPDS Order, 2002 and the direction of the State Government contained in Annexure-5. The correctness of an order of only be tested in an Appellate cancellation passed in an enquiry can only be tested in an Appellate Court as facts and evidence can be analyzed by the said Court.
10. Since the order under Annexure-7 is not violative of principle of natural justice and is not tainted with malice or arbitrariness, the same cannot be quashed in exercise of power under Article 226 of the Constitution. The Writ Petition is thus found devoid of any merit and is dismissed.
11. Learned Counsel for the Petitioner seeks liberty to prefer appeal as against the order in Annexure-7. Since appeal forum is available in the OPDS Order, 2002, no specific liberty is necessary. If so advised, the Petitioner may prefer an appeal before the appropriate authority in which event the Appellate authority may take a liberal view so far as limitation is concerned.