IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 21550 of 2008(M) -------------------------- PETITIONERS: ------------ 1. THE KERALA RETAIL RATION DEALERS ASSOCIATION, REGN.NO.01-05/1998,G.P.O.LANE THIRUVANANTHAPURAM -1,REPRESENTED BY ITS GENERAL SECRETARY SHRI P.PUSHPANGADA KURUP 2. R.SARGATHARAN, S/O.RAGHAVAN, AUTHORISED RATION DEALER, LICENSE NO. 156, KILIKOLLOOR,KOLLAM. 3. SMT.AYSHA BEEVI, AUTHORISED RATION DEALER, LICENSE NO.43 VADY KOLLAM. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE CIVIL SUPPLIES COMMISSIONER THIRUVANANTHAPURAM 4. THE CONTROLLER OF RATIONING , MUSEUM, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. P.K. BABU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 21550 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th July, 2008. J U D G M E N T Petitioners challenge Ext. P2 circular issued by the Civil Supplies Commissioner, whereby it has been decided to recover from licensed ration dealers the value of stock found excess or short at the rate mentioned therein. The contention raised by the petitioners is that it cannot be done because the Kerala Rationing Order authorises such recovery of value of excess or deficit stock only at the ration rate and not at any rate in excess of the rate at which the articles are sold through ration shops. Their contention is that Kerala Rationing Order itself being a delegated legislation, the Government or the Civil Supplies Commissioner cannot issue an order contrary to what has been stated in the Kerala Rationing Order. Their contention is that under Clause 45(8), it is specifically provided that for the excess or deficit stock, what has to be realised is the cost at the rate rationed articles are being sold through ration shops. They therefore seek the following reliefs: “i. Call for the records leading to Ext. P2 and quash the same by the issuance of a writ in the nature of certiorari; ii. issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the respondents not to implement Ext. P2 circular and to realize the value of the rationed articles found to be short or in excess at the market value as per Ext. P2; iii. Declare that the petitioners and other members of the 1st petitioner association are not liable to pay penalty on the basis of market value of rationed articles found to be in excess or short during the inspection of respondents 2 to 4 and their subordinates on the basis of Ext. P2 circular.” 2. I have considered the contentions of the petitioners and heard the learned Government Pleader. 3. Clause 45(8) reads as under: “(8) If the District Collector or any officer of the Civil Supplies Department not below the rank of a Taluk Supply Officer finds that W.P.C. No. 21550/2008 -: 2 :- the authorised retail distributor has contravened any of the provisions of this Order, or any of the directions issued thereunder or on receipt of the report from any of the officers referred to in sub-clause (7) or on his own inspection of the stocks and accounts in a shop finds any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non compliance with any of the directions, issued by the competent authorities or contravention of the provisions of any order issued by a competent authority under section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955), which is for the time being enforced he may after giving the authorised retail distributor any opportunity of stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security under sub-clause (5). Notwithstanding anything contained in this sub-clause, he may order the realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of any quantity of rationed articles misappropriated by falsification of accounts and all sums collected in excess by way of transport charges handling charges, profit ect and gained by the authorised retail distributor due to incorrect fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary he may suspend the appointment of the authorised retail distributor temporarily pending enquiry. Provided that the power of cancellation of appointment shall be exercised only by the authority competent to make the appointment or a higher authority.” 3. What is referred to by the petitioners is the non-obstante clause therein. According to the petitioners, the words 'an amount equivalent in value to the cost of quantity of rationed articles found to be short or in excess' means that the value to be realised is the value at the rate rationed articles are sold through ration depots. I am unable to agree. That would be reading words into that clause which are not there. Those words only say that the amount equivalent in value to the cost of the quantity of rationed articles can be ordered to be realised. The price fixed for articles to be distributed in the public distribution system is not the actual price of the same, but W.P.C. No. 21550/2008 -: 3 :- subsidised rate. Therefore, according to me, the above words would mean the cost fixed by the Government for the purpose. It can either be the price at which said articles are being sold in the market or any other price which the Government decides to fix. Here, the Government has fixed the price as in Ext. P2. While interpreting this, we must keep in mind the object behind this. The purpose of this clause is to bring to book dishonest dealers. If the value realised for the articles found in short or excess is only the ration value, then such dishonest dealers would be encouraged to do it again because they do not lose anything. The dishonest dealers actually sell that stock taken by them in open market at much higher price. That being so, it is only appropriate that the value is fixed at a higher rate than the value at which the same are sold through ration shops so as to discourage dishonest dealers from repeating the same or even if the shortage or excess is not on account of dishonesty, to make them more careful about maintaining stock and accounts. The same only has been done by Ext. P2. Therefore, I do not find anything wrong in Ext. P2 and accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.