Francis Vadakkel v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WA.No. 1683 of 2009 ----------------------AGAINST THE JUDGEMENT IN WPC.27114/2008 .................... ## APPELLANT / 5TH RESPONDENT: ------------------------------------ FRANCIS VADAKKEL, S/O.THOMAS, AGED 56 YEARS, RESIDING AT VADAKKEL HOUSE, UDUMBANCHOLA, IDUKKI DISTRICT. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.C.K.PAVITHRAN ## RESPONDENTS/PETR. & RESPONDENTS 1 TO 4: --------------------------------------------------- 1. REJIT GEORGE, S/O.K.G.GEORGE, VATTAKKUNNEL KIZHAKKEL, H.NO.366, WARD NO.IV, SOURYANELLI P.O., IDUKKI DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, IDUKKI DISTRICT. 5. THE DISTRICT SUPPLY OFFICER, IDUKKI DISTRICT. ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE SRI.N.RAGHURAJ FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 5/11/2010, THE COURT ON 21/01/2010 DELIVERED THE FOLLOWING: ## **S.R. Bannurmath, C.J. & A. K. Basheer J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A. No. 1683 of 2009-D** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 21[st] day of January, 2010.** ## **Judgment** ## **Basheer, J:** Appellant is respondent No.5 in WP(C) No.27114/2008. He has filed this appeal calling in question the legality and correctness of the judgment passed by the learned single Judge in the above writ petition. 2. By the impugned judgment the learned Judge has quashed the order of appointment of the appellant as Authorised Wholesale Distributor (AWD No.12) in Ward No.I of Chinnakkanal Panchayat, Udumbanchola in Idukki District. In doing so, the learned Judge quashed Exts.P3, P6 and P8 orders passed by the original, appellate and revisional authorities under the Kerala Rationing Order and directed that a fresh decision be taken in the matter after hearing all eligible applicants including the writ petitioner and the appellant. 3. The short question that arises for consideration is whether the view taken by the learned single Judge warrants any interference. 4. Relevant facts may be briefly noticed. WA.No.1683/09 : 2 : 5. District Collector, Idukki issued Ext.P1 notification dated May 21, 2005 inviting applications from eligible candidates for appointment of a permanent Authorised Wholesale Dealer (AWD No.12) in Ward No.I at Chinnakkanal in Idukki District. In response to the said notification the writ petitioner (respondent No.1 herein), apart from the appellant and a few others had submitted application in the prescribed format along with requisite fee and documents. 6. The District Collector after scrutiny of the applications found that the application submitted by the writ petitioner was defective in certain respects viz., (a) He did not produce building ownership certificate issued by the Municipality/Panchayat to prove ownership of the building where he proposed to conduct the Depot. (b) Column No.16 in the application had not been filled up by the petitioner and hence incomplete. The application submitted by the writ petitioner was therefore rejected. Simultaneously it was found by the District Collector that WA.No.1683/09 : 3 : the appellant had satisfied all the stipulated requirements and was therefore eligible to be appointed. Accordingly appellant was appointed as the Authorised Wholesale Dealer overlooking the claim of the writ petitioner. Ext.P3 is the order passed by the District Collector, respondent No.4 herein in this regard. 7. The above order was unsuccessfully challenged by the writ petitioner before the appellate and revisional authorities. True photocopy of the orders passed by the two authorities viz., Commissioner of Civil Supplies and the Addl.Secretary in the Department of Food and Civil Supplies, Govt. of Kerala are on record as Exts.P6 and P8 respectively. These two authorities concurred with the view taken by the District Collector and held that the order of appointment issued by the District Collector in favour of the appellant did not suffer from any illegality or irregularity as alleged by the writ petitioner. 8. The above orders passed by the statutory authorities were challenged by the petitioner before the learned single Judge who, as mentioned earlier, held that the matter requires reconsideration by the Original authority, the District Collector, keeping in view the various contentions raised by the writ petitioner and in the light of the observations made in the judgment. 9. Sri.M.K.Damodaran, learned senior counsel who appears for the appellant, has stoutly defended Exts.P3, P6 and P8 orders. He contends that the statutory authorities had very meticulously WA.No.1683/09 : 4 : examined the entire aspects of the matter in accordance with the rules and regulations governing the field. 10. Per contra it is contended by Sri.Pathros Matthai, learned senior counsel who appears for respondent No.1/writ petitioner, that none of the three statutory authorities had specifically dealt with the issues highlighted by the writ petitioner and therefore, the learned Single Judge was justified in setting aside those orders. 11. As is discernible from Ext.P3 order passed by the District Collector, the application submitted by the petitioner was found to be defective on two grounds. They are: (a) He had not produced “Building Ownership Certificate”. (b) He had failed to fill up Column No.16 in the application. 12. Indisputably Ext.P1 notification stipulated that “ownership certificate of the building proposed for conducting ration wholesale depot issued by Municipality/Panchayat authorities has to be produced along with the application.” In case the proposed building is not owned by the applicant, consent letter in stamp paper worth Rs.50/- signed by the building owner has to be submitted. Petitioner did not have a case that he had produced ownership certificate along with Ext.P2 application. 13. Column No.17 in Ext.P2 application submitted by the petitioner is extracted hereunder: WA.No.1683/09 : 5 : “17. Details of place where the applicant proposes to open a wholesale depot (House/Ward No. and locality) (consent letter of the owner of the building should be produced in the case of hire building) Chinnakkanal Panchayat Ward No. C.P.IV.Building No. 56B at Chinnakkanal Town (About 1600 Sq.Ft.).Attested copy of the building Tax Receipt showing the ownership of the building and Consent Letter from the building owner in Rs.50/Stamp paper in writing is enclosed herewith. 14. A perusal of the above entry made by the petitioner will indicate that he had produced a consent letter from the building owner along with his application, which in other words, means that he proposed to start the depot in a rented building. But obviously and admittedly petitioner had not produced ownership certificate along with the application. 15. Further, petitioner does not also have a case in his writ petition that he had produced the ownership certificate before the District Collector after submission of the application. But in his memorandum of appeal filed before the appellate authority, he had raised a contention that he had produced the ownership certificate before the District Collector along with a letter on August 12, 2005. But curiously petitioner had not chosen to produce a copy of the certificate in the writ petition. Even today petitioner has not bothered to produce a copy of the said certificate before this Court. WA.No.1683/09 : 6 : However, in the counter affidavit filed by respondent No.1 it is admitted that petitioner had produced ownership certificate on August 12, 2005. But the District Collector has not made any reference to the said certificate in Ext.P3 order obviously for the reason he thought that it was not liable to be considered since it was not produced along with the application. 16. In Ext.P3 order the District Collector has tabulated the status of each applicant as regards the documents produced by each one of them. It is indicated in the above table that petitioner had not produced ownership certificate. In this context it may also be pertinent to notice that the District Collector has not made any reference to the consent letter allegedly produced by the petitioner along with his application. If in fact the petitioner had produced such a consent letter from the landlord of the building, it would have satisfied the requirement stipulated in Ext.P1 notification and the application form. We have referred to the above aspect only to indicate that there is considerable force in the contention raised by the petitioner that the District Collector had passed Ext.P3 order without a proper application of mind. 17. We have perused Exts.P6 and P8 orders passed by the appellate and revisional authorities. We are afraid that these two orders also suffer from the same vice. These two authorities also did not apparently bother to deal with the aspects indicated herein before. WA.No.1683/09 : 7 : 18. As regards the contention of the petitioner that he was not bound to produce any document along with the application is concerned, it may at once be noticed that he had produced solvency certificate, consent of solvency holder, School Leaving Certificate etc. along with his application. But when it came to production of ownership certificate, the petitioner took up a contention that his failure to produce the same along with his application will not be fatal. We do not propose to make any further observation on this aspect at this stage, in view of the order that we propose to pass in this appeal. 19. It is admitted by the petitioner that he did not fill up column No.16 relating to declaration of payment of income tax and sales tax during the last three years preceding the year of application. Apart from producing the number of his PAN card, petitioner has not chosen to make any entry against this column. If in fact the petitioner did have a case that he did not pay any income tax or sales tax, he should have indicated so in the column. Yet again we refrain from making any other comment on this aspect at this stage. 20. Sri.M.K.Damodaran, learned senior counsel appearing for the appellant has vehemently contended that this Court must be slow in interfering with the concurrent orders passed by the statutory authorities while exercising its power under Article 226/227 of the Constitution. He has invited our attention to some WA.No.1683/09 : 8 : of the decisions of the apex court on the subject. ( Somnath Sahu v. State of Orissa (1969 (3) SCC 384), Tata Iron & Steel Co. Ltd. v. State of Jharkhand ((2004) 7 SCC 242) and Sadhana Lodh v. National Insurance Co. Ltd. ((2003 (3) SCC 524)). 21. We have carefully perused the above judgments. It is trite that the High Court, while exercising its discretionary jurisdiction under Article 226 should show great circumspection in matters where the statutory authorities have taken a decision after perusing the records. The High Court cannot act as an appellate court or Tribunal. Similarly, the High Court cannot review or re-weigh the evidence on the basis of which the inferior court or Tribunal purports to have passed the order. 22. But it is elementary and fundamental that the statutory authority which decides an issue has to necessarily give its reasons in the order which persuaded it to take a particular view or decision in the matter. The order must refer to the relevant factual or legal input which weighed with the authority. 23. In Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney ((2009) 4 SCC 240) it has been laid down that “the purpose of disclosure of reasons is that people must have confidence in judicial and quasi-judicial authorities. Unless reasons are disclosed, a person cannot know whether or not the authority concerned has applied its mind. Also, giving reasons minimises the chances of arbitrariness. It is also an essential WA.No.1683/09 : 9 : requirement of the rule of law” 24. We have carefully perused Exts.P3, P6 and P8 orders which were the subject matter of the challenge in the writ petition. The District Collector, the original authority, has merely referred to the building tax receipt produced by the petitioner and stated that it is not sufficient to prove “validity of ownership of the building”. There is no reference to the ownership certificate which was admittedly produced by the petitioner, albeit at a later stage, nor is there any mention about the consent letter of the building owner allegedly produced along with the application. The District Collector has just made a passing reference to the failure of the petitioner in filling up column No.16 in Ext.P2. Nothing more nothing less. The order of the appellate authority (Ext.P6) which is the last authority on facts, also does not reveal as to what persuaded the said authority to fall in line with the view taken by the original authority. There is hardly any discussion about the relevant documents. 25. The order of the revisional authority (Ext.P8) is still worse. This authority has disposed of the revision petitions stating that the action of the District Collector is legal. It further goes on to say that the action of the District Collector in rejecting the application of the petitioner is correct. Apart from making these two observations, the revisional authority has not bothered to advert to or deal with any of the contentions raised by the WA.No.1683/09 : 10 : petitioner, at least cursorily or briefly. 26. Having carefully perused the entire materials available on record and having considered the arguments advanced by the learned senior counsel on either side, we do not find any reason to interfere with the impugned order passed by the learned single Judge. In our view, in the facts and circumstances of the case, the learned single Judge was justified in directing the original authority to reconsider the applications afresh. Though Exts.P3, P6 and P8 have been set aside by the learned single Judge, we make it clear that status quo as on today shall continue till a final decision is taken in the matter by the statutory authorities so that there is no stalemate or impediment in distribution of rationed articles in the area in question. The District Collector shall complete the process untrammelled by any of the observations made by the learned single Judge within two months from the date of receipt of a copy of this judgment. Writ Appeal fails and it is accordingly dismissed. an. A.K. Basheer Judge.