IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26481 of 2006(C)
1. USHA CHANDRAN, T.C.17/367,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE COMMISSIONER OF CIVIL SUPPLIES
3. THE DISTRICT COLLECTOR, THRISSUR.
4. THE DISTRICT SUPPLY OFFICER,
5. THE TALUK SUPPLY OFFICER, THRISSUR.
6. MRS.JAYA JOSE, AWD NO.13,
7. MRS.P.V. THRESSIA,
8. ROSMY LAZER, VAZHAPPILLY HOUSE,
9. LEMIN LAWRENCE, EDAKALATHUR HOUSE,
10. T.A. JOSE & COMPANY,
11. SIMI JOHN, PANDALATH HOUSE,
12. LISSY OUSEPH, KURUTHUKULANGARA HOUSE,
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :SRI.T.S.RADHAKRISHNA PILLAI
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :12/06/2008
O R D E R
C.R.
C.N.RAMACHANDRAN NAIR, J.
....................................................................
W.P.(C) Nos.26481,28084,27997,
32644 & 33408 of 2006
....................................................................
Dated this the 12th day of June, 2008.
JUDGMENT
The issue involved in all these cases pertain to selection of
Authorised Wholesale Dealer for distribution of ration articles to the retail
dealers in the Trichur Taluk. The competent authority to make selection
namely, the District Collector, Trichur, issued notification on 10.8.2004 for
appointment of a wholesale dealer for the distribution of ration articles. Ten
persons made application for selection. The District Collector considered
the relative claims of all the applicants and by Ext.P6 order dated 9.6.2005
produced in W.P. 26481/2006, selected the petitioner in that W.P. for
appointment. Out of the nine other contestants, 7 persons who are arrayed
as respondents 6 to 12 in W.P. 26481/2006 filed appeals against Ext.P6
order before the Civil Supplies Commissioner under clause 51(10)(2) of the
Kerala Rationing Order, 1966. Since relative claims of the appellants over
the grantee were to be considered and the findings of the District Collector
were challenged, the Civil Supplies Commissioner got a report through the
Vigilance Officer of the department pertaining to the facts stated by the
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Collector. The Vigilance Officer after conducting field enquiry confirmed
substantially the findings on facts by the Collector in the order appealed
against. However, besides reporting on other matters, the Vigilance Officer
informed the Civil Supplies Commissioner that it may not be proper to
retain 133 retail shops under one wholesale distributor. In short, the
Collector’s notification and selection of a single wholesale distributor to
cater to the needs of 133 retails shops was adversely commented upon by
him. The Civil Supplies Commissioner agreed with the apprehension
expressed by the Vigilance Officer and he held that from past experience it
has been established that a wholesale distributor may not be able to handle
more than 50-60 retail shops. In other words, he was of the view that for
the efficient distribution of ration articles in time to the retail dealers, the
wholesaler should have only manageable number of retail shops attached to
him. Consequent upon this finding, the Civil Supplies Commissioner
disposed of all the appeals by vacating the order of the District Collector
and with further direction to the Collector to divide the area to be covered
by two or three wholesale dealers and to make fresh appointments. The
order in appeal issued by the Civil Supplies Commissioner on 7.2.2006 is
produced as Ext.P8 in W.P. 26481/2006. Even though another round of
appeals were filed against Ext.P8 order of the Civil Supplies Commissioner,
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the Government vide Ext.P10 produced in the same W.P. concurred with the
views of the Commissioner and upheld his order. The petitioners in these
W.Ps. are challenging the abovereferred orders of the Civil Supplies
Commissioner and the Government. I have heard counsel appearing for the
petitioners, counsel appearing for the respondents and the Additional
Advocate General appearing for the State.
2. The first ground raised by all the parties is that the Commissioner
of Civil Supplies as well as the Government have exceeded their powers in
appeal by giving direction to the Collector to make fresh selection after
realloting the retail dealers under two or three wholesale dealers in the
Trichur Taluk. The Additional Advocate General appearing for the State
and Government agencies supported the orders of the Commissioner and the
Government and besides this, he has also stated that Government as a matter
of policy proposes to appoint Civil Supplies Corporation which is a
Government Corporation, for wholesale distribution of ration articles. In
order to consider whether the orders passed by the Commissioner and the
Government in appeal are within their powers, this court has to necessarily
consider their powers, particularly the powers in appeal under the Kerala
Rationing Order 1966. For easy reference the relevant clauses namely
clause 51(10) and (11), clause 51A and clause 71 of the Kerala Rationing
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Order are extracted hereunder:
“51(10) Any person aggrieved by any order passed under
this clause may within thirty days from the date of service of
such order appeal:-
(1) In the case of an order passed by the Commissioner to
the Government.
(2) In the case of an order passed by the District Collector
to the Commissioner.
(3) In the case of an order passed by any other officer to
such authority as the Government may specify in this behalf.
and the decision of the Government, Commissioner or
such authority shall subject to the provisions of sub-clause(11)
be final.
51(11) The Commissioner may either suo motu or on
application, call for and examine the records of any order passed
by a subordinate authority under the provisions of this clause, for
the purpose of satisfying himself as to the legality or to the
propriety of such order, and may–
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce, confirm or
enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or
any other authority directing such further action or enquiry as the
Commissioner considers proper in the circumstances of the case;
or
(d) pass such other order as the Commissioner may deem
fit.
…………..
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51A(1) Notwithstanding anything contained in Clause 51
or any contract to the contrary, if at any time, the Government
are of opinion that in the interest of the general public, it is
necessary or expedient so to do, the Government may, by general
or special order, cancel the appointment of any or all or any class
of authorised wholesale distributors after giving an opportunity
to such distributor or distributors of being heard; and such order
of the Government shall be final.
…………….
71. The Government may, either suo motu or on
application from any person call for and examine the records of
any order passed by the Commissioner or any other subordinate
authority under the provisions of this Order for the purpose of
satisfying themselves as to the legality or to the propriety of such
order and may pass such interlocutory orders as are deemed
necessary and also pass such final orders in reference to the
record as the Government may deem fit.”
3. The appeals filed against the Collector’s order by the unsuccessful
candidates are obviously under clause 51(10)(2) of the Rationing Order.
However, it is seen that the Commissioner of Civil Supplies is entrusted
with wide powers under sub-clause (11) of clause 51 authorising him either
suo motu or on application, to call for and examine records of any order
passed by any subordinate authority under the provisions of this clause for
the purpose of satisfying himself as to the legality or propriety of such order
and he is vested with powers to confirm, modify or set aside such order and
among other things, he is given the freedom to pass such other orders as he
deems fit. The order passed by the Collector against which appeals are
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filed, is certainly an order which can be revised by the Commissioner of
Civil Supplies either suo motu or on application under sub-clause (11). In
fact even an appellate order passed by a subordinate authority under sub-
clause (10)(3) could also be revised by the Commissioner under sub-clause
(11). In other words, while exercising the appellate powers under sub-
clause (10)(2) above, the Commissioner has all the powers conferred on him
under sub-clause(11) above which authorises the Commissioner to pass
such other orders as he may deem fit. There can be no dispute that the
powers conferred on the Commissioner are very wide and the purpose is to
correct illegal and improper orders or actions of subordinate authorities.
There is subtle distinction between legality and propriety of an order
because every order which could be treated as legally passed may not be a
proper order. In order to consider whether the order passed is legal and
proper, the object and purpose of the legislation has to be considered. The
object of the Kerala Rationing Order as stated in the Preamble is to maintain
supply of certain essential commodities and for securing their equitable
distribution and availability at fair price. The scheme of distribution of
ration articles to the public is through retail dealers who in turn are supplied
by wholesalers. It is the finding of the Commissioner based on the caution
expressed by the Vigilance Officer that past experience of the department
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proves that a wholesaler cannot effectively serve more than 50-60 retailers.
Unless the ration articles reach from wholesalers to the retailers in time, the
same cannot be distributed among the public who are the beneficiaries.
Therefore, in the appointment of wholesalers, it is the duty of the authorities
appointing them to ensure that they efficiently function in as much as there
is no failure or delay in supply of ration articles by the wholesalers to the
retailers. When the Head of the Department states that past experience
shows that a wholesaler cannot promptly supply the articles to more than
50-60 retailers, there is no justification to appoint one wholesaler for as
many as 133 retailers which is the result brought out by the Collector by
selecting one person for the whole Taluk. Probably the Collector was
only continuing the same scheme of one wholesaler handling as many as
133 dealers, but the same does not mean that a correction cannot be done for
improvement of the system. I am of the view that the Commissioner being
Head of the Department is bound to ensure that wholesale dealers function
viably and efficiently so that goods reach the retailers within time.
Therefore, there is nothing wrong in limiting the number of retailers
attached to a wholesaler so that distribution of ration articles take place in a
smooth and efficient manner. If unmanageable number of retailers are
attached to a wholesaler, obviously ration articles will not reach in time to
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the retailers which will lead to complete failure of the system. Even though
counsel appearing for the petitioners contended that ever so many
wholesalers in the State are handling more than 100 retailers and a
correction in Trichur alone is not warranted, I am unable to agree with this
argument because a correction has to start somewhere and at some point of
time. This should be an eye-opener for the department to limit retailers
under one wholesaler in such a way that distribution takes place promptly
and smoothly. As already stated, the Commissioner has authority to
interfere with the appointment of one wholesaler if he is of the opinion that
two or three are required for the efficient distribution of ration articles.
Therefore, I find no ground to interfere with the order in appeal issued by
the Commissioner produced as Ext.P8 in W.P. 26481/2006. So far as the
Government’s powers and jurisdiction are concerned, it is seen from clause
(71) of the Rationing Order that the Government enjoys wide powers similar
to the Commissioner as stated above to correct any order issued by any
authority including the Commissioner. While the powers of the
Government under Section 71 are similar to the Commissioner’s powers
under clause 51(11), the Government is given supervisory powers under
clause 51A even to cancel appointment of any or all or any class of
wholesale distributors, if the Government is of the opinion that the interest
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of general public will otherwise be affected. In other words, Government
has not only supervisory power in the appointment of wholesale
distributors, but has the authority to even cancel appointments already made
in the interest of the general public. So far as distribution of ration articles
is concerned, public interest demands equitable distribution of ration
articles to all eligible persons. It is clear from this batch of cases itself that
various parties have made substantial investment in taking and retaining
godowns at high rate only to get the wholesale business in ration. It is
common knowledge that the normal margin permitted in the wholesale
business does not justify massive investments and the competition seen here
is ample proof of the opportunity available for selling ration articles in
black market. A fair procedure for selection of wholesale dealers provided
in the Ration Control Order does not mean that the Government cannot take
over business by itself or to entrust it to a Government Corporation like the
Civil Supplies Corporation. Nobody has a vested right in being appointed
as a wholesale dealer of ration articles. Therefore, it is always open to the
Government to hand over the wholesale distribution of ration articles of any
place or whole of the State to the Civil Supplies Corporation, if the
Government feels that public interest and objects of the Rationing Order are
better achieved by the same. If the Government decides so, then the
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chances of black marketing of ration articles can be avoided and probably
more even distribution can be ensured. Even though it may be desirable for
the Government to hand over wholesale distribution of ration articles to the
Government Corporation namely, the Civil Supplies Corporation, I do not
think this court can compel the Government to do so. In fact, in a phased
manner Government can assign the wholesale distribution of ration articles
to the Civil Supplies Corporation in the whole State.
4. In view of the above findings, I uphold the impugned orders of the
Commissioner of Civil Supplies and the Government produced as Exts.P8
and P10 respectively in W.P. 26481/2006. There will be direction to the
Government to immediately decide in principle whether Government should
hand over distribution of wholesale ration articles in Trichur Taluk to the
Civil Supplies Corporation and if it decides so, to do it at the earliest and in
any case within a period of three months from now. Until then, the present
temporary wholesale distributor should be allowed to carry on business.
However, if the Government decides against handing over of business to the
Civil Supplies Corporation, then there will be direction to the Collector to
bifurcate the retail shops under two or three wholesalers in Trichur Taluk as
directed by the Commissioner so that each wholesaler will be able to
efficiently distribute the articles in time to the retailers and make fresh
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selection after giving opportunity to old applicants and to fresh applicants to
apply for the same and participate in the selection process. If Government
decides against handing over to the Civil Supplies Corporation, the same
should be communicated to the District Collector within a period of one
month from today and in that event, the Collector will make the selection
process afresh after dividing the area under two or three wholesale
distributors as directed by the Commissioner, within two months thereafter.
The W.Ps. are disposed of as above.
C.N.RAMACHANDRAN NAIR
Judge
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