IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 9000 of 2009(T) -------------------------------------- PETITIONER(S): ------------------------ V.S.NIZAR, VELLOOPARAMBIL HOUSE, POOMALA, KOOVAKANDAM P.O., THODUPUZHA. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT., FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, IDUKKI. 4. THE DISTRICT SUPPLY OFFICER, IDUKKI. 5. THE TALUK SUPPLY OFFICER, THODUPUZHA. 6. AMT.AYSHA ABDUL KAREEM, W/O. C.K.ABDUL KAREEM, CHEEMBARAYIL HOUSE, POOMALA, KOOVAKANDAM P.O., THODUPUZHA. 7. SHRI. C.K.ABDUL KAREEM S/O. KHADER, CHEEMBARAYIL HOUSE, POOMALA, KOOVAKANDAM P.O., THODUPUZHA. R1 TO R5 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R6 & R7 BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.SAJUSH PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.9000/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PROCEEDINGS NO.CS.B2-5120/05 DATED 10/7/06 ISSUED BY THE 4TH RESPONDENT. P2 COPY OF THE ORDER NO.BS.B2.5120/05 DATED 28/11/06 ISSUED BY THE 4TH RESPONDENT. P3 COPY OF THE JUDGMENT DATED 6/6/07 IN WP(C)NO.28522/06 OF THIS HON'BLE COURT. P4 COPY OF THE ORDER NO.CS.A8-14896/07 DATED 11/8/08 ISSUED BY THE 2ND RESPONDENT. P5 COPY OF THE REVISION PETITION FILED BY THE 6TH RESPONDENT BEFORE THE GOVERNMENT ON 21/8/08. P6 COPY OF THE WRITTEN SUBMISSION GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 28/1/09. P7 COPY OF THE G.O.(RT)NO.58/2009/F&CSD DATED 20/2/2009 ISSUED BY THE 1ST RESPONDENT. P8 COPY OF THE CERTIFICATE ISSUEDBY THE SECRETARY OF VELLIAMATTOM GRAMA PANCHAYAT TO THE PETITIONER ON 6/2/06. P9 COPY OF THE RELEVANT PAGE OF RATION CARDOF THE PETITIONER VIDE RATION CARD NO.000233. P10 COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE SECRETARY, VELLIAMATTOM GRAMA PANCHAYAT ON 20/10/08. P11 COPY OF THE INFORMATION GIVEN BY THE THODUPUZHA MUNICIPALITY TO THE PETITIONER ON 4/3/09. P12 COPY OF THE CIRCULAR NO.10/83 ISSUED BY THE 2ND RESPONDENT. P13 COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, VELLIAMATTOM GRAMA PANCHAYAT TO THE 6TH RESPONDENT ON 11/7/06. P14 COPY OF THE POWER OF ATTORNEY NO.165/1992 DATED 17/7/2002 IN FAVOUR OF THE 7TH RESPONDENT. P15 COPY OF THE RELEVANT EXTRACT OF MAHAZAR PREPARED BY THE RATIONING INSPECTOR DATED 28/4/05. P16 COPY OF THE STATEMENT GIVEN BY THE 6TH RESPONDENT WHICH IS ATTESTED BY THE 4TH RESPONDENT. P17 COPY OF THE REPORT SUBMITTED BY THE DEPUTY CONTROLLER OF RATIONING BEFORE THE 2ND RESPONDENT ON 28/5/07. P18 COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT ON 31/1/06. P19 COPY OF THE INFORMATION SOUGHT FOR BY THE PETITIONER AND INFORMATION GIVEN BY THE INFORMATION OFFICER AND RATIONING CONTROLLER ON 23/10/09. sts WP(C)NO.9000/2009 P20 COPY OF THE INFORMATION GIVEN BY THE DISTRICT SUPPLY OFFICER DATED 21/10/2009 VIDENO.CS.B2-3203/2008. P21 COPY OF THE LATESTRATION CARD ISSUED TO THE PETITIONER ON 28/1/2010. P22 COPY OF THE LETTERNO.C.S.A3.1262/06 DATED 25/3/09 ISSUED BY THE TALUK SUPPLY OFFICER. P23 COPY OF THE INFORMATION SOUGHT FOR AND INFORMATION GIVEN BY THE RATIONING CONTROLLER ON 15/4/09 VIDE NO.CS.D3.7205/09. P24 COPY OF THE NEW RATION CARD ISSUED BY THE TECHNICAL ASSISTANT, PRINCIPAL AGRICULTURAL OFFICE, IDUKKI TO THE PETITIONER ON 28/1/2010. P25 COPY OF THE JUDGMENT DATED 22/12/09 IN W.A.NO.1217/09OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: R6(A) COPY OF THE NOTIFICATION DATED 13/1/2006 PUBLISHED BY THE 4TH RESPONDENT. R6(B) COPY OF THE CERTIFICATE ISSUEDBY THE SECRETARY OF THE PANCHAYAT DATED 14/7/2006. R6(C) COPY OF THE VOTERS LIST OF THODUPUZHA ASSEMBLY CONSTITUENCY. R6(D) COPY OF THE RELEVANT PORTION OF VOTES LIST OF VELLIYAMMATTOM GRAMA PANCHAYAT TO SHOW THAT DOOR NO.VII/179 IS OCCUPIED BY ONE ALLY BHASKARAN. R6(E) COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT DATED 13/4/2009. R6(F) COPY OF THE RELEVANT PORTION OF THE VOTERS LIST OF THE THODUPUZHA ASSEMBLY CONSTITUENCY TO SHOW THAT PETITIONER IS NOT RESIDING THERE. R6(G) COPY OF THE RELEVANT PORTION OF THE VOTERS LIST OF THE THODUPUZHA MUNICIPALITY. R6(H) COPY OF THE DISABILITY CERTIFICATE PRODUCED BY THE PETITIONER DATED 12/1/2006. R6(I) COPY OF THE CERTIFICATE ISSUED BY TALUK SUPPLY OFFICER, THODUPUZHA DATED 31/1/2006. R6(J) COPY OF THE SOLVENCY CERTIFICATE PRODUCED BY THE PETITIONER IN THE EARLIER WRIT PETITION. R6(K) COPY OF THE ENQUIRY REPORT SUBMITTEDBY THE 5TH RESPONDENT to the 4TH RESPONDENT DATED 10/3/06. R6(L) COPY OF THE SHOWING THE HUT SITUATE IN DOOR NO.VII/199. /TRUE COPY/ sts P.A.TO.JUDGE S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.9000 OF 2009 --------------------------------------- Dated this the 5th day of April, 2011 JUDGMENT The petitioner on the one hand and the 6th respondent on the other contest each other for the licence to run ARD No.174 in Ward No.VII of Velliamattom Grama Panchayat. The petitioner was originally selected for the same by Ext.P1 order of the District Supply Officer. The 6th respondent challenged the same before the District Collector, who set aside Ext.P1 order by Ext.P2 order and found that the 6th respondent is the eligible candidate. The petitioner challenged the same before the Commissioner of Civil Supplies, who, by Ext.P4 order, reversed the order of the District Collector. The 6th respondent challenged the same before the Government, in revision, who passed Ext.P7 order restoring the order of the District Collector finding that the 6th respondent is the most eligible candidate. The petitioner is challenging Ext.P7 order. According to the petitioner, the only ground on which the petitioner has been found disqualified is that the W.P.(C)No.9000/09 2 petitioner is not a normal resident of Ward No.VII of Velliamattom Grama Panchayat. The petitioner would dispute the said finding with the help of Exts.P8, P9 and P10. Ext.P8 is the residential certificate issued by the Secretary of the Velliamattom Grama Panchayat, wherein it is certified that the petitioner is residing at House No.199 of Ward No.VII of Velliamattom Grama Panchayat. Ext.P10 is another residential certificate to the same effect. Ext.P9 is stated to be the copy of the ration card issued to the petitioner, wherein the address of the petitioner is shown as House No.199 of Ward No.VII of Velliamattom Grama Panchayat. The petitioner would further contend that the 6th respondent is disqualified to be appointed as an ARD on two counts. First is that she is the wife of the 7th respondent, who was the power of attorney holder of the former licencee of ARD No.174, who was found to be disqualified for malpractices in running the ARD. In support of this contention, the petitioner has produced Ext.P14 certified copy of the registered power of attorney executed by the former licencee in favour of the 7th respondent, husband of the 6th respondent, which has been executed for running the said W.P.(C)No.9000/09 3 ARD. The petitioner further contends that as evident by Ext.P13 certificate issued by the Secretary, Velliamattom Grama Panchayat, the 6th respondent had obtained a licence for running a provision store, which provision store was in existence till 1.4.2006 and as per the 3rd proviso to Clause 45 of the Kerala Rationing Order, a person, who is a full time employee in any establishment, is disqualified to be appointed as an ARD. The fact that the 6th respondent was running a provision store would show that she was full time engaged in running of the provision store and therefore, as per the said proviso, she is disqualified to be appointed as an ARD. 2. A counter affidavit has been filed by the 6th respondent disputing the contentions of the petitioner. According to the 6th respondent, the documents produced by the petitioner to show that he is a resident of Ward No.VII are concocted. He has produced a host of materials in support of that contention. Primarily he would contend that the house, which is stated to be where the petitioner is residing, is not owned by the petitioner at all. It is owned by one Sri. Rajan. As per the voters list for the particular Panchayat, Sri. Rajan W.P.(C)No.9000/09 4 was the resident of that house. Apart from the same, that house is a dilapidated house, a photograph of which is produced as Ext.R6(l) and subsequently that house collapsed also, is the contention of the 6th respondent. To prove the same, the 6th respondent has produced Ext.R6(b) certificate from the Velliamattom Grama Panchayat which would certify that the House No.199 in Ward No.VII of Velliamattom Grama Panchayat owned by Sri. Rajan has been demolished. It is further submitted that in 2006 the petitioner was a voter of Thodupuzha Municipality and in 2009 also he was a voter in Thodupuzha Municipality as evident by Exts.R6(g) and R6(f). It is pointed out that Ext.P9 ration card was obtained by the petitioner in a false address, against which proceedings have been initiated and the ration card has been cancelled. She relies on Ext.R6(e) letter from the Taluk Supply Officer to the District Supply Officer in respect of the same. It is also pointed out that as evidenced by Ext.R6(i) experience certificate of the petitioner, the petitioner was a resident of Vellooparambil Veedu, Thodupuzha. It is further submitted that in Ext.R6(j) solvency certificate produced by the petitioner W.P.(C)No.9000/09 5 himself, the petitioner was residing at Vellooparambil veedu, Thodupuzha Kara, Thodupuzha Village and Thodupuzha Taluk. According to the 6th respondent, the Ward No.VII of Velliamattom Grama Panchayat is in Velliamattom Village and therefore, going by his own documents, the petitioner was a resident of Thodupuzha Village, which is in Thodupuzha Municipality area. The 6th respondent, therefore, submits that the petitioner is not a normal resident of Ward No.VII of Velliamattom Grama Panchayat where ARD No.174 is situated for licence to run which applications were invited. Therefore, the petitioner is not eligible to be granted licence for ARD No.174 at Ward No.VII of Velliamattom Grama Panchayat is her contention. The 6th respondent takes the stand that Ext.P14 may have been created by the former licencee for reasons known to him. 3. I have considered the rival contentions in detail. I am of opinion that there is overwhelming evidence to show that the petitioner is not a resident of Ward No.VII of Velliamattom Grama Panchayat. On the other hand, by the documents produced by the 6th respondent, it has been W.P.(C)No.9000/09 6 abundantly proved that the petitioner was at least at the relevant time a resident of the Thodupuzha Municipality. Therefore, the petitioner cannot now contend that he is a normal resident of Ward No.VII of Velliamattom Panchayat so as to be qualified for the grant of licence to run ARD No.1784 in Ward No.VII of Velliamattom Panchayat. 4. That does not necessarily mean that the 6th respondent is qualified. Ext.P14 is a registered document. That is a power of attorney issued by one Sri.C.P. Abdul Basheer in favour of the 7th respondent, who is admittedly the husband of the 6th respondent. The said Sri. C.P. Abdul Basheer was admittedly the former licencee of ARD No.174 who was disqualified for malpractices. That power of attorney has been executed in favour of the 7th respondent for running ARD No.174 itself. Therefore, evidently the 6th respondent is the wife of the 7th respondent, who had business connections with the former licencee of the very same ARD, who was disqualified for malpractices. Of course, the learned counsel for the 6th respondent submits that Ext.P14 is not a valid document, insofar as the Civil Supplies Department will W.P.(C)No.9000/09 7 not permit running of an ARD through a power of attorney. Even assuming that it is true insofar as respondents 6 and 7 do not dispute the existence of Ext.P14 power of attorney at least for the purpose of proving that the husband of the 6th respondent had intimate connections with the former licencee, who was disqualified for malpractices. Here it is relevant to note that in Ext.P15 mahazar prepared by the Velliamattom Rationing Inspector, it is specifically stated that at the time of inspection of ARD No.174 being run by the former licencee the licencee was not present, the 7th respondent was present and he was managing and distributing ration articles. The mahazar is shown to have been signed by the 7th respondent also. Further the 6th respondent was admittedly having licence to run a provision store. It is to be decided whether because of the same the 6th respondent is disqualified under 3rd proviso to Clause 45 of the Kerala Rationing Order and otherwise. Therefore, I am of opinion that the Government should have considered the question as to whether the wife of a power of attorney holder of the former licencee of the ration shop, who was disqualified for malpractices, is a desirable person to run W.P.(C)No.9000/09 8 an ARD. Those questions have not been specifically considered in Ext.P7 order. Therefore, to that extent Ext.P7 is quashed. The matter is remanded to the Government for fresh consideration in accordance with the findings entered above as to the desirability of having the 6th respondent as an ARD. That question shall be decided by the Government, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment, after hearing the petitioner as well as the 6th respondent. If the Government also finds that the 6th respondent is not a desirable person to run the ARD in view of the findings entered above, the Government shall issue appropriate directions to re- advertise the ARD calling for fresh applications in accordance with law. While doing so the Government shall specifically consider whether because of my findings on Exts.P14 and P15 the 6th respondent is ineligible to be appointed as a licence to run an ARD. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd