IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 24390 of 2008(C) -------------------------- PETITIONER: ---------------- N.SADANANDA PAI & COMPANY, 44/853,T.C. ROAD, THALASSERY 601 101, REP.BY ITS PARTNER MAHESH KAMATH K. BY ADV. SMT.R.RANJINI RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REP. BY ITS THE SECRETARY TO GOVERNMENT, FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURM. 3. THE DIRECTOR OF CIVIL SUPPLIES, OFFICE OF THE COMMISSIONER OF CIIL SUPPLIES, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, KANNUR. 5. TALUK SUPPLY OFFICER, TALUK SUPPLY OFFICE, THALASSERY. BY GOVERNMENT PLEADER SRI. P.K. BABU. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.24390 OF 2008 ---------------------------------------- Dated this the 21st day of August, 2008 JUDGMENT The petitioner challenges Ext.P5 order, whereby the petitioner has been directed to pay the amounts recovered by the petitioner from the customers towards the differential cost of kerosene, as a licenced dealer of the Civil Supplies Department of the Government of Kerala. The petitioner's contention is that in view of Ext.P15 judgment, the Government has no power to realise the differential cost of kerosene as there is no principal- agent relationship between the Government and the petitioner. 2. In view of the two Division Bench decisions in All Kerala Retail Ration Dealers Association V. Union of India [2001(2) KLT 1] and State of Kerala and others V. Mathunni Mathew & Sons [ILR 2007(2) Kerala 475], that issue is no more res integra and therefore the petitioner cannot now contend that the petitioner is not an agent of the Government. As such, if the petitioner has realised any differential cost for kerosene from the customers, the petitioner W.P.(c)No.24390/08 2 cannot contend that the petitioner will not refund the same to the Government on the ground that the petitioner is not an agent of the Government. However, the petitioner has got a case that the petitioner has not realised any differential cost at all and further that the quantification in Ext.P5 was without notice to the petitioner or a hearing. 3. The learned Government Pleader points out that as is clear from Ext.P5 itself, the petitioner has been served with a notice dated 30.4.2008. The petitioner would contend that the petitioner has not received that notice at all. 4. I am of opinion that without going into that controversy, the matter can be disposed of by directing another opportunity of being heard to the petitioner. Accordingly, while upholding the right of the Government to realise the differential cost recovered by the petitioner from the customers, I dispose of this writ petition with the following directions: Ext.P5 shall be treated as a show cause notice. The petitioner shall file objections to the same within a period of one week. The petitioner shall appear before the 5th respondent on 2nd September 2008 on which date or on a W.P.(c)No.24390/08 3 subsequent date fixed for the purpose, the 5th respondent shall hear the petitioner and pass appropriate orders in the matter. While disposing of the same, the petitioner's grievance in Exts. P12 to P14 shall also be considered and orders passed. Till orders are so passed, the recovery proceeding shall be kept in abeyance. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.24390/08 4