IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WA.No. 1707 of 2010 --------------------- AGAINST THE JUDGEMENT IN WPC.24333/2010 Dated 31/08/2010 .................... APPELLANT/4TH RESPONDENT: ---------------------------------- A.H.NOUSHAD, S/O.HAMZA, 26/706(3), MUGHAL HOUSE, CHAKKAMTHARA, PALAKKAD-678 007. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.M.SREEKUMAR RESPONDENTS/PETITIONER AND ADDL. 5TH RESPONDENT: ----------------------------------------------------------------- 1. THE PALAKKAD CO-OP. MARKETING SOCIETY LTD., NO.F.1078, CHITTUR ROAD, PALAKKAD, REP. BY ITS SECRETARY, SMT.T.R.SUMATHY. 2. THE DISTRICT COLLECTOR, PALAKKAD-678001. 3. THE COMMISSIONER OF CIVIL SUPPLIES, PUBLIC OFFICE BUILDING,THIRUVANANTHAPURAM, PIN-01. 4. THE SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES(B) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN-01. 5. P.S.ABDUL RAHIMAN, VICE PRESIDENT,ALL KERALA RATION DEALERS ASSOCIATION, PALAKKAD, RESIDING AT 1/1013, SHABIR MANZIL, FRIENDS COLONY, OLAVAKKODE, PALAKKAD-2. R1 BY ADV. SRI.N.N.SUGUNAPALAN(SENIOR) SRI.S.SUJITH R2 TO R4 BY SENIOR GOVT. PLEADER, SRI.BENNY GERVASIS R5 BY ADV. SRI. GEORGE POONTHOTTAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R. Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1707 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of October, 2010 JUDGMENT Ramachandra Menon, J. The appellant is before this Court challenging the remand order passed by the learned Single Judge, whereby Ext.P7 order passed by the Government on the revision petition filed at the instance of the appellant has been set aside and the Government has been directed to reconsider the matter; after arriving at a finding that the additional 5th respondent was a necessary party to the proceedings. 2. With regard to the sequence of events, it has to be noted that the appellant (4th respondent in the writ petition), as well as the writ petitioner Society, were the contesting candidates who had submitted the requisite applications for allotment of Authorised Wholesale Depot(AWD) in Palakkad Municipal area. After considering the matter, the District Collector sanctioned the allotment in favour of the Society which was challenged by the appellant by filing appeal WA No.1707 of 2010 -:2:- before the 3rd respondent/Commissioner, contending that, in the notification itself, it was stipulated that the application which was defective in any manner would be rejected. The case of the appellant was that the application submitted by the petitioner Society was not in proper form and as such it had to be rejected. The matter was considered on merits in the appeal, wherein interference was declined. In the said circumstances, the 4th respondent preferred a revision petition before the Government and got the impugned orders set aside; which was challenged in the Writ Petition filed by the Society. 3. During the course of the proceedings before the appellate authority, the additional 5th respondent, who is stated to be an Association of the All Kerala Ration Dealers had also turned up before the 3rd respondent herein. It appears that the additional 5th respondent, as well as the writ petitioner/Society refuted the contentions and credentials sought to be placed by the appellant herein and turned to be successful. However, when the revision petition was filed challenging the order of the appellate authority before the Government, the appellant did not WA No.1707 of 2010 -:3:- include the said additional 5th respondent in the party array. By Ext.P7 order, the Government had accepted the claim of the revision petitioner (appellant herein) and the application preferred by the Society was found to be defective as it was not in proper form. Accordingly, after setting aside the orders of the District Collector and the Commissioner of Civil Supplies, a positive direction was given to the effect that the Revision Petitioner/appellant herein would be entitled to have the allotment and necessarily sanction was ordered to be given for starting the dealership. Pursuant to the order as above, it is stated that the appellant is running the wholesale dealership. 4. Being aggrieved by the order passed by the Government, the Society has approached this Court by filing the writ petition. The learned Single Judge, while considering the case observed that the non-inclusion of the additional 5th respondent in the revision filed by the appellant was fatal and that the Government should have heard him before disposing the revision. In the said circumstances the merit of the case was not considered and after narrating the sequence of events, and WA No.1707 of 2010 -:4:- observing that the additional 5th respondent was also a necessary party, the learned Single Judge set aside the order and remanded the matter to the Government for fresh consideration. It was also made clear that no interference was needed to upset the existing arrangement, because it would adversely affect the public distribution system in the area. The appellant contends that the additional 5th respondent is not at all a necessary party to the proceedings and hence the judgment in the Writ Petition is liable to be set aside. 5. The basic question to be considered is whether there is any scope for interfering with the impugned judgment passed by the learned Single Judge, remanding the matter, merely for the observation that the additional 5th respondent ought to have been made a party in the Revision Petition filed before the Government; especially when the merits of the case have not been considered and the existing arrangement enabling the appellant to continue as the wholesale dealer has not been upset. It is also borne out from the records that, after passing Ext.P7 order by the revisional authority, the appellant herein WA No.1707 of 2010 -:5:- filed an application before the District Collector, stating that the 'particular building' cited by him is not available and citing another 'suitable building'. Accordingly, inspection was conducted and after satisfying the position, the appellant was permitted to conduct the dealership in the 'new building'. There is a specific challenge on the above aspect as well, i.e., on the date of passing Ext.P7 order, this particular building was not there and hence the appellant is not entitled to get the license in his name. 6. Going by the rival contentions and the materials on record, it is clear that the appellant was not in possession of the building now shown, while passing Ext.P7 order. In other words, whether the appellant was in actual possession of the 'building' is also a matter to be looked into; which aspect was not considered by the learned Single Judge. In the above facts and circumstances, this Court finds that the Government shall consider the entire aspects of the matter including the credentials of both the parties. Accordingly, the 4th respondent/Government is directed to reconsider the WA No.1707 of 2010 -:6:- whole matter and after giving an opportunity of being heard to the parties and appropriate orders shall be passed in accordance with law, as expeditiously as possible and at any rate within three months from the date of receipt of a copy of this judgment. The appellant is free to raise all contentions raised in this appeal. So also is the position with regard to the rights and liberties of the other parties concerned. The existing arrangement will continue, till such final orders are passed by the Government afresh. J.Chelameswar, Chief Justice. P.R. Ramachandra Menon, Judge. ttb WA No.1707 of 2010 -:7:-