KOZHIKODE DISTRICT RATION DEALERS CO-OPERATIVE SOCIETY LTD. NO. 2659, KOZHIKODE (Appellant)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936 WA.No. 2134 of 2010 ( ) IN WP(Crl.).29012/2008 ----------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 29012/2008 of HIGH COURT OF KERALA DATED 12-11-2010 APPELLANT/PETITIONER: ----------------------------------- KOZHIKODE DISTRICT RATION DEALERS CO-OPERATIVE SOCIETY LTD. NO. 2659, K.M.O, BUILDINGS CIVIL STATION, KOZHIKODE REP. BY ITS SECRETARY JALAJA. BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.ANIL SIVARAMAN RESPONDENT(S): ---------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY FOOD AND CIVIL SUPPIES DEPARTMENT THIRUVANANTHAPURAM-695 001. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT COLLECTOR, KOZHIKODE-673 001. 4. JAYESH, MANGALA AGENCIES, KOYILANDY, KOZHIKODE DISTRICT-673 120. R1 & R3 BY SR.GOVT.PLEADER SRI T.R.RAJESH R2 BY SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -------------------------------------------------Writ Appeal No.2134 OF 2010** **-------------------------------------------------DATED THIS THE 14[th] DAY OF OCTOBER, 2014** ## **JUDGMENT** ## **ANTONY DOMINIC , J** . The petitioner in W.P.(C)No.29012/2008 is the appellant. They are aggrieved by the judgment of the learned Single Judge dismissing the Writ Petition. The facts which led the appellant to file the Writ Petition are the following: 2. The appellant is a Co-operative Society incorporated under the provisions of the Kerala Co-operative Societies Act ('the Act' for short). The Bye-laws of the Society show that 'A' Class membership is allowed to ration dealers, 'C' Class membership is allowed to employees of the ration shops who are interested in the functioning of the Society and 'B' Class membership is allowed to Co-operative Societies, Government and District Co-operative Banks. It is also provided in the bye-law that 'C' Class membership shall not exceed 25% of the 'A' Class membership. 3. On 8.6.2005, the 3[rd] respondent invited applications for the appointment of Authorised Wholesale Distributor (AWD) of ration articles at Koyilandi. There were four applicants and ultimately by W.A.No.2134/10 -2- Exhibit P1 order, the licence was granted to the appellant. The 4[th] respondent filed an appeal against Exhibit P1 before the 2[nd] respondent. The appeal was disposed of by Exhibit P2 order. In that order, the 2[nd] respondent held that the 4[th] respondent was not qualified and therefore was ineligible to be an applicant. Proceeding further in exercise of his suo moto revisional power under Clause 51(11) of the Kerala Rationing Order, the 2[nd] respondent held that in view of Circular No.10/83 issued by the 2[nd] respondent, appointment of the appellant as Authorised Wholesale Distributor is illegal. 4. Aggrieved by Exhibit P2 order, appellant filed a revision before the Government, which was rejected by Exhibit P4 order. It was in these circumstances, the appellant filed W.P.(C) No.29012/2008. The learned Single Judge by judgment dated 12.11.2010, dismissed the Writ Petition mainly placing reliance on the provisions contained in Circular No.10/83 and holding that if the purpose of the Circular is to be achieved, disqualification provided therein should apply to Co-operative Societies like the appellant also. It is this judgment which is challenged before us. 5. The learned Senior Counsel for the appellant referred W.A.No.2134/10 -3- to us to the provisions of Circular No.10/83 and contended that the Circular does not contain any prohibition in appointing a Cooperative Society like the appellant, as Authorised Wholesale Distributor. According to him, as is evident from the provisions of the Co-operative Societies Act, particularly Section 9, the Cooperative Society is a body corporate, which is distinct and different from its members. He also placed reliance on the Division Bench judgment of this Court in **Regional Director, Employees State Insurance Corporation** v. **Taj Textiles Industrial Co-operative Society** (1980 KLT 199), taking the view that members of the Co-operative Society are not owners of the Society, although they have an interest in the affairs of the Society. The learned Senior Counsel also referred us to Exhibit P5, an order issued by the District Collector, Thiruvananthapuram appointing the Secretary, Thiruvananthapuram District Retail Ration Dealers Co-operative Society as Authorised Wholesale Distributor. 6. We have considered the submissions made. 7. Admittedly, the appellant is a Co-operative Society incorporated under the provisions of the Kerala Co-operative W.A.No.2134/10 -4- Societies Act. We have already referred to the provisions of the Bye-law regarding membership of the Society. Exhibit P1 order itself shows that out of 191 members of the Society, 166 of them are 'A' Class members viz; Ration Dealers. This, therefore, means that out of 191 members of the Society, 166 of them are Authorised Retail Dealers (ARD) of ration articles, appointed under the Kerala Rationing Order. The counter affidavit filed by the 2[nd] respondent shows that all the 44 ARDs of the Koyilandi Taluk are members of the appellant-Society. In other words, if the applicant is appointed as the Authorised Wholesale Distributor, they will be supplying ration articles to their own members, who are the retail distributors in Koyilandi Taluk. Clause 5(b) of Circular 10/83 provides that a person who is already an ARD should not be given another depot and that both wholesale and retail depots should not be given to a single person. It is relying on the aforesaid provision, that Exhibit P2 order was issued cancelling the AWD allowed to the appellant. The aforesaid provisions of the Circular are relied on before us to argue that the restriction is only regarding appointment of person and not Co-operative Society, a body corporate. W.A.No.2134/10 -5- 8. Clause 5(b) only provides that a person already having an ARD should not be given another depot and that both AWD and ARD should not be given to a single person. Although it is true that a Co-operative Society is a body corporate, we have to recognise the fact that the Circular was issued by the 2[nd] respondent in order to ensure that the agency which runs the ARD and the agency which runs the AWD are not one and the same, so that there will be no cartel formation in the case of articles which are meant for public distribution. Thus, the object of the circular is to avoid anything that would affect the efficiency of our public distribution system. If that purpose is to be achieved, we cannot give a restricted meaning to the word in the Circular and have to understand the word 'person' used in Circular 10/83 as including entities such as Co-operative Societies like the appellant, whose membership is from among persons who are already appointed as ARDs. If such an interpretation is not adopted, the purpose of the Circular itself would be defeated and the entire ARD and AWD will be cornered by a group of persons. It is to avoid such a contingency, the notification was issued. Therefore, even if there is merit in the contention raised by the W.A.No.2134/10 -6- learned Senior Counsel that Co-operative Society being a body corporate under Section 9 of the Act is distinct and different from its members, the provisions of Circular 10/83 cannot be interpreted on that basis. 9. We were referred to Exhibit P5, an order issued by the District Collector, Thiruvananthapuram appointing a Co-operative Society like the appellant as an Authorised Wholesale Distributor. The learned Senior Counsel wanted us to treat Exhibit P5 as a precedent and to hold that the view taken in Exhibit P2 as confirmed in Exhibit P4 is illegal. We have gone through Exhibit P5 also. On going through Exhibit P5, we find that though it is true that a Co-operative Society like the appellant has been appointed as AWD, the said order does not make any reference to Circular 10/83 and it is on that basis appointment has been made. In other words, appointment of the Society mentioned in Exhibit P5 was made ignoring the prohibition contained in Circular 10/83. For that reason we are unable to place any reliance on Exhibit P5 and rest our conclusion on the basis of that document. 10. For all these reasons, we accept the reasoning of the learned Single Judge that in order to achieve the purpose of W.A.No.2134/10 -7- Circular 10/83, it is necessary to exclude Societies like the appellant from appointment as AWD. We do not find any merit in the appeal. The appeal is accordingly dismissed, without any order as to costs. Sd/- **ANTONY DOMINIC** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn