IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WA.No. 51 of 2008(A) ------------------------------ AGAINST THE JUDGEMENT IN W.P.(C).NO.20262/2006 DATED 02/01/2008 .................... APPELLANT/ 7TH RESPONDENT: ----------------------------------------------- K.P.MOHAMMED ALI HAJI, APARTMENT NO.2A, GLANDEL POINT, S.I.APARTMENTS, BANK ROAD, KOZHIKODE. BY MR.ABRAHAM VAKKANAL, SENIOR ADVOCATE, ADVS. MR.PAUL ABRAHAM VAKKANAL, MR.ARUL KUMAR.P, MR.BIJIMON C.CHERIAN, MR.LOWEL CHERIAN. RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 6: -------------------------------------------------------------------------------- 1. SMT. S. RASITHA, 37/1580, SRAMBIKKAL HOUSE, KARUVASSERY P.O., KOZHIKODE-673010. 2. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, TRIVANDRUM. 3. A.DIVAKARAN, DEPUTY SECRETARY, DEPARTMENT OF FOOD CIVIL SUPPLIES & CONSUMER AFFAIRS, TRIVANDRUM. 4. THE COMMISSIONER OF CIVIL SUPPLIES, TRIVANDRUM. W.A. NO. 51/2008-A: 5. THE DIRECTOR OF CIVIL SUPPLIES, TRIVANDRUM. 6. THE DISTRICT COLLECTOR, KOZHIKODE. 7. THE DISTRICT SUPPLY OFFICER, KOZHIKODE. R2 TO R7 BY GOVT. PLEADER MR. M.R. SABU, R1 BY ADV. MR.T.G.RAJENDRAN, THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY, Ag.C.J. & P.BHAVADASAN, J. -------------------------------------- W.A.No.51 of 2008 ------------------------------------- Dated 13th February, 2009 JUDGMENT Koshy, Ag.C.J . The issue raised in the writ petition relates to the appointment of an Authorised Wholesale Distributor (AWD) for ration articles in Kozhikode Taluk. By Ext.P2 order, the District Collector appointed the writ petitioner as the licencee. Licensing authority was the District Collector. There were many other candidates as per the rules. The District Collector considered the merits and demerits of the parties concerned in detail and found that the petitioner is eligible. As far as the 7th respondent (appellant) is concerned, it was found that he was a resident of Malappuram. Even though he got a certificate from the Corporation that he was residing in Kozhikode, it was found not acceptable. It was noticed that he is already an Authorised Wholesale Distributor at Malappuram and in view of Ext.P11 circular, one person cannot be appointed as more than one AWD. An appeal was filed by the 7th respondent. The Commissioner of Civil Supplies (appellate authority) also agreed with the views and rejected the appeal. But, when Ext.P9 revision was filed by him, the above concurrent findings were reversed by Ext.P10 order passed by W.A.No.51/2008 2 the Government. Ext.P10 was challenged by the writ petitioner. By judgment dated 24th January, 2007, a learned single Judge of this court set aside Ext.P10 and directed the authorities to reconsider the matter against which writ appeals were filed. In the writ appeals, judgment of the learned single Judge was set aside and directed the learned single Judge to reconsider the matter. The learned single Judge by the impugned judgment set aside Ext.P10 after hearing the parties and, therefore, Exts.P2 and P4 orders became effective and directed the authority to implement Exts.P2 and P4 orders. The major ground taken by the learned single Judge was that the appellant who was the 7th respondent in the writ petition is admittedly a wholesale ration distributor in Malappuram District for more than 27 years and Ext.P11 circular issued by the Board shows that no ration shop dealer should be authorised as such in respect of more than one ration shop and that co-operative societies alone are exempted from the rules. Ext.P11 is as follows: “The Board in its Circular No.(CS)A.16- 21167/04, dated 23rd October 1964 (Circular No.11 of 1964) a guideline that as a general rule. No ration shop keeper in any rationed area should be authorised as such in respect of more than the ration shop and that co-operative societies may be exempted from this rule had been issued. A few cases where this guideline has not been adhered to have come to the notice of Board of Revenue and hence the following guidelines are issued. 2. Even though the Kerala Rationing W.A.No.51/2008 3 Order, 1966 does not specify any such restriction, the instructions of the Board referred to above embody a desirable principle it considered to be in public interest. The same principle is therefore reiterated for the benefit of the District Supply Officers/District Collectors who process proposals for appointment of A.R.D.” It shows that the guideline was mentioned in the Circular dated 23rd October, 1964. Therefore, this was in force in the State of Kerala for the last many decades. It is also stated that existing wholesale dealers cannot be affected by the circular. This was reiterated by the Government in Ext.P17. Government also stated that, it will avoid monopoly. Ext.P17 dated 13.4.2007 reads as follows: “It is noticed that in many places more than one AWDs are run by a single person. As it will lead to monopolize the field to a certain persons, it should be discouraged as per the existing circular instructions. Therefore I am to request you to take immediate remedial action in this regard.” 2. Contentions raised by the appellant is that the rules do not prescribe such a condition and, therefore, such eligibility condition is invalid. The relevant rule can be seen from Clause 51 of the Kerala Rationing Order. Clause 51 reads as follows: “51.(1) For the purpose of distributing rationed articles the District Collector may, by W.A.No.51/2008 4 order, appoint in respect of any area any rationed article. Provided that any person appointed or deemed to be appointed under the Kerala Foodgrains (Regulation of Distribution) Order 1965 shall be deemed to be appointed under this sub-clause. (Provided further that a person who is a full time employee in any establishment or who is not normally resident in the locality shall not be eligible to hold an authorisation to run a ration wholesale depot under the order.” It is true that as per the rules, like the petitioner, 7th respondent was also eligible. But, the question is that when many candidates are eligible, who is to be selected or preferred. The Board has issued a circular which is in force from 1964 onwards and it cannot be stated that the above guideline given by the Board is unreasonable or illegal as it will avoid monopoly. Circular issued by the Board is a guideline. The above guideline is not in violation of any rules. Further, the 2nd proviso shows that a person is not eligible to be appointed if he is not normally resident in the locality. A person cannot be normally resident in two localities at the same time. Appellant is admittedly a ration shop distributor in Malappuram as he is normally resident in Malappuram. So he cannot be a normally resident in Kozhikode. Therefore, appellant will not be entitled to get licence in Kozhikode even by going by the procedural rules. Learned counsel for the appellant cited a decision of this court in Secretary, Cannanore W.A.No.51/2008 5 District Muslim Educational Association v. State of Kerala and others (I.L.R. 2008(1) Kerala 319). In that case, when policy was framed against the rules in the matter of sanctioning of the schools, the Division Bench held that it cannot be implemented without amending the statutory rules. Another decision cited by the appellant was the decision of the Supreme Court in State of Haryana v. Shamsher Jang Shukla (AIR 1972 S.C. 1546). In that case, certain norms were prescribed as per the service rules for promotion. When additional norms were prescribed for promotion, the Hon'ble Supreme Court held that so long as those conditions were not mentioned, merely because of the addition of those conditions, one cannot be denied promotion unless rule is amended. Here, the guidelines prescribed is not against any of the rules, but, only prescribes conditions to be considered when many applicants are eligible as per the rules and we see no reason to set aside the guideline. The licensing authority is the District Collector and Board is a superior authority. The licensing authority has to consider the application taking into account the circular issued by the Board in selecting one from eligible candidates and the respondents have no case that the writ petitioner was not an eligible candidate. The District Collector found that the writ petitioner was an eligible candidate. Comparative evaluation was also in favour of the writ petitioner. We are not going into other finding of facts. W.A.No.51/2008 6 3. It is submitted by the counsel for the appellant that Government has got power under Clause 69 of the Kerala Rationing Order to exempt any person or class of persons from the operation of all or any of the provisions of the Order. In a revision application, Government is not considering application for exemption and it is not stated in the impugned revisional order that petitioner was given exemption in a specific circumstance and Government has applied its mind. Further, a revision application is not contemplated under Clause 51(10) as it contemplates appeal from an order of the District Collector to the Commissioner and from Commissioner to State. But, revision application may be maintainable under Clause 11A of the Kerala Food Grains Dealers Licensing Order, 1967 which reads as follows: “11A. Power to call for Records and issue order.- Government may call for and examine and the records of any order passed by the licensing authority refusing to grant, reissue or renew a license or cancelling or suspending a licence or forfeiting the security deposited by the licensee under the provisions of the order or of the appellate order passed by the Commissioner of Civil Supplies for the purpose of satisfying themselves as to the legality or to the propriety of such order and may pass such orders in reference there to as the Government may deem fit. Provided that no order to the disadvantage of a person shall be passed under this clause W.A.No.51/2008 7 unless the person concerned is given an opportunity of making any representation which he may wish to make (and an opportunity of hearing him in person) against such order.” Power of the Government was to examine the correctness or legality of the orders of the licensing authority and Commissioner. The Commissioner and the Collector followed general guidelines issued by the Board. As we have already stated, since the petitioner is a normally resident of Malappuram, even as per the rule appellant cannot be appointed as an Authorised Wholesale Distributor. We also note that the reasoning given in Exts.P2 and P4 orders of the Collector and Commissioner are based on facts and they being licensing authority and appellate authority have correctly analysed the facts and ordered to grant licence to the writ petitioner and Ext.P10 order in revision was rightly set aside by the learned single Judge. Since we agree with the reasoning of the learned single Judge, we are not reiterating the other grounds. The appeal is dismissed with costs. J.B.KOSHY ACTING CHIEF JUSTICE P.BHAVADASAN JUDGE tks