IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27114 of 2008(C)
1. RAJIT, GEORGE, S/O. K.C.GEORGE,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED
... Respondent
2. THE COMMISSIONER OF CIVIL SUPPLIES,
3. THE DISTRICT COLLECTOR, IDUKKI DISTRICT.
4. THE DISTRICT SUPPLY OFFICER,
5. FRANCIS VADAKKEL, VADKKEL HOUSE,
For Petitioner :SRI.N.RAGHURAJ
For Respondent :SRI.C.K.PAVITHRAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/07/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 27114 of 2008
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Dated this, the 16th July, 2009.
J U D G M E N T
By Ext. P1 notification, the 3rd respondent invited applications
for appointment of Authorised Wholesale Ration Depot No. 12, which
is in Ward I of Chinnakanal Panchayat in Udumbanchola Taluk. The
petitioner, the 5th respondent, one Smt. P.G. Bharathiamma and five
others submitted applications. The petitioner was not invited for a
hearing pursuant to his application. He filed W.P(C) No. 24356/2005,
presuming that his application was summarily rejected without any
notice. That writ petition was disposed of by this Court with a
direction to the 3rd respondent to issue a copy of the order, if any,
passed by him on the application submitted by the petitioner as well
as others to the petitioner. Pursuant thereto, the petitioner was
supplied with Ext. P3 order dated 9-9-2005 of the 3rd respondent.
From the same, he understood that his application was not considered
for two reasons, namely, he had not produced any documentary
evidence to prove the validity of ownership of building proposed by
him and that his application was incomplete, he having left column no.
16 of the application blank. The petitioner filed Ext. P4 appeal before
the 2nd respondent. The same was considered by the 2nd respondent
as directed by this Court in Ext. P5 judgment in W.P(C) No.
7036/2006 filed by the petitioner. Ext. P6 order was passed by the 2nd
respondent rejecting the appeal filed by the petitioner. The petitioner
filed Ext. P7 revision petition before the 1st respondent. Since there
was delay in disposing of the same also, the petitioner filed W.P(C)
No. 2062/2008 for a direction to the 1st respondent to dispose of that
revision petition . Pursuant thereto, by Ext. P8 order, the 1st
respondent rejected the revision petition submitted by the petitioner.
The petitioner is challenging Exts.P3, P6 and P8 orders in this writ
petition.
W.P.C. No. 27114/08 -: 2 :-
2. The petitioner raises several contentions. First is that both
the reasons mentioned in Ext. P 3 order for refusing to consider his
application on merits are unsustainable. As far as the 1st reason is
concerned, according to the petitioner, that reason is not sustainable
in view of the Division Bench judgment of this Court in Varkey v.
State of Kerala, 1984 KLT 567. According to him, the second
reason is also not sustainable for several reasons. The first is that it is
not correct that the petitioner has left column no. 16 blank. Column
16 requires the applicant to state as to whether the applicant has paid
any income-tax and sales-tax for the last three years preceding the
year of application. The petitioner submits that he had, in fact, filled
up that column by entering his PAN card number issued by the
income-tax authorities. Therefore, the statement in Ext. P3 order that
he had not filled up that column is patently wrong. He would further
submit that the fact that he had not filled up that column is of no
consequence at all, insofar as if he is not an income tax payee, his
application cannot be refused to be considered and even if he is an
income tax payee, that would not give him any advantage in his
application. Thirdly, he would contend that Smt. P.G. Bharathiamma,
who was also an applicant, did not fill up the column no. 16 as is
evident from Ext. P9 copy of application obtained by the petitioner
through proceedings under the Right to Information Act, despite
which as is evident from Ext. P3 order, the application of Smt. P.G.
Bharathiamma was considered on merits and the 5th respondent was
preferred to Smt. P.G. Bharathiamma on the ground that the storage
capacity of the godown proposed by her is less than the storage
capacity required for ration wholesale business. Learned counsel for
the petitioner points out that in Ext. P3 order, there is a specific
finding that Smt. P.G. Bharathiamma satisfied all the stipulations laid
W.P.C. No. 27114/08 -: 3 :-
down in the notification. Therefore, according to the petitioner, the
3rd respondent has adopted different standards for different applicants
for deciding as to whether their applications are in order, which itself
is discriminatory and unsustainable.
3. The petitioner further contends that in Ext. P4 appeal, the
petitioner had specifically raised a ground, namely, Ground (x) that
the 5th respondent, who was ultimately selected for issue of licence
was a benami of M/s. Sam & Co., the erstwhile AWD, whose licence
was cancelled on account of serious misconducts. That contention
was not even referred to in Ext. P6 order of the 2nd respondent. He
adds that in Ext. P7 revision petition also, in ground (H), he again
raised that contention in respect of which there is not even a
reference in Ext. P8 order of the 1st respondent also. Lastly, the
petitioner would contend that one of the essential conditions for issue
of licence as an AWD as per the Kerala Rationing Order is that the
applicant should be a resident of the locality for which the licence is
to be issued. According to the petitioner, as is evident from Ext. P1
notification inviting applications, the AWD is intended for Ward I of
Chinnakanal Panchayat, Udumbanchola Taluk. Therefore, according
to the petitioner, the licensee should have been a resident of the
Chinnakanal Panchayat, whereas the 5th respondent is a resident of
another Panchayat. Learned counsel for the petitioner points out that
in the counter affidavit of the 5th respondent, he has stated that he is
a resident of Bisenvalley Panchayat in Udumbanchola Taluk. But,
according to the petitioner, as is evidenced by Ext. P11 issued by the
Secretary of the Bisenvalley Grama Panchayat, the 5th respondent is
not an ordinary resident of the said Panchayat. In the reply affidavit
filed by the petitioner, he has submitted that AWD no. 12 of
Chinnakanal Panchayat is only one of the five AWDs of Udumbanchola
W.P.C. No. 27114/08 -: 4 :-
Taluk, the others being Ponmudi, Nedumkandam, Kattapana and
Vandanmedu. Therefore, according to the petitioner, it is not
sufficient that the 5th respondent is a resident of the Udumbanchola
Taluk, but he should further prove that he is a resident of the locality
to which AWD 12 caters. For all the above reasons, the petitioner
contends that the impugned orders are patently unsustainable.
Therefore, the petitioner seeks the following reliefs:
(i) to issue a writ in the nature of mandamus or such other
writ, order or direction, calling for the records leading to Exts.P3,
P6 and P8 proceedings /orders and quash the same.
(ii) to issue a writ in the nature of mandamus or such other
writ, order or direction, commanding respondents 1 to 3 to cancel
the appointment of 5th respondent as the licensee of AWD at
Chinnakanal and to issue a fresh notification calling for
applications for appointment as authorized wholesale
distributorship of AWD No. 12 at Chinnakanal from eligible
persons except the 5th respondent;
(iii) to issue a writ in the nature of mandamus or such other
writ, order or direction, declaring that the rejection of the
application submitted by the petitioner for appointment as AWD
No.12 at Chinnakanal is illegal, arbitrary and that he is eligible to
be considered for the appointment as authorized wholesale
distributor.”
4. A counter affidavit is filed on behalf of the 1st respondent
refuting the contentions of the petitioner. According to 1st
respondent, the decision of the Division Bench in Varkey’s case
(supra) is not applicable to the facts of this case. It is contended that
in this case, in Ext. P1 notification inviting the applications, one of the
requirements is that the applicant should produce ownership
certificate of the building in which he intends to run the AWD and if
such building is not owned by the applicant, the consent letter issued
by the owner in stamp paper worth Rs.50/- should accompany the
application. It is also stated in Ext. P1 that the applications not
W.P.C. No. 27114/08 -: 5 :-
accompanied by all the documents referred to in Ext. P1 notification
would not be considered. In view of the specific stipulation in Ext. P1
notification inviting applications, the reliance on Varkey’s case
(supra) is patently misplaced, is the contention raised by the the
learned Government Pleader. Regarding the failure to fill up column
no. 16 of the application form, the learned Government Pleader does
not now dispute the fact that the petitioner has stated his PAN card
number in column no. 16 and therefore the statement in Ext. P3 order
that he has left the column blank is not correct. But, he seeks to
uphold Ext. P3 on this ground also taking the contention that what
has been required by the petitioner to state in column no. 16 is as to
whether he has paid income-tax or sales-tax for the previous three
years, which was not stated by the petitioner. Regarding the
relevancy of the same, he would submit that, that is a relevant factor
insofar as that would give an indication as to the financial stability of
the applicant to be appointed as AWD. Regarding the reference to
the petitioner to Smt. P.G. Bharathiamma’s case, the learned
Government Pleader frankly admits that Smt. P.G. Bharathiamma
had left the column blank. But, he contends that it is of no relevance
as far as the grant of licence is concerned insofar as Smt. P.G.
Bharathiamma was not ultimately selected and the person selected
does not incur the said disqualification. It is further contended by the
learned Government Pleader that the petitioner cannot raise a case of
negative discrimination based on the irregularity committed by Smt.
P.G. Bharathiamma and the fact that the 3rd respondent may have
overlooked that fact should not give the petitioner an advantage on
the basis of an illegality overlooked by the 3rd respondent
inadvertently.
5. Regarding the contention of the petitioner that the 5th
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respondent was a benami of the erstwhile disqualified AWD, the
contention of the 1st respondent is that the petitioner has not
produced any evidence to prove the same. But the learned
Government Pleader frankly admits that in Exts. P6 and P8 orders, the
specific contention raised by the petitioner in his appeal and revision
petition has not even been referred to in the orders.
6. Regarding the last contention, the learned Government
Pleader would contend that the AWD is sanctioned for the whole
Taluk and therefore the residence qualification need be in the Taluk
itself which qualification the 5th respondent has. The contention is
that since the 5th respondent is a resident of that Taluk, he had
fulfilled the residence qualification as laid down by this Court in the
Full Bench decision in O.P.No. 12652/1996.
7. The 5th respondent has filed a counter affidavit denying the
contentions of the petitioner. In the same, he admits that he was an
employee of M/s. Sam & Co. and while cancelling the licence of M/s.
Sam & Co., there is no allegation of misappropriation against the 5th
respondent and that the respondent is not at all a benami of M/s. Sam
& Co.
8. I have considered the rival contentions in detail.
9. As is clear from Ext. P3 order, the application of the
petitioner was refused to be considered for the two reasons that he
has not produced the documentary evidence to prove validity of
ownership of the building proposed by the applicant for the AWD at
the time of submitting application and that since the petitioner has
not filled up column no. 16 of the application form, it was an
incomplete application. It is not disputed before me that the
petitioner had produced a document evidencing ownership of the
building proposed as the AWD after filing the application but before
W.P.C. No. 27114/08 -: 7 :-
consideration of the applications by the 3rd respondent. The question
as to whether the application not accompanied by solvency certificate
or certificate of consent of ownership of the building is a reason for
rejecting the application summarily was considered by a Division
Bench of this Court in Varkey’s case supra. That question was
answered by the Division Bench thus in paragraph 2 thereof thus:
“2. Sri. M.I. Joseph, the counsel for the appellant-petitioner,
submitted that the notification issued by the 3rd respondent
required the application to be submitted in the prescribed form;
and in the form it was stated that incomplete applications would be
liable to be rejected. According to him, the application from the 4th
respondent was not accompanied either by the solvency certificate
or the certificate of consent by the owner of the building in which
the 4th respondent proposed to conduct the depot in case the
licence for that purpose was granted to him. His argument was
that the 2nd respondent had found that the 4th respondent’s
application was not accompanied by these certificates, and it was
sufficient reason for rejecting his application summarily, and
therefore, was no valid reason why the Government in exercise of
its power of revision should have interfered with Ext. P4 order
passed by the 2nd respondent.
3. The question before us is whether we should, in exercise
of the power under Art. 226 of the Constitution, interfere with the
decision of the Government. We have not been shown any
provisions in the relevant Rules which requires that an application
should be accompanied by solvency certificate or certificate of
consent from the owner of the building. Even in the application
form, which is not a statutory form, but only a form prescribed by
the executive authority, there is no mention that the solvency
certificate or the consent certificate is to accompany the
application. The only requirement in term of the application form
itself is that if the answer to the question whether the applicant
was solvent was in the affirmative, the certificate in proof of the
extent of the solvency was to be produced. It would serve the
same purpose even if the certificate is produced any time before
the Collector takes up the matter for decision. There is not only no
non-compliance with the requirements of the relevant provisions,
but also no prejudice caused to any of the parties by the fact that
the application was not accompanied by the certificates, but were
made available before the Collector took up the matter for
consideration.
4. The counsel for the appellant-petitioner cited a decision
W.P.C. No. 27114/08 -: 8 :-
of the Supreme Court and three decisions of this Court in support
of his contention that where there was non-compliance with the
provisions in the rules governing the grant of the licence, the
application ought to have been rejected summarily. The decision
are: (1) Tara Singh v. State of Rajasthan (AIR 1975 S C 1487; (2)
Kerala Public Service Commission v. Saroja Nambiar, 1978 (2)
ILR, Kerala 241); (3) Kerala Public Service Commission v.
Johnson, (1979 KLT 665); and (4) Lalithambika v. Secretary,
K.P.S.C. [1981 KLT 98 (SN)]. We have gone through these
decisions. We find none of these decisions is applicable to the
facts of the case. If there is a mandatory requirement under the
statutory rule that certain particulars are to be furnished, or
certain certificates are to accompany the application, the failure to
comply with those requirements would result in the summary
rejection of the application, particularly where the rules
themselves make it clear that failure to comply with the
requirements would result in the summary rejection of the
application. In this case, we have already noticed that there is no
statutory rule which requires that the certificates referred to
above were to accompany the application, or that the failure to do
so would result in the summary rejection of the application. The
decisions cited could easily be, therefore, distinguished on facts.”
I am of opinion that this decision is squarely applicable to the facts of
this case. The attempt of the learned Government Pleader to
distinguish the same on facts stating that in Ext. P1 notification
inviting application, such a specific condition has been incorporated
also does not find favour with me. The District Collector cannot on his
own, include in the notification inviting applications conditions, which
are not stipulated by the rules and thereafter reject an application on
the ground that the conditions stipulated in the notification inviting
applications have not been complied with. The applicant for AWD is
expected to comply only with the statutory requirements in the matter
of filing of applications for AWD, in respect of which the Division
Bench decision in Varkey’s case (supra) becomes squarely
applicable. In the above circumstances, I am satisfied that the first
reason mentioned in Ext. P3 for rejecting the application of the
petitioner is clearly unsustainable.
W.P.C. No. 27114/08 -: 9 :-
10. My finding on the first point would to some extent be
applicable to the second point also. The learned Government Pleader
could not point out to me any provision in the Rules that an applicant
for AWD should be an income tax or sales tax payee or that an
income tax or sales tax payee would be preferred in the matter of
grant of licensee as an AWD. He also does not have a case that non-
payment of tax is a disqualification. Further, as pointed out by the
learned counsel for the petitioner, as is evidenced by Ext. P10
application of the 5th respondent, he is not a tax assessee at all. When
the Rules do not prescribe any special consideration for an income tax
or sales tax assessee, it defies logic as to why a column regarding
the same should be included in the application form at all. Added to
that, the application of Smt. P.G. Bharathiamma, who did not fill up
column no. 16, as evidenced by Ext. P9, had been considered by the
3rd respondent on merits despite the alleged defect. Further, the
finding in Ext. P3 that the petitioner did not fill up column no. 16 is
also not sustainable since the petitioner had filled up that column with
PAN card number. PAN card would be issued to only an income tax
assessee. In the above circumstances, the second reason mentioned
in Ext. P3 for rejecting the application of the petitioner is also
unsustainable.
10. In view of my above findings, insofar as the 3rd respondent
had not considered the petitioner on merits for unsustainable reasons,
Ext. P3 order is liable to be quashed and therefore strictly speaking, I
need not consider the other contentions in the writ petition. But,
since those contentions have relevance in the mater of re-considering
the applications of the eligible applicants, and since arguments were
advanced by both sides in respect of the same also, I shall consider
the same also in this writ petition .
W.P.C. No. 27114/08 -: 10 :-
11. The petitioner’s contention is that Ext. P10(a) solvency
certificate produced by the 5th respondent was issued by one Smt.
Baby Abraham. Baby Abraham is the maiden name of that allottee
and after marriage, she became Smt. Baby Mammen. Smt. Baby
Mammen and Smt. Santha George were the partners of the
erstwhile AWD, viz. M/s. Sam & Co., who were disqualified for
misconducts. The other partner of M/s. Sam & Co. Smt. Santha
George issued Ext. P10(d) consent deed agreeing to lease the building
proposed by the 5th respondent for the AWD to the 5th respondent.
Further, by Ext. P10(c), ownership certificate was issued by M/s. Sam
& Co. themselves. According to the petitioner, despite specific
allegations in this regard raised in the appeal and revision petition
filed by the petitioner, there is absolutely no consideration of the said
contentions either by the 2nd respondent or by the 1st respondent in
Exts.P6 and P8 orders respectively. I find considerable merit in that
contention. Therefore, while reconsidering the applications, the 3rd
respondent is bound to consider this contention of the petitioner also.
12. Lastly, the petitioner has raised a specific contention that
the 5th respondent is not a resident of the locality for which the AWD
was to be appointed. Although the 5th respondent claimed himself to
be a resident of the Bisenvalley Panchayat. The Secretary of the
Bisenvalley Panchayat by Ext. P11 certificate certified that the 5th
respondent is not a permanent resident of that Panchayat. Of course,
going by the Full Bench decision in O.P.No. 12652/1996 on that
point, what is relevant is whether the applicant is the resident of the
locality for which the licence is to be granted. If the AWD was to be
appointed for the Taluk as a whole, the Government Pleader’s
contention would be very correct. But, it is not disputed before me
that for Udumbanchola Taluk, there are five AWDs. Therefore,
W.P.C. No. 27114/08 -: 11 :-
necessarily, the area of operation of these five AWDs has to be
separately earmarked. That being so, only if the applicants are
residents of the locality to which the AWD 12 is to cater, the
applications would be valid. I am of opinion that this matter is also to
be considered by the District Collector while deciding the matter
afresh.
13. In view of my above findings, the writ petition is allowed
quashing Exts.P3, P6 and P8. The District Collector is directed to
consider the applications including that of the petitioner afresh on
merits, in accordance with law and pass fresh orders regarding the
selection of the AWD pursuant to Ext. P1 notification. The same shall
be done after hearing all eligible applicants including the petitioner
and the 5th respondent as expeditiously as possible, at any rate, within
two months from the date of receipt of a copy of this judgment. I
make it clear that the District Collector shall specifically address
himself to all the contentions referred to above and enter specific
findings in respect of each of the same while passing fresh orders.
Sd/- S. Siri Jagan, Judge.
Tds/