B.Anilkumar vs Taluk Supply Officer
2022 Latest Caselaw 12001 Ker

WP(C) NO. 11532 OF 2012            1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
                          WP(C) NO. 11532 OF 2012
PETITIONER/S:
          B.ANILKUMAR
          KWD NO 30, CHIRAYINKEEZHU TALUK, ATTINGAL,
          THIRUVANANTHAPURAM

              BY ADVS.
              SRI.N.N.SUGUNAPALAN (SR.)
              SRI.S.SUJIN


RESPONDENT/S:
    1     TALUK SUPPLY OFFICER
          CHIRAYINKEEZHU THIRUVANAQNTHAPURAM 695304

      2        THE DISTRICT SUPPLY OFFICER
               THIRUVANANTHAPURAM 695001

      3        THE DISTRICT COLLECTOR
               THIRUVANANTHAPURAM 695001

      4        THE COMMISSIONER OF CIVIL SUPPLIES
               THIRUVANANTHAPURAM 695001

      5        THE STATE OF KERALA
               REPRESETNED BY ITS SECRETARY FOOD AND CIVIL SUPPLIES
               DEPARTMENT, THIRUVANANTHAPURAM

               BY ADV GOVERNMENT PLEADER


OTHER PRESENT:
          SRI.K.M.FAISAL, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 11532 OF 2012              2




                        P.V.KUNHIKRISHNAN, J
                    ---------------------------------------
                      W.P.(C) No. 11532 of 2012
                     --------------------------------------
              Dated this the 22nd day of December, 2022


                                JUDGMENT

The above writ petition is filed with following prayers :

"(i) To issue a Writ of certiorari or any other appropriate, Writ, order or direction, to call for the records leading to Ext.P1, P3, P5, P7, P9 and P15 and quash the same.

(ii) To grant the cost of these proceedings to the petitioner and

(iii) To grant such other and further reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case." [SIC]

2. The petitioner is a dealer of kerosene under the

Kerala Kerosene Control Order. He was running a wholesale

depot at Attingal as KWD No.30. The petitioner received

Ext.P1 notice dated 3.12.2004 from the Taluk Supply Officer

informing imposition of fine for keeping excess quantity of

kerosene at the time of inspection. Challenging Ext.P1 notice

and Ext.P3 order of forfeiture of security amount, the

petitioner approached the 2nd respondent by filing Ext.P4

appeal. Ext.P4 appeal was dismissed as per Ext.P5 order.

Challenging Ext.P5 order, the petitioner approached the 3 rd

respondent by filing Ext.P6 appeal which was also dismissed as

per Ext.P7 order. Aggrieved by Ext.P7 order, the petitioner

filed a revision before the 4 th respondent, which was also

dismissed by Ext.P9 order. Thereafter, the petitioner

approached the Government by filing Ext.P10 revision under

Clause 18 of the Kerala Kerosene Control Order. The grievance

of the petitioner is that, after hearing the matter, the

Government passed Ext.P15 order, not only rejecting the claim

raised by the petitioner. But also, enhancing the punishment

imposed and directed to cancel the license. According to the

petitioner, he challenged Ext.P15 stating that it is beyond the

jurisdiction of the Government to pass such an order. Hence,

this writ petition.

3. Heard the learned counsel for the petitioner and the

learned Government Pleader.

4. The short point raised by the petitioner is that the

petitioner filed Ext.P10 revision against Ext.P9 order. Clause

18 of the Kerala Kerosene Control Order read like this :

"18. Power to call for Records and issue Order - The Government or the Commissioner may either suo moto or on application from any person, call for and examine the records of any order passed by any subordinate authority under the provisions of this order for the purpose of satisfying themselves or himself as to the legality or to the propriety of such order and may pass such interlocutory orders as are deemed necessary and also pass such final orders in reference to the records as the Government or the Commissioner may deem fit Provided that no order to the disadvantage of any person shall be passed under this clause unless the person concerned is given an opportunity of making any representation, which he may wish to make against such order."

5. As per Clause 18, the Government or the

Commissioner may either suo moto or application from any

person call for and examine the record of any order passed by

any subordinate authority under the provisions of this order

for the purpose of satisfying themselves or himself as to the

legality or propriety of such order and may pass such

interlocutory orders as are being necessary and also pass such

final order in reference to the records as the Government or

the Commission may deem fit. So a perusal of Clause 18, it is

clear that there is suo moto power and through an application

from any person. Admittedly, in this case, the revision is

entertained based on the petition filed by the petitioner. If that

is the case, the revisional authority can only look into whether

there is any illegality or impropriety in the impugned order.

The jurisdiction of the revisional authority and appellate

authority is considered by this Court in T.S.Selvarajan v. The

Board of Directors and Others [2013 (2) KLJ 697]. It will be

beneficial to extract the relevant portion of the judgment :

6. The distinction in the exercise of two jurisdictions, one under the appellate jurisdiction and the other in revisional jurisdiction, necessarily, has to be borne in mind by the Tribunal when it is called upon to exercise any one of the two jurisdictions. So far as an appeal is concerned, it is well settled it is a substantive right of the party if it is so conferred by the Statute. Revision on the other hand is different. That power is given to a superior body or Tribunal to supervise the function of subordinate or inferior body or Court and it is not linked with the right of the party to the proceedings. An appeal is generally considered to be continuation of the original proceedings and the provisions as applicable at the time of institution of the lis would continue to be operative unless it has been taken away

by legislation. An appeal is a necessary part of the procedure in an action, but only if so provided, and, where a right of appeal exists. It envisages a reconsideration of all matters brought before the Court or Tribunal the decision of which is appealed. The right of appeal where it exists is a matter of substance and not a procedure. In appeal the entire proceedings are again left open for consideration by the Appellate Authority which has the power to review the entire evidence subject to statutory limitation, if any. However in revision the exercise of power is hedged and limited and it has no power to reappreciate the evidence unless the Statute expressly confers that power. That limitation is implicit in the concept of revision. Co - operative Tribunal is conferred revisional jurisdiction over proceedings from which an appeal lies to it under S.82 of the Act. That supervisory jurisdiction is conferred "for the purpose of satisfying itself as to the legality or propriety of any decision or order passed by inferior Court / authority

6. The distinction in the exercise of two jurisdictions, one under the appellate jurisdiction and the other in revisional jurisdiction, necessarily, has to be borne in mind by the Tribunal when it is called upon to exercise any one of the two jurisdictions. So far as an appeal is concerned, it is well settled it is a substantive right of the party if it is so conferred by the Statute. Revision on the other hand is different. That power is given to a superior body or Tribunal to supervise the function of subordinate or inferior body or Court and it is not linked with the right of the party to the proceedings. An appeal is generally considered to be continuation of the original proceedings and the provisions as applicable at the time of institution of the lis would continue to be operative unless it has been taken away

by legislation. An appeal is a necessary part of the procedure in an action, but only if so provided, and, where a right of appeal exists. It envisages a reconsideration of all matters brought before the Court or Tribunal the decision of which is appealed.

The right of appeal where it exists is a matter of substance and not a procedure. In appeal the entire proceedings are again left open for consideration by the Appellate Authority which has the power to review the entire evidence subject to statutory limitation, if any. However in revision the exercise of power is hedged and limited and it has no power to reappreciate the evidence unless the Statute expressly confers that power. That limitation is implicit in the concept of revision. Co - operative Tribunal is conferred revisional jurisdiction over proceedings from which an appeal lies to it under S.82 of the Act. That supervisory jurisdiction is conferred "for the purpose of satisfying itself as to the legality or propriety of any decision or order passed by inferior Court / authority

6. Moreover, in Ouseph Markose v. State of Kerala

[1983 KLT 1044] this Court considered the power of revision.

A perusal of Ext.P15 will show that the Government ordered to

cancel the licence of the petitioner itself instead of imposing

Rs.500/- as fine. This is an order passed in a revision filed by

the petitioner. I can understand if the Government exercise

suo moto powers under Clause 18 and pass this order. If such

a proceedings initiated, a separate notice is necessary to the

petitioner for invoking the suo moto powers. No such notice is

issued to the petitioner. In such circumstances, according to

me, Ext.P15 will not stand. The petitioner has got a definite

case that there is no physical verification of the tanker lorry

before imposing the fine. As per the Civil Supplies Manual, the

physical verification is necessary. The counsel also relied the

judgment of the Division Bench of this Court in N.Sarojini v.

District Collector, Thiruvananthapuram [AIR 1999 (Ker)

119]. The relevant portion of the judgment is extracted

hereunder :

5. "The specific case set up by the Department is that at the time of inspection, there was a shortage of 241.89 quintals of Fine Boiled Rice . in the stock held by the appellant petitioner. However, we are of the opinion that the said shortage has not been fully established following the existing instructions laid down in the Civil Supplies Manual. Even in Ext. P2 order passed by the District Collector, it is admitted that "both in terms of weighment and preparation of mahazar, the Controller of Rationing had not complied with the existing instructions laid down in the Civil Supplies Manual". The mahazar has been prepared based on average weight and it is on that basis the shortage has been round to the tune of 241.89 quintals of fine Boiled Rice in the Stock. Admittedly the Controller of Rationing has not caused a proper inspection of the depot by verifying the stock kept in the depot and has not ascertained the stock

by physical measurement. In this connection, it has to be noted that on suspension of licence the stock was transferred to another wholesale dealer who reported that there is an excess of 237 quintals of the stock transferred to him instead of shortages as noticed at the time of inspection. If that is the position, the allegation that there is deficiency of 241 quintals of rice cannot be taken as correct and the shortage can only be of 4.89 quintals. According to the appellant petitioner, there is no deficiency of stock even to the extent of the aforesaid 4.89 quintals. Admittedly, the Controller has not physically weighed the entire stock in which case, we are of the view that the appellant petitioner cannot be made responsible for the irregularities noted against him. The District Collector having noted the aforesaid irregularities in verification of stock was not correct in issuing Ext. P2 on the ground that at the time of inspection, the dealer has not registered her protest. The fact that the appellant petitioner has not registered her protest is not sufficient to enter an adverse finding, resulting in civil consequence to the dealer. The Department in such a case should support its case by valid materials gathered at the time of inspection and is not expected to take any mileage out of the so called non registering of any protest by the appellant petitioner which is of no consequence in the face of the failure on the part of the Controller of Rationing to comply with the existing instructions laid down in the civil supplies Manual in the matter of weighment and preparation of mahazar. When the Manual prescribes a particular method, that method has to be scrupulously followed in pain of invalidation of the order for breach thereof. He who takes the procedural sword shall perish with it is a hackneyed principle universally recognised. It is

settled that a decision which is illegal, irrational and unfair cannot be legally sustained. Viewed in the above backdrop the decision of the District Collector evidenced by Ext. P2 in O.P. No. 6194 of 1998 as also Exts. P6 and P7 in O.P. 10181 of 1998 cannot be legally sustained. Accordingly, we are of the view that the entire matter requires a fresh look at the hands of the District Collector, Trivandrum. We, therefore, set aside the judgment of the learned single Judge and Ext. P2 in O.P. No. 6194 of 1998 as also Exts. P6 and P7 in O.P.No. 10181 of 1998 and as a sequel there will be a direction to the District Collector, Trivandrum to pass fresh orders after affording an opportunity of being heard to the appellant petitioner either in person or through counsel within four weeks from today in conformity with the observations contained in this judgment".

7. A perusal of Ext.P9 will show that there is no

physical verification. In such circumstances, a reconsideration

by the 5th respondent is necessary in the facts and

circumstances of this case.

Therefore, this writ petition is allowed in the following

manner :

1) Ext.P15 is set aside.

2) The 5th respondent is directed to reconsider the matter in

the light of the observation in this judgment as

expeditiously as possible, at any rate, within four months

from the date of receipt of a copy of this judgment.

3) Before passing final orders, an opportunity of hearing

should be given to the petitioner.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 11532/2012

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 03.11.2004 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE REPLY DATED 01.12.2004 SUBMITTED BEFORE THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.01.2005 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE APPEAL DATED 10.06.2005 SUBMITTED BEFORE THE 2ND RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE ORDER REJECTING THE APPEAL DATED 17.11.2005 BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE APPEAL DATED 31.01.2006 SUBMITTED BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER REJECTING THE APPEAL DATED 29.08.2006 PASSED BY THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 01.11.2006 FILED BEFORE THE MINISTER.

EXHIBIT P9 TRUE COPY OF THE ORDER REJECTING THE REVISION DATED 21.12.2009.

EXHIBIT P10 TRUE COPY OF THE MEMORANDUM OF REVISION PREFERRED UNDER CLAUSE 18 OF KEROSENE CONTROL ORDER.

EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF THE STOCK REGISTER SIGNED BY THE INSPECTION OFFICER.

EXHIBIT P12 TRUE COPY OF THE AFFIDAVIT OF THE HEAD

LOAD WORKERS.

EXHIBIT P13 TRUE COPY OF THE A SHOW CAUSE NOTICE DATED 01.04.2011 ISSUED BY THE 5TH RESPONDENT.

EXHIBIT P14 TRUE COPY OF THE EXPLANATION FILED AGAINST THE SHOW CAUSE NOTICE DATED 25.05.2011.

EXHIBIT P15 TRUE COPY OF THE ORDER DATED 10.05.2012 ISSUED BY THE 5TH RESPONDENT.