Kerala High Court
Beena.S vs State Of Kerala on 2 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
WP(C) NO. 41950 OF 2018
PETITIONER/S:
BEENA.S
AGED 50 YEARS
W/O. LATE MOHANAN, POOKKATTETH VEEDU,
PULLIKKANAKKU P.O, THEKKEMANKUZHI, BHARANICKAVU,
MAVELIKKARA, ALAPPUZHA.
BY ADVS.
M.V.THAMBAN
R.REJI
DEEPA SREENIVASAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD AND
CIVIL SUPPLIES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001.
2 THE COMMISSIOENR OF CIVIL SUPPLIES,
THIRUVANANTHAPURAM, PIN 695 001.
3 THE DISTRICT COLLECTOR,
ALAPPUZHA DISTRICT, PIN 688 001.
4 THE DISTRICT SUPPLY OFFICER,
ALAPPUZHA DISTRICT, PIN 685 603.
5 THE TALUK SUPPLY OFFICER,
MAVELIKARA, ALAPPUZHA DISTRICT, PIN 690 101
6 DEEPA A,
NALLAVEETIL, THARAYIL VEEDU, KATTACHIRA,
PALLIKKAL P.O, KAYAMKULAM, ALAPPUZHA DISTRICT,
PIN 690 503.
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W.P.(C). No. 41950 of 2018
BY ADVS.
SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER
SRI.C.K.PAVITHRAN
SMT.NEENU PAVITHRAN
OTHER PRESENT:
ADV DEEPA NARAYANAN -SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
-3-
W.P.(C). No. 41950 of 2018
P.V.KUNHIKRISHNAN, J.
=================================================
W.P.(C).No.41950 of 2018
=============================================================
Dated this the 2nd day of February, 2022
JUDGMENT
The petitioner is a widow. On the basis of Ext.P1
notification issued by the 4th respondent, the petitioner was
selected as authorized retail distributor for conducting a ration
shop bearing No.ARD 217 at Kattachira, Ward No.11 coming
within the Bharanikavu Grama Panchayat, Alappuzha District.
One of the conditions in Ext.P1 notification is that, the
application should be accompanied with a solvency certificate
issued within two months prior to the date of submission of the
application. Pursuant to Ext.P1 notification, the petitioner as
well as the 6th respondent submitted application. It is the case
of the petitioner that the 6 th respondent submitted application on
09.04.2001 without enclosing the original solvency certificate.
According to the petitioner, she has only submitted a copy of
W.P.(C). No. 41950 of 2018
the solvency certificate dated 22.07.2006 stating that the
original solvency certificate is with the District Supply Officer.
It is the specific case of the petitioner that paragraph 3 of Ext.P1
notification strictly mandates that the application should be
accompanied with a solvency certificate issued within two
months prior to the date of submission of the application.
However, the solvency certificate, which is allegedly with the
4th and 5th respondents is dated 22.07.2006 and the 6th
respondent submitted application on 09.04.2007. Hence, the
petitioner contended that even if the original certificate was
produced before the 4th respondent, the same could not have
been accepted by the 4th respondent in view of the stipulations
in Ext.P1 notification. Therefore, the application submitted by
the 6th respondent ought to have been dismissed in limine is the
contention of the petitioner. Accepting this, the petitioner was
granted licence to run the ration shop as per Ext.P2 order. The
6th respondent challenges the same by way of appeal and
W.P.(C). No. 41950 of 2018
revision before the 3rd and 2nd respondent respectively. As per
Exts.P3 and P4, the appeal and the revision were dismissed.
Finally she filed a revision before the 1 st respondent and the 1st
respondent as per Ext.P6 allowed the revision and set aside
Exts.P3 and P4 orders. The 6th respondent was appointed as the
permanent licensee of ARD 217. After Ext.P6, the petitioner
filed a review petition before the Government. The
Government as per Ext.P7 order interfered with Ext.P6 order
and restored Exts.P3 and P4. Ext.P7 order was challenged
before this Court by the 6th respondent and this Court set aside
Ext.P7 order in WP(C) No.32070 of 2017, observing that the
Government has no power to review its own order. In such
circumstances, the petitioner challenges Ext.P6 order passed by
the Government in this writ petition.
2. Heard the learned counsel for the petitioner and the
learned Government Pleader. I also heard the learned counsel
W.P.(C). No. 41950 of 2018
for the 6th respondent.
3. The counsel for the petitioner reiterates his
contentions in the writ petition. The counsel takes me through
Ext.P1 notification issued by the authorities, which insists the
production of solvency certificate. The counsel submitted that
admittedly the solvency certificate produced by the 6 th
respondent is a certificate prior to two months from the date of
her application. In such circumstances, it is in total violation of
the clauses in Ext.P1 notification and therefore, the application
submitted by the 6th respondent ought not have been considered
is the contention raised by the petitioner. The counsel relied on
the judgment of this Court in WP(C) Nos.30960 of 2006 and
29746 of 2004 to support his contentions. The counsel also
submitted that as far as the notified area, which is mentioned in
Ext.P6, one additional document is produced by the petitioner
as Ext.P9. The counsel submitted that Ext.P9 will show that the
W.P.(C). No. 41950 of 2018
proposed site is within the notified area.
4. The counsel for the 6th respondent submitted that in
addition to the solvency certificate, the encumbrance certificate
as on 17.03.2007 was also produced by the 6 th respondent. The
counsel for the 6th respondent submitted that since the
encumbrance certificate as on 17.03.2007 was produced along
with the application, there is no violation of the clauses in
Ext.P1 notification. The counsel also submitted that the
proposed site pointed out by the petitioner is beyond the
notified area. The counsel takes me through Exts.R6(e) and
R6(f) produced along with the counter affidavit. The counsel
submitted that since the proposed site pointed out by the
petitioner is beyond the notified area, the application of the
petitioner ought to have been rejected on that reason itself. The
counsel submitted that there is nothing to interfere with Ext.P6.
5. The learned Government Pleader supported Ext.P6.
W.P.(C). No. 41950 of 2018
The Government Pleader submitted that as directed by this
Court, the Taluk Supply Officer inspected the site and filed a
report. In the light of that report the proposed site pointed out
by the petitioner is beyond the notified area. Therefore, the
contention of the petitioner is not sustainable, the Government
Pleader submits.
6. I considered the contentions of the petitioner and the
respondents. Ext.P1 is the notification dated 01.03.2007. It
will be better to extract the relevant portion of Ext.P1
notification, in which the production of solvency certificate is
insisted.
"അപേക്ഷയോടൊപ്പം താഴെ പറയുന്ന റിക്കാർഡുകൾ
ഹാജരാക്കേണ്ടതാണ്. (എ) റേഷൻഷോപ്പ് നടത്തുന്നതിന്
അപേക്ഷകനു സ്വന്തം ക്രയവിക്രയ അധികാരമുള്ളതും
കടബാധ്യതയില്ലാത്തതുമായ മുപ്പതിനായിരം രൂപയിൽ
കുറയാത്ത ആസ്തി ഉണ്ടായിരിക്കേണ്ടതുമാണ്. അത്
തെളിയിക്കുന്നതിന് അതാതു തഹസിൽദാറിൽ നിന്നും
അപേക്ഷ തീയതിക്ക് മുൻപ് രണ്ടു മാസത്തിനുള്ളിൽ
കിട്ടിയിട്ടുള്ള സോൾവെൻസി സർട്ടിഫിക്കറ്റിന്റെ അസ്സൽ
കോപ്പി ഹാജരാക്കണം. എന്നാൽ അത്രയും ആസ്തി
W.P.(C). No. 41950 of 2018
അപേക്ഷകനില്ലാത്ത പക്ഷം ബാക്കിയുള്ള തുകയോ മുഴുവൻ
തുകയോ മറ്റൊരാൾ ഗവണ്മെന്റ് ഗ്യാരന്റി നൽകേണ്ടതാണ്.
അങ്ങനെ ഗ്യാരന്റി നൽകുന്നതിന് ആവശ്യമായ തുകക്ക്
ബന്ധപ്പെട്ട കക്ഷി ആസ്തി ഉള്ളനവനാണെന്നു അപേക്ഷ
തീയതിക്ക് മുൻപ് ഒരു മാസത്തിനുള്ളിൽ ലഭിച്ച
തഹസിൽദാരുടെ സോൾവെൻസി സർട്ടിഫിക്കറ്റ് അസ്സൽ
കോപ്പിയും അപേക്ഷകനുവേണ്ടി ജാമ്യം നിൽക്കുന്നെന്നും
മറ്റുള്ളതിനു അമ്പതു രൂപ സ്റ്റാമ്പ് പേപ്പറിൽ എഴുതി ഒപ്പിട്ട
ബോണ്ടും ഹാജരാക്കേണ്ടതാണ്. നിയമനം ലഭിച്ചാൽ
ആവശ്യപ്പെടുന്ന തിയതിക്കും സമയത്തിനും മുൻപ് ടി
ബോണ്ടും രജിസ്റ്റർ ചെയ്തുകൊടുക്കേണ്ടതാണ്."
7. According to the counsel for the petitioner, the
solvency certificate produced by the 6th respondent is dated
22.07.2006 and the 6th respondent submitted the application
based on Ext.P1 notification on 09.04.2007. Therefore, there is
violation of the clauses in Ext.P1 notification.
8. The counsel for the petitioner relied on two
judgments of this Court to support his contentions; judgment
dated 29.06.2015 in WP(C) No.29746 of 2004 and the
judgment dated 24.09.2007 in 30960 of 2006. On the other
hand, the counsel for the 6th respondent relied on the judgment
W.P.(C). No. 41950 of 2018
of this Court in Varkey v. State of Kerala (1984 KLT 567), in
which it is stated that the application not accompanied by
solvency certificate should not be a sole reason to reject the
application summarily. According to the counsel for the
petitioner, the judgment of this Court in Varkey's case (supra)
was considered by this Court in the subsequent judgment in
WP(C) No.30960 of 2006 and distinguished the same.
Therefore, the same is not applicable. It will be better to extract
the relevant portion of the judgment dated 24.07.2007 in WP(C)
No.30960 of 2006 here:
"7. I have considered the contentions of both sides.
It is the admitted position that Ext.P8 advertisement
inviting applications required production of solvency
certificate and it also provided that failure to
produce solvency certificate would result in
rejection of the application. The application form
(Exts.P9 and P11), though not statutory, also
required the applicants to produce solvency
W.P.(C). No. 41950 of 2018
certificate obtained from the Tahsildar, vide clause 6
thereof. In spite of these mandatory prescriptions, it
is the admitted fact that before 25.6.2003, the last
date for submission of the application, the 4 th
respondent had not produced the solvency
certificate.
8. Even on the first date of personal hearing fixed on
5.3.2004 she did not make it available. Even
according to the 4th respondent only on 16.6.2004
she made available the solvency certificate. It is the
petitioner's specific contention that when the
application forms received in response to Ext.P8
were opened on 25.6.2003 the 4th respondent was
also present. The documents that were produced by
all the applicants have been recorded in Ext.P10
Mahazar prepared on that occasion. He would also
content that the 4th respondent was fully aware of the
solvency certificate offered by the petitioner and
therefore she had that advantage when she offered
her solvency certificate on 16.6.2004. On this basis
it is submitted that prejudice has been caused to the
petitioner.
W.P.(C). No. 41950 of 2018
9. Thus it is a case where the mandatory conditions
of the notification have not been complied with by
the 4th respondent. If that be so, the second
respondent was justified in treating the 4th
respondent ineligible for granting licence as AWD.
The Appellate order also has to be upheld for the
same reason. In so far as Ext.P7 order in revision is
concerned, except that the highest amount was
offered by the 4th respondent, there is no another
reason stated in Ext.P7. Since solvency was not
produced as provided in Ext.P8 advertisement, what
she produced subsequently could not have been
accepted. For that reason alone Ext.P7 cannot be
sustained.
10. Coming to the Division Bench judgment
reported in 1984 KLT 567, from Para 3 of the
judgment it is noticed that the application in that
case did not require the applicant to produce
solvency certificate unlike in Exts.P9. It is also the
found in that case that by the subsequent production
of the solvency certificate no prejudice was caused.
In this case it is the specific contention of the
W.P.(C). No. 41950 of 2018
petitioner that at the time when the 4 th respondent
produced solvency certificate she knew the amount
offered by the petitioner. Therefore, at the time when
she offered solvency certificate she certainly had
that advantage. If that be so, prejudice been caused.
11. For these two reasons I find that the Division
Bench judgment relied on by the counsel do not
apply to the facts of the case."
9. The relevant portion in WP(C) No.29746 of 2004 is
extracted hereunder:
"4. The petitioner's specific submission is with
respect to the lack of time for production of
Solvency Certificate. Though the petitioner asserts
that Ext.P1 notification was issued only on
16.8.2004, there is nothing to substantiate the said
contention. Further, going by Ext.P13 order, it is
evident that the petitioner himself had sought for
seven days' time to produce the Solvency
Certificate. The petitioner was unable to produce
the Solvency Certificate within the further time
W.P.(C). No. 41950 of 2018
granted by the District Supply Officer. Even going
by the decision relied on by the petitioner, the
requirement is only for a Solvency Certificate to be
produced before the Collector, herein the District
Supply Officer, at any time prior to the decision
being taken on the notification. The petitioner
herein has no contention that he had, at any time
prior to 8.10.2004, the date on which the decision
was taken by the District Supply Officer, had
obtained a Solvency Certificate. Though, the
Solvency Certificate is said to be not an essential
requirement, it is clear that if the petitioner has
asserted his solvency in the application form, then
necessarily something has to be produced before the
authority to substantiate such assertion. The
Solvency Certificate having not been produced, the
petitioner does not contend that any other material
was produced before the District Supply Officer.
Herein, there is considerable departure from the
stipulations noticed in Varkey's case (supra) insofar
as Ext.P1 notification itself stipulating the proof of
solvency."
W.P.(C). No. 41950 of 2018
10. The relevant portion of the judgment in Varkey's
case (Supra) is extracted hereunder:
"3. The question before us is whether we should, in
exercise of the power under Art. 226 of the
Constitution interfere with the decision of the
Government. We have not been shown any
provisions in the relevant Rules which requires that
an application should be accompanied by solvency
certificate or certificate of consent from the owner
of the building. Even in the application form,
which is not a statutory form, but only a form
prescribed by the executive authority, there is no
mention that the solvency certificate or the consent
certificate is to accompany the application. The
only requirement in term of the application form
itself is that if the answer to the question whether
the applicant was solvent was in the affirmative,
the certificate in proof of the extent of the solvency
was to be produced. It would serve the same
purpose even if the certificate is produced any time
before the Collector takes up the matter for
W.P.(C). No. 41950 of 2018
decision. There is not only no non-compliance with
the requirements of the relevant provisions, but
also no prejudice caused to any of the parties by
the fact that the application was not accompanied
by the certificates, but were made available before
the Collector took up the matter for consideration."
11. The point to be decided is whether the solvency
certificate as stated in Ext.P1 is submitted by the 6 th respondent,
in the light of the dictum laid down by this Court.
12. I perused Ext.P6 order. This is not properly
considered by the Government. According to me, this is a
matter to be reconsidered by the Government.
13. The next point raised by the 6 th respondent is that the
proposed site pointed out by the petitioner is situated beyond
the notified area as per Ext.P1 notification. The counsel relied
on Exts.R6(e) and (f). On the other hand, the counsel for the
petitioner relied on Ext.P9. Ext.P9 is disputed by the 6 th
W.P.(C). No. 41950 of 2018
respondent and the petitioner disputes Exts.R6(e) and (f).
14. When this matter came up for consideration on
25.11.2021, this Court directed the 5th respondent to inspect the
premises pointed out by the petitioner in the application based
on Ext.P1 notification and find out whether that place is situated
in the notified place in Ext.P1. Based on the same, a report
dated 04.12.2021 is filed by the Taluk Supply Officer. The
same is extracted hereunder:
"Report Submitted before the Hon'ble High Court of
Kerala in compliance to Order dated 25.11.2021 in
WP(C)41950/2018
Sir,
I, Mayadevi.k, Taluk Supply Officer, Mavelikkara
humbly report the following facts in this case.
I, Mayadevi.k, being the Taluk Supply Officer,
Mavelikkara inspected the place on 03.12.2021. Smt.
Beena, in application submitted by her based on
W.P.(C). No. 41950 of 2018
exhibit P1 proposed building No.XI/58 (Old ward 6)
for running A.R.D 217, supported with the owner
ship certificate A2-2/07 dtd 04-05-07 of Secretary,
Bharanikavu gramapanchayath. The Owner Ship
certificate of the Proposed building No. is shown as
XI/58 (VI/379 old). Hence the Proposed building was
situated in old ward 6 of Bharanikavu Grama
Panchayath, where the notified place at old ward 7,
Chakkaleth Junction, Kattachira. Hence it is reported
that the proposed place was beyond the notified
place. And it is also humbly submitted before the
Hon'ble High Court Of Kerala that the distance
between the notified place and proposed place is
990m(about 1km)."
15. Therefore, there is Exts.P9, R6(e), R6(f) and the
report submitted by the Taluk Supply Officer. The petitioner
disputes the documents produced by the 6th respondent and the
6th respondent disputes the documents produced by the
petitioner. In such circumstances, according to me, this is also a
matter to be reconsidered by the Government afresh, after going
W.P.(C). No. 41950 of 2018
through these documents. Therefore, according to me, Ext.P6
can be set aside and the Government can be directed to
reconsider the matter afresh after giving an opportunity of
hearing to the petitioner and the 6th respondent. The petitioner
and the 6th respondent are free to produce all the documents
produced in this writ petition and also additional documents, if
any, to substantiate their case.
Therefore, this writ petition is disposed of in the following
manner:
1. Ext.P6 order is set aside.
2. The 1st respondent is directed to reconsider the
matter afresh, after giving an opportunity of hearing
to the petitioner and the 6th respondent. Hearing can
be either virtually or physically.
3. The petitioner and the 6th respondent are free to
produce additional documents, if any, to substantiate
their contentions.
W.P.(C). No. 41950 of 2018
4. The 1st respondent will pass appropriate orders as
directed above, as expeditiously as possible, at any
rate, within four months from the date of receipt of a
copy of this judgment.
5. The petitioner will produce a copy of this writ
petition along with the documents produced in this
writ petition with a certified copy of this judgment
before the 1st respondent for compliance.
6. Regarding the functioning of ARD 217, Status-quo
as on today will continue, till the final decision is
taken by the Government.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
W.P.(C). No. 41950 of 2018
APPENDIX OF WP(C) 41950/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO. CS5-
4660/06 DT. 01-03-2007 OF THE 4TH
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER DT. 18-06-2007
OF THE 4TH RESPONDENT APPOINTING THE
PETITIONER AS THE LICENSEE OF ARD 217
EXHIBIT P3 TRUE COPY OF THE ORDER DT 28-11-2007
OF THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE ORDER DT 04-09-2008
OF THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REVISION PETITION DT.
17-11-2015 FILED BY THE 6TH RESPONDENT
BEFORE THE 1ST RESPONDENT
EXHIBIT P6 TRUE COPY OF THE G.O(RT) NO
54/2017/F&CSD DT 25-02-2017
EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER
DATED 18-09-2017 BEARING NO. GO(RT)
321/2017/F & CSD.
EXHIBIT P8 TRUE COPY OF THE EXTRACT OF THE
MEMORANDUM OF WRIT PETITION NO.
32070/2017 OF THIS HON'BLE COURT.
Exhibit P9 TRUE COPY OF THE CERTIFICATE NO.A2-
7492/21 DT.13/12/2021 ISSUED BY THE
SECRETARY, BHARANIKAVU GRAMA PANCHAYAT
RESPONDENT EXHIBITS
EXHIBIT R6(A) TRUE COPY OF THE JUDGMENT DATED 06-12-
18 IN W.P(C)32070/2017
EXHIBIT R6(B) TRUE COPY OF THE JUDGMENT DATED 25-06-
14 IN W.P(C)3822/09
EXHIBIT R6(C)
TRUE COPY OF THE REVISION PETITION
W.P.(C). No. 41950 of 2018
EXHIBIT R6(D) TRUE COPY OF THE REPORT DATED 23-08-
2017 ISSUED BY THE TALUK SUPPLY
OFFICER AND ADDRESSED TO THE 4TH
RESPONDENT
