IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 WP(C).No. 9857 of 2007(W) -------------------------------------- PETITIONER(S): ------------------------ M.C.RAVI, PLAVILA HOUSE, KEELIYODE, PERUMPAZHATHOOR, NEYYATTINKARA. BY ADVS.MR.K.S.MADHUSOODANAN MR.T.V.JAYAKUMAR NAMBOODIRI MR.THUSHAR NIRMAL SARATHY MR.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 4. THE DISTRICT SUPPLY OFFICER, THIRUVANANTHAPURAM. 5. S.SENAN, KRISHNA NIVAS, MULLARAVILA, PERUMPAZHATHOOR P.O., NEYYATTINKARA. 6. BIJU KUMAR.V.S., S/O.VELUKUTTY NAIR, ARD. 607, KEELIYOODU, PERUMPAZHUTHOOR P.O., NEYYATTINKARA. R1 TO R4 BY GOVT. PLEADER MR.P.N.SANTHOSH BY ADV.MR.BRIJESH MOHAN R5 & R6 BY ADV.MR.K.JAJU BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.9857/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.CS-1-103/95 DTD. 5.8.96 ISSUED BY THE DISTRICT SUPPLY OFFICER, TRIVANDRUM. P2:- COPY OF THE ORDER NO.CS1-4809/96 DTD. 13.3.98 ISSUED BY THE DISTRICT COLLECTOR, TRIVANDRUM. P3:- COPY OF THE PROCEEDINGS OF THE COMMISSIONER OF CIVIL SUPPLIES NO.CS. A7-21746/98 DTD. 25.10.99. P4:- COPY OF THE ORDER G.O.(RT) NO.309/2001/F CS & A1 DTD. 12.10.01. P5:- COPY OF THE JUDGMENT IN OP. 13455/01 OF THIS HONOURABLE COURT DTD. 28.6.01. P6:- COPY OF THE REVIEW PETITION SUBMTITED BY THE PETITIONER BEFORE THE SECRETARY, CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM DTD. 10.11.01. P7:- COPY OF THE JUDGMENT DTD. 6.11.06 IN WPC. 17805/03 OF THIS HONOURABLE COURT. P8:- COPY OF THE RELEVANT PAGES OF NEYYATTINKARA ASSEMBLY VOTERS LIST OF 1993,. THE 5TH RESPONDENT IS SL. NO.275. P9:- COPY OF THE RELEVANT PAGES OF NEYYATTINKARA ASSEMBLY VOTERS LIST OF 1995, THE 5TH RESPONDENT IS SL. NO.572. P10:- COPY OF THE VOTERS LIST OF 2009 NEYYATTINKARA MUNICIPALITY, WARD NO.5, MULLARAVILA, THE NAME OF 5TH RESPONDENT WITH PHOTO AS SL. NO.119. RESPONDENT'S EXHIBITS R5(a):- COPY OF THE REGISTER SHOWING THE NAMES OF SALESMEN EMPLOYED IN ARD. NO.607. TRUE COPY P.S. TO JUDGE tss P.N. RAVINDRAN, J. - - - - - - - - - - - - - - - - - - - W.P.(C) No.9857 of 2007 – W - - - - - - - - - - - - - - - - - - - - - Dated 16th November, 2009. Judgment Heard Sri.K.S.Madhusoodanan, the learned counsel appearing for the petitioner, Sri.P.N. Santhosh, the learned Government Pleader appearing for respondents 1 to 4 and Sri.K.Jaju Babu, the learned counsel appearing for respondents 5 and 6. 2. Pursuant to the directions issued by the Commissioner of Civil Supplies, the District Supply Officer, Thiruvananthapuram issued a notice dated 29.10.1994 inviting applications for appointment as ARD No.607 in Ward No.VI of Maranalloor Grama Panchayat in Neyyattinkara Taluk in Thiruvananthapuram district. The petitioner who is a resident of Ward No.VI of Maranalloor Grama Panchayat and fifth respondent who is a resident of Perumpazhuthoor, the neighbouring Grama Panchayat and others applied for appointment as ARD No.607 in Ward No.VI of Maranalloor Grama Panchayat. Initially, by order passed on 28.12.1994, the District Supply Officer appointed the fifth respondent as the licensee. The petitioner challenged the said order by filing an appeal before the District W.P.(C) No.9857/2007 -2- Collector, Thiruvananthapuram. Appeals were filed by other applicants also. All the appeals were heard and by a common order passed on the appeals, the District Collector set aside the order passed by the District Supply Officer on 29.10.1994 and directed the District Supply Officer to pass fresh orders on the applications. The District Supply Officer thereafter passed Ext.P1 order dated 5.8.1996 appointing the fifth respondent as the licensee. The fifth respondent commenced running the ARD pursuant to the order initially passed on 28.12.1994. 3. The petitioner challenged Ext.P1 by filing an appeal before the District Collector. By Ext.P2 order passed on 13.3.1998, the appeal was dismissed affirming Ext.P1. The petitioner thereupon filed a revision petition before the Commissioner of Civil Supplies. By Ext.P3 order passed on 25.10.1999, the Commissioner of Civil Supplies held that the fifth respondent who is residing in the neighbouring panchayat cannot claim preference over the petitioner who is a resident of Ward No.VI in Maranalloor Grama Panchayat. The Commissioner of Civil Supplies accordingly directed that the petitioner be appointed as the retail dealer. The fifth respondent thereupon moved the Government by filing a revision petition under clause 71 of the Kerala Rationing Order. By Ext.P4 order passed on 12.10.2001 after notice to and W.P.(C) No.9857/2007 -3- affording the petitioner and other applicants an opportunity of being heard, the Government set aside Ext.P3 and restored Ext.P1 order. The petitioner did not challenge Ext.P1 in time, instead, he filed Ext.P6 petition dated 10.11.2001 before the State Government seeking a review of Ext.P4 order. He thereafter filed W.P.(C) No.17805 of 2003 in this Court. In the said writ petition, he did not challenge Ext.P4. He only sought a disposal of Ext.P6 review petition. W.P.(C) No.17805 of 2003 came up for hearing on 8.11.2006. On noticing that the petition for review is not maintainable and the fact that Ext.P4 order was not under challenge in that writ petition, a learned single Judge of this Court dismissed W.P.(C) No.17805 of 2003 without prejudice to the right of the petitioner to challenge Ext.P4 Government order dated 12.10.2001 in appropriate proceedings. This writ petition was thereupon filed on 21.3.2007 challenging Exts.P1, P2 and P4 and seeking a writ in the nature of mandamus commanding the official respondents to appoint the petitioner as the authorised retail distributor. 4. The main point raised in this writ petition is that the fifth respondent who is admittedly a resident of the neighbouring grama panchayat is not entitled to be appointed as authorised retail W.P.(C) No.9857/2007 -4- distributor. Reliance is placed on the third proviso to clause 45 (7) of the Kerala Rationing Order and the decision of this Court in Jose v. Desamani (1994 (1) KLT 369). The fifth respondent has filed a counter affidavit contending inter alia that though he is residing in the neighbouring grama panchayat, he is residing close to the border of Maranalloor Grama Panchayat and that the two Panchayats are separated by the Neyyattinkara-Kattakkada road. It is also stated that he has been running the shop since July, 1994 without any complaint. In paragraph 3 of the counter affidavit filed by the fifth respondent, he has also contended in categorical terms that the challenge to Ext.P4 is highly belated. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is now well settled by the decision of this Court in Jose v. Desamani (1994 (1) KLT 369) that the term ‘locality’ should mean the panchayat/municipality in which the authorized retail depot is to function. Therefore, on the merits, the fifth respondent who is admittedly a resident of the neighbouring panchayat was not eligible to be appointed as authorized retail distributor. However, it is not in dispute that Ext.P4 Government order passed way back in the year 2001 was not challenged by the petitioner W.P.(C) No.9857/2007 -5- when he filed W.P. (C) No. 17805 of 2003. Ext.P4 order was passed on 12.10.2001. W.P.(C) No.17805 of 2003 was filed nearly two years thereafter. Even in the said writ petition, there was no challenge to the Government order dated 12.10.2001 (Ext.P4). The pleadings disclose that instead of challenging Ext.P4, the petitioner moved the Government seeking a review of Ext.P4. The Kerala Rationing Order, 1966 does not authorize the Government to review its own orders passed on revision. Therefore, as rightly noticed by the learned single Judge in Ext.P7 judgment, the review petition was not maintainable. It was only after W.P.(C) No.17805 of 2003 was dismissed by Ext.P7 judgment delivered on 6.11.2006 that this writ petition was filed on 21.3.3007 challenging Ext.P4 and related orders. In my opinion, the petitioner who did not challenge Ext.P4 in time and allowed the state of affairs that existed on 12.10.2001 to continue for nearly six years thereafter cannot be heard to contend that fifth respondent was ineligible to be appointed. The pleadings disclose that the fifth respondent commenced running the ARD way back in the year 1994. Nearly 15 years have passed thereafter. At this distance of time, it would not be just or fair to interfere with the appointment of fifth W.P.(C) No.9857/2007 -6- respondent especially at the instance of the petitioner who did not challenge Ext.P4 in time. I therefore decline jurisdiction and dismiss the writ petition. P.N. RAVINDRAN Judge vaa