Sandhya Kunjumon v. State of Kerala & Others (WA No. 2085 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** ## **WA NO. 2085 OF 2018** **AGAINST THE JUDGMENT IN WP(C) 3737/2018 OF HIGH COURT OF KERALA DATED 30.8.2018** ## **APPELLANT/PETITIONER:** SANDHYA KUNJUMON, AGED 39 YEARS W/O KUNJUMON, RESIDING AT NOOTTIIRUPATHIL CHIRA, OORUKKARI.P.O, RAMANKARY, ALAPPUZHA DISTRICT, PIN-689 595 BY ADVS.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI ## **RESPONDENTS/RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF CIVIL SUPPLIES, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN- 695001 - 2 THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA, ALAPPUZHA DISTRICT, PIN-688001. - 3 THE DISTRICT SUPPLY OFFICER, ALAPPUZHA, PIN-688 001. - 4 THE TALUK SUPPLY OFFICER, KUTTANAD TALUK, ALAPPUZHA DISTRICT, PIN-688 027. - 5 SMT.ANANDAVALLY, AGED 49 YEARS, W/O.THOMAS, ARYA BHAVAN, OORUKKARI P.O., RAMANKARY, ALAPPUZHA, PIN-689595. - 6 THE COMMISSIONER OF CIVIL SUPPLIES THIRUVANANTHAPURAM-695 001. BY ADV K.A.SALIL NARAYANAN ADV.TEK CHAND, SR.G.P. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.2085 OF 2018 :: 2 :: ## **JUDGMENT** Dated this the 19[th] day of September 2022 ## _**Shaji P. Chaly, J.**_ Challenging the correctness of the judgment dated 30.8.2018 in W.P.(C)No.3737 of 2018, this writ appeal is filed. The issue involved in this writ appeal is regarding the cancellation of the dealership granted in favour of the appellant/writ petitioner, in terms of clause 45(1) of the Kerala Rationing Order by the first respondent/State of Kerala. Application for appointment of retail ration shop dealer was invited for Ward No.VIII of Ramankary Panchayat as per Ext.P1 notification dated 26.4.2013. Admittedly, appellant/writ petitioner is a resident of Ward No.X and therefore, although licence was initially granted to her, the same came to be challenged by the rival claimant Smt.Anandavally/respondent No.5. 2. The authorities, after due consideration, noted that fifth respondent is a resident of Ward No.VIII, and therefore granting license to a person, who is not a resident of the advertised ward, was found to be unmerited, and accordingly, the same was interfered with by the authority, and granted in favour of respondent No.5. The W.A.2085 OF 2018 :: 3 :: appellate authority affirmed the cancellation order, and eventually, when the aggrieved licensee challenged the decision through W.P. (C)No.3737/18, the learned Single Judge, after referring to the ratio in _Selvaraj.C v. State of Kerala [2011 (2) KHC 158 (FB)]_ and _Jose v. Nesamony [1994 (1) KLT 369]_ opined that since the appointed ration shop dealer should normally be a resident of the locality, under sub clause 45(1) of the Kerala Rationing Order, the order in favour of a person, who is a resident of another locality, would not be justified. Accordingly, the writ petition came to be dismissed under the impugned judgment dated 30.8.2018. Operative portion of the judgment reads thus: “6. I have considered the contentions advanced at considerable length. Exhibit P1 notification specifically calls for application from eligible persons for licensing of an ARD in Ward No.VIII of Ramankary Panchayat of Kuttanad Taluk at Valappura. Though it is contended that the petitioner is a resident of the Panchayat and that the beneficiaries of the ARD are local residents who belong to other Wards as also to Muttar Panchayat and that the petitioner's place of residence is hardly 300 metres away from the place where the ARD is presently located, it is not in dispute before me that the ARD was sought to be located at Ward No.VIII of Ramankary Panchayat. The rationed area in terms of Clause 2(16) of the Kerala Rationing Order is that the area in respect of which an ARD is W.A.2085 OF 2018 :: 4 :: sanctioned. Clause 45 provides for appointment of an ARD in respect of any area. The proviso thereto specifically states that a person who is not normally a resident in the locality shall not be eligible to hold an authorisation to run the ration depot under this order. The Full Bench of this Court in Jose's case (supra) lays down the correct law by interpreting the expression “normal resident in the locality” in sub-clause (1) of Clause 45 of the Order as follows: “(3) 'authorised retail distributor' means a retail dealer who has been appointed or deemed to be appointed as such under the provisions of sub-clause (1) of clause 45 and shall include a person in charge of a shop or godown appertaining to a rationed article and under the control of the State or Central Government.” 'Rationed area' has been defined in sub-clause (16) of clause 2 to mean that any area in which the Order of 1966 has been brought into force. Clause 45 deals with appointment of Authorised Retail Distributor. The same, insofar as it is relevant for the purpose of deciding the question referred by the Division Bench, reads as follows: “45(1). For the purpose of distributing rationed articles, the District Supply Officer may, by order, appoint in respect of any area any person as authorised retail distributor in respect of any rationed article: Provided xxx x xxx x xxx Provided xxxx xxxx xxxx Provided also that a person who is a full time employee in any establishment or who is not normally resident in the locality shall not be eligible to hold an authorisation to run the retail ration depot under this order. (2) Application for appointment as authorised retail distributor shall be made to the District Supply Officer in W.A.2085 OF 2018 :: 5 :: the form prescribed by the Commissioner by notification in the Gazette: Provided that where an authorised retail distributor is incapable of running the ration business owing to old age or sickness, any legal heir nominated by him and in the case of death of an authorised retail distributor, any of the legal heirs of the deceased nominated jointly by all the other legal heirs shall be appointed by the District Supply Officer as a temporary authorised retail distributor and on production of heirship certificate from the concerned Tahsildar and after conducting such enquiry as the District Supply Officer may consider necessary regarding the financial position of the legal heir and also on executing necessary agreements afresh as provided for under this order, such appointment shall be made permanent:” It is stated by the Full Bench that for initial appointment as ARD, one has to be normally a resident in the Panchayat/ Municipality/ Corporation area where the ration shop is sanctioned by the authorities. 7. In the instant case, Exhibit P1 itself shows that the application itself was in respect of an ARD for Ward No.VIII of the Ramankary Panchayat. Since the sanctioning of the ration shop was in respect of Ward No.VIII of the Ramankary Panchayat, it is to be construed that the locality for which the shop was sanctioned was Ward No.VIII and not the entire Panchayat. In the above view of the matter, the normal residents in the locality could only mean residents in Ward No.VIII of the Ramankary Panchayat and any other construction would do violence to the provisions of Clause 45(1) of the Kerala Rationing Order and the proviso thereto. In the above view of the matter, I am of the opinion that the W.A.2085 OF 2018 :: 6 :: finding contained in the impugned orders to the effect that the petitioner not being a resident of the locality in which the shop was sanctioned was not entitled to the retail distributorship is in conformity with the provisions of the Statute as well as the law laid down by the Full Bench of this Court. The writ petition fails and is accordingly dismissed.” 3. The learned Senior Counsel Smt.Sumathy Dandapani submits that the ration shop located at Ward No.VIII of Ramankary Panchayat also caters to consumers of Ward Nos.VII, IX and X respectively. She also submits that the appellant has provided better facilities and is satisfactorily catering to the needs of all the consumers although she is a resident of Ward No.X. She therefore argues that intervention is unjustified in the granting of the ration shop to the appellant. 4. Learned Senior Government Pleader Sri. V. Tek Chand has obtained instructions and produced the letter dated 27.10.2018, which indicates that in Ramankary Panchayat, there are total eight ration depots and the requirement of the consumers in Ward Nos.VII, VIII, IX, X, XI and XII are serviced by the A.R.D. No.68, which is located in Ward No.8, of the Panchayat. It is clarified that since W.A.2085 OF 2018 :: 7 :: there is no A.R.D. situated within the territorial limits of Ward Nos.VII, IX, X and XI, the persons residing within the limits of Ward No. VII, IX and X also approach A.R.D. No.68 in Ward No.VIII, for their ration requirements. It is further clarified that as per the revised portability norms _,_ a cardholder can approach any ration shop in the State for meeting such requirements of ration articles and need not restrict his purchases from the A.R.D shops, located in his ward. 5. The 5[th] respondent/Smt.Anandavally has filed a detailed counter affidavit contending that it is clear from Exhibit P1 notification itself that the area specified for the Authorized Retail Distributorship is Ward No.VIII of Ramankary Panchayat and that Exhibits P2, P9 and P10 produced by the writ petitioner are irrelevant for consideration of the issue involved. It is asserted that the ARD was in respect of Ward No.VIII alone and that residents in Ward No.VIII, are therefore essential for award of ARD. 6. However, in the reply affidavit filed by the writ petitioner it is stated that it is not specified in Exhibit P1 notification that the applicant should be a resident of Ward No.VIII of Ramankary W.A.2085 OF 2018 :: 8 :: Panchayat. The contention is that only the location of the ARD is specified to be in Ward No.VIII and the area of operation is not specified therein. 7. Heard learned Senior Counsel for the appellant Smt.Sumathi Dandapani, learned counsel for respondent No.5 Sri.K.A.Salil Narayanan and learned Senior Government Pleader Sri.Tek Chand and perused the materials available on record. 8. Question revolves around Clause 45(1) and (2) of the Kerala Rationing Order, 1966 and it reads thus: 45.(1) For the purpose of distributing rationed articles, the District Supply Officer may, by order, appoint in respect of any area any person as authorised retail distributor in respect of any rationed article: Provided that the persons appointed or deemed to be appointed as authorised retail distributor under the Kerala Foodgrains (Regulation of Distribution) Order, 1965, shall be deemed to be appointed under the subclause. Provided further that in the event of delay in the appointment of an authorised retail distributor or when the authorisation of a retail distributor is suspended pending enquiry, the District Supply Officer may on such terms and conditions as he may deem fit, make provisional appointment of a retail distributor in respect of any area for a specified period not exceeding six months without observing the formalities prescribed under this Order. The person so appointed shall have no W.A.2085 OF 2018 :: 9 :: right to continue as authorised retail distributor beyond the period for which he is appointed and shall not also have any preferential claim for appointment as an authorised retail distributor. The order appointing a provisional retail distributor shall be in such form as may be prescribed by the Commissioner by notification in the Gazette] Provided also that a person who is a full time employee in any establishment or who is not normally resident in the locality shall not be eligible to hold an authorisation to run the retail ration depot under this order. (2) Application for appointment as authorised retail distributor shall be made to the [District Supply Officer] in the form prescribed by the Commissioner by notification in the Gazette: 9. The third proviso to Clause 45(1) makes it clear that a person who is not normally a resident in the locality shall not be eligible to hold an authorization to run the ration depot under this Order Clause 2(3) of the Kerala Rationing Order defines 'Authorized Retail Distributor' to mean a retail dealer who has been appointed or deemed to be appointed as such under the provisions of sub clause (1) of clause 45 and shall include a person in charge of a shop or godown appertaining to a rationed article and under the control of the State or Central Government. Rationed area has been defined under Clause 2(16) means any area in which the Kerala Rationing W.A.2085 OF 2018 :: 10 :: Order, 1966 has been brought into force. On a conjoint reading of the provisions of clause 45(1) and the 3[rd] proviso thereto, and the definitions discussed above, an Authorized Retail Distributor shall be a resident in the locality. Admittedly, the appellant is a resident of Ward No.X and the Authorized Ration Dealer was for Ward No.VIII. It was taking into the said aspectS that the learned Single Judge has found that the appellant is not a resident in the locality so as to make any claim for appointment as an Authorized Ration Dealer. The contention advanced by the learned Senior Counsel for the appellant however, is that consequent to the introduction of the National Food Security Act, 2013 and the notification issued by the State Government dated 6.7.2018, the ration card holders are entitled to avail ration from any of the ration shops within the State, and therefore, there is no need to restrict the “locality” as a ward alone, for conferring the ARD license. It is true, the Government after considering the said aspect has issued the notification dated 6.7.2018 according sanction to the Civil Supplies Director to take necessary steps for effective implementation of Aadhar based portability system (cardholders of any kind to collect ration from W.A.2085 OF 2018 :: 11 :: any of the ration shops) after providing awareness among public so as to facilitate the distribution of ration to any card holder from any of the ration shops within the State. Therefore, the sum and substance of the contention advanced by the learned Senior Counsel is that even though the Authorized Ration Dealer No.68 was sought to be appointed in Ward No.VIII, the card holders residing within the limits of Ward Nos.VII, VIII, IX, X, XII, etc. within the limits of Ramankary Grama Panchayat are to collect ration articles from ARD 68 situated in Ward No.VIII and therefore, the locality contained under the third proviso to clause 45(1) has to be interpreted to mean the locality covered by the aforesaid wards. If that is taken into account, the appellant is eligible for being appointed as an ARD, is the contention. On the other hand, counsel appearing for the party respondent as well as the learned Government Pleader advanced arguments basically supporting the judgment of the learned Single Judge and contended that even though the cardholders of different wards are entitled to purchase ration articles from ARD No.68 situated in Ward No.VIII, that was not a criteria for conducting the selection procedure; and since the ration shop is to be located in W.A.2085 OF 2018 :: 12 :: Ward No.VIII, the locality in contemplation of the 3rd proviso to clause 45 (1)means, the locality within Ward No.VIII of Ramankary Panchayat. 10. We have evaluated the rival submissions made across the bar. Taking into account the fact that the applications were invited as per Ext.P1 dated 26.4.2013 for conducting a ration shop in Ward No.VIII of Ramankary Panchayat, Kuttanad Taluk the locality to be taken into account is the locality where the shop is to be located and not the entire Panchayat or the other wards. Locality is not defined under the Kerala Rationing Order, 1966. 11. In our considered opinion, by employing the expression locality in the third proviso to clause 45(1) makes it clear that the authority intended that the application is to be submitted by the residents of the ward and if the intention was not so, the word locality would not have been employed in the third proviso. Moreover, we are also of the considered opinion that the selection procedure need not be mixed up with the benefit of portability available to the cardholders in terms of the provisions of the National Food Security Act, 2013; because by providing portability, W.A.2085 OF 2018 :: 13 :: the Government intended only the convenience of the ration card holders and that has nothing to do with the selection procedure in contemplation of the provisions of the Kerala Rationing Order, 1966. Apart from all the above, the card holders of various wards are attached to shop No 68 of ward VIII since no ration shops are located in those wards, and that has nothing to do with the selection intended in terms of the Rationing Order 1966. 12. Taking into consideration the factual and legal circumstances deliberated above, we are of the undoubted opinion that the appellant has not made out a case for interference with the judgment of the learned Single Judge there being no jurisdictional error or other legal infirmities justifying us to do so. Needless to say, writ appeal fails. Accordingly, it is dismissed. **sd/S.MANIKUMAR CHIEF JUSTICE** **sd/SHAJI P. CHALY JUDGE** jes