Nadeera M. v. The Secretary to Government, Department of Civil Supplies, Government of Kerala, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943** ## **WA NO. 1717 OF 2019** ## **AGAINST THE JUDGMENT IN WP(C) 5055/2019 OF HIGH COURT OF KERALA APPELLANT:** NADEERA M., AGED 36 YEARS W/O. USMAN, MANKEDATH HOUSE, PINANGODE POST, KALPETTA (VIA), WAYANAD-673122. BY ADVS. K.RAMAKUMAR (SR.) S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND ## **RESPONDENTS:** - 1 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CIVIL SUPPLIES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. - 2 THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM-695001. - 3 THE DISTRICT COLLECTOR, WAYANAD-673101. - 4 THE DISTRICT SUPPLY OFFICER, WAYANAD-673101. - 5 SMT. PARVATHY K., W/O. VISWANATH, VISHNUMAYA HOUSE, PINANGODE POST, WAYANAD673101. BY ADV GOVERNMENT PLEADER R1-R4 SRI.T.K.SHAJAHAN, SENIOR GOVERNMENT PLEADER, R5SRI.P.RAMAKRISHNAN ## **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2021, THE** ## **COURT ON 28.10.2021 DELIVERED THE FOLLOWING:** **W.A.No.1717/2019** **- 2 -** ## **K.Vinod Chandran & C.Jayachandran, JJ -----------------------------------W.A No. 1717 of 2019** **-----------------------------------Dated, this the 28[th] day of October, 2021** ## **JUDGMENT** ## **Vinod Chandran,J.** **The appeal impugn the judgment of the learned Single Judge, which upheld the appellate order under Kerala Rationing Order 1956, setting aside the appointment of the appellant as an Authorised Ration Dealer (ARD) and appointing the 5[th] respondent. The appellate order had been confirmed in Revision before the Civil Supplies Commissioner and a further appeal before the State Government; which were upheld by the impugned judgment.** **2. Sri K Ramakumar, learned Senior Counsel instructed to appear for the petitioner, first took us to the interim order passed at the time of admission to point out that there is nothing produced to show that the institution; the proprietorship of which was alleged to be a disqualification, is an 'establishment' as defined under the Rationing Order. He specifically took us through the definition clauses in clause 2(9)** **- 3 -** **W.A.No.1717/2019** **to bring home the ground raised. It was urged that the appellant was found to be the most eligible as per Ext.P2 order, which was appealed by the 5[th] respondent. The Appeal Memorandum is produced as Ext.P3, which does not contain any ground regarding the specific disqualification now alleged against her. The appellate authority merely on the submission of the counsel for the 5[th] respondent found the appellant to be disqualified without anything more.** _**AIR 1984 SC 1030 Chingelput Bottlers v. Majestic Bottling Company**_ **was relied on to contend that there is a distinction in so far as a grant and cancellation of an earlier grant. With respect to cancellation, the grantee should be put to notice of the ground for cancellation, without which the order will be vitiated. Learned senior counsel argues for reversing the appellate and revisional orders and upholding of the original order of grant as per Ext.P2.** **3. Sri P.Ramakrishnan, appearing for the 5[th] respondent points out that the Appellate Authority, who is the District Collector, had specifically verified the receipt of professional tax issued by the Padinjarathara Grama Panchayat, remitted by the appellant. The various provisions of the Rationing Order are** **- 4 -** **W.A.No.1717/2019** **specifically read over to argue that the 'establishment' in the 3[rd] proviso of clause 45 is quite distinct and different. The definitions under clause 2(9) are with respect to ration consumption establishments and the disqualification of a full time employment would apply in any establishment that are regularly established, as generally understood. It is also argued that in the Appeal Memorandum, a specific contention was taken that the appellant was not a resident of the Panchayat. A reading of Ext.P2 indicates that while the Nativity Certificate of the 5[th] respondent was referred to as that issued by the Panchayat in which the shop is located, there is no such reference in the Nativity Certificate produced by the appellant. It is submitted that now the Nativity Certificate issued by the appellant is received by the 5[th] respondent under the Right to Information Act and it shows a different Panchayat having issued it. Though the words used in the third proviso of Rule 45 are 'resident of the locality', the same has been interpreted by the Full Bench of this Court in** _**Selvaraj V State of Kerala [2011 (2) KLT 416 (FB)]**_ **to be the requirement of normal residence in the Panchayat/ Municipality/Corporation area, where the ration shop is sanctioned by the authorities.** **- 5 -** **W.A.No.1717/2019** **4. We refused to look at the Nativity Certificate now attempted to be produced across the Bar, since we are on judicial review from a grant which went through an appeal, a Revision and a further appeal. At the outset, we read the interim order passed at the time of admission, which observed on a** _**prima facie**_ **consideration that the Computer Centre which was run by the appellant, the subject of disqualification, was not an establishment under the 3[rd] proviso to clause 45(1) of the Rationing Order. We anxiously considered the arguments addressed by both sides. As is pointed out by the learned counsel for the 5[th] respondent, clauses 33, 37, 40 & 41 show the word 'establishment' having been used in relation to one, which consumes rationed articles. Sub clause 9(a) of clause 2 defines 'establishments' as catering, residential, manufacturing and animal establishments, institutions and industries and any other establishments or group of establishments so declared for the purpose of this order. Sub clause 9(b)(i) to (vi) defines each of the establishments specified in clause 9(a). We have no difficulty in finding the 'establishments' defined in the Rationing Order to be establishments consuming rationed articles, which definitely a computer institute cannot be. There is a difficulty in** **- 6 -** **W.A.No.1717/2019** **finding the word 'establishment' in the 3[rd] proviso to clause 45(1) to be an establishment, as generally understood, since the Rationing Order does not indicate any such distinct usage of the word in the 3[rd] proviso to clause 45(1); at variance from the definition clause.** **5. If any full time employment was a disqualification, the proviso could have been worded so; without the words, 'full time employee in any establishment', the use of which has a definite connotation, according to us. The disqualification for a full time employee of any establishment, as defined under the Rationing Order, to be appointed as an ARD, can only be that in an establishment consuming rationed articles. The intention is also to avoid any misappropriation or diversion of rationed articles. The disqualification hence relates only to a full time employment in an establishment as defined under the Rationing Order and not such employment in an unrelated establishment or institution. The eligibility conditions and the procedure stipulated is one to ensure transparency and further the Public Distribution System. The Rationing Order is not one intended to provide employment to the unemployed (barring a preference to an unemployed rural youth under the 5[th] proviso to clause** **- 7 -** **W.A.No.1717/2019** **45(2)) or to guarantee such employment and is intended at maintaining supplies of certain essential commodities, securing their equitable distribution and availability at fair prices. Law would not contemplate that a person to be appointed as an ARD has to remain idle and unemployed to apply for an authorised ration dealership. A permanent employment, in establishments other than those defined in the Rationing Order cannot be a disqualification to apply. But on appointment, the candidate will** **have to choose either of the two.** **6. We do not think the cited decision applies, where the dictum was with respect to there being no requirement to disclose the reasons for refusal to grant liquor vending licenses; the grant of which itself is discretionary. Here the very grant was reversed in an appeal and there was no cancellation as such. The distinction with respect to a grant and cancellation as argued by the learned Senior Counsel does not have any relevance; but then, we have found the ground on which the reversal was made to be not sustainable on the interpretation of the definition clauses and the 3[rd] proviso to clause 45(1). Hence, we find the appellate order to be bad in law.** **7. We see that the 5[th] respondent had raised other** **- 8 -** **W.A.No.1717/2019** **contentions also in the appeal, which were not dealt with by the Appellate Authority. In such circumstances, we set aside the appellate order Ext.P2 and direct the District Collector to consider the same afresh. The 5[th] respondent, who has been appointed in the meanwhile, shall be continued till a final decision is taken by the District Collector and then the grant shall be in accordance with that decision, which also is subject to further challenge before the appropriate statutory authorities.** **8. The parties would be entitled to put forth all contentions before the District Collector and produce evidence to substantiate their contentions within a period of one month from the date of receipt of a certified copy of this judgment. The District Collector shall then issue notice to the parties and after hearing them, pass an order within three months from the date of first notice issued, provided all the parties co-operate for expeditious hearing. The Writ Appeal is disposed of setting aside the impugned judgment. It is made clear that we have authoritatively spoken, only on the interpretation of the word 'establishment' in the 3[rd] proviso to clause 45(1). The appeal shall be considered afresh and the other disputes between the** **W.A.No.1717/2019 - 9 -** **parties shall be decided by the appellate authority in accordance with law. Parties shall suffer their respective costs.** **sdK. Vinod Chandran, Judge** **sd/C. Jayachandran, Judge** **lgk**