IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 27114 of 2008(C) -------------------------------------- PETITIONER(S): --------------------- RAJIT, GEORGE, S/O. K.C.GEORGE, VATTAKUNNEL KIZHAKKEL, H.NO.366, WARD NO.IV, SOURYANELLI P.O., IDDUKKI DISTRICT BY ADV. MR.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, IDUKKI DISTRICT. 4. THE DISTRICT SUPPLY OFFICER, IDUKKI DISTRICT. 5. FRANCIS VADAKKEL, VADAKKEL HOUSE, BYSON VALLEY, UDUMBANCHOLLA, IDUKKI DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR.BIJOY CHANDRAN. R5 BY ADV. MR.M.X.XAVIER, MR.C.K.PAVITHRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27114/2008-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION BEARING NO.C.S.B2-2479/03 DATED 21/05/2005. EXT.P2: COPY OF THE APPLICATION FOR APPOINTMENT AS THE AUTHORIZED WHOLE SALE DISTRIBUTOR SUBMITTED BY THE PETITIONER. EXT.P3: COPY OF THE PROCEEDINGS BEARING NO.CS-B2-2479/03 DATED 09/09/2005. EXT.P4: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5: COPY OF THE JUDGMENT DATED 09/03/2006 IN WP(C) NO. 7036/2006 (K). EXT.P6: COPY OF THE PROCEEDINGS BEARING NO.(CS)A8-22290/2005 DATED 02/05/2007. EXT.P7: COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P8: COPY OF THE ORDER BEARING GO(RT)NO.161/08/F & CD DATED 03/05/2008. EXT.P9: COPY OF THE APPLICATION SUBMITTED BY SMT.P.G.BHARATHIAMMA. EXT.P10: COPY OF THE APPLICATION FOR APPOINTMENT AS AUITHORISED WHOLESALE DEALER DATED 20/06/2005. EXT.P10(a): COPY OF THE SOLVENCY CERTIFICATE DATED 20/06/2005. EXT.P10(b): COPY OF THE UNDERTAKING. EXT.P10(c): COPY OF THE OWNERSHIP CERTIFICATE DATED 16/06/2005. EXT.P10(d): COPY OF THE CONSENT LETTER. EXT.P10(e): COPY OF THE AUTHORISATION. EXT.P10(f): COPY OF THE 3RD PAGE OF THE SSLC BOOK OF THE 5TH RESPONDENT. EXT.P11: COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF THE BISON VALLEY PANCHAYATH BEARING NO.A1 59/07 DATED 25/08/2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE NOTIFICATION NO.CS.B2-2479/03 DATED 21/05/2005. EXT.R5(1): COPY OF THE OBJECTION FILED IN APPEAL BEFORE THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. EXT.R5(2): COPY OF THE OBJECTION FILED IN REVISION BEFORE THE GOVERNMENT OF KERALA. EXT.R5(3): COPY OF THE CERTIFICATE DATED 18/02/2008 ISSUED BY THE VILLAGE OFFICER, NATTAKAM. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 27114 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 16th July, 2009. J U D G M E N T By Ext. P1 notification, the 3rd respondent invited applications for appointment of Authorised Wholesale Ration Depot No. 12, which is in Ward I of Chinnakanal Panchayat in Udumbanchola Taluk. The petitioner, the 5th respondent, one Smt. P.G. Bharathiamma and five others submitted applications. The petitioner was not invited for a hearing pursuant to his application. He filed W.P(C) No. 24356/2005, presuming that his application was summarily rejected without any notice. That writ petition was disposed of by this Court with a direction to the 3rd respondent to issue a copy of the order, if any, passed by him on the application submitted by the petitioner as well as others to the petitioner. Pursuant thereto, the petitioner was supplied with Ext. P3 order dated 9-9-2005 of the 3rd respondent. From the same, he understood that his application was not considered for two reasons, namely, he had not produced any documentary evidence to prove the validity of ownership of building proposed by him and that his application was incomplete, he having left column no. 16 of the application blank. The petitioner filed Ext. P4 appeal before the 2nd respondent. The same was considered by the 2nd respondent as directed by this Court in Ext. P5 judgment in W.P(C) No. 7036/2006 filed by the petitioner. Ext. P6 order was passed by the 2nd respondent rejecting the appeal filed by the petitioner. The petitioner filed Ext. P7 revision petition before the 1st respondent. Since there was delay in disposing of the same also, the petitioner filed W.P(C) No. 2062/2008 for a direction to the 1st respondent to dispose of that revision petition . Pursuant thereto, by Ext. P8 order, the 1st respondent rejected the revision petition submitted by the petitioner. The petitioner is challenging Exts.P3, P6 and P8 orders in this writ petition. W.P.C. No. 27114/08 -: 2 :- 2. The petitioner raises several contentions. First is that both the reasons mentioned in Ext. P 3 order for refusing to consider his application on merits are unsustainable. As far as the 1st reason is concerned, according to the petitioner, that reason is not sustainable in view of the Division Bench judgment of this Court in Varkey v. State of Kerala, 1984 KLT 567. According to him, the second reason is also not sustainable for several reasons. The first is that it is not correct that the petitioner has left column no. 16 blank. Column 16 requires the applicant to state as to whether the applicant has paid any income-tax and sales-tax for the last three years preceding the year of application. The petitioner submits that he had, in fact, filled up that column by entering his PAN card number issued by the income-tax authorities. Therefore, the statement in Ext. P3 order that he had not filled up that column is patently wrong. He would further submit that the fact that he had not filled up that column is of no consequence at all, insofar as if he is not an income tax payee, his application cannot be refused to be considered and even if he is an income tax payee, that would not give him any advantage in his application. Thirdly, he would contend that Smt. P.G. Bharathiamma, who was also an applicant, did not fill up the column no. 16 as is evident from Ext. P9 copy of application obtained by the petitioner through proceedings under the Right to Information Act, despite which as is evident from Ext. P3 order, the application of Smt. P.G. Bharathiamma was considered on merits and the 5th respondent was preferred to Smt. P.G. Bharathiamma on the ground that the storage capacity of the godown proposed by her is less than the storage capacity required for ration wholesale business. Learned counsel for the petitioner points out that in Ext. P3 order, there is a specific finding that Smt. P.G. Bharathiamma satisfied all the stipulations laid W.P.C. No. 27114/08 -: 3 :- down in the notification. Therefore, according to the petitioner, the 3rd respondent has adopted different standards for different applicants for deciding as to whether their applications are in order, which itself is discriminatory and unsustainable. 3. The petitioner further contends that in Ext. P4 appeal, the petitioner had specifically raised a ground, namely, Ground (x) that the 5th respondent, who was ultimately selected for issue of licence was a benami of M/s. Sam & Co., the erstwhile AWD, whose licence was cancelled on account of serious misconducts. That contention was not even referred to in Ext. P6 order of the 2nd respondent. He adds that in Ext. P7 revision petition also, in ground (H), he again raised that contention in respect of which there is not even a reference in Ext. P8 order of the 1st respondent also. Lastly, the petitioner would contend that one of the essential conditions for issue of licence as an AWD as per the Kerala Rationing Order is that the applicant should be a resident of the locality for which the licence is to be issued. According to the petitioner, as is evident from Ext. P1 notification inviting applications, the AWD is intended for Ward I of Chinnakanal Panchayat, Udumbanchola Taluk. Therefore, according to the petitioner, the licensee should have been a resident of the Chinnakanal Panchayat, whereas the 5th respondent is a resident of another Panchayat. Learned counsel for the petitioner points out that in the counter affidavit of the 5th respondent, he has stated that he is a resident of Bisenvalley Panchayat in Udumbanchola Taluk. But, according to the petitioner, as is evidenced by Ext. P11 issued by the Secretary of the Bisenvalley Grama Panchayat, the 5th respondent is not an ordinary resident of the said Panchayat. In the reply affidavit filed by the petitioner, he has submitted that AWD no. 12 of Chinnakanal Panchayat is only one of the five AWDs of Udumbanchola W.P.C. No. 27114/08 -: 4 :- Taluk, the others being Ponmudi, Nedumkandam, Kattapana and Vandanmedu. Therefore, according to the petitioner, it is not sufficient that the 5th respondent is a resident of the Udumbanchola Taluk, but he should further prove that he is a resident of the locality to which AWD 12 caters. For all the above reasons, the petitioner contends that the impugned orders are patently unsustainable. Therefore, the petitioner seeks the following reliefs: (i) to issue a writ in the nature of mandamus or such other writ, order or direction, calling for the records leading to Exts.P3, P6 and P8 proceedings /orders and quash the same. (ii) to issue a writ in the nature of mandamus or such other writ, order or direction, commanding respondents 1 to 3 to cancel the appointment of 5th respondent as the licensee of AWD at Chinnakanal and to issue a fresh notification calling for applications for appointment as authorized wholesale distributorship of AWD No. 12 at Chinnakanal from eligible persons except the 5th respondent; (iii) to issue a writ in the nature of mandamus or such other writ, order or direction, declaring that the rejection of the application submitted by the petitioner for appointment as AWD No.12 at Chinnakanal is illegal, arbitrary and that he is eligible to be considered for the appointment as authorized wholesale distributor.” 4. A counter affidavit is filed on behalf of the 1st respondent refuting the contentions of the petitioner. According to 1st respondent, the decision of the Division Bench in Varkey's case (supra) is not applicable to the facts of this case. It is contended that in this case, in Ext. P1 notification inviting the applications, one of the requirements is that the applicant should produce ownership certificate of the building in which he intends to run the AWD and if such building is not owned by the applicant, the consent letter issued by the owner in stamp paper worth Rs.50/- should accompany the application. It is also stated in Ext. P1 that the applications not W.P.C. No. 27114/08 -: 5 :- accompanied by all the documents referred to in Ext. P1 notification would not be considered. In view of the specific stipulation in Ext. P1 notification inviting applications, the reliance on Varkey's case (supra) is patently misplaced, is the contention raised by the the learned Government Pleader. Regarding the failure to fill up column no. 16 of the application form, the learned Government Pleader does not now dispute the fact that the petitioner has stated his PAN card number in column no. 16 and therefore the statement in Ext. P3 order that he has left the column blank is not correct. But, he seeks to uphold Ext. P3 on this ground also taking the contention that what has been required by the petitioner to state in column no. 16 is as to whether he has paid income-tax or sales-tax for the previous three years, which was not stated by the petitioner. Regarding the relevancy of the same, he would submit that, that is a relevant factor insofar as that would give an indication as to the financial stability of the applicant to be appointed as AWD. Regarding the reference to the petitioner to Smt. P.G. Bharathiamma's case, the learned Government Pleader frankly admits that Smt. P.G. Bharathiamma had left the column blank. But, he contends that it is of no relevance as far as the grant of licence is concerned insofar as Smt. P.G. Bharathiamma was not ultimately selected and the person selected does not incur the said disqualification. It is further contended by the learned Government Pleader that the petitioner cannot raise a case of negative discrimination based on the irregularity committed by Smt. P.G. Bharathiamma and the fact that the 3rd respondent may have overlooked that fact should not give the petitioner an advantage on the basis of an illegality overlooked by the 3rd respondent inadvertently. 5. Regarding the contention of the petitioner that the 5th W.P.C. No. 27114/08 -: 6 :- respondent was a benami of the erstwhile disqualified AWD, the contention of the 1st respondent is that the petitioner has not produced any evidence to prove the same. But the learned Government Pleader frankly admits that in Exts. P6 and P8 orders, the specific contention raised by the petitioner in his appeal and revision petition has not even been referred to in the orders. 6. Regarding the last contention, the learned Government Pleader would contend that the AWD is sanctioned for the whole Taluk and therefore the residence qualification need be in the Taluk itself which qualification the 5th respondent has. The contention is that since the 5th respondent is a resident of that Taluk, he had fulfilled the residence qualification as laid down by this Court in the Full Bench decision in O.P.No. 12652/1996. 7. The 5th respondent has filed a counter affidavit denying the contentions of the petitioner. In the same, he admits that he was an employee of M/s. Sam & Co. and while cancelling the licence of M/s. Sam & Co., there is no allegation of misappropriation against the 5th respondent and that the respondent is not at all a benami of M/s. Sam & Co. 8. I have considered the rival contentions in detail. 9. As is clear from Ext. P3 order, the application of the petitioner was refused to be considered for the two reasons that he has not produced the documentary evidence to prove validity of ownership of the building proposed by the applicant for the AWD at the time of submitting application and that since the petitioner has not filled up column no. 16 of the application form, it was an incomplete application. It is not disputed before me that the petitioner had produced a document evidencing ownership of the building proposed as the AWD after filing the application but before W.P.C. No. 27114/08 -: 7 :- consideration of the applications by the 3rd respondent. The question as to whether the application not accompanied by solvency certificate or certificate of consent of ownership of the building is a reason for rejecting the application summarily was considered by a Division Bench of this Court in Varkey's case supra. That question was answered by the Division Bench thus in paragraph 2 thereof thus: “2. Sri. M.I. Joseph, the counsel for the appellant-petitioner, submitted that the notification issued by the 3rd respondent required the application to be submitted in the prescribed form; and in the form it was stated that incomplete applications would be liable to be rejected. According to him, the application from the 4th respondent was not accompanied either by the solvency certificate or the certificate of consent by the owner of the building in which the 4th respondent proposed to conduct the depot in case the licence for that purpose was granted to him. His argument was that the 2nd respondent had found that the 4th respondent's application was not accompanied by these certificates, and it was sufficient reason for rejecting his application summarily, and therefore, was no valid reason why the Government in exercise of its power of revision should have interfered with Ext. P4 order passed by the 2nd respondent. 3. The question before us is whether we should, in exercise of the power under Art. 226 of the Constitution, interfere with the decision of the Government. We have not been shown any provisions in the relevant Rules which requires that an application should be accompanied by solvency certificate or certificate of consent from the owner of the building. Even in the application form, which is not a statutory form, but only a form prescribed by the executive authority, there is no mention that the solvency certificate or the consent certificate is to accompany the application. The only requirement in term of the application form itself is that if the answer to the question whether the applicant was solvent was in the affirmative, the certificate in proof of the extent of the solvency was to be produced. It would serve the same purpose even if the certificate is produced any time before the Collector takes up the matter for decision. There is not only no non-compliance with the requirements of the relevant provisions, but also no prejudice caused to any of the parties by the fact that the application was not accompanied by the certificates, but were made available before the Collector took up the matter for consideration. 4. The counsel for the appellant-petitioner cited a decision W.P.C. No. 27114/08 -: 8 :- of the Supreme Court and three decisions of this Court in support of his contention that where there was non-compliance with the provisions in the rules governing the grant of the licence, the application ought to have been rejected summarily. The decision are: (1) Tara Singh v. State of Rajasthan (AIR 1975 S C 1487; (2) Kerala Public Service Commission v. Saroja Nambiar, 1978 (2) ILR, Kerala 241); (3) Kerala Public Service Commission v. Johnson, (1979 KLT 665); and (4) Lalithambika v. Secretary, K.P.S.C. [1981 KLT 98 (SN)]. We have gone through these decisions. We find none of these decisions is applicable to the facts of the case. If there is a mandatory requirement under the statutory rule that certain particulars are to be furnished, or certain certificates are to accompany the application, the failure to comply with those requirements would result in the summary rejection of the application, particularly where the rules themselves make it clear that failure to comply with the requirements would result in the summary rejection of the application. In this case, we have already noticed that there is no statutory rule which requires that the certificates referred to above were to accompany the application, or that the failure to do so would result in the summary rejection of the application. The decisions cited could easily be, therefore, distinguished on facts.” I am of opinion that this decision is squarely applicable to the facts of this case. The attempt of the learned Government Pleader to distinguish the same on facts stating that in Ext. P1 notification inviting application, such a specific condition has been incorporated also does not find favour with me. The District Collector cannot on his own, include in the notification inviting applications conditions, which are not stipulated by the rules and thereafter reject an application on the ground that the conditions stipulated in the notification inviting applications have not been complied with. The applicant for AWD is expected to comply only with the statutory requirements in the matter of filing of applications for AWD, in respect of which the Division Bench decision in Varkey's case (supra) becomes squarely applicable. In the above circumstances, I am satisfied that the first reason mentioned in Ext. P3 for rejecting the application of the petitioner is clearly unsustainable. W.P.C. No. 27114/08 -: 9 :- 10. My finding on the first point would to some extent be applicable to the second point also. The learned Government Pleader could not point out to me any provision in the Rules that an applicant for AWD should be an income tax or sales tax payee or that an income tax or sales tax payee would be preferred in the matter of grant of licensee as an AWD. He also does not have a case that non- payment of tax is a disqualification. Further, as pointed out by the learned counsel for the petitioner, as is evidenced by Ext. P10 application of the 5th respondent, he is not a tax assessee at all. When the Rules do not prescribe any special consideration for an income tax or sales tax assessee, it defies logic as to why a column regarding the same should be included in the application form at all. Added to that, the application of Smt. P.G. Bharathiamma, who did not fill up column no. 16, as evidenced by Ext. P9, had been considered by the 3rd respondent on merits despite the alleged defect. Further, the finding in Ext. P3 that the petitioner did not fill up column no. 16 is also not sustainable since the petitioner had filled up that column with PAN card number. PAN card would be issued to only an income tax assessee. In the above circumstances, the second reason mentioned in Ext. P3 for rejecting the application of the petitioner is also unsustainable. 10. In view of my above findings, insofar as the 3rd respondent had not considered the petitioner on merits for unsustainable reasons, Ext. P3 order is liable to be quashed and therefore strictly speaking, I need not consider the other contentions in the writ petition. But, since those contentions have relevance in the mater of re-considering the applications of the eligible applicants, and since arguments were advanced by both sides in respect of the same also, I shall consider the same also in this writ petition . W.P.C. No. 27114/08 -: 10 :- 11. The petitioner's contention is that Ext. P10(a) solvency certificate produced by the 5th respondent was issued by one Smt. Baby Abraham. Baby Abraham is the maiden name of that allottee and after marriage, she became Smt. Baby Mammen. Smt. Baby Mammen and Smt. Santha George were the partners of the erstwhile AWD, viz. M/s. Sam & Co., who were disqualified for misconducts. The other partner of M/s. Sam & Co. Smt. Santha George issued Ext. P10(d) consent deed agreeing to lease the building proposed by the 5th respondent for the AWD to the 5th respondent. Further, by Ext. P10(c), ownership certificate was issued by M/s. Sam & Co. themselves. According to the petitioner, despite specific allegations in this regard raised in the appeal and revision petition filed by the petitioner, there is absolutely no consideration of the said contentions either by the 2nd respondent or by the 1st respondent in Exts.P6 and P8 orders respectively. I find considerable merit in that contention. Therefore, while reconsidering the applications, the 3rd respondent is bound to consider this contention of the petitioner also. 12. Lastly, the petitioner has raised a specific contention that the 5th respondent is not a resident of the locality for which the AWD was to be appointed. Although the 5th respondent claimed himself to be a resident of the Bisenvalley Panchayat. The Secretary of the Bisenvalley Panchayat by Ext. P11 certificate certified that the 5th respondent is not a permanent resident of that Panchayat. Of course, going by the Full Bench decision in O.P.No. 12652/1996 on that point, what is relevant is whether the applicant is the resident of the locality for which the licence is to be granted. If the AWD was to be appointed for the Taluk as a whole, the Government Pleader's contention would be very correct. But, it is not disputed before me that for Udumbanchola Taluk, there are five AWDs. Therefore, W.P.C. No. 27114/08 -: 11 :- necessarily, the area of operation of these five AWDs has to be separately earmarked. That being so, only if the applicants are residents of the locality to which the AWD 12 is to cater, the applications would be valid. I am of opinion that this matter is also to be considered by the District Collector while deciding the matter afresh. 13. In view of my above findings, the writ petition is allowed quashing Exts.P3, P6 and P8. The District Collector is directed to consider the applications including that of the petitioner afresh on merits, in accordance with law and pass fresh orders regarding the selection of the AWD pursuant to Ext. P1 notification. The same shall be done after hearing all eligible applicants including the petitioner and the 5th respondent as expeditiously as possible, at any rate, within two months from the date of receipt of