IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No.27802 of 2008 (I) ---------------------------------- CMA.61/2008 of ADDL. SESSIONS COURT, THRISSUR OS.821/2006 of PRL.MUNSIFF COURT,THRISSUR .................... PETITIONER: --------------- SANKARAN NAIR @ SANKARAN KUTTY, S/O.MEENAKSHI AMMA, KUNDUKKATTIL HOUSE, MULLUR DESOM, CHALAKKAL VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.P.RAMACHANDRAN SRI.E.M.UNNIKRISHNAN (MANJERI) RESPONDENTS: ------------------ 1. THE DISTRICT COLLECTOR, THRISSUR, COLLECTORATE, P.O. AYYANTHOLE. 2. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR. 3. P.K.MUKUNDAN, PANIKKAVEETTIL HOUSE, 9/442 B, PULLATT BUILDING, CHAMAKKALA ROAD, CHENTHRAPPINNY, THRISSUR DISTRICT. 4. P.J.JOHN, PELLISSERY HOUSE, KODUNGALLUR TALUK. 5. K.R.JOSHI, KALAPPURAKKAL HOUSE, LOKAMALLESWARAM, KODUNGALLOOR. ADV. SRI.PHILIP T.VARGHESE FOR R4 SRI.THOMAS T.VARGHESE FOR R4 SRI.T.GOPALAKRISHNAN FOR R3 SRI.G.SREEKUMAR (CHELUR) FOR R5 GOVERNMENT PLEADER SRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27802 of 2008 (I) APPENDIX PETITIONER'S EXTS:- EXT.P1:- A TRUE COPY OF THE ORDER IN I.A. NO.2322/06 IN O.S. NO.821/06, MUNSIFF'S COURT, THRISSUR. EXT.P2:- TRUE COPY OF THE JUDGMENT OF THIS HON. COURT IN W.P.C. NO.26410/08. EXT.P3:- TRUE COPY OF THE APPLICATION SUBMITTED BY JOSHI K.R. EXT.P4:- TRUE COPY OF THE AFFIDAVIT OF THE BUILDING OWNER WHICH ACCOMPANIED EXT.P3 APPLICATION. EXT.P5:- TRUE COPY OF THE OWNERSHIP CERTIFICATE WHICH ACCOMPANIED EXT.P3 APPLICATION. EXT.P6:- TRUE COPY OF THE EXPERIENCE CERTIFICATE WHICH ACCOMPANIED EXT.P3 APPLICATION. EXT.P7:- TRUE COPY OF THE LIST OF DOCUMENTS WHICH ACCOMPANIED EXT.P3 APPLICATION. EXT.P8:- TRUE COPY OF THE JUDGMENT OF ADDL. DISTRICT COURT, TRICHUR IN CMA. NO.61/08. RESPONDENTS EXTS:- EXT.R3(a):- TRUE COPY OF THE NOTIFICATION NO.F1/1231/2003 DT.24.02.2006. EXT.R3(b):- TRUE COPY OF THE RECEIPT ISSUED BY THE DISTRICT SUPPLY OFFICER DT.27/03/06. EXT.R3(c):- TRUE COPY OF THE INTERIM ORDER IN W.P.C. NO.6874/06 DT.24/03/06. EXT.R3(d):- TRUE COPY OF THE ORDER VACATING THE STAY IN W.P.C. NO.6874/06 BY THIS HON COURT DT.07/08/2000. EXT.R3(e):- TRUE COPY OF THE ORDER VACATING THE STAY IN I.A. NO.2322/06 IN O.S. NO.821/06 DT.14/12/07 BY THE PRINCIPAL MUNSIFF COURT, THRISSUR. EXT.R3(f):- TRUE COPY OF THE JUDGMENT IN W.P.C. NO.6953/08 DT.14/03/08. EXT.R3(g):- TRUE COPY OF THE JUDGMENT IN W.P.C. 14260/08 DT.18/06/08. ................... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.27802 of 2008 ------------------------------------------------ Dated this the 22nd day of January, 2009 JUDGMENT The petitioner is the plaintiff in O.S.821/06 on the file of the Munsiff's Court, Thrissur. He instituted the said suit for a decree restraining the District Collector and the State from proceeding with the notification No.F1/1231/03 dt.24/02/06 for granting of licence appointing authorised wholesale ration dealer in Mathilakom Panchayath. According to him, the notification was published in the Mathrubhumi daily dt.05/03/06 only, though the notification was dt.24/02/06 that the last date fixed for submission of application was dt.27/03/06; that as per rule, 30 days' clear notice is to be given for submitting the application after the notification; that the notification was hence, invalid; that the petitioner is W. P. C. No.27802 of 2008 -2- qualified and eligible to present an application as per the notification; that accordingly, he applied before the Tahsildar on 14/03/06 for solvency certificate; that the Tahsildar forwarded the application on 17/03/06 to the Village Officer for report; that on account of the fact that the officers were busy with election duty petitioner was informed that the petitioner would be issued certificate only after the election. Thus, at the time of filing the application, the petitioner was not in a position to produce the solvency certificate and this aspect was brought to the notice of the first respondent, but they did not pay any attention; that the first defendant is liable to grant 30 clear days for submitting the applications after the publication of notification and 30 days will not be over by 27/03/06; that there is no W. P. C. No.27802 of 2008 -3- necessity or urgency in selecting the candidate for dealership or appointment without granting the minimum period for submission of application pursuant to notification; that the steps taken by the defendants are against all precedents and therefore, the defendants are to be restrained by way of permanent prohibitory injunction from taking any action for selecting or appointing the dealers as per the said notification. Along with filing the suit, the petitioner applied for an interim injunction restraining first respondent/District Collector and the second respondent/State from proceeding with the notification aforementioned and granting of licence to anyone in pursuance of the notification. 2. The trial court which considered the said injunction application dismissed the W. P. C. No.27802 of 2008 -4- injunction petition and vacated the ex parte injunction already passed vide Ext.P1 order dt.14/12/07. Appeal filed by the petitioner as C.M.A.61/08 before the District Court, Thrissur was dismissed by the Additional District Judge vide judgment dt.10/09/08. It is assailing Ext.A1 order confirmed by Ext.P8 judgment that this Writ Petition has been filed by the petitioner/plaintiff. 3. In the course of arguments, a specific question was put to the counsel for the petitioner when the complaint is that the application submitted by the petitioner was not received, as to whether application was tendered by the petitioner/plaintiff before the authorities and he submits that it was not tendered as the solvency certificate had not been received as that could be received only after election. The question whether the W. P. C. No.27802 of 2008 -5- application, if tendered would have been received in the circumstances of disability in getting the solvency certificate was not enquired into at all by the petitioner/ plaintiff. In other words, petitioner is just like any other wayfarer instituting a suit seeking for an injunction restraining the authorities from proceeding with the notification inviting applications for grant of licence as authorised wholesale ration dealer in Mathilakom Panchayath. Both the courts below have concurrently found that the petitioner/plaintiff has not established a prima facie case; that balance of convenience is not in his favour and that grant of injunction would work out irreparable injury to the respondents. 4. It is worthy to bear in mind in this context that distribution of ration is the W. P. C. No.27802 of 2008 -6- primary responsibility of the state and on such flimsy ground no wayfarer should approach the court seeking for an injunction. It is also worthy to note in this context the date, the plaint bears. It is dated 21st March, 2006 but counsel submits that it was filed only on 27/03/06. Counsel for the petitioner submits that even before his filing the suit in the court below on 27/03/06 a stay has been obtained by one P.A.Thankamma staying the operation of all further proceedings pursuant to the notification dt.24/02/06 issued by the Tahsildar, Thrissur in the instant case. The question as to whether anybody else has obtained stay of further proceedings shall not be a concern for the petitioner as he could have very well approached the court before the last date and sought for an interim order enabling him to submit the application in time W. P. C. No.27802 of 2008 -7- with further time granted for production of solvency certificate or any other document which by reason of the officers engaged in election duty was rendered unable to be obtained so that the court could have granted appropriate relief then, without causing any difficulty or hardship either to the respondents or to the consumers from ration depots. Instead the plaint dt.21/03/06 was filed only on 27/03/06 with the avowed object of stalling the entire proceedings. 5. At the risk of repetition, I reiterate that this is done by the petitioner/plaintiff who has not even tendered an application pursuant to the notification. When the counsel for the petitioner was asked as to what is the provision which mandates that there should be 30 clear days' time in between the notification and the last date fixed to W. P. C. No.27802 of 2008 -8- receive application, he submits that there is no such statutory provision but that there is only departmental circular. That departmental circular also is not produced in this case by the petitioner/plaintiff. Departmental circulars are issued by way of instructions to officers and that does not vest any right in any member of the public to fasten a claim that a notification issued not in compliance with the circular if any is in violation of law and that therefore, no further proceedings shall be taken on the basis thereof. The curious aspect in the instant case is that there is nothing on record to show that the petitioner really wanted to submit an application pursuant to the notification. His grievance could have been considered had he submitted an application and the application was not received or rejected or at least had he W. P. C. No.27802 of 2008 -9- tendered the application even if the application may be defective for non- production of solvency certificate. Appropriate relief if at all plaintiff desired to have had, could have been obtained as already observed by filing the plaint prepared on 21/03/06 on any day prior to the last date fixed for submission of application namely 27/03/06 and obtaining a direction from the court to the first respondent to receive the application in the first instance and thereafter to consider as to whether the petitioner could be granted an opportunity to produce solvency certificate which he alleges that he was unable to obtain as the officers in the Revenue Department were busy in connection with election. Having not done any of those things I fail to understand what the locus standi of the petitioner is, to file a W. P. C. No.27802 of 2008 -10- suit and get an injunction to have the entire proceedings of the state machinery to appoint some eligible person as the wholesale distributor of ration goods in Mathilakom Panchayath being at stake. 6. It is submitted by counsel for the petitioner that the petitioner has got the plaint amended incorporating prayer for declaration that the entire proceedings are void for reason of fraud committed by the government officials in collusion with respondents 3 to 5. The question as to whether there was any fraud played does not gain any importance in the instant case as the petitioner had not moved the plaint prepared obviously on 21/03/06 and kept his hands tied till 27/03/06 to see that the last date to submit application expires. There is absolutely no merit in this Writ Petition W. P. C. No.27802 of 2008 -11- assailing the concurrent orders passed by the court below and the Writ Petition is ill- motivated and is mala fide and deserves to be dismissed with costs. 7. In the result, I dismiss this Writ Petition with costs to respondents 1 and 2 in one set and also cost separately to respondents 3, 4 and 5. K.P.BALACHANDRAN, JUDGE kns/-