Basheer Mather v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932** ## **WP(C).No. 14957 of 2006(E)** **-------------------------------------** ## **PETITIONER(S):** - **-------------------** **BASHEER MATHER, PARAKKADAVIL HOUSE, KATTOOR PETTAH, NARANGANAM P.O., CHEMKOLE PANCHAYATH, RANNI TALUK, PATHANAMTHITTA DIST.** **BY ADV. SRI.T.S.RADHAKRISHNA PILLAI SRI.T.R.RAJEEV** ## **RESPONDENT(S):** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, FOOD, CIVIL SUPPLIES & CONSUMER AFFAIRS DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF CIVIL SUPPLIES, COMMISSIONERATE OF CIVIL SUPPLIES, THIRUVANANTHAPURAM.** **3. THE DISTRICT COLLECTOR, PATHANAMTHITTA.** **4. THE DISTRICT SUPPLY OFFICER, PATHANAMTHITTA.** **5. MOHAMMED KANNU MOHAMMED HANEEFA, PUTHENPARAMBIL KATTOOR PETTAH, NERANGANAM P.O., CHERUKOLE PANCHAYATH, RANNI TALUK.** **R1 TO R4 BY GOVT. PLEADER SRI.K.RAMESH R5 BY ADV. SRI.R.S.KALKURA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO. 14957/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE ORDER NO.CS 3/8047/94 DTD. 20.4.95 DTD. RESPONDENT NO.4.** **P2:- COPY OF THE ORDER OF 3RD RESPONDENT DTD. 28.10.95.** **P3:- COPY OF THE ORDER NO.CS A7.42262/95 DTD. 26.3.96 OF 2ND RESPONDENT.** **P4:- COPY OF THE ORDER G.O.(RT) 333/97/F&CSD DTD. 13.11.97 OF IST RESPONDENT.** **P5:- COPY OF THE JUDGMENT IN OP. 21334/97 HIGH COURT OF KERALA DTD. 7.9.05.** **P6:- COPY OF THE ORDER G.O. RT NO.157/06/CS& CAD DTD. 21.4.06 OF IST RESPONDENT.** **P7:- COPY OF THE ORDER NO.3969/05 DT. 3.6.06 OF DISTRICT SUPPLY OFFICER.** **P8:- COPY OF THE CERTIFICATE DT. 14.6.06 ISSUED FROM SECRETARY CHERUKOLE GRAMA PANCHAYATH TO THE PETITIONER.** **P9:- COPY OF THE EXTRACT OF NOTIFICATION PUBLISHED IN MATHRUBHOOMI DAILY DTD. 3.2.95.** ## **RESPONDENT'S EXHIBITS** **R1:- COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DTD. 3.6.06.** **R5(b):- COPY OF THE VOTERS' LIST OF WARD NO.3 OF CHERUKOLE GRAMA PANCHAYATH ISSUED BY THE CHIEF RETURNING OFFICER IN THE YEAR 2000.** **R5(c):- COPY OF THE VOTERS' LIST OF WARD NO.3 OF CHERUKOLE GRAMA PANCHAYATH ISSUED BY THE CHIEF RETURNING OFFICER IN THE YEAR 2005.** **R5(d):- COPY OF THE PETITION FILED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT DTD. 19.9.06.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 14957 of 2006** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of June, 2010** ## **J U D G M E N T** This is the second round of litigation between the petitioner on the one hand and the 5[th] respondent on the other. The bone of contention between them is the license to run an authorized ration depot in Ward No.VII of Cherukole Grama Panchayath. A notification was issued inviting applications for the permanent appointment of an authorised Retail Distributor (A.R.D.) in Ward No.VII of Cherukole Grama Panchayath in February 1995. Three persons applied namely, Nabeesa Beevi Mohammed Haneefa, W/o. the 5[th] respondent, the 5[th] respondent himself and the petitioner. By Ext.P1 order, the District Supply Officer, after considering all the three applications, appointed the petitioner as the permanent licensee of ARD No.141 of Ranni Taluk. The 5[th] respondent filed an appeal before the District Collector, in which, by Ext.P2 order, the W.P.(C)No. 14957 of 2006 **-2-** District Collector directed appointment of the 5[th] respondent as the ARD. The petitioner filed a revision before the Board of Revenue (Civil Supplies) which was allowed by Ext.P3 order and the petitioner was directed to be given license. The 5[th] respondent filed a further revision to the Government and the Government by Ext.P4 order confirmed the order of the Board of Revenue. The 5[th] respondent challenged that order before this court in O.P. No.21334/1997. In that original petition, by Ext.P5 judgment, Ext.P4 order was quashed and the Government was directed to look into the matter afresh, with notice to both sides. Pursuant thereto, the government passed Ext.P6 order, by which, the Government remanded the matter to the District Supply Officer, for assessing each application afresh on merit and for issuing fresh orders. Pursuant thereto Ext.P7 order has been passed by the District Supply Officer, wherein the District Supply Officer again appointed the 5[th] respondent as the licensee. The petitioner is challenging Ext.P7 order in this writ petition. ## W.P.(C)No. 14957 of 2006 **-3-** 2. The contention of the petitioner is that the reasons stated in Ext.P7 order to prefer the 5[th] respondent over the petitioner are patently unsustainable. According to him, the petitioner was found to be not qualified on the ground that he is not residing within the locality, which finding is unsustainable in view of Ext.P8 certificate from the Cherukole Grama Panchayat, wherein it was certified that the petitioner is residing and he is the owner of the building No.VII/420 as per Assessment Register of Buildings for the years 1993-94 to 2006-07 of the Cherukole Grama Panchayat. The petitioner would raise another contention that in so far as the 5[th] respondent had not produced the relevant documents proving qualifications at the time of original consideration of the applications by the District Supply Officer, he is not eligible to be considered for grant of license. 3. In answer to the above contentions, the 5[th] respondent would contend that, as is clear from Ext.P7 itself, the petitioner was, at the relevant time, residing at ## W.P.(C)No. 14957 of 2006 **-4-** House No.5/102 of the Cherukole Grama Panchayat and therefore the petitioner is not eligible to be considered for the license. He further points out that in Ext.P2 order of the District Collector it was specifically found that petitioner's wife Smt. Umma Salim Umma is a permanent licensee of Ranni Taluk and therefore in view of circular No.10/83 dated 05-05-1983 of the Board of Revenue directing that both husband and wife should not be appointed as ARD, the petitioner is ineligible. 4. The 4[th] respondent has filed a counter affidavit supporting the impugned order. The Government Pleader argues to sustain the impugned order. 5. I have considered the rival contentions in detail. From the pleadings and arguments three questions are to be considered in this case. The first is whether the petitioner is ineligible to be considered for license on the ground that he is not a resident of the locality. The second is as to whether he is ineligible to be considered for appointment in view of the fact that his wife is a permanent W.P.(C)No. 14957 of 2006 **-5-** ARD and therefore in view of circular No.10/83 dated 05-05-1983 he is disqualified. The third is whether in view of non-production of the documents by the 5[th] respondent before the District Supply Officer at the time of original hearing of the applications, he is ineligible to be considered for appointment. This being a case of a notification inviting applications for appointment of an ARD in 1995 and since this is a second round of litigation, I am inclined to consider the matter on merits, instead of again remanding the matter to the District Supply Officer. 6. As is clear from Ext.P9, applications were invited for appointment of ARD in Ward No.7 of Cherukole Panchyat. Therefore going by the decision of the Full Bench of this court on the subject what is to be considered in this case is as to whether the petitioner is a resident of Ward No.7 of Cherukole Panchayat. Petitioner has produced Ext.P8 certificate from the Secretary of the Cherukole Grama Panchayt certifying that the petitioner is a resident of House No.VII/420 according to the Assessment Register W.P.(C)No. 14957 of 2006 **-6-** of Buildings for the years 1993-94 to 2006-07 of Cherukole Grama Panchayat. That means the petitioner was a resident of Ward No.VII of Cherukole Grama Panchayat. Going by Ext.P9 the notification inviting the applications was for appointment of ARD in Ward No.7 of Cherukole Grama Panchayat. That being so, the petitioner being a resident of Ward No.7, he is clearly not ineligible on that ground. 7. The next question is as to whether, in view of circular No.10/83, the petitioner is disqualified on account of the fact that his wife Smt. Umma Salim Umma is a permanent licensee of ARD in Ranni Taluk. The counsel for the petitioner candidly admits that his wife is a permanent licensee of ARD in Ranni Taluk. It is also not disputed before me that in circular No.10/83 dated 05-05-1983 it has been directed that both husband and wife should not be appointed as ARD. The petitioner's contention is that circular cannot held against the petitioner since the Kerala Rationing Order does not prohibit both husband and wife from being appointed as ARD. But the petitioner is not ## W.P.(C)No. 14957 of 2006 **-7-** chosen to challenge the circular. That circular is being applied for the purpose of appointment of ARD. Therefore on that ground the petitioner is clearly ineligible. 8. Then comes the next question of the eligibility of the 5[th] respondent . Of course, in view of the Division Bench decision in **Varkey v. State of Kerala (1984 KLT 567)** simply because along with the application submitted the relevant documents are not produced, a person cannot found to be ineligible provided he produces all the relevant documents before the appointing authority at the time of consideration of the applications. In Ext.P1 the District Supply Officer while considering the applications of the 3 parties originally, stated thus about the 5[th] respondent: 2. Sri. Mohammed Kannu Mohammed Haneefa, Puthenparambil House, Naranganam. The applicant who is the temporary licensee of ARD 141, is a resident of the locality aged 48 years and studied upto VI Std, but has not produced any proof of educational qualifications. Photocopy of the solvency certificate worth Rs.15,000/- issued by the Tahsildar, Ranni in favour of him and his wife jointly has been produced , but no consent from his partner has been produced. The building proposed is No.VII/373 of Cherukole Panchayat in which the temporary ARD is now functioning. He has not produced the ownership certificate or any consent from the building owner. A W.P.(C)No. 14957 of 2006 **-8-** photocopy of the salesman certificate, unattested by the Taluk Supply Officer has been produced, which cannot be considered. As the temporary licensee of ARD No.141, his performance is not satisfactory and he is to be exempted from the field of ration. Relying on decision in Varkey's case (supra) an argument has been raised before me to the effect that the documents need to be filed before the Collector and as is evident from Ext.P2 order, the 5[th] respondent had produced the documents before the Collector. But on a reading of Varkey's decision, I find that, that was a case where the District Collector was the original appointing authority and not the District Supply Officer. Therefore in that decision for our purpose the word 'Collector' should be read mutatis mutandis and for our purpose the District Supply Officer being the original appointing authority should be read as District Supply Officer. In this case the 5[th] respondent has not produced all the relevant documents before the District Supply Officer at the time of consideration of the applications. Of course a contention has been raised by the counsel for the 5[th] respondent to the effect that, since the 5[th] W.P.(C)No. 14957 of 2006 **-9-** respondent had produced all the documents before the District Supply Officer at the time of passing Ext.P7 order he must be deemed to have produced all relevant documents as laid down in Varkey's case (supra). I am not inclined to accept that contention. After remand, the District Supply Officer has to consider the matter afresh only taking into the facts and circumstances of the case as existing at the time of original consideration of the District Supply Officer, namely as at the time of passing Ext.P1 order. The 5[th] respondent could not satisfy me with any acceptable material that at that time the petitioner had produced the relevant documents. On the other hand the finding is that he had produced the documents at the time of hearing of the appeal. That being so, going by the Division Bench decision in Varkey's case (supra) itself, the 5[th] respondent is also not qualified, since as required in that decision, the 5[th] respondent had not produced the relevant documents before the appointing authority at the time of hearing of the applications. In the above circumstances, W.P.(C)No. 14957 of 2006 **-10-** both the petitioner as well as the 5[th] respondent are not qualified to be considered for appointment at the relevant time. Therefore Ext.P7 is quashed. The 4[th] respondent is directed to re-notify the ARD for fresh appointment in accordance with law expeditiously. S. SIRI JAGAN JUDGE shg/