Aneesh K. Varkey v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932** ## **WP(C).No. 2692 of 2009(U)** **-------------------------------------** ## **PETITIONER(S):** **-----------------------** **ANEESH K.VARKEY, KANJIRAKKADU HOUSE, MANJADI.P.O,THIRUVALLA,PATHANAMTHITTA DIST,REP;BY HIS POWER ATTORNEY HOLDER AND FATHER K.V.VARKEY, S/O LATE THOMAS VARKEY RESIDING AT KANJIRAKKADU HOUSE, MANJADI.P.O,THIRUVALLA, PATHANAMTHITTA DIST.** **BY ADV. SRI.A.SAMPATH SRI.V.RENJITH KUMAR** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA,REPRESENTED BY IT'S SECRETARY FOR FOOD AND CIVIL SUPPLIES,GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM.** **2. COMMISSIONER OF CIVIL SUPPLIES, TRIVANDRUM.** **3. DISTRICT COLLECTOR, PATHANAMTHITTA DISTRICT.** **4. DISTRICT SUPPLY OFFICER, PATHANAMTHITTA DISTRICT.** **5. LALU SEBASTIAN, PALATHINKAL, 20/384, FATHIMAPURAM,CHANGANCHERRY,KOTTAYAM DIST.** **6. THOMAS CHACKO,KOCHUTHUNDIYIL, THEKKEMALA.P.O,KOZHENCHERRY,PATHANAMTHITTA DIST.** **R1 TO R4 BY GOVT. PLEADER SMT.N.SUDHADEVI R5 BY ADV. SRI.K.I.MAYANKUTTY MATHER** - **R6 BY ADV. SRI.THOMAS ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, ALONG WITH WPC NO. 2782 OF 2009 THE COURT ON 24 / 09/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.2692/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE ORDER DTD. 28.2.2006.** **P2:- COPY OF THE ORDER DTD. 15.11.2006.** **P3:- COPY OF THE JUDGMENT DTD. 28.6.07 IN WPC. 16071.** **P4:- COPY OF THE ORDER DTD. 11.9.07.** **P5:- COPY OF THE JUDGMENT DTD. 13.12.07 IN WRIT APPEAL NO.2006/07.** **P6:- COPY OF THE ORDER DTD. 25.2.08 ISSUED BY THE 2ND RESPONDENT.** **P7:- COPY OF THE ORDER DTD. 14.10.08 ISSUED BY THE IST RESPONDENT.** ## **P8:- COPY OF THE JUDGMENT DTD. 26.6.98.** **P9:- COPY OF THE NEWS ITEM APPEARED IN DESABHIMANI DAILY DTD. 20.1.2006.** ## **RESPONDENT'S EXHIBITS** **R5(a):- COPY OF THE DOCUMENT NO.1370/04 DTD. 6.5.04.** **R5(b):- COPY OF THE RESIDENTIAL CERTIFICATE TO THE 5TH RESPONDENT BY THE PANCHAYATH DTD. 21.12.2005.** **R5(c):- COPY OF THE PROPERTY TAX RECEIPT ISSUED BY THE PANCHAYATH FOR THE PERIOD 2005-2006 AND 2006-07. DTD. 21.4.06.** **R5(d):- COPY OF THE BASIC TAX RECEIPT DTD. 15.9.06.** **R5(e):- COPY OF THE RATION CARD OF THE 5TH RESPONDENT DTD. NIL.** **R5(f):- COPY OF THE RELEVANT PAGE OF THE VOTERS LIST OF THIRUVALLA ASSEMBLY CONSITUENCY DT. NIL.** **R5(g):- COPY OF THE POSTAL COVER CONTAINING THE ENDORSEMENTS OF THE POSTAL AUTHORITY DTD. NIL.** **R5(h):- COPY OF THE COMMUNICATION OF THE DIRECTOR OF CIVIL SUPPLIES TO THE DISTRICT COLLECTOR DTD. 3.11.2006.** **R5(i):- COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DTD. 31.1.07.** **R5(j):- COPY OF THE PROCEEDINGS OF THE IST RESPONDENT DTD. 3.2.207.** **R5(k):- COPY OF THE PROCEEDINGS OF THE IST RESPONDENT.** **R5(e):- COPY OF THE LETTER GIVEN BY THE SECRETARY, THIRUVALLA MUNICIPALITY TO THE TALUK SUPPLY OFFICER, THIRUVALLA.** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.2692/2009-U & 2782/2009-F** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 24th day of September, 2010.** ## **JUDGMENT** These two writ petitions concern the appointment of an Authorised Wholesale Distributor for A.W.D. No.II of Thiruvalla Municipality and the 8[th] respondent in W.P.(C) No.2782/2009 has been appointed, as directed. 2. W.P.(C) No.2782/2009 is filed by a rival claimant, whereas W.P. (C) No.2692/2009 is filed by a person who did not apply at all, but maintains that there was no proper notification which prevented him from applying. The narration of facts will be as detailed in W.P.(C) No.2782/2009 and the counter affidavit filed therein. 3. The petitioner in W.P.(C) No.2782/2009 was an applicant for appointment as Authorised Wholesale Distributor for A.W.D. No.II of Thiruvalla Municipality, in Ward No.34, at Ramanchira. The notification issued by the District Collector is dated 26.11.2005. There were only two applicants, viz. the petitioner and the 8[th] respondent. The 8[th] respondent was appointed as per Ext.P1(a) order passed by the 4[th] respondent District Collector. This was challenged in appeal before the Commissioner of Civil Supplies and the matter was remanded back to the District Collector. After wpc 2692 & 2782 of 2009 2 various intervening developments, the District Collector passed Ext.P11 final order, again appointing the 8[th] respondent. It was also found that the petitioner being a resident of Kozhencherry Taluk, is not eligible to be appointed. In appeal, the Commissioner again remanded the matter for fresh consideration by the District Collector which was challenged by the 8[th] respondent before the Government. Ext.P13 is the order passed by the Commissioner. The Government finally allowed the revision petition filed by the 8[th] respondent as per Ext.P14 order. These orders are under challenge in this writ petition. 4. Shri Thomas Abraham, learned counsel for the petitioner submitted that the 8[th] respondent is not normally resident in the notified area and he is a permanent resident in Changanassery, viz. at Fathimapuram. It is pointed out that the 8[th] respondent's claim for appointment is based on the residential certificate issued by the Panchayat and the entry in the Ration Card, which cannot be supported in the light of other documentary evidence against him which shows that he is permanently residing in Changanassery. Reliance is placed on the decision of a learned Single Judge of this Court in **Varkey v. District Collector** (1994 (2) KLT 231) and that of a Division Bench in W.A. No.1302/1994, wherein the said judgment was confirmed. It wpc 2692 & 2782 of 2009 3 is pointed out that the 8[th] respondent has acquired the property only to get an appointment, but he is not a resident in that area. It is pointed out that the Government has not considered any of the above aspects in detail. My attention was invited to the report of the Deputy Director of Panchayats, produced as Ext.P4 wherein the action of the Secretary of the Panchayat in granting a residential certificate was objected and found not correct. It is further pointed out that even though the Government later found in favour of the 8[th] respondent as per Ext.P6 and recognised the action of the Secretary of the Grama Panchayat in issuing a residential certificate, that was kept in abeyance as per Ext.P7 fax message. But, ignoring all these, the District Collector passed the impugned order Ext.P11. 5. The dictum laid down in Varkey's case (1994 (2) KLT 231) is the following: “The words “normally resident” carries with it the idea of some permenance, that is for a length of time as well as continuity. It may also mean residence without any serious break. Viewed in this perspective, it can be said that temporary presence at a given address does not make a man resident there much less normally resident. Conversely, temporary absence from the place of normal residence does not deprive a person of his residence at that place. Normal residence does not connote continuous physical presence but wpc 2692 & 2782 of 2009 4 physical presence with some degree of continuity notwithstanding temporary absence. Each case must depend upon the peculiar facts. Therefore, the skulduggery of occupying some building in some place for a time to be a normal resident of that place is not enough to confer the status being normal resident of that place on that person. Likewise, the mere entry of the person's name in the electoral roll or in the ration card is also by itself not sufficient to give him the status of being a normal resident at a particular place.” Going by the above dictum, there should be some degree of continuity to attract the meaning of the words “normally resident”. The question is whether there is any illegality in the finding rendered by the Government that the 8[th] respondent qualifies for appointment. 6. The case of the 8[th] respondent in this regard is to the effect that he is a local resident of Thiruvalla Taluk and is residing in house No.5/91 in Peringara Grama Panchayat. He started residing in the said house after purchasing the property as per document No.1370/2004. He has been remitting property tax to the Panchayat for that property and has also obtained a ration card in the said address. He and his wife have been enrolled in the voters list of Thiruvalla Assembly Constituency, considering the fact that they are residents in the locality and has obtained telephone connection also. He was appointed as a temporary A.W.D. in the year 2004 wpc 2692 & 2782 of 2009 5 and the notification for permanent appointment is dated 26.11.2005. It is pointed out that the petitioner is a resident of Kozhencherry, whereas the shop in question is in Thiruvalla Taluk and therefore the order passed by the District Collector is perfectly justified. It is pointed out that after the initial order of the District Collector, the Commissioner of Civil Supplies, by order dated 17.4.2006 remitted the matter to the District Collector to consider the residential qualification of the 8[th] respondent. Later, the District Collector sought opinion from the Director of Civil Supplies with regard to the connotation of the words “normally resident” and the Director of Civil Supplies by letter dated 3.11.2006 informed the District Collector that the residence to be reckoned for the purpose of the second proviso to Clause 51 of the Kerala Rationing Order is with reference to the taluk for which the AWD is proposed to be appointed. It is pointed out that the petitioner had been moving the authorities to defeat the rights of 8[th] respondent and the 8[th] respondent had to file W.P.(C) No.6551/2007 challenging the communication Ext.P7 produced herein and this Court by Ext.P10 judgment, disposed of the writ petition specifically directing the District Collector to consider the matter independently, uninfluenced by any other orders. Accordingly, the District Collector passed Ext.P11 order clearly wpc 2692 & 2782 of 2009 6 finding that the 8[th] respondent has got the required residential qualification. W.P.(C) No.25051/2007 is one filed by the 8[th] respondent challenging an order passed by the first respondent dated 31.7.2007 to the effect that he cannot be described as a normal resident of Peringara Grama Panchayat. In the said case, an interim order of stay was granted. 7. The Panchayat has also filed a counter affidavit supporting the averments of the 8[th] respondent that he is a resident in Thiruvalla Taluk, viz. Peringala Grama Panchayat. Reliance is placed on the definition of the term “residence” in Section 2(xxxvii) of the Kerala Panchayat Raj Act, 1994. 8. Shri Thomas Abraham, learned counsel for the petitioner vehemently contended that the approach made by the District Collector and the Government is clearly faulty. The term “normally resident” in Clause 51 of the Kerala Rationing Order carries with it the idea of some permanence, as held by this Court in **Varkey's case** (1994 (2) KLT 231) and herein, the 8[th] respondent is a resident in Changanassery and he is only keeping a house in Thiruvalla for the purpose of getting appointment as A.W.D. and is not residing there also. It is submitted that the relevant documents produced by the petitioner have not been considered by the Government. This argument is opposed by Shri V.V.Asokan, learned counsel appearing for the wpc 2692 & 2782 of 2009 7 8[th] respondent, Shri Subhash Chand, learned counsel appearing for the Panchayat and learned Govt. Pleader. It is pointed out by the learned counsel for the respondents that the Government has arrived at a clear finding, that too on a question of fact. 9. Evidently, the notification issued is in respect of appointment of AWD No.II in Thiruvalla Taluk. The petitioner is admittedly a resident of Kozhencherry Taluk. All the authorities have uniformly found at different stages that the petitioner is not entitled for consideration, as he is not a resident in Thiruvalla Taluk. The said finding has become final. Even though learned counsel for the petitioner submitted that the petitioner's residence is within the jurisdiction of the District Collector, Pathanamthitta and therefore he is entitled to be considered for appointment, I am not satisfied that the said contention can be accepted. Evidently, the shop is notified in Thiruvalla Taluk and by no stretch of imagination, it can be considered that the petitioner who is a resident of Kozhencherry Taluk, is liable to be considered for appointment, as he is not a resident in the “locality”. 10. Then, the further question is whether the conclusion arrived at by the District Collector as well as by the Government is faulty. In this regard, wpc 2692 & 2782 of 2009 8 the evidence in favour of the 8[th] respondent is that he has been a resident of Thiruvalla Municipality, going by the certificate dated 7.5.2004. That he has purchased the property with the residential house as per document No.1370/2004, cannot be disputed. The notification is issued on 26.11.2005 and in the meanwhile he had been running the AWD on a temporary licence also. The District Collector, therefore, concluded that he is a resident of Peringara Grama Panchayat about 1 ½ years before the notification. Apart from the residential certificate, the ration card is also there. It was also held that as per the Panchayat Raj Act and the definition under Section 2(xxxvii) therein, one can have more than one residential house. This view taken by the District Collector, has been confirmed by the Government in Ext.P14. The Commissioner in Ext.P13, was prima facie of the view that there is no sufficient publicity to the notification. The Government in Ext.P14, found that the said conclusion was not correct and the details of the notifications which were published in various newspapers, have been stated in Ext.P14. The Government also agreed with the view taken by the District Collector that the residential certificate and the ration card shows that the 8[th] respondent is a permanent resident of House No.5/91. 11. The above is a finding on a question of fact and normally unless wpc 2692 & 2782 of 2009 9 it is shown that it is so perverse, this Court will be loathe to interfere with the same. Herein, the averments in the counter affidavit of the Panchayat are also relevant. It is averred in para 4 of the counter affidavit that as per the assessment register kept in the office of the Panchayat, the ownership of the building bearing No.V-91 was changed from the name of one Shri Sadanandan to the 8[th] respondent. It is pointed out that going by the definition of 'residence' under Section 2(xxxvii) of the Panchayat Raj Act, a person is deemed to have his 'residence' or 'to reside' in any house if he sometimes uses any portion thereof as a sleeping apartment as of right and a person is not deemed to cease to reside in any such house or portion thereof merely because he is absent from it or has elsewhere another dwelling in which he resides if he is at liberty to return to such house at any time and has not abandoned his intention of returning. It is pointed out that the residential certificate has been issued validly. Therefore, the plea raised by the 8[th] respondent is clearly supported by the averments in the counter affidavit of the Panchayat also. 12. Apart from that, the 8[th] respondent has pleaded that his name as well as his wife's name have been included in the voters list of Thiruvalla Assembly Constituency and they have got telephone connection also in the wpc 2692 & 2782 of 2009 10 very same address. All these factors will therefore support the orders Exts.P11 and P14. 13. Therefore, it is not a case where the principles stated in **Varkey's case** (1994 (2) KLT 231) will go against the conclusions arrived at by the District Collector and the Government respectively in Exts.P11 and P14 orders. The issue whether the 8[th] respondent is a resident within Thiruvalla Municipality, being a question of fact and as both the authorities have concurrently found in favour of the 8[th] respondent, the same being a finding of fact supported by various evidence, the interference sought for in the writ petition is not sustainable. This Court cannot act as an appellate authority in such matters. 14. In W.P.(C) No.2692/2009, the petitioner mainly contends that the notification was not given proper publicity. This aspect has been found against by the Government in Ext.P7 order, wherein it is pointed out that wide publicity was given through the District Information Officer, Pathanamthitta, the Block Panchayat and the Taluk Supply Office and going by the letter dated 8.8.2006 of the District Information Officer, it was published in various newspapers like Deepika, Jenmabhoomi, Chandrika, Malayala Manorama and Mangalam, on different dates. It is found that no wpc 2692 & 2782 of 2009 11 contra evidence has been produced before the Government also. 15. Apart from the same, the petitioner in this writ petition was not an applicant for the appointment as AWD. Therefore, he cannot successfully challenge the appointment of the 8[th] respondent and the order passed by the Government as per Ext.P7 does not call for any interference at the hands of the petitioner in this writ petition. For all the above reasons, the writ petitions are dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**