IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 24333 of 2010(N) -------------------------------------- PETITIONER: ------------------- THE PALAKAD CO-OPERAIVE MARKETING SOCIETY LTD. NO.F.1078, CHITTUR ROAD, PALAKKAD-REPRESENTED BY ITS SECRETARYN SMT.T.R.SUMATHY. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADVS. SRI.S.SUJIN, SMT.NITA.N.S. RESPONDENTS: ------------------------ 1. THE DISTRICT COLLECTOR PALAKKAD – 678 001. 2. THE COMMISSIONER OF CIVIL SUPPLIES, PUBLIC OFFICE BUILDING,THIRUVANANTHAPURAM, PIN – 01. 3. THE SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES(B) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 01. 4. A.H.NOUSHAD, S/O.HAMZA,26/706(3)MUGHAL HOUSE, CHAKKAMTHARA, PALAKKAD – 678 007. *ADDL.R5 IMPLEADED: 5. P.S. ABDUL RAHIMAN, VICE PRESIDENT, ALL KERALA RATION DEALERS ASSOCIATION, PALAKKAD, RESIDING AT 1/1013, SHABIR MANZIL, FRIENDS COLONY, OLAVAKKODE, PALAKKAD – 2. *IS IMPLEADED AS PER ORDER DTD. 10/08/2010 IN I.A. 11037/10. R1 TO R3 BY GOVT. PLEADER SRI. DILEEP MOHAN, R4 BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.M.SREEKUMAR, R5 BY ADV. SRI.GEORGE POONTHOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24333/2010-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 21/06/2006 ISSUED BY THE DISTRICT COLLECTOR. EXT.P.2: COPY OF THE APPEAL PREFERRED BY THE R.4. BEFORE THE COMMISSIONER ON 30/07/2006. EXT.P.3: COPY OF THE OBJECTION OF THE SOCIETY PROFFERED BY THE SOCIETY ON 13/06/2006 BEFORE THE COMMISSIONER. EXT.P.4: COPY OF THE OBJECTION PREFERRED BY THE PETITIONER BEFORE THE COMMISSIONER ON 17/02/09. EXT.P.5: COPY OF THE ORDER OF THE COMMISSIONER DTD. 20/02/2009. EXT.P.6: COPY OF THE ORDER OF COMMISSIONER DTD. 19/05/2010. EXT.P.7: COPY OF THE ORDER OF SECRETARY TO GOVERNMENT DTD. 30/07/2010. EXT.P.8: COPY OF THE ORDER DTD. 02/08/2010 ISSUED BY THE DISTRICT COLLECTOR. EXT.P.9: COPY OF THE G.O. DT.D 24/08/1982. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE NOTIFICATION NO. C.S. 3.2568/05 DTD. 27/10/05. EXT.R4.B: COPY OF THE APPLICATION OF R.4. DTD. 07/12/2005. EXT.R4.C: COPY OF THE APPLICATION OF THE PETITIONER DTD. 09/12/05. EXT.R4.D: COPY OF THE LETTER NO. CS3.2568/05 DTD. 09/03/06. EXT.R4.E: COPY OF THE ORDER NO. CS3.2568/05 DTD. 08/06/06. EXT.R4.F: COPY OF THE ORDER NO. CS.3-2568/05. EXT.R4.G: COPY OF THE LETTER OF AUTHORITY ISSUED BY THE TALUK SUPPLY OFFICER DTD. 03/08/2010. EXT.R4.H: COPY OF THE RELEASE ORDER ISSUED BY THE FOOD CORPORATION OF INDIA DTD. 03/08/2010. EXT.R4.I: COPY OF THE ORDER NO.C.S.3.2568/05 DTD. JUNE 2006. EXT.R4.J: COPY OF THE ORDER NO. C.S. 3.10729/94 DTD. 02/01/1995. EXT.R4.K: COPY OF THE CONSENT LETTER DTD. NOVEMBER 2005 ISSUED BY THE OWNER OF THE BUILDING. W.P.(C). NO.24333/2010-N: EXT.R4.L: COPY OF THE RENT DEED DTD. 16/02/2010 EXECUTED BETWEEN R.4. AND OWNER OF BUILDING. EXT.R4.M: COPY OF THE CONSENT LETTER DTD. 16/02/2010 ISSUED BY THE OWNER OF THE BUILDING. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ---------------------- W.P.(C) No. 24333 OF 2010 --------------------------- Dated this the 31st day of August, 2010 J U D G M E N T ~~~~~~~~~~~ Petitioner is a Co-operative Society incorporated under the provisions of the Kerala Co-operative Societies Act. In this Writ Petition, Ext.P7, an order passed by the Government, exercising its revisional power under the provisions of the Kerala Rationing Order,1966 and Ext.P8, a consequential order, are under challenge. 2. Briefly stated, the facts of the case that, the petitioner was appointed on a provisional basis as AWD-1 of Palakad Municipality pending regular appointment. While so, on 25.10.2005, the 1st respondent issued Ext.P9 notification inviting applications for regular appointment. Among other things, the notification sated that applications which are not in the prescribed form will be rejected. In response to the notification, the petitioner submitted Ext.R4(c) application and the 4th respondent submitted Ext.R4(b) application, enclosing necessary documents. Finally, the District Collector by Ext.P1 W.P.(C) No.24333/2010 2 proceedings held the petitioner Society eligible for appointment and accordingly the petitioner was appointed as AWD-1. 3. Aggrieved by Ext.P1 proceedings, the 4th respondent filed Ext.P2 appeal to the 2nd respondent, to which, the petitioner filed Exts.P3 and P4 objections. By Ext.P5 order as passed by the 2nd respondent, the appeal filed by the 4th respondent was rejected. This order was passed without hearing the 4th respondent. Thereupon, the 4th respondent represented to the Government of Kerala and inorder to redress his grievances, Government passed order requiring the 2nd respondent to reconsider the appeal filed by the 4th respondent with notice to the parties. Accordingly, the matter was reconsidered with notice to the parties and by Ext.P6 order, the 2nd respondent rejected the appeal of the 4th respondent. A reading of Ext.P1 order of the District Collector and Ext.P6 order passed by the 2nd respondent discloses that the contention of the 4th respondent that the application made by the petitioner was not in the form prescribed and hence liable to be rejected, has taken overruled by both the authorities. W.P.(C) No.24333/2010 3 4. The 4th respondent pursued the matter by filing revision before the 3rd respondent. The 3rd respondent heard the parties and passed Ext.P7 order dated 30.7.2010 allowing the revision. The operative portion of the order reads as under: “On a perusal of the connected records and after examining the contentions raised by both the parties it is found as follows: (a) In the enquiry report of the Taluk Supply Officer, Palakkad dated 21.2.2006, it has been, interalia, sated that the PCMS (CRP) had not furnished application for grant of licence for AWD-1 in the prescribed form. It is also stated therein that both the applicants are equally qualified for being granted the licence. (b) The District Collector, Palakkad has rejected on 08.6.2006 the application furnished the PCMS, (CRP in this case) grant of licence of AWD No.2 in Palakkad Taluk on the ground that it was not presented in the prescribed from. (c) There is force in the arguments of the Revision Petitioner that the application put in by the PCMS for grant of the permanent licence for AWD No.1 in Palakkad Taluk was not in the prescribed format as per the notification calling for applications for the purpose as reported by the Taluk Supply W.P.(C) No.24333/2010 4 Officer, Palakkad. The District Collector, Palakkad has not considered this aspect while granting the licence. (d) It has, therefore, to be concluded that the application submitted by PCMS (CRP) for grant of permanent licence for AWD No.1 in Palakkad Taluk is defective and that it suffers from patent error on the face of the records. The notification provides that application furnished not in the prescribed form will not be considered. The PCMS applied for the licence in pursuance of the said notification. When a statute/regulation/ notification provides that something shall be done in a particular manner that should be done with the particular manner only. Here, as the PCMS submitted the application in pursuance of the notification, it cannot be presumed that they were unaware of the mandatory requirement of submitting application in the prescribed form. The Licensing Authority ought to have summarily rejected the application for want of the above requirement. Thus there is considerable force in the arguments of the Revision Petitioner. In the circumstances the orders of the District Collector, Palakkad and Commissioner of Civil Supplies are set aside and the request of Shri.A.H.Noushad for appointment as the permanent licensee of the AWD No.1 in W.P.(C) No.24333/2010 5 Palakkad Taluk is granted subject to satisfaction of other general conditions.” 5. From the files produced by the learned Government Pleader, it is seen that immediately after Ext.P7 order was issued, on 31.7.2010 the 4th respondent made an application to the District Collector, informing that the building he had originally offered was no longer available and that therefore, he should be permitted to offer a new and suitable building. This request of the 4th respondent was entertained and the new building offered was inspected by the officers of the Civil Supplies Department, and on finding the building to be suitable, Ext.P8 order was issued by the District Collector appointing the 4th respondent as AWD-1 of Palakkad Municipality. On the strength of the said appointment, the 4th respondent commenced business and is continuing as such. It is Exts.P7 and P8, which are under challenge in this Writ Petition. 6. The contention raised by the learned senior counsel appearing for the petitioner, which is fully supported by the learned counsel appearing for the 5th respondent who got himself W.P.(C) No.24333/2010 6 impleaded, is that the revision filed by the 4th respondent ought not have been allowed on the technical ground that the application made by the petitioner was defective. It is stated that since both the original authority and the appellate authority had rejected this contention of the 4th respondent, the revisional authority ought not have interfered with the said concurrent finding. On merits, it was contended by both the petitioner and the additional 5th respondent that, Ext.P7 order was unsustainable. According to them, even if the application submitted by the petitioner was not in the prescribed form, that cannot be fatal, that since the 4th respondent had offered a new building after Ext.P7 order was passed, he was no longer eligible for appointment, that the 4th respondent did not produce the required certificate regarding the suitability of the new building offered, and that the Government could only have ordered reconsideration of the applications. The main contention raised by the counsel for the additional 5th respondent, is that he being the representative of the All Kerala Ration Dealers Association and interested in the outcome of the proceedings, had filed an application before the Commissioner of Civil Supplies while he W.P.(C) No.24333/2010 7 was seized of the appeal field by the 4th respondent. It is stated that although he was heard by the appellate authority, he was neither impleaded as a party in the revision filed against Ext.P6 appellate order nor was he heard by the Government before passing Ext.P7 order allowing the revision. He therefore contends that Exts.P7 and P8 orders are liable to be set aside. 7. Although all these contentions have been refuted by the learned Senior Counsel for the 4th respondent, among the contentions thus raised by the parties, if I am to uphold the contention that the additional 5th respondent ought to have been heard by the Government then the matter will have to be reconsidered by the Government. If that be the case, it is unnecessary to deal with the merits of the other contentions. Therefore, I shall proceed to deal with the 2nd contention raised by the additional 5th respondent noticed above. 8. As contended by the learned Senior Counsel or the 4th respondent, the additional respondent was not a party before the District Collector nor was he an applicant for the W.P.(C) No.24333/2010 8 distributorship in question. However, the files produced by the learned Government Pleader show that the additional respondent had filed statement before the Commissioner, while he was seized of the appeal filed by the 4th respondent and that on 17.4.2010 the additional respondent was issued notice requiring him to appear for the personal hearing that was scheduled on 23.4.2010. Accordingly, he appeared before the Commissioner on 23.4.2010, filed a detailed statement and was also heard in the matter. Ext.P6 order of the Commissioner disposing of the appeal also shows that a copy of the order was endorsed to the additional 5th respondent. However, despite all the above, in the revision filed by the 4th respondent, the additional 5th respondent was neither made a party nor did the Government issue notice of hearing requiring him to appear at the time when the revision was heard. Thus, it was without notice or hearing the additional 5th respondent, that Ext.P7 revisional order was passed by the Government allowing the revision. W.P.(C) No.24333/2010 9 9. In my view the additional 5th respondent having been made a party in the appeal filed by the 4th respondent, should have been made a party in the revision and the Government should have been heard him before disposing of the revision filed by the 4th respondent. Though the learned senior counsel appearing for the 4th respondent submitted that the additional respondent being not an applicant, was not an interested party entitled to be issued notice or heard, in my view, since he was a party to the appeal, this contention has no force. For this reason, I am satisfied that Ext.P7 order cannot be sustained. 10. However, fact remains that on the strength of Exts.P7 and P8 order, the 4th respondent has commenced and is continuing the business, even as on date. Therefore, eventhough the impugned orders are liable to be interfered with and the revision filed by the 4th respondent needs to be reconsidered, I do not consider it proper to upset the existing arrangements. This is for the reason that any such order will adversely affect the public distribution system in the area. W.P.(C) No.24333/2010 10 11. In that view of the matter, the Writ Petition is disposed of, setting aside Ext.P7 and the consequential order, Exts.P8 and directing the 3rd respondent to reconsider the revision field by the 4th respondent with notice to the petitioner and respondents 4 and 5. This shall be done as expeditiously and possible, at any rate, within eight weeks from the date of receipt of a copy of this judgment. In the meanwhile, the status quo as on today in so far as AWD-1 of Palakkad Municipality will be maintained and the continuance of the 4th respondent as AWD-1 will depend upon the orders to be passed in the revision. It is made clear that contentions of the parties on the merits are left open. (ANTONY DOMINIC, JUDGE) ps/2/09