Francis Vadakkel vs Government Of Kerala
2021 Latest Caselaw 15490 Ker

W.A. No. 887/2021                 :1:



               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

          FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943

                           WA NO. 887 OF 2021

   AGAINST THE JUDGMENT IN WP(C) 1918/2019 OF HIGH COURT OF KERALA,

                               ERNAKULAM

APPELLANT/PETITIONER:

           FRANCIS VADAKKEL
           S/O.THOMAS, VADAKKEL HOUSE, BYSON VALLEY.P.O.,
           UDUMBANCHOLA, IDUKKI.
           BY ADV K.I.MAYANKUTTY MATHER


RESPONDENTS/RESPONDENTS:

     1     GOVERNMENT OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD AND CIVIL
           SUPPLIES DEPARTMENT, SECRETARIAT,
           THIRUVANANTHAPURAM-695 001.
     2     THE COMMISSIONER OF CIVIL SUPPLIES
           THIRUVANANTHAPURAM G.P.O., PIN - 695 033.
     3     THE DISTRICT COLLECTOR,
           CIVIL STATION P.O., IDUKKI - 685 603.
     4     THE DISTRICT SUPPLY OFFICER
           CIVIL STATION P.O., IDUKKI - 685 603.
     5     THE TALUK SUPPLY OFFICER
           UDAMBANCHOLA TALUK, NEDUMKANDOM P.O., IDUKKI - 685 553.



           SRI.V.TEKCHAND,SENIOR GOVERNMENT PLEADER



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 887/2021                 :2:




                      Dated this the 23rd day of July, 2021.

                                     JUDGMENT

SHAJI P. CHALY, J.

This appeal is preferred by the petitioner in W.P.(C) No. 1918 of

2019 challenging the judgment of a learned single Judge dated

08.03.2021, whereby the learned single Judge dismissed the writ

petition and affirmed the order passed by the statutory authorities

under the Kerala Rationing Order, 1966.

2. Brief material facts for the disposal of the writ appeal are as

follows:

The appellant was an authorised wholesale ration distributor

appointed under the Kerala Rationing Order, 1966. While he was

functioning as the wholesale distributor running AWD No. 12 in

Udumbanchola Taluk, Ext. P1 notice dated 30.10.2014 was served on

him stating that the Taluk Supply Officer along with the Rationing

Officer inspected his wholesale godown on 30.10.2010 and found

variation in stock.

3. The case projected by the appellant was that Ext. P2

inspection book maintained in the godown does not disclose any

irregularity in the inspection conducted on 30.10.2020. It was also

pointed out that a notice was served on the petitioner after 4 years of

inspection and an amount of Rs. 6,59,532/- was sought to be

recovered from him. It was submitted that no calculation statement

was given to the appellant. Anyhow, the allegations made in Ext. P1

notice was denied by the appellant and he gave Ext. P3 reply dated

23.12.2014 and later, an additional explanation was also submitted on

21.07.2016. After enquiry, the District Collector, Idukki, the 3 rd

respondent, issued Ext. P5 proceedings dated 04.07.2017, rejecting

the contentions of the petitioner and ordered to recover a sum of Rs.

6,59,532/- towards the economic cost of articles found in stock

variation and an amount of Rs. 5000/- as fine.

4. Being aggrieved, an appeal was preferred before the

Commissioner of Civil Supplies, who as per Ext. P7 proceedings dated

13.12.2017, dismissed the appeal. Even though a revision was filed

before the State Government, it was also dismissed as per Ext. P9

order dated 15.12.2018. It was, thus, challenging the legality and

correctness of the said orders, the writ petition was filed.

5. The paramount contention advanced by the appellant was

that in the oral evidence given by the Rationing Inspector, he had

stated that physical stock was not ascertained by the Inspection team

and only average stock position was taken by counting gunny bags

and therefore, it was submitted that the stock variation was found on

random verification and if actual physical stock was taken, there would

not have been any variation. That apart, it was contended that there

was a delay of more than 3 years in issuing a memo of charges and

quantifying the amount, which caused substantial prejudice to the

appellant. It was also stated that inspection was conducted in the

premises without the presence of the appellant or the salesman.

6. It was further submitted that as per clause 51(8) of the

Kerala Rationing Order, 1966, the value of cost of the rationing articles

means value of the cost as per the Bill of Purchase. But, the amount

that was sought to be recovered from the appellant quantified the

amount adding the cost of the ration articles on economic rate and

therefore, quantification is erroneous and illegal.

7. The learned single Judge, after taking into account the

counter affidavit filed by the District Supply Office, has dismissed the

writ petition holding as follows:

11. The main argument of the petitioner is that the quantification of variation in the ration articles was not done through physical verification with actual weighing. But, it has to be noted that the AWD of the petitioner is a wholesale depot and sealed gunny bags are brought to the godown from the Food Corporation of India godowns. The respondents have counted the number of sealed gunny bags to find out the weight of the physical stock. Therefore, it cannot be stated

that actual stock of ration articles can be taken only through physical weighing. There is no merit in the argument of the petitioner in this regard.

12. Another contention of the petitioner is that the value of the ration articles was calculated based on economic price. The value ought to have been calculated at market rates. The respondents have adopted a price themselves to arrive at amount to be recovered. However, it has been stated in the counter affidavit that 'Economic rate' is the cost of the ration articles without applying subsidy. Therefore, there is nothing wrong in recovering amounts calculating the dues at economic rate.

13. The petitioner contends that inspection was conducted in the absence of the petitioner or his salesman. The pleadings in the writ petition would disclose that the licenced premises was inspected on 30.10.2010 in the presence of Mr. M.K. Dileep, the salesman who was in charge of the AWD. The argument of the petitioner in this regard is therefore only to be rejected.

14. The further contention of the petitioner is that there was a delay of more than three years after the inspection, in initiating proceedings. It is pointed out that appeals were pending before the Director of Civil Supplies and W.P.(C) No.34445/2010 filed by the petitioner was also pending. It was these proceedings which caused delay in taking action. Furthermore, it is to be noted that the petitioner has not pointed out any specific prejudice occurred to him due to the delay in initiating the proceedings. In the circumstances, this Court finds no reason to accept the argument of the petitioner in this regard.

In view of the facts and reasons stated above, this Court finds no illegality in Exts.P5, P7 and P9. The writ petition is therefore dismissed.

8. We have heard the learned counsel for the appellant Smt.

Kalliyanikrishna B and the learned Senior Government Pleader Sri. Tek

Chand, and perused the pleadings and materials on record.

9. Going through the materials on record, it is clear that the

learned single Judge has taken into account the vital contentions put

forth by the appellant and has arrived at the conclusion that the

grounds raised have no legal or factual basis and are not liable to be

interfered with exercising the power of judicial review under Article

226 of the Constitution of India. On going through the judgment of

the learned single Judge, we are of the considered opinion that the

entire material points raised by the appellant was considered by the

learned single Judge, and has arrived at the findings, assigning

reasons borne out from the records.

10. After assimilating the factual and legal circumstances, we

have no hesitation to hold that three fact finding bodies have found

that the appellant has committed gross illegality by not maintaining

the stock of the ration articles in accordance with the provisions guided

by the Kerala Rationing Order, 1966. The findings were rendered by

the statutory authorities taking into account various factual aspects

and the learned single Judge was right in holding that the grounds

raised in the writ petition were not sufficient enough justifying

interference exercising the power of judicial review.

11. Therefore, we are of the clear view that the appellant has

not made out any case for interference, there being no jurisdictional

error or other legal infirmities justifying us to do so in an appeal filed

under Section 5 of the Kerala High Court Act.

Needless to say, writ appeal fails and accordingly, it is dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv