T.A. Jose and Company v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935 WA.No. 1182 of 2013 () IN WP(C).3413/2013 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 3413/2013 DATED 05-02-2013 APPELLANT/PETITIONER: ---------------------------- T.A.JOSE AND COMPANY AWD NO.4, MUNDOOR, THRISSUR REPRESENTED BY ITS MANAGING PARTNER, E.O.LAWRENCE. BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.K.S.BHARATHAN ## RESPONDENTS/RESPONDENTS: ------------------------------------ ## 1. STATE OF KERALA REPRESENTED BY ITS ADDITIONAL SECRETARY FOOD AND CIVIL SUPPLIES DEPARTMENT THIRUVANANTHAPURAM-695001. 2. THE COMMISSIONER OF CIVIL SUPPLIES THIRUVANANTHAPURAM-695001. 3. THE DISTRICT COLLECTOR THRISSUR-680003. 4. THE DISTRICT SUPPLY OFFICER THRISSUR-680003. ## 5. TALUK SUPPLY OFFICER, THRISSUR-680003. BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07-082013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR,C.J.** ## **& A.M.SHAFFIQUE, J.** **= = = = = = = = = = = = = = = = Writ Appeal No.1182 of 2013** **= = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2013** ## **JUDGMENT** ## **Manjula Chellur,CJ** Heard learned Senior Counsel and we have gone through the judgment of the learned Single Judge. 2. The challenge in the writ petition was against Ext.P8suspension order, Ext.P11-order dated 05.08.2008 by the District Collector, Ext.P12-order dated 04.05.2009 by the Commissioner of Civil Supplies and Ext.P14-order on revision before the Government dated 28.04.2011. All these orders pertain to a search that was conducted in the appellant's go-down by the 4[th] respondent wherein they seized the stock found in the go-down belonging to the appellant. 3. It is not in dispute that the appellant is the Authorised Wholesale Distributor (AWD No.4) since 1996. It is also not in dispute that apart from this he is also an authorised **Writ Appeal No.1182 of 2013** **2** wholesale distributor for two other areas. According to the authorities who conducted search and seized the stock after verification of records, there was excess quantity of rice of 4 different varieties and the entire quantity would fall below 5 quintals. 4. According to the respondent-authorities, on the date of inspection conducted on 24.04.2008 there was excess stocks of rice, therefore the goods were seized. Ext.P8 is the suspension of the licence. The proceedings initiated led to cancellation of licence as per Ext.P11 order passed by the District Collector on 05.08.2008. 5. The stand of the appellant before the District Collector was, the entire stock was stored in building No.10/171 belonging to one Smt.Thankamma, wife of one of the partners, who is also a partner. Apart from that, a portion of this building was also let out to one Star Traders whose proprietor is one Mr.Satheesh P.V. Therefore, the inspection of stock registers without weighment of the stocks physically, has led to the conclusion and confusion thereby the stocks which belong to Smt.Thankamma and Star Traders were taken into consideration opining that they **Writ Appeal No.1182 of 2013** **3** belong to appellant's company. 6. According to the appellant, stock found in excess actually belong to two Panchayats i.e.Kodungallor and Perinjanam Grama Panchayat as Smt.P.A.Thankamma, wife of one of the partners, had an agreement with those two panchayats to hold the stocks meant for SGRY Scheme of the Government. During the course of proceedings, the District Collector has taken into consideration all these facts but was of the opinion that there was persistent allegation that the stocks held by Star Traders at a distance of 50 yards from the present building was the business concern of the appellant conducted through one of the employees, Mr.P.V.Satheesan, also the stocks found in Star Traders belongs to the appellant Company. So far as the agreement of Smt.P.A.Thankamma with two Panchayats stated above, it was found that licence of Smt.Thanakamma came to be cancelled way back in the year 2007 much prior to the date of inspection on 24.04.2008. Therefore, Smt.Thankamma holding stocks on behalf of one of the Panchayats, that is, Kodungallur would not arise at all. 7. So far as other Panchayat, Perinjanam, the agreement **Writ Appeal No.1182 of 2013** **4** was with the appellant company itself. The fact remains, if different persons were holding the stocks in the same building for different business concerns, there had to be demarcation of the area where these goods were kept in stock. The stocks found in one building alleged to be belonging to the business concern of different persons including the appellant. If the appellant has shown this building as the place of keeping his stocks as a wholesale distributor, it is for him to remove the doubts if at all any doubts or suspension raised so far as the stocks kept in the building belonging to the licence AWD 4. 8. After going through the material, the District Collector, who seized the goods opines that the stocks shown belonging to Star Traders actually belongs to AWD 4 licence. If really the goods belong to Star Traders and there was stock of Grama Panchayat of Perinjanam, it has to be shown by records, i.e, how much stock was supplied to whom and when? Mere mentioning of letters of Secretary without any supporting documents cannot be sufficient material against the opinion of the District Collector. Even otherwise, the District Collector, after taking into account the stocks shown in the books and the excess stock **Writ Appeal No.1182 of 2013** **5** found in the godown was justified in rejecting the defence of Mr.Satheesan and Smt.P.A.Thankamma holding stocks other than the stocks of AWD 4 licence. This opinion of the District Collector is based on the material placed before him which came to be challenged before the Appellate authority, in an appeal which also came to be dismissed on 04.02.2009. 9. Again the matter went up before the Government in a revision. The revision came to be disposed of on 28.04.2011 under Ext.P14. The final fact finding authority is the appellate authority and the said order is at Ext.P12. Against the said order, revision was also filed, but it was held against the appellant. There is consistent opinion of two authorities above the District Collector's order who had confirmed the fact finding authority's decision. The final order is dated 28.04.2011, as per the statute. Subsequently, two representations came to be disposed of by the Government. The point is, in the absence of any statutory authority above the revisional authority, can we consider Ext.P15 and P16 as proceedings surviving the cause of action of the appellant which ended with an order dated 28.4.2011? **Writ Appeal No.1182 of 2013** **6** 10.The learned counsel for the appellant places reliance on the decision in **Sarojini N Vs. District Collector, Thiruvananthapuram and others** (1999 KHC3: AIR 1999 Ker.119) to contend that in the absence of physical verification by weighment the minimum variance now shown, five quintals could be on account of various deficits. Therefore, it cannot be taken as confirming variation so far as excess stocks found on 24.04.2008. In the said case what we notice is, against the orders of the District Collector without approaching the appellate and revisional authorities complaining violation of principals of natural justice as there was no physical verification by weighment, the party approached this Court. In that context their Lorships opined, suspension of licence and seizure of the goods was not justified. 11. The facts in the present case are entirely different. The appellant company was given an opportunity before the District Collector to place on record all the materials and in fact the District Collector has gone into all these materials while arriving at decision as per Ext.P11. Subsequently, another opportunity was available to the appellant before the appellate authority to **Writ Appeal No.1182 of 2013** **7** place records, if any, available or to disprove the opinion of the District Collector. But they were unsuccessful in their attempt even before the appellate authority. Further, during the revisional proceedings, they were unable to place any material which would go against the findings of the original authority and the appellate authority. In the absence of any irregularity in the proceedings conducted by the authorities concerned the revisional authority, that is, the Government, was justified in confirming the two orders passed by the original authority and the appellate authority. 12. Now the challenge is against Exts.P8, P11, P12 and P14. Ext.P14 is dated 28.04.2011 and the challenge is only in the year 2013; two years later. The explanation by the learned Counsel is, even if there is delay on the part of the appellant approaching this Court but if there are justifiable reasons for such delay, it can be condoned. For this proposition appellant places reliance in **Tukaram Kana Joshi and others Thr.Power of Attorneyt Holder v. M.I.D.C and others** (2012 KHC 4649:2013(1) SCC 353:AIR 2013 SC 565). 13. We have gone through the above decisions, especially **Writ Appeal No.1182 of 2013** **8** paragraphs 9,10,11 and 12 of **Tukaram** (supra). After going through the above judgments, it is clear that whenever question of delay and laches arises for consideration, to refuse exercise of discretion, the court has to see mitigating factors, continuity of cause of action etc. as delay and laches cannot be an absolute impediment for consideration or exercising discretionary jurisdiction. 14. In the present case, except the fact that two representations were given, which were answered by the Government at Exts.P15 and 16, no other mitigating circumstances for the delay is placed before us. There is absolutely no justification for the appellant company in not approaching the court subsequent to orders at Ext.P14 dated 28.04.2011. 15. In that view of the matter, the learned Single Judge was justified in saying delay and latches would go against the appellant and so also on merits the two authorities who had the opportunity of verifying the factual situation were convinced that there was violation of procedure and the licensee was keeping the stocks which was not reflected in the stock registers. **9** ## **Writ Appeal No.1182 of 2013** In that view of the matter, we are of the opinion, nothing remains for us to consider in this appeal differing from the opinion of the learned Single Judge. Accordingly the appeal is dismissed. **MANJULA CHELLUR, CHIEF JUSTICE** **A.M.SHAFFIQUE, JUDGE.** sj 12/8