IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 W.A.No.2034 of 2008 ------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).21082/2008-I, DATED 5.8.2008. .................... APPELLANTS: PETITIONERS:- --------------------------------------------- 1. KERALA STATE RETAIL RATION DEALERS ASSOCIATION, REGISTRATION NUMBER 323/86, T.C.NO.25/1956, DESHABHIMANI ROAD, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY. 2. C.A.UMMER, AGED 58 YEARS, S/O.A.ABDUL RAHIMAN, RESIDING AT ANAKKATU KAVNOTHARA HOUSE, THAIKKATTUKARA P.O., ALUVA-6, (A.R.D.NO.105, PIPE LINE, PALARIVATTOM, ERNAKULAM, KOCHI). BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENTS: RESPONDENTS:- ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, MUSEUM, TRIVANDRUM. 3. DIRECTOR OF CIVIL SUPPLIES, MUSEUM, TRIVANDRUM. 4. CONTROLLER OF RATIONING, MUSEUM, TRIVANDRUM. W.A.No.2034 of 2008 - 2 - 5. THE DISTRICT COLLECTOR, COLLECTORATE, TRIVANDRUM. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. BY STANDING COUNSEL SMT.MOLLY JACOB. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer, J. ------------------------------------------- W.A.No.2034 of 2008 -------------------------------------------- Dated, this the 4th November, 2008 JUDGMENT H.L.Dattu,C.J. Being aggrieved by the order passed by the learned Single Judge in W.P.(C).No.21082 of 2008, dated 5th August, 2008, the petitioners in the writ petition have presented the present appeal. (2) 1st appellant before us is an Association of Kerala State Retail Ration Dealers. 2nd appellant is a retail dealer of rationed articles. (3) In the writ petition filed, the petitioners had primarily called in question Exhibit P1 Circular issued by the State Government. The Circular gives an indication, at what rate the excess or shortage of the rationed articles found in the shop at the time of inspection by the Inspecting authority requires to be recovered. The said Circular was questioned by the petitioners solely on the ground, that, the Kerala Rationing Order, 1966 is a delegated legislation and pursuant to that delegated legislation, there cannot be yet another legislation by way of a Circular by the State Government. It is further contended in the writ petition, that, if at all any amounts have to be collected either for excess or shortage found at the time of shop inspection, the same shall be at the rate of rationed articles. WA.No.2034 of 2008 - 2 - (4) The learned Single Judge, by his order dated 5th August, 2008, has dismissed the writ petition, following the earlier order passed by him in W.P.(C).No.21550 of 2008, disposed of on 17th July, 2008. In the order passed in W.P.(C).No.21550 of 2008, the learned Single Judge, after noticing the aforesaid Circular and the purport of Clause 45(8) of the Rationing Order, has come to the conclusion that the said Circular is in aid of Clause 45(8) of the Rationing Order. (5) It is the correctness or otherwise of the order passed by the learned Single Judge, is the subject matter of this Writ Appeal. (6) We have heard learned counsel appearing for the appellants. The learned counsel would contend, that, the excess or shortage of stock of rationed articles could be for various reasons and, therefore, the authorities under the Act cannot mulct the owner of the shop to pay up the price at the rate prevailing in the market. It is further stated, that ,Exhibit P1 Circular issued by the State Government is contrary to Clause 45(8) of the Kerala Rationing Order. (7) In order to appreciate the contention of the learned counsel for the appellants, we need to extract the translated version of Circular No.3/2008 dated 6.5.2008 and Clause 45(8) of the Kerala Rationing Order. The translated version of the Circular reads as WA.No.2034 of 2008 - 3 - under: “Circular No.3.2008 Sub: Inspection of wholesale and retail ration dealers shop - realisation of value of rationed articles found in short or in excess at the time of inspection @ economic cost - reg: Ref: Economic costing of rice and wheat obtained from the F.C.I. and that of kerosene obtained from I.O.C. While inspecting wholesale and retail ration dealers shops the value of the articles like rice, wheat, kerosene, etc. found short or in excess of the stock are at present realised at the rates of rationed articles for confiscation to the Government. (Rice @ Rs.8.90 per kg., wheat @ Rs.6.70 per kg., kerosene @ Rs.9.30 per litre). Ration cost is seen much lesser compared to the economic cost of articles. In the circumstances, from 1.4.2008, the stock of articles found in short or in excess at the time of inspection of wholesale and retail ration dealers shops are to be confiscated to the Government realising value as under: Rice (Grade A) : Rs.17.10 per kg. Wheat : Rs.15.76 per kg. Kerosene : Rs.47.77 per litre. The District Supply Officer shall acknowledge receipt of the circular. Likewise the Taluk Supply Officers and City Rationing Officers shall keep copies of the circular in their respective files”. WA.No.2034 of 2008 - 4 - (8) Clause 45(8) of the Kerala Rationing Order is as under: The same reads as under: “(8) If the District Collector or any officer of the Civil Supplies Department not below the rank of a Taluk Supply Officer finds that the authorised retail distributor has contravened any of the provisions of this Order, or any of the directions issued thereunder or on receipt of the report from any of the officers referred to in sub-clause (7) or on his own inspection of the stocks and accounts in a shop finds any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non-compliance with any of the directions, issued by the competent authorities or contravention of the provisions of any order issued by a competent authority under section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955), which is for the time being enforced he may after giving the authorised retail distributor any opportunity of stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security under sub-clause (5). Notwithstanding anything contained in this sub-clause, he may order the realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of any quantity of rationed articles misappropriated by falsification WA.No.2034 of 2008 - 5 - of accounts and all sums collected in excess by way of transport charges handling charges, profit etc. and gained by the authorised retail distributor due to incorrect fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary he may suspend the appointment of the authorised retail distributor temporarily pending enquiry. Provided that the power of cancellation of appointment shall be exercised only by the authority competent to make the appointment or a higher authority”. (9) Sub-clause (8) of the said Order would authorise the authorities under the Rationing Order to take punitive measures, if, for any reason, the retailer has contravened any of the provisions of the Rationing Order. (10) The sub-clause appended to Clause 45(8) of the Order would make it clear, that, apart from sub-clause (8) of Clause 45 of the Order, if there is any contravention by a dealer, dealing in rationed articles, the Inspecting authority may realize an amount equivalent in value to the cost of the quantity of rationed articles, either found to be short or in excess. The measure that requires to be adopted for the purpose of sub-clause (8) of Clause 45 of the Rationing Order is not indicated in the said clause. To facilitate the authorities to collect the amount, if, for any reason, on inspection the Inspecting authority finds, that, there is WA.No.2034 of 2008 - 6 - either excess or shortage of rationed articles, the same requires to be collected at the market rate. The Circular so issued by the State Government is in aid of sub-clause (8) of Clause 45 of the Kerala Rationing Order. Therefore, it cannot be said that the State Government could not have issued Exhibit P1 Circular. In that view of the matter, we are of the firm opinion, that, the learned Single Judge has not committed any error, whatsoever, which would call for our interference in appeal. Therefore, the Writ Appeal requires to be rejected and it is rejected. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judge vku/dk