IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 13955 of 2007(J) -------------------------- PETITIONER(S): --------------- MRS. SHOBHANA JOHN, CHENGAMANATTU HOUSE, PUNNAKKADU, KEERAMPARA P.O., KOTHAMANGALAM. BY ADV. SMT.ANEY PAUL SMT.LAKSHMI.V. RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT SUPPLY OFFICER, ERNAKULAM. 3. THE TALUK SUPPLY OFFICER, KOTHAMANGALAM. ADDITIONAL RESPONDENT: 4. M.M.RAVI, S/O.MADHAVAN, AGED 39 YEARS, MUTHUKAD HOUSE, KEERAMPARA P.O., PUNNEKKAD, KOTHAMANGALAM, ERNAKULAM DISTRICT. (ADDL.R4 IS IMPLEADED AS PER ORDER IN I.A.NO.6857/07 ON 15.6.07) ADV. SRI.ALEXANDER JOSEPH GOVERNMENT PLEADER SRI.DILIP MOHAN, FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, ALONG WITH WPC NO. 15668 OF 2007 THE COURT ON 23/06/2009 DELIVERED THE FOLLOWING: W.P.(C). No. 13955/2007. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE PETITION SUBMITTED BY KURIVILA KURIAKOSE TO R2 DTD.7.2.05. P2. COPY OF THE ORDER OF R2 DTD.28.10.05. P3. COPY OF THE ORDER DTD.19.9.96 OF R1. P4. COPY OF THE NOTIFICATION DTD.28.9.05 OF R2. P5. COPY OF THE JUDGMENT DTD.30.1.97 IN W.P.(C). No. 29984/06 OF THIS COURT. P6. COPY OF THE RATION CRAD. P7. COPY OF THE REVISION PETITION TO PRINCIPAL SECRETARY TO GOVT. P8. COPY OF THE JUDGMENT IN W.P.(C). No. 5280/07 OF THIS COURT. P9. COPY OF THE ORRDER DTD.12.4.07 OF R1. P10. COPY OF THE GAZETTE NOTIFICTION DTD.25.4.01. P11. COPY OF THE ORDER DTD.20.12.01. P12. COPY OF THE ORDER DTD.28.3.06. P13. COPY OF THE CERTIFICTE ISSUED BY THE PRESIDENT OF THE KEERAMBARA GRAMA PANCHAYAT. P14. COPY OF THE AFFIDAVIT DULY VERIFIED AND APPROVED BY A NOTARY. P15. COPY OF THE STATEMENT FILED BY THE PETITIONER'S FATHER IN LAW. P16. COPY OF THE RESIDENTIAL OWNERSHIP CERTIFICATE. P17. COPY OF THE ENQUIRY REPORT OF THE VILLAGE OFFICER. P18. COPY OF THE VOTERS' IDENTIFY CARD OF KURUVILA KURIAKOSE. P19 COPY OF THE AFFIDAVIT OF THE LICENSEE. P20. COPY OF THE ORDER DTD.2.1.2008. P21. COPY OF THE VOTERS' LIST. NO. Ext.P22 P23. COPY OF THE RATION CARD. RESPONDENT(S)'EXHIBITS R2A. COPY OF THE APPOINTMENT ORDER OF M.M.RAVI AS LICENSEE OF ARD NO.14. R4A. COPY OF THE ORDER DTD.17.5.07 ISSUED BY TALUK SUPPLY OFFICER, KOTHAMANGALAM. B. COPY OF THE LETTER DTD.18.5.07 OF R2. R4C COPY OF THE VOTERS' LIST DTD.1.1.07 OF WARD NO.PINDIMANA GRAMA PANCHAYAT. D. COPY OF THE VOVERS' LIST DTD.1.1.07 OF WARD NO.3 OF KERAMPARA GRAMA PANACHAYAT. E. COPY OF THE EXTRACT OF THE VOTERS' LIST OF THE YEAR 2005 OF KEERAMPARA GRAMA PANCHAYAT. F. COPY OF THE CERTIFICATE DTD.28.6.07 BY THE SECRETARY OF THE KEERAMPARA GRAMA PANCHAYAT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).Nos.13955 & 15668 of 2007 ================== Dated this the 23rd day of June, 2009 J U D G M E N T These two writ petitions are interconnected and are therefore, heard and disposed of together by this common judgment. 2. The petitioner is the wife of one of the sons of Kuruvila Kuriakose, who was the licensee of ARD No.14 of Kothamangalam Taluk. Since on account of old age, he became incapable of running the ARD, he proposed the name of the petitioner as licensee of the ARD. All other legal heirs consented to such appointment as contemplated under the proviso to clause 45(2) of the Kerala Rationing Order. The petitioner furnished solvency certificate/security and all other documents as provided under the Kerala Rationing Order, for permanent appointment of the petitioner as licensee of ARD No.14. But the 2nd respondent appointed her only temporarily on the ground that she is not a legal heir. The petitioner submitted a representation before the 1st respondent. Thereafter, that temporary appointment was not regularised by appointing the petitioner permanently. Subsequently, the 2nd respondent notified the ARD for selection and appointment of a new licensee. The petitioner approached this Court by filing W.P(C).No.29984/2006. As per Ext.P5 judgment, the petitioner's representation in this regard was directed to be disposed w.p.c.13955/07 & cc 2 of. In the meanwhile, the 2nd respondent continued with the proceedings for permanent appointment of an ARD. The petitioner filed Ext.P7 petition before the 1st respondent. But the 2nd respondent continued the proceedings for appointment of new licensee for the ARD. The petitioner again filed W.P.(C). No.5280/2007, in which, by Ext.P8 judgment, the Government was directed to consider the matter. Pursuant thereto, the Government passed Ext.P9 order, whereby the Government held that the petitioner is not entitled to be appointed as licensee of ARD No.14 under proviso to clause 45(2) of the Kerala Rationing Order, since the petitioner is not a legal heir of Kuruvila Kuriakose. The petitioner is challenging that order in this writ petition. 3. The petitioner contends that for the purpose of proviso to clause 45(2) of the Kerala Rationing Order it is not necessary that the person nominated by the original licensee should one of his legal heirs. The proviso therein is that the ARD can nominate a member of his family for appointment as ARD in the event of his being incapable of running the ARD. According to the petitioner, the word, 'family' is defined in clause 2(11) of the Kerala Rationing Order to mean a household consisting of individuals living on the same premises and sharing meals in a common mess. According to the petitioner, the petitioner and her husband are residing along with the said Kuruvila Kuriakose in same house sharing meals in a common mess and, w.p.c.13955/07 & cc 3 therefore, the petitioner is a member of the family of the said Kuruvila Kuriakose. Therefore, the petitioner submits that the petitioner is entitled to be appointed as permanent ARD in the place of Kuruvila Kuriakose as nominated by him under proviso to Clause 45 (2). The petitioner, therefore, seeks the following reliefs in W.P.(C). No.13955/2007: “(i) to call for the records leading to Exts.P2, P3 and P9 orders and quash Ext.P9 order and all steps for the permanent appointment of A.R.D. No.14 of Kothamangalam Taluk by issue of a writ of Certiorari or other appropriate writ direction or order; (ii) to issue a writ of Mandamus directing the 2nd respondent to pass orders appointing the petitioner as ARD No.14 of Kothamangalam.” 4. While the writ petition was pending the proceedings for appointment of a fresh licensee were taken to its logical conclusion and the additional 4th respondent was selected as the licensee. Although originally there was a stay in W.P.(C).No.13955/2007, subsequently, that stay was vacated. Despite the same, the order appointing the additional 4th respondent as licensee was not implemented. It is under the above circumstances the additional 4th respondent in W.P.(C). No. 13955/2007 has filed W.P.(C).No.15668/2007 seeking implementation of Ext.P2 order appointing him as ARD, produced in that writ petition. The petitioner in W.P.(C). No. 15668/2007 seeks the following reliefs: “i) Issue a writ of Mandamus or any other appropriate writ, order or direction directing the respondents to issue licence to the petitioner permitting him to conduct ARD No.14 of Kothamangalam Taluk. ii) Issue such other appropriate writ order or direction, which this w.p.c.13955/07 & cc 4 Hon'ble Court may deem fit and proper in the circumstances of the case.” 5. The 2nd respondent and the additional 4th respondent have filed counter affidavits supporting the impugned orders. According to the additional 4th respondent, as proved by the voters' list for the Kothamangalam Assembly constituency for the year 2007, the petitioner and Kuruvila Kuriakose are residing in different houses. Kuruvila Kuriakose is residing at House No.4/378 along with his wife and his son Benny Kuriakose and his wife Lilly Benny, whereas the petitioner and her husband are residing at House No.3/127. The 4th respondent has also produced Exts.R4(c) and (d) which are extracts from the voters' list for 2007, which would prove the above fact. Therefore, according to the additional 4th respondent, although what is relevant is whether the nominee is a family member, the petitioner was not a family member of the said Kuruvila Kuriakose. He also points out that as is evident from Ext.P9 order itself, the petitioner's application was rejected for another reason also to the effect that the petitioner's husband is an ARD and, as per Circular No.10/83 of the Director of Civil Supplies, if either the husband or wife is a licensee, the spouse also cannot be appointed as licensee to run an ARD. 6. I have considered the rival contentions in detail. 7. As is clear from the proviso to clause 45(2) of the Kerala Rationing Order, what is relevant is not whether the petitioner is a w.p.c.13955/07 & cc 5 legal heir of Kuruvila Kuriakose. Although consent of the other legal heirs is necessary for appointment as ARD in the place of the existing licensee, what is required is that the person nominated by the existing ARD should be a member of his family. As rightly pointed out by the counsel for the petitioner, 'family' is defined to mean a household consisting of individuals living on the same premises and sharing meals in a common mess. Therefore, what is relevant for our purpose is whether the petitioner and the said Kuruvila Kuriakose are living on the same premises and shareing meals in a common mess. To prove the same, the petitioner has produced Ext.P6, which is the ration card issued to the family, of which Kuruvila Kuriakose is the head of the family. According to the petitioner, the names of the petitioner's husband and the petitioner are included in that ration card, which would go to show that the petitioner is residing along with Kuruvila Kuriakose in his house, viz, House No.4/44 of Keerampara. The petitioner has also produced Ext.P13 certificate from the president of the Keerampara Grama Panchayat, certifying that the said Kuruvila Kuriakose is under the care and protection of his son John Kuruvila and his wife Sobhana John, at house No.11/259 of Keerampara Panchayat. The petitioner has also produced Ext.P17 certificate from the Village Officer, Keerampara, certifying that the petitioner's husband and the petitioner are residing along with the father of the petitioner's w.p.c.13955/07 & cc 6 husband. The petitioner has also produced Ext.P18 electoral identify card of Kuruvila Kuriakose. The petitioner has today produced copies of the latest voters' list and ration card, in which the petitioner and the said Kuruvila Kuriakose are stated to be living in the same house. 8. What is relevant for our purpose is not the situation subsequent to Ext.P9 order. What is relevant for our purpose is the situation prior to Ext.P9 order. The proceedings in respect of issue of licence to the petitioner started as early as in 2005, which ultimately culminated in Ext.P9 order dated 12.4.2007. All the documents relied upon by the petitioner are dated subsequent to that date. In fact in Ext.P6 ration card, originally the petitioner's name was not included. The petitioner's name was subsequently incorporated by endorsement dated 13.3.2007. In Ext.P6, house number of Kuruvila Kuriakose is shown as 4/44 of Keerampara Panchayat. But in Ext.R4(f) certificate issued by the Secretary of the Keerampara Grama Panchayat it is stated that the said house had been transferred to the name of one Varkey, S/o.Kuriappu, in 2004 as per document No.1897/04 of Kothamangalam Sub Registry Office dated 19.3.2004. Apart from that, in Exts.R4(c) and R4(d) extracts from the voters' list for the year 2007, the petitioner and her husband are residing at house No.3/127, whereas Kuruvila Kuriakose and her wife Mariyam and their son Benny Kuriakose and his wife Lilly Benny are residing at house w.p.c.13955/07 & cc 7 No.4/378. In view of these conflicting documents, on the basis of those documents, the petitioner's contentions cannot be accepted. That being so, there is absolutely no document before me in support of the contention of the petitioner that she is a family member of Kuruvila Kuriakose. On the other hand, the available documents would point to the fact that the petitioner and Sri.Kuriakose are residing separately. In fact, when this Court wanted the counsel for the petitioner to explain as to why the petitioner's name was not originally included in Ext.P6 ration card and was incorporated long thereafter on 13.3.2007, the counsel for the petitioner suggested that it may be because at that time the petitioner was residing elsewhere. Whatever that be, in view of Exts.R4(c) and R4(d) it is very clear that in 2007 the petitioner and Kuruvila Kuriakose were residing separately. As such, I cannot accept the contention of the petitioner that she is a family member of Kuruvila Kuriakose. 9. Even otherwise, the petitioner herself admits that her husband is licensee of an ARD. But the petitioner would contend that although in the circular cited in Ext.P9 order there is a provision barring appointment of both husband and wife as ARD, as is clear from Exts.P11 and P12, in other cases both husband and wife have been so appointed. Even assuming that it is to be correct, that can only be an illegality. Based on an illegality, the petitioner cannot put w.p.c.13955/07 & cc 8 forward a claim on the ground of discrimination. Moreover, the petitioner has not challenged the circular which imposes restriction in appointing both husband and wife as ARDs. For all the above reasons, W.P.(C). No.13955/2007 is dismissed as without any merit. 10. In view of the dismissal of W.P.(C). No.13955/2007, there cannot be any impediment for implementing the order appointing the petitioner in W.P.(C).No. 15668/2007 (the additional 4th respondent in W.P.(C).No. 13955/2007) as licensee of ARD No.14 of Kothamangalam Taluk. Accordingly, W.P.(C). No.15668/2007 is allowed and the respondents are directed to implement the order appointing the additional 4th respondent in W.P.(C). No. 13955/2007 as licensee of ARD No.14 in accordance with Ext.P2 order in W.P.(C). No.15668/2007. Orders in this regard shall be passed as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge