IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30292 of 2007(F)
1. T.A.JOSE & COMPANY
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. COMMISSIONER, CIVIL SUPPLIES,
3. DISTRICT COLLECTOR, TRICHUR.
4. DISTRICT SUPPLY OFFICER,TRICHUR.
5. TALUK SUPPLU OFFICER,
6. THRISSUR TALUK RATION DEALERS
For Petitioner :SRI.V.V.ASOKAN
For Respondent :SRI.K.RAMAKUMAR (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/03/2009
O R D E R
ANTONY DOMINIC,J.
-------------------------------
W.P.(C).Nos.30292 OF 2007
---------------------------------
Dated this the 3rd day of March, 2009.
JUDGMENT
The main prayer in this writ petition is to quash
Exts.P4,P7,P8 and P14 orders.
2. Facts of the case are that, Ext.P1 is an order passed
by the 3rd respondent, appointing the petitioner as the
Authorized Wholesale Distributor at Mundoor and
Kuttanelloor in Trissur District. However, this order was
not implemented and seeking its implementation,
petitioner filed O.P.No.2072/97 before this court. By this
time, Government policy had changed and as a result of
which, the first respondent entrusted AWD-1 at Mundoor
to a Co-operative Society and AWD No.2 at Kuttanelloor, to
the Kerala State Civil Supplies Corporation. This
arrangement, appears to have continued till 2004 when the
Civil Supplies Corporation abandoned the distributorship
WP(c).No.30292/07 2
and AWD entrusted to the Co-operative Society was
suspended.
3. At this stage, the petitioner herein filed WP(c).
No.14615/04, again claiming implementation of Ext.P1,
appointing him as AWD at Mundoor and Kuttnelloor. In
that writ petition a learned Single Judge of this court
passed Annexure-A2 order dated 18.5.2004, directing that
if the Government is appointing anybody other than the
Civil Supplies Corporation, the same shall be done only in
accordance with law after issuing notification. Aggrieved
by this order, the petitioner filed W.A. No.1308/04, in
which a Division Bench of this court passed Ext.P2 order
directing that the AWDs at Mundoor and Kuttanellor shall
not be entrusted to anybody other than the appellant (the
petitioner herein), if the shops have not already been
entrusted to any other person.
4. Thereafter it would appear that the matter was
discussed at various levels, as is seen from Exts.P18 to
P22. Ext.P18 is the letter issued by the District Supply
officer (D.S.O), to the Secretary to Government, Ext.P19 is
WP(c).No.30292/07 3
the letter issued by the DSO to Deputy Secretary of the
first respondent, Ext.P20 is the letter issued by the
Director of Civil Supplies to Secretary to Government,
Ext.P21 is yet another letter issued by the D.S.O to the
Commissioner of Civil Supplies. In all these
communications, reference is made to Ext.P2 order
passed by the Division Bench of this court and directions
were sought for the arrangement to be made in the
context of Ext.P2 order. Ext.P22 is the note files of the
first respondent, in which it is seen that after elaborate
consideration of the matter at varous levels, the Minister
for Food and Civil Supplies, vide his order dated
3.10.2005 ordered to issue directions to the District
Collector, Trissur to consider the case of the petitioner for
appointment in the light of Ext.P2 order. In pursuance to
Ext.P22 referred to above, Annexure-A4 order was issued
by the first respondent directing the District Collector,
Trissur to take steps for starting the AWD at Mundoor and
Kuttanelloor and to entrust its running to the petitioner in
the light of Ext.P2 order.
WP(c).No.30292/07 4
5. In pursuance to Annexure-A4 referred to above,
petitioner states that he was called upon to submit an
application for appointment as AWD and accordingly
Annexure-A5 application was submitted by him to the
District Collector on 7.10.2005. It is stated that finally the
District Collector issued Ext.P3 order dated 13.10.2005
appointing the petitioner as AWD at Mundoor and
Kuttanellor exercising his powers under Clause 51(1) of
the Kerala Rationing Order, 1966. Although the date of
service of Ext.P3 order is not seen disclosed in the
pleadings, petitioner submits that in implementation of
Ext.P3 he lifted the stock on 14.10.2005 and commenced
business from that date itself.
6. While the petitioner was thus continuing as the
AWD at Mundoor and Kuttanellor, it is stated that
complaint dated 4.1.2006, was received from one Sri. P.B.
Mohanan, Secretary, Kerala State Ration Consumers
Association, Vittyla, Ernakulam and on its receipt, the
Commissioner of Civil Supplies, by order dated 28.1.2006
WP(c).No.30292/07 5
called for the files regarding the appointment of the
petitioner and it is so stated in Annexure-A9. Accordingly,
under the cover of Annexure-A10 dated 6.2.2006 the files
were forwarded to the Director of Civil Supplies. It would
appear that acting upon the complaint thus received on
4.1.2006, the second respondent issued Ext.P4 dated
19.4.2006, cancelling the appointment of the petitioner
exercising his powers under clause 51(11) of the Kerala
Rationing Order.
7. The petitioner challenged Ext.P4 order in WP(c).
No.11625/06 and by Ext.P5 order dated 21.4.2006, the
oder was stayed by this Court. The writ petition was finally
heard by a Division Bench of this court and the case was
disposed of by Ext.P6 judgment dated 9.10.2006
relegating the petitioner to pursue the remedy of appeal.
Thereafter, the petitioner filed a revision before the first
respondent, as provided in clause 71 of the Rationing
Order, a copy of which is Ext.P7. It is stated that
complaining of delay in the disposal of the revision, the
petitioner filed WP(c).No.27315/06. That writ petition was
WP(c).No.30292/07 6
disposed of by Ext.P9 judgment, after hearing the 6th
respondent also, directing that the first respondent shall
hear the petitioner and the 6th respondent herein and
dispose of the revision and that in the meanwhile, allow
the petitioner to continue the business. Here it should be
stated that although in Ext.P6 judgment, taking note of the
submission made by the 6th respondent, this court directed
the petitioner to file an appeal, what the petitioner filed
was a revision under clause 71 of the Rationing Order.
Despite this, the 6th respondent did not question the
maintainability of the revision petition while WP(c).
No.27315/06 was heard and disposed of by Ext.P9
judgment.
8. In pursuance to Ext.P9 judgment, the first
respondent heard the parties and disposed of the revision
by Ext.P14, Government Order No.G.O(Rt)
No.484/07/FCSD dated 22.10.2007. Paragraph 7 to
10 of that order being relevant, are extracted below for
reference.
“In order to dispose of the Revision Petition filed
by T.A Jose and Company, the Secretary(F&CSWP(c).No.30292/07 7
Dept.) conducted a hearing on 3.10.2007 at 11
AM. Advocate Sri. S. Sreekumar represented for
the Thrissur Taluk Ration Dealers Association and
Advocate V.V. Asokan represented M/s. T.A Jose
and company.8. Arguments for Thrissur Taluk Ration Dealers
Association.a. The Court Direction and Govt. Direction
are only to the limit that M/s. T.A Jose and
company may be entrusted only with sub-depots
and they are permitted to run the depots only on
temporary measures till permanent alternate
arrangements are made.b. By misinterpreting the court order dated
18.5.04 in O.P.No.14615/04 and the Govt.
direction, the collector appointed M/s. T.A. Jose
ad Company as permanent authorized wholesale
dealer without due notification and also in a
hasty manner. Hence the Commissioner of Civil
Supplies rightly cancelled the order of the District
Collector and it is in order. The counsel has
requested to dismiss the revision petition, vacate
the stay order of Civil Supplies Commissioner
and entrust the AWD 3 & 4 to Kerala State Civil
Supplies Corporation.9. Argument for T.A Jose and Company.
a. The Commissioner of Civil Supplies has
cancelled the AWD license without notice or
afford an opportunity of being heard.b. The appeal petitioner Sri. V.B. Mohan is a
fictitious person since he has not appeared
before Civil Supplies Commissioner or the
Secretary for hearing.c. A person from Ernakulam District has no locus
standi to challenge the order as the subject AWDWP(c).No.30292/07 8
Depots are in Thrissur Distrct.
d. The Commissioner of Civil Supplies has no
power to invoke suo motu revisional jurisdiction
after a period of six months of the original
order.e. Against the High Court order in O.P filed by
M/s. T.A Jose & Company No.14615/04, they
filed a writ application in which the court has
given an interim direction to entrust the sub
depots at Mundoor and Kuttanellor to M/s.T.A.
Jose and Company. He had requested to set
aside the order of the Commissioner of Civil
Supplies and allow the revision petition.10. The arguments put forward by the counsel
and the information gatheredThe the records
has
Commissioner of in
examined
since the appointmentSupplies
Civildetail. fromfindings ofCompany as AWD 3 and of in Thrissur was inof
M/s.isT.A Jose and
seen correct4 a
haste, misinterpreting bothHigh directionThe
the
Govt.procedure followedHon’ble regard was also not
and the Court.in this
correct. Moreover, Govt. is examining the
feasibility of entrusting whole sale distribution
of ration articles throughwith Kerala State Civil
the
supplies Corporation a view to avoid
diversion of ration articles in open market.
Hence it is better to entrust the AWD 3 and 4 of
Thrissur District to Kerala State Civil Supplies
Corporation.containedthese In circumstances, the requestin the revision petition filed by M/s.
T.A. Jose and Company is liable to be rejected
and hereby dong so by upholding the decision
of the Commissioner of Civildated Supplies in his
proceedings NO.CS A8.895/06District19.4.2006.The AWD 3 & 4 Thrissur is hereby
WP(c).No.30292/07 9
ordered to entrust with Kerala State Civil
Supplies Corporation. The Revision petition filed
by M/s. T.A Jose and Company is thus disposed
of. This order is issued under Rule 71 of the
Kerala Rationing Order 1966 and in compliance
with the directions contained in the judgment
read 4th,7th and 8th paper read above.”By this order, the revision was rejected and it is in these
circumstances the writ petition is filed with the prayers as
mentioned above.
9. Sr. V.V. Asokan, learned Counsel for the petitioner
contended that, Ext.P4 order cancelling the petitioner’s
appointment as AWD was issued by the 2nd respondent,
without issuing notice, giving him an opportunity to make
his representation and also without an opportunity of
hearing. It was also contended that Ext.P4 order has been
passed beyond the time limit prescribed in clause 5(11) of
the Rationing Order. It was also contended that, although
the 2nd respondent has power to condone the delay in
entertaining the complaint, nothing has been stated in
Ext.P4 to show whether delay has been condoned and that
in any case, delay could not have been condoned without
notice to the petitioner.
WP(c).No.30292/07 10
10. It was also argued that in terms of the scheme
of the Kerala Rationing Order only a person aggrieved
could have made a complaint and that in this case the
complaint dated 4.1.2006, on the basis of which Ext.P4
order was passed has been filed by a person from Vytilla,
who could not have had any grievance about petitioner’s
appointment and therefore no action whatsoever could
have been taken by the authorities. Lastly, it was argued
that Ext.P14 order passed by the first respondent
exercising the power of revision under clause 71 of the
Rationing Order is also illegal for the reason that the
contentions raised by the petitioner were not considered.
11. On behalf of respondents 1 to 5, the Additional
Advocate General Sri. Renjith Thampan appeared.
Although he did not dispute the factual correctness of the
case of the petitioner that Ext.P4 order was passed
without giving him any notice or hearing, he contended
that Ext.P3 order having been passed in violation of the
provisions contained in the Kerala Rationing Order and
also Annexure-A6 Government Order, is a void one and
WP(c).No.30292/07 11
hence, no right whatsoever can be claimed on the basis
of the said order. It is stated that if Ext.P3 is a void order,
petitioner cannot claim that he should have been issued
notice or given hearing before cancelling such an order.
12. In so far as the contention raised by the counsel
for the petitioner that Ext.P4 order has been passed
beyond the time limit prescribed in Clause 51(11) of the
Rationing Order, learned Addl. Advocate General
contended that the time limit prescribed in clause 51(11)
of the Rationing Order is only for initiating the
proceedings and not for passing the final order. According
to him, proceedings have been initiated on 4.1.2006 or at
least on 28.1.2006, when the records were called for and
therefore the case of the petitioner that the order was
passed beyond the time prescribed is erroneous. He also
referred to Section 85A of the Kerala Land Reforms Act
and the judgments of this court in Subramania Mudaliar
V. Taluk Land Board (1986 KLT 338), Glen Leve Estate (P)
Ltd. V. State of Kerala (1999(3) KLT 239 and Balan V.
State of Kerala (2006(4) KLT 229) to contend that the time
WP(c).No.30292/07 12
limit is only for initiating proceedings.
13. Answering the contention of the counsel for the
petitioner that delay has not been condoned, it was
argued that once proceedings have been initiated that
necessarily means that the delay has been condoned.
Finally he argued that for technical reasons if Ext.P4 order
is set aside, the result will be the resurrection of Ext.P3,
an illegal order, and that in such a case, this court should
not set aside the impugned order. He placed reliance on
the judgment of this court in Shenoy V. Central Bank of
India (1983 KLT 381) and that of the Apex Court in M.C.
Metha V. Union of India & Ors. 1999(6) SCC 237 and
Rajkumar Soni V. State of U.P and another.(2007(10) SCC
635).
14. Sri. K. Ramakumar, learned Sr. counsel
appearing for the 6th respondent contended that Ext.P4
order has become final and therefore the writ petition is
not maintainable. According to him, Ext.P3 being a void
order no right flows from Ext.P3 and therefore the
petitioner has no legal right to be issued notice or to be
WP(c).No.30292/07 13
heard. He also contended that for the above reason itself,
the petitioner has no right to invoke Art.226 of the
Constitution and seek a discretionary relief from this court.
Counsel also argued that petitioner being a back door
entrant, is liable to go out through the back door itself.
15. Elaborating his contention that Ext.P4 has
become final and therefore the writ petition is not
maintainable, it was contended that Ext.P4 is an
appealable order in terms of clause 51(10) of the Rationing
Order and that in Ext.P6 judgment, the petitioner was
relegated to pursue the appellate remedy. However, the
petitioner did not file an appeal and therefore Ext.P4 has
become final. According to him, when clause 51(10) of the
Rationing Order provides a right of appeal, it being a
specific remedy provided under the Statute, the
residuary remedy of revision could not have been invoked.
16. In so far as his contention that Ext.P3 being a
void order and that no right flows from the said order and
that as a result the petitioner has no legal right to be
heard, counsel placed reliance on R. Vishwanatha Pillai V.
WP(c).No.30292/07 14
State of Kerala and Ors. (2004(2)SCC 105), State of U.P &
Ors. V. Desh Raj (2007(1)SCC 257), M.P. State Co. Op.
Bank Ltd. V. Nanuram Yadav & Ors. (2007(8)SCC 264),
Government of Andhra Pradesh & Ors. V. K.
Brahmanandam & Ors.(2008(5) SCC 241) and Pramod
Kumar V. U.P. Secondary Education Services Commission
and Ors.(2008(7)SCC 153. He also reiterated the
contention that the petitioner’s appointment being illegal
they cannot seek the assistance of this court to remain in
business.
17. On behalf of the 7th respondent the Standing
Counsel Mrs. Molly Jacob entered appearance. According
to her, Ext.P3 appointment was only a temporary
arrangement and therefore the Government is always
competent to entrust the AWD to anybody it deems
appropriate. She also canvassed for the position that after
Ext.P3, petitioner has not been issued an order of
appointment as contemplated in the Rationing Order. It
was therefore argued that in the absence of such a valid
and proper order of appointment, the petitioner cannot
WP(c).No.30292/07 15
claim any legal right.
18. Among the various contentions raised by the
respective parties, I shall first deal with the contention of
the petitioner that Ext.P4 order was passed without notice
to make representation and hearing and therefore is
illegal. I choose to deal with this contention for the
reason that in case if I agree with the learned counsel for
the petitioner that the order is illegal for this reason,
then the matter should necessarily be reconsidered by
the 2nd respondent, in which case, it is for the 2nd
respondent to decide on the other contentions of the
respective parties.
19. As already noticed, Ext.P4 itself shows that the
order was passed by the 2nd respondent exercising his
powers under Clause 51(11) of the Rationing Order.
Clause 51(11) being relevant is extracted below for
reference.
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
purpose of satisfying himself as to the legalitythe
or
to the propriety of such order and may-WP(c).No.30292/07 16
(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)
commissioner may deem fit;order
pass such other as the(Provided that the power under this sub-
clause shall not be exercised:-(I) Suo motu, after the expiry of six months
from the date of service of such order.(ii) On application, if the application has
been filed after the expiry of sixty days
from the date of service of such order;)
(Provided further that the commissioner
may entertain application under this sub-
clause after expiry of the said period, if he
is satisfied that the applicant had sufficient
cause for not submitting the application in
time).Provided further that no order to the
disadvantage of a person shall be passed
under this sub-clause unless the person
concerned is given an opportunity of
making any representation which he may
wish to make against such order(and also
an opportunity of hearing him in person.)”20. A reading of this provision makes it clear that
either suo motu or on application, the 2nd respondent has
power to call for any order passed by any subordinate
WP(c).No.30292/07 17
authority under clause 51, examine and satisfy himself
about the legality or propriety of such order. The nature of
orders to be passed by the 2nd respondent are those
provided in clause (a) to (d) of Clause 51(11). First
proviso states that the power shall not be exercised suo
motu after the expiry of 6 months from the date of service
of such order and that on application, the 2nd respondent
is forbidden from exercising the power if the application
has been filed after the expiry of 60 days of the date of
service of such order. The 2nd proviso confers power on
the 2nd respondent to entertain an application after the
expiry of the period specified, if he is satisfied that the
applicant had sufficient cause for not submitting the
application in time. The 3rd proviso prohibits passing of
any order to the disadvantage of a person unless he is
given an opportunity of making representation against
such an order and an opportunity of hearing is given.
21. Thus under the 3rd proviso to clause 51(11) it is
mandatory that the petitioner should have been given the
opportunity of making his representations and also an
WP(c).No.30292/07 18
opportunity of hearing. Admittedly, this proviso has not
been complied with in this case and none of the
respondents have a case to the contrary. While
considering his revision, this contention was urged by the
petitioner and it has been noted at paragraph 9(a) of
Ext.P14. A reading of paragraph 10 of the order shows
that the Government however did not deal with this
contention. Therefore, Exts.P4 and P14 orders, deserve to
be set aside for violation of the 3rd proviso to clause 51
(11) of the Kerala Rationing Order.
22. The contention raised by the respondents is that
Ext.P3 being a void order, no right whatsoever flows from
the said order. It is therefore argued that the petitioner
cannot claim any right to make representation or an
opportunity of hearing even though these are statutory
requirements. As already noticed, Sri. K. Ramakumar
counsel appearing for the 6threspodnent relied on the
judgments referred to above and those judgment rendered
in cases dealing with service matters, do support his
contention that no right flows from a void order. But what
WP(c).No.30292/07 19
is to be examined is whether Ext.P3 order can be ignored
for all purposes even in the absence of a challenge against
the same.
23. It is true that in the judgments and also in text
books the word “void” is sometimes used to mean
voidable with the result that expressions such as null and
void, absolutely void, void ab initio have had to be used
to make it clear that what is meant is void, in the strict
sense of that term. “Void”, it is true, means an empty space
and is in strict legal parlance, used to denote a transaction
that is altogether devoid of the legal results contemplated.
So far as those results are concerned, it is legally a nullity;
it is as if it never were. But to say, as is often done, that
such a transaction is void as against the whole world is
misleading in as much as that implies that the whole
world would have the right to question it. For, the whole
world would neither be interested in, nor even entitled to,
question such a transaction. Only a person having at least
a title or interest in the subject matter of the transaction,
would have the right to question it. Nor would it be correct
WP(c).No.30292/07 20
to say that a void act is, for all purposes and in all
circumstances, a nullity. Similarly, a voidable transaction is
one which a person affected thereby can, at his option,
either affirm or avoid. If he chooses to affirm or ratify it,
he is thereafter precluded from avoiding or repudiating it.
Once he successfully avoids it, it is, at any rate so far as
he and persons claiming under him are concerned, as if
the transaction had never existed, it is deemed to have
been void ab initio. The avoidness of it will relate back
to the making of it, although, until avoidance, it is
regarded as operative, not absolutely but only
conditionally being subject to defeasance by avoidance.
24. Effect of an order which is void, has been the
subject matter of various judicial pronouncements. In
Patel Narsh Thakershi & Ors. V. Shri Pradyuman Singh
(1971(3)SCC 844, dealing with the effect of an order
passed by the Government exercising power of review
which it did not have, the Apex Court held that;
“If the Government had no power to review its
own order, it is obvious that its delegate
could not have reviewed its order. The
question whether the Government’s order isWP(c).No.30292/07 21
correct or valid in law does not arise for
consideration in these proceedings so long as
that order is not set aside or declared void by
a competent authority. Hence the same
cannot be ignored. The subordinate Tribunals
have to carry out that order.25. Later in State of Kerala V. M.K. Kunhikannan
Nambiar Manjeri Manikoth, Naduvil & Ors.(1996(1)SCC
435), this very issue was again considered by the Apex
Court and it was held that even a void order cannot be
said to be non-existent in all situations and will remain
effective inter-parties until it is successfully avoided or
challenged in a higher forum. It was also held that the
question whether an order can be avoided will depend
upon the degree of its invalidity, as to whether it is
fundamental or otherwise. On this reasoning it was held
that there was no fundamental infirmity with the
proceedings initiated by the State Land Board without
intimation regarding the non filing of return under the
Kerala Land Reforms Act. Proceeding further, their
Lordships have quoted from the Judicial Review of
Administrative Action in De Smith, Woolf and Jowell 1995
Edn., which reads as under;
WP(c).No.30292/07 22
“The erosion of the distinction between jurisdictional
errors and non-jurisdictional errors has, as we have
seen, correspondingly eroded the distinction between
void and voidable decisions. The courts have become
increasingly impatient with the distinction to the
extent that the situation today can be summarized as
follows;(1)All official decisions are presumed to be valid
until set aside or otherwise held to be invalid by a
court of competent jurisdiction.”26. Again in the judgment in Howrah Daw Mangla
Hat B.B. Samity V. Pronab Kumar Daw( 2001(6) SCC 534,
after referring to several authorities, the question has been
considered in paragraph 22, in the following words.
“Thus the expressions “void and voidable” have
been the subject-matter of consideration on
innumerable occasions by courts.The expression “void” has several facets. One
type of void acts, transactions, decrees are
those which are wholly without jurisdiction, ab
initio void and for avoiding the same no
declaration is necessary, law does not take any
notice of the same and it can be disregarded in
collateral proceedings or otherwise. The other
type of void act e.g. may be transaction against
a minor without being represented by a next
friend. Such a transaction is a good transaction
against the whole world. So far as the minor is
concerned, if he decides to avoid the same and
succeeds in avoiding it by taking recourse to
appropriate proceedings the transaction
becomes void from the very beginning. Another
type of void act may be which is not a nullity
but for avoiding the same a declaration has to
be made. Voidable act is that which is a goodWP(c).No.30292/07 23
act unless avoided, e.g. if a suit is filed for a
declaration that a document is fraudulent and/
or forged and fabricated, it is voidable as the
apparent state of affairs is the real state of
affairs and a party who alleges otherwise is
obliged to prove it. If it is proved that the
document is forged and fabricated and a
declaration to that effect is given, a transaction
becomes void from the very beginning. There
may be a voidable transaction which is required
to be set aside and the same is avoided from
the day it is so set aside and not any day prior
to it. In cases where legal effect of a document
cannot be taken away without setting aside the
same, it cannot be treated to be void but
would be obviously voidable .”27. In M. Meenakshi & Ors. V.Metadin Agarwal
(dead) By lrs. and others (2006(7) SCC 470), the Apex
court again reiterated that even a void order is required
to be set aside by a competent court of law in the
following words.
“It is a well-settled principle of law hat even a void
order is required to be set aside by a competent
court of law in as much as an order may be void in
respect of one person but may be valid in respect
of another. A void order is necessarily not non est.
An order cannot be declared to be void in a
collateral proceeding and that too in the absence of
the authorities who were the authors thereof. The
orders passed by the authorities were not found to
be wholly without jurisdiction. They were not, thus,
nullities.”28. The aforesaid position has been reiterated in the
WP(c).No.30292/07 24
judgment in Pune Municipal Coporation V. State of
Maharashtra & Ors.(2007(5) SCC 211). Paragraph 36 to 40
of the judgment reads as under.
“It is well settled that no order can be ignored
altogether unless a finding is recorded that it
was illegal, void or not in consonance with law.
As Prof. Wade states;“The principle must be equally true even where the `brand of
invalidity’ is plainly visible’ for there also the order can
effectively be resisted in law only by obtaining the decision of
the court.”He further states;
“The truth of the matter is that the court will invalidate an order
only if the right remedy is sought by the right person in the right
proceedings and circumstances. The order may be
hypothetically a nullity, but the court may refuse to quash it
because of the plaintiff’s lack of standing, because he does not
deserve a discretionary remedy, because he has waived his
rights, or for some other legal reason,. In any such case the
`void’ order remains effective and is, in reality, valid. It follows
that an order may be void for one purpose and valid for another;
and that it may be void against one person but valid against
another. ”In smith V. East Elloe Rural District Council Ac
at.p.769, Lord Radcliffe had an occasion to
consider a similar argument(that the order was
null and void.) Negativing the contention, the
Law Lord made the following oft- quoted
observations(All ER P.871 G-H)
This argument is, in reality, a play on the meaning of the word
nullity. An order , even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of invalidity
on its forehead. Unless the necessary proceedings are taken at
law to establish the cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders.(emphasis supplied)A similar question came up for consideration
before this court in State of Punjab V. Gurdev
Singh. In Gurdev Singh a suit for declaration was
instituted by the plaintiff contending that theWP(c).No.30292/07 25
order dismissing him from service was ultra
vires, unconstitutional, violative of principles of
natural justice and void ab initio and he
continued to be in service.accordance with the provisions ofSuch Articlesuit, of in
113
the Limitation Act, 1963, must be filed within
three years from the date of passing of order or
when departmental appealdismissal or revision is filed
from
appeal/revision. Theofsuit was, however, filed
the date of suchbeyond the period of three years. The High
Court held that since the order was void, the
provisions of the limitation Act would not apply
to such order. The aggrieved State approached
this Court.Setting aside the decree passed by all the courts
and referring to several cases, this Court held
that if the party aggrieved by invalidity of the
order intends to approach the Court for
declaration that the order against him was
inoperative, he must come before the Court
within the period prescribed by limitation.” If the
statutory time of limitation expires, the court
cannot give the declaration sought for.The Court then stated (Gurudev singh case SCC
p.6 para 7)
“If an Act is void or ultra vires it is enough for the court to
declare it so and it collapses automatically. It need not be
set aside. The aggrieved party can simply seek a declaration
that it is void and not binding upon him. A declaration
merely declares the existing state of affairs and does not
`quash’ so as to produce a new state of affairs”.29. Again in Deepak Agro Foods V. State of
Rajasthan & Ors. (2008(7) SCC 748) it has been held that;
WP(c).No.30292/07 26
“All irregular or erroneous or even illegal
orders cannot be held to be null and void as
there is a fine distinction between the orders
which are null and void and orders which are
irregular, wrong or illegal. Where an authority
making order lacks inherent jurisdiction, such
order would be without jurisdiction, null, non
est and void ab initio as defect of jurisdiction
of an authority goes to the root of the matter
and strikes at its very authority to pass any
order and such a defect cannot be cured even
by consent of the parties(See Kiran singh
V.Chaman Paswan). However, exercise of
jurisdiction in a wrongful manner cannot result
in a nullity- it is an illegality, capable of being
cured in a duly constituted legal proceedings.Proceedings for assessment under a fiscal
statute are not in the nature of judicial
proceedings, like proceedings in a suit in as
much as the assessing officer does not
adjudicate on a lis between an assessee and
the State and therefore the law on the issue
laid down undertotheassessmentmay not stricto
civil law
sensu apply proceedings.Nevertheless, in order to appreciate the
distinction between a null and void order and
an illegal or irregular order it would be
profitable to notice few decisions of this court
on the point.In Rafique Bibi V. Syed Waliuddin explaining the
distinction between null and void decree and
illegal decree, this Court has said that a decree
can be said to be without jurisdiction, and
hence a nullity, if the court passing the decree
has usurped a jurisdiction, which it did not
have; a mere wrong exercise of jurisdiction
does not result in a nullity. The lack ofWP(c).No.30292/07 27
jurisdiction in the court passing the decree
must be patent on its face in order to enable
the executing court to take cognizance of such
a nullity based on want of jurisdiction. The
court further held that a distinction exists
between a decree passed by a court having no
jurisdiction and consequently being a nullity
and not executable and a decree of the court
which is merely illegal or not passed in
accordancedecree the procedure laid down by
with
law. A suffering from illegality or
irregularity of procedure, cannot be termed in
executable.”
30. In the light of the law as laid down in the
binding pronouncements referred above, one has to
appreciate whether Ext.P3 order passed by the District
Collector, appointing the petitioner as AWD, at Mudoor
and Kuttanelloor is a void one and whether it can be
ignored for all purposes and in all circumstances. The
argument of voidness is set up only on the basis that the
order was issued, without inviting applications as required
under the provisions of the Rationing Order and that it
violates Annexure-A6 Government Order. The jurisdiction
of the District Collector to make appointment of AWD is
not disputed. If that be so, the resultant position is that,
the District Collector who has acted within his jurisdiction
WP(c).No.30292/07 28
to appoint the petitioner as AWD, at best has committed
an irregularity or illegality in appointing the petitioner
without inviting applications. If that be so, such an
irregular or illegal order can be avoided only if it is set
aside in an appropriate proceedings before a competent
forum. The appropriate proceedings is the one provided
under clause 51(11) of the Rationing Order and it is in
exercise of this power that the 2nd respondent has issued
Ext.P4 order setting aside Ext.P3 order of appointment.
Such order can be passed only in compliance with the
provisions of clause 51 (11) of the Rationing Order itself.
If that be so, an opportunity to make his representations
and an opportunity of hearing to the affected party are the
essential requirements of exercising the power and these
mandatory requirements could not have been dispensed
with. Admittedly, this has not been complied with and for
that reason I must hold that Ext.P4 order is illegal. If that
be so, Ext.P4 order should necessarily be set aside and the
matter has to be reconsidered.
WP(c).No.30292/07 29
31. The argument that if Ext.P4 is set aside that
would result in the resurrection of Ext.P3, an illegal order
also has not impressed me. As already stated, Ext.P3
order, irrespective of the nature of it, is binding inter-
parties, unless it is avoided by an order in an appropriate
proceedings before a competent forum. Therefore, so
long as the order remains effective, the petitioner is
entitled to continue as AWD and the consequence of that
order cannot be avoided. Even otherwise, in view of
Exts.P18 to P22 and Annexure-4 Govt. Order, I have
considerable doubt whether such an argument can be
raised by the State. In any case I do not think it proper for
me to do a deeper probe on this issue, since a
reconsideration of the matter is necessary.
32. I should also make reference to Ext.P14 order
passed by the first respondent on the revision filed by the
petition under Clause 71 of the Rationing Order. A
reading of the order itself show that the petitioner has
raised the contention that Ext.P4 order was passed
without notice or hearing and that proceedings initiated
WP(c).No.30292/07 30
was beyond the time limit prescribed. However, none of
these contentions have been considered by the
Government. Therefore, on this ground itself Ext.P14
order needs to be invalidated.
33. Here I should also deal with the contention
raised by Sri. Ramakumar, Learned Sr. Counsel that Ext.P4
order has become final and therefore the petitioner cannot
ask for any relief in this proceedings. This contention was
raised, on the basis that in Ext.P6 judgment in WP(c).
No.11625/06, though the petitioner was relegated to
pursue the remedy of appeal, the petitioner filed only a
revision. It is stated that in view of the directions in Ext.P6
judgment and since clause 51(10) provides for an
appellate remedy, the revision was not maintainable and
consequently Ext.P4 has become final. First of all
irrespective of the directions in Ext.P6 judgment, clause 71
of the Rationing Order provides for a revisional remedy
and if the petitioner has that remedy available, there
cannot be any estoppal against him.
WP(c).No.30292/07 31
34. Further, it is also not open to the 6th respondent
to dispute the maintainability of the revision filed by the
petitioner at this distance of time. This is for the reason
that after filing the revision, the petitioner herein filed WP
(c).No.2731/06 before this court, complaining of delay in
the disposal of the revision. That writ petition was
disposed of by Ext.P9 judgment, after hearing the 6th
respondent also. The judgment does not show nor has he
got a case before me that the question of maintainability
of the revision was raised by the 6th respondent. Further in
Ext.P7 revision which resulted in Ext.P14 order also, the
6th respondent was heard. Admittedly, the question of
maintainability of the revision was not raised on that
occasion also. If that be so, the 6th respondent cannot now
be permitted to raise a contention on the maintainability of
Ext.P7 revision filed by the petitioner. Therefore the
argument of the learned Sr. Counsel that Ext.P4 order has
attained finality is only to be rejected and I do so.
35. Since I have held Exts.P4 and P14 order to be
invalid for not complying with the 3rd proviso to clause
WP(c).No.30292/07 32
51(11) of the Rationing Order, I do not think it necessary
or proper for this court to enter into a finding on the
competence of the complainant at whose instance, Ext.P4
order was rendered or the contention that proceedings
initiated were beyond the time specified in clause 51(11)
or that in spite of delay the same was not condoned by
the 2nd respondent and all other contentions raised by the
parties. These are issues which necessarily will have to be
raised by the petitioner, before the 2nd respondent, if and
when fresh proceedings are initiated and are left open.
Therefore, the writ petition will stand disposed of
quashing Ext.P4 and Ext.P14 and leaving it open to the 2nd
respondent to initiate fresh proceedings, in accordance
with the provisions of the Kerala Rationing Order.
(ANTONY DOMINIC)
JUDGE
vi/
WP(c).No.30292/07 33