Beena S. v. State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ``` ## **`WP(C) NO. 41950 OF 2018`** ## **`PETITIONER/S:`** ``` BEENA.S AGED 50 YEARS W/O. LATE MOHANAN, POOKKATTETH VEEDU, PULLIKKANAKKU P.O, THEKKEMANKUZHI, BHARANICKAVU, MAVELIKKARA, ALAPPUZHA. ``` ``` BY ADVS. M.V.THAMBAN R.REJI DEEPA SREENIVASAN ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.` - `2 THE COMMISSIOENR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM, PIN 695 001.` - `3 THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, PIN 688 001.` - `4 THE DISTRICT SUPPLY OFFICER, ALAPPUZHA DISTRICT, PIN 685 603.` - `5 THE TALUK SUPPLY OFFICER, MAVELIKARA, ALAPPUZHA DISTRICT, PIN 690 101` - `6 DEEPA A, NALLAVEETIL, THARAYIL VEEDU, KATTACHIRA, PALLIKKAL P.O, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN 690 503.` -2- W.P.(C). No. 41950 of 2018 ``` BY ADVS. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER SRI.C.K.PAVITHRAN SMT.NEENU PAVITHRAN ``` ## **`OTHER PRESENT:`** ``` ADV DEEPA NARAYANAN -SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- W.P.(C). No. 41950 of 2018 ## **P.V.KUNHIKRISHNAN, J.** ================================================= W.P.(C).No.41950 of 2018 ============================================================= Dated this the 2[nd ] day of February, 2022 ## **JUDGMENT** The petitioner is a widow. On the basis of Ext.P1 notification issued by the 4[th] respondent, the petitioner was selected as authorized retail distributor for conducting a ration shop bearing No.ARD 217 at Kattachira, Ward No.11 coming within the Bharanikavu Grama Panchayat, Alappuzha District. One of the conditions in Ext.P1 notification is that, the application should be accompanied with a solvency certificate issued within two months prior to the date of submission of the application. Pursuant to Ext.P1 notification, the petitioner as well as the 6[th] respondent submitted application. It is the case of the petitioner that the 6[th] respondent submitted application on 09.04.2001 without enclosing the original solvency certificate. According to the petitioner, she has only submitted a copy of -4- W.P.(C). No. 41950 of 2018 the solvency certificate dated 22.07.2006 stating that the original solvency certificate is with the District Supply Officer. It is the specific case of the petitioner that paragraph 3 of Ext.P1 notification strictly mandates that the application should be accompanied with a solvency certificate issued within two months prior to the date of submission of the application. However, the solvency certificate, which is allegedly with the 4[th] and 5[th] respondents is dated 22.07.2006 and the 6[th] respondent submitted application on 09.04.2007. Hence, the petitioner contended that even if the original certificate was produced before the 4[th] respondent, the same could not have been accepted by the 4[th] respondent in view of the stipulations in Ext.P1 notification. Therefore, the application submitted by the 6[th] respondent ought to have been dismissed in limine is the contention of the petitioner. Accepting this, the petitioner was granted licence to run the ration shop as per Ext.P2 order. The 6[th] respondent challenges the same by way of appeal and -5- W.P.(C). No. 41950 of 2018 revision before the 3[rd] and 2[nd] respondent respectively. As per Exts.P3 and P4, the appeal and the revision were dismissed. Finally she filed a revision before the 1[st] respondent and the 1[st] respondent as per Ext.P6 allowed the revision and set aside Exts.P3 and P4 orders. The 6[th] respondent was appointed as the permanent licensee of ARD 217. After Ext.P6, the petitioner filed a review petition before the Government. The Government as per Ext.P7 order interfered with Ext.P6 order and restored Exts.P3 and P4. Ext.P7 order was challenged before this Court by the 6[th] respondent and this Court set aside Ext.P7 order in WP(C) No.32070 of 2017, observing that the Government has no power to review its own order. In such circumstances, the petitioner challenges Ext.P6 order passed by the Government in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned counsel -6- W.P.(C). No. 41950 of 2018 for the 6[th] respondent. 3. The counsel for the petitioner reiterates his contentions in the writ petition. The counsel takes me through Ext.P1 notification issued by the authorities, which insists the production of solvency certificate. The counsel submitted that admittedly the solvency certificate produced by the 6[th] respondent is a certificate prior to two months from the date of her application. In such circumstances, it is in total violation of the clauses in Ext.P1 notification and therefore, the application submitted by the 6[th] respondent ought not have been considered is the contention raised by the petitioner. The counsel relied on the judgment of this Court in WP(C) Nos.30960 of 2006 and 29746 of 2004 to support his contentions. The counsel also submitted that as far as the notified area, which is mentioned in Ext.P6, one additional document is produced by the petitioner as Ext.P9. The counsel submitted that Ext.P9 will show that the -7- W.P.(C). No. 41950 of 2018 proposed site is within the notified area. 4. The counsel for the 6[th] respondent submitted that in addition to the solvency certificate, the encumbrance certificate as on 17.03.2007 was also produced by the 6[th] respondent. The counsel for the 6[th] respondent submitted that since the encumbrance certificate as on 17.03.2007 was produced along with the application, there is no violation of the clauses in Ext.P1 notification. The counsel also submitted that the proposed site pointed out by the petitioner is beyond the notified area. The counsel takes me through Exts.R6(e) and R6(f) produced along with the counter affidavit. The counsel submitted that since the proposed site pointed out by the petitioner is beyond the notified area, the application of the petitioner ought to have been rejected on that reason itself. The counsel submitted that there is nothing to interfere with Ext.P6. 5. The learned Government Pleader supported Ext.P6. -8- W.P.(C). No. 41950 of 2018 The Government Pleader submitted that as directed by this Court, the Taluk Supply Officer inspected the site and filed a report. In the light of that report the proposed site pointed out by the petitioner is beyond the notified area. Therefore, the contention of the petitioner is not sustainable, the Government Pleader submits. 6. I considered the contentions of the petitioner and the respondents. Ext.P1 is the notification dated 01.03.2007. It will be better to extract the relevant portion of Ext.P1 notification, in which the production of solvency certificate is insisted. "അപേ ക്ഷയ ോടൊപ്പം താഴെ പറയുന്ന റിക്കാർഡുകൾ ഹാജരാക്കേണ്ടതാണ്. (എ) റേഷൻഷഷോപപ നടത്തുന്നതിന് അപേ ക്ഷകനു സ്വന്തം ക്രയവിക്രയ അധികാരമുള്ളതും കടബാധ്യതയില്ലാത് മായ മുപ്പതിനായിരം രൂപയിൽ കുറയാത്ത ആസ്തി ഉണ്ടായിരിക്കേണ്ടതുമാണ്. അത് തെളിയിക്കുന്നതിന് അതാതു തഹസിൽദാറിൽ നിന്നും അപേ ക്ഷ തീയതികക മുൻപ് രണ്ടു മാസത്തിനുള്ളിൽ കിട്ടിയിട്ടുള്ള സ സോൾവെൻസി സർട്ടിഫിക്കറ്റിന്റെ അസ്സൽക കോപ്പി ഹാജരാക്കണം. എന്നാൽ അത്രയും ആസ്തി -9- W.P.(C). No. 41950 of 2018 അപേ ക്ഷകനില്ലാത്ത പക്ഷം ബാക്കിയുള്ള തുകയ ോ മുഴുവൻ ോ മ തുകയ ്റ്റൊരാൾ ഗവണ്മെനറ ഗ്യാരന്റി നൽകേ ണ്ടതാണ്. അങ്ങനെ ഗ്യാരന്റി നൽകുന്നതിന് ആവശ്യമായ തുകക ബന്ധപ്പെട്ട കക്ഷി ആസ്തി ഉള്ളനവനാണെന്നു അപേ ക്ഷ തീയതികക മുൻപ് ഒരു മാസത്തിനുള്ളിൽ ലഭിച്ച തഹസിൽദാരുടെ സസോൾവെൻസി സർട്ടിഫിക്കററ അസ്സൽക ം കോപ്പിയും അപേ ക്ഷകനുവേ ണ്ടി ജാമ്യം നിൽക്കുന് മറ്റുള്ളതിനു അമ്പതു രൂപ സ്റ്റാമപ പേ പ്പറിൽ എഴുതി ഒപ്പിട്ടബ ബോണ്ടും ഹാജരാക്കേണ്ടതാണ്. നിയമനം ലഭിച്ചാൽ ആവശ്യപ്പെടുന്ന തിയതിക്കും സമയത്തിനും മുൻപ് ടിബ ബോണ്ടും രജിസ്റ്റർ ചെയ്തുകകൊടുക്കേണ്ടതാണ്.” 7. According to the counsel for the petitioner, the solvency certificate produced by the 6[th] respondent is dated 22.07.2006 and the 6[th] respondent submitted the application based on Ext.P1 notification on 09.04.2007. Therefore, there is violation of the clauses in Ext.P1 notification. 8. The counsel for the petitioner relied on two judgments of this Court to support his contentions; judgment dated 29.06.2015 in WP(C) No.29746 of 2004 and the judgment dated 24.09.2007 in 30960 of 2006. On the other hand, the counsel for the 6[th] respondent relied on the judgment -10- W.P.(C). No. 41950 of 2018 of this Court in **Varkey v. State of Kerala (1984 KLT 567)** , in which it is stated that the application not accompanied by solvency certificate should not be a sole reason to reject the application summarily. According to the counsel for the petitioner, the judgment of this Court in **Varkey’s case (supra)** was considered by this Court in the subsequent judgment in WP(C) No.30960 of 2006 and distinguished the same. Therefore, the same is not applicable. It will be better to extract the relevant portion of the judgment dated 24.07.2007 in WP(C) No.30960 of 2006 here: “7. I have considered the contentions of both sides. It is the admitted position that Ext.P8 advertisement inviting applications required production of solvency certificate and it also provided that failure to produce solvency certificate would result in rejection of the application. The application form (Exts.P9 and P11), though not statutory, also required the applicants to produce solvency -11- W.P.(C). No. 41950 of 2018 certificate obtained from the Tahsildar, vide clause 6 thereof. In spite of these mandatory prescriptions, it is the admitted fact that before 25.6.2003, the last date for submission of the application, the 4[th] respondent had not produced the solvency certificate. 8. Even on the first date of personal hearing fixed on 5.3.2004 she did not make it available. Even according to the 4[th] respondent only on 16.6.2004 she made available the solvency certificate. It is the petitioner's specific contention that when the application forms received in response to Ext.P8 were opened on 25.6.2003 the 4[th] respondent was also present. The documents that were produced by all the applicants have been recorded in Ext.P10 Mahazar prepared on that occasion. He would also content that the 4[th] respondent was fully aware of the solvency certificate offered by the petitioner and therefore she had that advantage when she offered her solvency certificate on 16.6.2004. On this basis it is submitted that prejudice has been caused to the petitioner. -12- W.P.(C). No. 41950 of 2018 9. Thus it is a case where the mandatory conditions of the notification have not been complied with by the 4[th] respondent. If that be so, the second respondent was justified in treating the 4[th] respondent ineligible for granting licence as AWD. The Appellate order also has to be upheld for the same reason. In so far as Ext.P7 order in revision is concerned, except that the highest amount was offered by the 4[th] respondent, there is no another reason stated in Ext.P7. Since solvency was not produced as provided in Ext.P8 advertisement, what she produced subsequently could not have been accepted. For that reason alone Ext.P7 cannot be sustained. 10. Coming to the Division Bench judgment reported in 1984 KLT 567, from Para 3 of the judgment it is noticed that the application in that case did not require the applicant to produce solvency certificate unlike in Exts.P9. It is also the found in that case that by the subsequent production of the solvency certificate no prejudice was caused. In this case it is the specific contention of the -13- W.P.(C). No. 41950 of 2018 petitioner that at the time when the 4[th] respondent produced solvency certificate she knew the amount offered by the petitioner. Therefore, at the time when she offered solvency certificate she certainly had that advantage. If that be so, prejudice been caused. 11. For these two reasons I find that the Division Bench judgment relied on by the counsel do not apply to the facts of the case.” 9. The relevant portion in WP(C) No.29746 of 2004 is extracted hereunder: “4. The petitioner's specific submission is with respect to the lack of time for production of Solvency Certificate. Though the petitioner asserts that Ext.P1 notification was issued only on 16.8.2004, there is nothing to substantiate the said contention. Further, going by Ext.P13 order, it is evident that the petitioner himself had sought for seven days' time to produce the Solvency Certificate. The petitioner was unable to produce the Solvency Certificate within the further time -14- W.P.(C). No. 41950 of 2018 granted by the District Supply Officer. Even going by the decision relied on by the petitioner, the requirement is only for a Solvency Certificate to be produced before the Collector, herein the District Supply Officer, at any time prior to the decision being taken on the notification. The petitioner herein has no contention that he had, at any time prior to 8.10.2004, the date on which the decision was taken by the District Supply Officer, had obtained a Solvency Certificate. Though, the Solvency Certificate is said to be not an essential requirement, it is clear that if the petitioner has asserted his solvency in the application form, then necessarily something has to be produced before the authority to substantiate such assertion. The Solvency Certificate having not been produced, the petitioner does not contend that any other material was produced before the District Supply Officer. Herein, there is considerable departure from the stipulations noticed in Varkey's case (supra) insofar as Ext.P1 notification itself stipulating the proof of solvency.” -15- W.P.(C). No. 41950 of 2018 10. The relevant portion of the judgment in **Varkey’s case (Supra)** is extracted hereunder: “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 -16- W.P.(C). No. 41950 of 2018 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.” 11. The point to be decided is whether the solvency certificate as stated in Ext.P1 is submitted by the 6[th] respondent, in the light of the dictum laid down by this Court. 12. I perused Ext.P6 order. This is not properly considered by the Government. According to me, this is a matter to be reconsidered by the Government. 13. The next point raised by the 6[th] respondent is that the proposed site pointed out by the petitioner is situated beyond the notified area as per Ext.P1 notification. The counsel relied on Exts.R6(e) and (f). On the other hand, the counsel for the petitioner relied on Ext.P9. Ext.P9 is disputed by the 6[th] -17- W.P.(C). No. 41950 of 2018 respondent and the petitioner disputes Exts.R6(e) and (f). 14. When this matter came up for consideration on 25.11.2021, this Court directed the 5[th] respondent to inspect the premises pointed out by the petitioner in the application based on Ext.P1 notification and find out whether that place is situated in the notified place in Ext.P1. Based on the same, a report dated 04.12.2021 is filed by the Taluk Supply Officer. The same is extracted hereunder: “Report Submitted before the Hon'ble High Court of Kerala in compliance to Order dated 25.11.2021 in WP(C)41950/2018 Sir, I, Mayadevi.k, Taluk Supply Officer, Mavelikkara humbly report the following facts in this case. I, Mayadevi.k, being the Taluk Supply Officer, Mavelikkara inspected the place on 03.12.2021. Smt. Beena, in application submitted by her based on -18- W.P.(C). No. 41950 of 2018 exhibit P1 proposed building No.XI/58 (Old ward 6) for running A.R.D 217, supported with the owner ship certificate A2-2/07 dtd 04-05-07 of Secretary, Bharanikavu gramapanchayath. The Owner Ship certificate of the Proposed building No. is shown as XI/58 (VI/379 old). Hence the Proposed building was situated in old ward 6 of Bharanikavu Grama Panchayath, where the notified place at old ward 7, Chakkaleth Junction, Kattachira. Hence it is reported that the proposed place was beyond the notified place. And it is also humbly submitted before the Hon'ble High Court Of Kerala that the distance between the notified place and proposed place is 990m(about 1km).” 15. Therefore, there is Exts.P9, R6(e), R6(f) and the report submitted by the Taluk Supply Officer. The petitioner disputes the documents produced by the 6[th] respondent and the 6[th] respondent disputes the documents produced by the petitioner. In such circumstances, according to me, this is also a matter to be reconsidered by the Government afresh, after going -19- W.P.(C). No. 41950 of 2018 through these documents. Therefore, according to me, Ext.P6 can be set aside and the Government can be directed to reconsider the matter afresh after giving an opportunity of hearing to the petitioner and the 6[th] respondent. The petitioner and the 6[th] respondent are free to produce all the documents produced in this writ petition and also additional documents, if any, to substantiate their case. Therefore, this writ petition is disposed of in the following manner: 1. Ext.P6 order is set aside. 2. The 1[st] respondent is directed to reconsider the matter afresh, after giving an opportunity of hearing to the petitioner and the 6[th] respondent. Hearing can be either virtually or physically. 3. The petitioner and the 6[th] respondent are free to produce additional documents, if any, to substantiate their contentions. -20- W.P.(C). No. 41950 of 2018 4. The 1[st] respondent will pass appropriate orders as directed above, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. 5. The petitioner will produce a copy of this writ petition along with the documents produced in this writ petition with a certified copy of this judgment before the 1[st] respondent for compliance. 6. Regarding the functioning of ARD 217, Status-quo as on today will continue, till the final decision is taken by the Government. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das W.P.(C). No. 41950 of 2018 -21- ## **`APPENDIX OF WP(C) 41950/2018`** - `PETITIONER EXHIBITS` - `EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO. CS54660/06 DT. 01-03-2007 OF THE 4TH RESPONDENT.` - `EXHIBIT P2 TRUE COPY OF THE ORDER DT. 18-06-2007 OF THE 4TH RESPONDENT APPOINTING THE PETITIONER AS THE LICENSEE OF ARD 217` - `EXHIBIT P3 TRUE COPY OF THE ORDER DT 28-11-2007 OF THE 3RD RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE ORDER DT 04-09-2008 OF THE 2ND RESPONDENT.` - `EXHIBIT P5 TRUE COPY OF THE REVISION PETITION DT. 17-11-2015 FILED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT` - `EXHIBIT P6 TRUE COPY OF THE G.O(RT) NO 54/2017/F&CSD DT 25-02-2017` - `EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER DATED 18-09-2017 BEARING NO. GO(RT) 321/2017/F & CSD.` - `EXHIBIT P8 TRUE COPY OF THE EXTRACT OF THE MEMORANDUM OF WRIT PETITION NO. 32070/2017 OF THIS HON'BLE COURT.` - `Exhibit P9 TRUE COPY OF THE CERTIFICATE NO.A27492/21 DT.13/12/2021 ISSUED BY THE SECRETARY, BHARANIKAVU GRAMA PANCHAYAT` - `RESPONDENT EXHIBITS` - `EXHIBIT R6(A) TRUE COPY OF THE JUDGMENT DATED 06-1218 IN W.P(C)32070/2017` - `EXHIBIT R6(B) TRUE COPY OF THE JUDGMENT DATED 25-0614 IN W.P(C)3822/09` - `EXHIBIT R6(C)` ``` TRUE COPY OF THE REVISION PETITION ``` -22- W.P.(C). No. 41950 of 2018 ``` EXHIBIT R6(D)TRUE COPY OF THE REPORT DATED 23-08- 2017 ISSUED BY THE TALUK SUPPLY OFFICER AND ADDRESSED TO THE 4TH RESPONDENT ```