Kerala High Court
Mariyappan S.(Mari) vs The State Of Kerala on 16 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
WP(C) NO. 25388 OF 2022
PETITIONER/S:
MARIYAPPAN S.(MARI),
AGED 52 YEARS
F.P.S NO:103, DHONIGUND, AGALI PANCHAYAT, MANNARKKAD
TALUK, PALAKKAD DISTRICT, PIN - 678581.
BY ADVS.
M.V.BOSE
VINOD MADHAVAN
P.M.MAZNA MANSOOR
DIVYA T.P.
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY SECRETARY, FOOD & CIVIL SUPPLIES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE COMMISSIONER & DIRECTOR OF CIVIL SUPPLIES,
OFFICE OF THE CIVIL SUPPLIES COMMISSIONER, PUBLIC
OFFICE BUILDING, NEAR MUSEUM, VIKAS BHAVAN P.O,
THIRUVANANTHAPURAM - 695 033.
3 THE DISTRICT SUPPLY OFFICER,
OFFICE OF THE DISTRICT SUPPLY OFFICER, CIVIL STATION
BUILDING, COLLECTORATE P.O., PALAKKAD - 678 001.
4 THE TALUK SUPPLY OFFICER,
OFFICE OF THE TALUK SUPPLY OFFICER, MANNARKKAD,
PALAKKAD DISTRICT, PIN - 678 582.
5 THE RATIONING INSPECTOR,
OFFICE OF THE RATIONING INSPECTOR, AGALI, PALAKKAD
DISTRICT, PIN - 678581.
OTHER PRESENT:
SRI.RIYAL DEVASSY-GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.01.2023, THE COURT ON 16.05.2023, ALONG WITH
WP(C).25396/2022, 25395/2022 DELIVERED THE FOLLOWING:
W.P.(C) No.25388, 25396 and 25395 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
WP(C) NO. 25396 OF 2022
PETITIONER/S:
NANJAN M.
AGED 32 YEARS
F.P.S.NO.141, OMMALA, AGALI PANCHAYAT, MANNARKKAD
TALUK, PALAKKAD DISTRICT, PIN - 678 582.
BY ADVS.
VINOD MADHAVAN
M.V.BOSE
P.M.MAZNA MANSOOR
DIVYA T.P.
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY, FOOD & CIVIL SUPPLIES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THECOMMISSIONER & DIRECTOR OF CIVIL SUPPLIES
OFFICE OF THE CIVIL SUPPLIES COMMISSIONER, PUBLIC
OFFICE BUILDING, NEAR MUSEUM, VIKAS BHAVAN P.O.,
THIRUANANTHAPURAM - 695 033.
3 THE DISTRICT SUPPLY OFFICER
OFFICE OF THE DISTRICT SUPPLY OFFICER, CIVIL STATION
BUILDING, COLLECTORATE P.O., PALAKKAD - 678 001.
4 THE TALUK SUPPLY OFFICER
OFFICE OF THE TALUK SUPPLY OFFICER, MANNARKKAD,
PALAKKAD DISTRICT, PIN - 678 582.
5 THE RATIONING INSPECTOR
OFFICE OF THE RATIONING INSPECTOR, AGALI, PALAKKAD
DISTRICT, PIN - 678 581.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.01.2023, THE COURT ON 16.05.2023, ALONG WITH
WP(C).25388/2022, 25395/2022 DELIVERED THE FOLLOWING:
W.P.(C) No.25388, 25396 and 25395 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 16TH DAY OF MAY 2023 / 26TH VAISAKHA, 1945
WP(C) NO. 25395 OF 2022
PETITIONER/S:
SELVI P.R.,
AGED 37 YEARS
F.P.S NO:157, CHALAYAR, PUDUR, MANNARKKAD TAUK,
PALAKKAD DISTRICT, PIN - 678581.
BY ADVS.
VINOD MADHAVAN
M.V.BOSE
P.M.MAZNA MANSOOR
DIVYA T.P.
RESPONDENT/S:
1 THE STATE OF KERALA,
REPRESENTED BY SECRETARY, FOOD & CIVIL SUPPLIES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE COMMISSIONER & DIRECTOR OF CIVIL SUPPLIES,
OFFICE OF THE CIVIL SUPPLIES COMMISSIONER,
PUBLIC OFFICE BUILDING, NEAR MUSEUM, VIKAS
BHAVAN P.O,THIRUVANANTHAPURAM - 695 033.
3 THE DISTRICT SUPPLY OFFICER,
OFFICE OF THE DISTRICT SUPPLY OFFICER, CIVIL
STATION BUILDING, COLLECTORATE P.O., PALAKKAD -
678 001.
4 THE TALUK SUPPLY OFFICER,
OFFICE OF THE TALUK SUPPLY OFFICER, MANNARKKAD,
PALAKKAD DISTRICT, PIN - 678 582.
W.P.(C) No.25388, 25396 and 25395 of 2022
-4-
5 THE RATIONING INSPECTOR,
OFFICE OF THE RATIONING INSPECTOR, AGALI,
PALAKKAD DISTRICT, PIN - 678581.
BY ADV GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.01.2023, THE COURT ON 16.05.2023, ALONG WITH
WP(C).25396/2022, 25388/2022 DELIVERED THE FOLLOWING:
W.P.(C) No.25388, 25396 and 25395 of 2022
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JUDGMENT
Dated this the 16th day of May, 2023
The petitioners, who belong to the Scheduled
Tribe, were appointed as Authorised Retail
Distributors (ARDs) in Agali and Pudur Grama
Panchayats and were allotted ARD Nos.103, 157 and
141 respectively. Later, the Kerala Rationing
Order, 1996, under which the petitioners were
appointed as ARDs, was replaced with the Kerala
Targeted Public Distribution System (Control)
Order, 2021 ('KTPDS' for short). While so,
complaints were received to the effect that the
Fair Price Shops allotted to the petitioners were
being conducted by the salesmen of the shops
under benami arrangements. One such complaint,
made by the Secretary of Adhivasi Kshema Samithi
was received by the Kerala Legislative Assembly
Committee for the Welfare of Scheduled Castes and
W.P.(C) No.25388, 25396 and 25395 of 2022
Scheduled Tribes. On receipt of the complaint,
the Secretary, Kerala Legislative Assembly called
for a report from the Additional Chief Secretary
to Government and the Commissioner of Civil
Supplies/second respondent. Thereupon, the second
respondent directed the Deputy Controller of
Rationing, North Zone to conduct a detailed
enquiry into the allegations. Accordingly, the
Deputy Controller inspected the Fair Price Shops
of the petitioners and submitted a report stating
that there is substance in the allegations.
Immediately, the second respondent directed to
suspend the licence of the petitioners and other
Fair Price Shops conducted through third persons.
In compliance of that order, the District Supply
Officer suspended the licences of the
petitioners. This was followed by an order of
the Taluk Supply Officer directing the Rationing
Inspector concerned to implement the order of
W.P.(C) No.25388, 25396 and 25395 of 2022
suspension. Accordingly, the Taluk Supply Officer
visited the shops of the petitioners and prepared
mahazar of the ration articles in the shop for
the purpose of handing over the articles to the
nearby ARD. The writ petition is filed
challenging the order passed by the second
respondent and the consequential orders passed as
well as action taken by respondents 3 to 5.
2. Learned Counsel for the petitioners
contended that the entire proceedings having been
conducted without affording the petitioners an
opportunity to offer their explanation, is
violative of the principles of the natural
justice and fair play. It is submitted that the
petitioners and their predecessors have been
conducted the fair price shop for the past many
years without any complaint whatsoever. The
complaint based on which the inspection was
conducted and the impugned action passed, is ill-
W.P.(C) No.25388, 25396 and 25395 of 2022
motivated and actuated by mala fides. It is
submitted that, despite issuing the order of
suspension and preparing the mahazar, the stock
is still remaining the petitioners' ARDs as it
was not taken over by nearby ARD. The
petitioners' names are not changed in the E-pos
machine also. Hence, the petitioners are still
conducting the fair price shops. It is
assertively submitted that, given an opportunity,
the petitioners will be able to disprove the
allegations, based on documents evidencing
conduct of the Fair Price Shops by the
petitioners themselves.
3. Learned Government Pleader contended
that the petitioners were selected for
appointment as ARDs for the reason that they
belong to the Scheduled Tribe. The intention
behind appointment being the upliftment of tribal
youth. That purpose itself got defeated by the
W.P.(C) No.25388, 25396 and 25395 of 2022
action of the petitioners in letting out their
shops to third parties on benami arrangement. It
is submitted that the petitioners had given
statements to the Deputy Controller accepting
that the shops are conducted by the salesmen and
the petitioners are paid only a commission. The
conduct of shops on benami arrangement being
contrary to the provisions of the KTPDS order and
licence conditions, the authorities have every
right to suspend or cancel the licence. The
contention as to violation of the principles of
natural justice is sought to be countered on by
arguing that no such opportunity is envisaged
before suspension of licence. The maintainability
of the writ petition is challenged on the premise
that the petitioners have an efficacious remedy
of appeal against the order of suspension.
4. In reply, learned Counsel for the
petitioners submitted that the statement relied
W.P.(C) No.25388, 25396 and 25395 of 2022
on by the Government Pleader was obtained through
deception. The petitioners were made to sign
those statements without reading the contents. It
is argued that no purpose will be served by
filing an appeal, since the order of suspension
was issued on the direction of the second
respondent.
5. Going by the Scheme and the provisions
of the KTPDS order, there can be no doubt that
the licencee himself should conduct the shop. He
can appoint a salesman to assist him, but cannot
entrust the conduct of the shop to the salesman
completely. The Deputy Controller having found
prima facie substance in the allegation that the
petitioners' shops were being conducted by the
salesman based on benami arrangements, the second
respondent was justified in directing to suspend
the licences granted to the petitioners. The
power to issue such direction is derived from
W.P.(C) No.25388, 25396 and 25395 of 2022
Clauses 40 and 49 of the KTPDS order.
6. As per the first proviso to Clause
49(1), an opportunity for stating his case and
opportunity of being heard in person need not be
provided to the licencee before suspending the
licence. As regards the challenge as to
maintainability in view of the alternative remedy
of appeal being available, there is merit in the
contention that the appellate remedy is rendered
nugatory, since although Clause 62 provides for
appeal against any original order passed under
the KTPDS order, the orders directing to suspend
the licences were issued by the appellate
authority, namely the Commissioner of Civil
Supplies. Even then, the factual question as to
whether the fair price shops are being conducted
by the petitioners or their benamis cannot be
decided in a proceedings under Article 226.
Hence, I deem it appropriate to direct the first
W.P.(C) No.25388, 25396 and 25395 of 2022
respondent to resolve the dispute, after
affording an opportunity of hearing to the
petitioners and the officials concerned.
In the result, the writ petitions are
disposed of, permitting the petitioners to prefer
detailed representations before the first
respondent, challenging the order of suspension
and the consequential action. If such
representation is filed within one month of
receipt of a copy of this judgment, the first
respondent shall take an appropriate decision
thereon within a further period of three months.
Before taking the decision, opportunity of
hearing shall be afforded to the petitioners or
their authorised representatives and the
officials concerned. In order to effectuate
proper consideration of the representations, the
petitioners shall produce copies of their writ
petitions and counter affidavit, if any, along
W.P.(C) No.25388, 25396 and 25395 of 2022
with certified copy of the judgment. Till orders
are passed, in the manner directed above, status
quo with respect to the conduct of the shops,
prevailing as on the date of issuance of the
interim order, shall be maintained.
Sd/-
V.G.ARUN
JUDGE
Scl/
W.P.(C) No.25388, 25396 and 25395 of 2022
APPENDIX OF WP(C) 25396/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER NO.CS 3-
1435/2008 DATED 03/06/2011 ISSUED BY
THE D.S.O.PALAKKAD APPOINTING THE WRIT
PETITIONER AS LICENSEE OF
A.R.D.NO.141.
Exhibit P2 TRUE COPY OF THE ORDER
NO.CCS/1687/2022-A7, DATED 21/07/2022
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT.
Exhibit P3 TRUE COPY OF THE ORDER
NO.DSOPKD/379/2022-CS4, DATED
01/08/2022 ISSUED BY THE 3RD
RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER NO.TSO MKD
157/2022-B DATED 03/08/2022 ISSUED BY
THE 4TH RESPONDENT.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
23/02/2022 RENDERED BY THE HON'BLE
HIGH COURT OF KERALA IN WP(C)
NO.30868/2015.
RESPONDENT EXHIBITS
ExhibitR2(a) A copy of the testimony dated
26.04.2022 given by the petitioner to
the Enquiry Officer.
Exhibit R2(b) Order No. CCs/1687/2022-A7 dated
30.07.2022 issued by the 2nd
respondent.
PETITIONER EXHIBITS
ExhibitP6 True copy of the salesman register
maintained in the ARD No.141 in
mannarkkad taluk
ExhibitP7 True copy of the statement of the
account maintained by the writ
petitioner with the mannarkkad branch
of the State Bank of India for the
period between 01/12/2021 to16/11/2022
W.P.(C) No.25388, 25396 and 25395 of 2022
APPENDIX OF WP(C) 25395/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER
NO.CS.32696/2013 DATED 14/03/2016
ISSUED BY THE D.S.O., PALAKKAD
APPOINTING THE WRIT PETITIONER AS
LICENSEE OF A.R.D.NO:157.
Exhibit P2 TRUE COPY OF THE ORDER
NO.CCS/1687/2022-A7, DATED 21/07/2022
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT.
Exhibit P3 TRUE COPY OF THE ORDER NO.
DSOPKD/380/2022-CS4, DATED 01/08/2022
ISSUED BY THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER NO.TSO MKD
159/2022-B, DATED 03/08/2022 ISSUED BY
THE 4TH RESPONDENT.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
23/02/2022 RENDERED BY THE HON'BLE
HIGH COURT OF KERALA IN W.P.
(C).NO.30868/2015.
Exhibit P6 TRUE COPY OF THE CERTAIN BILLS
PERTAINING OF THE SALE DONE ON
05/08/2022 IN ARD NO. 103 IN PUDU
PANCHAYATH IN MANNARKKAD TALUK IN
PALAKKAD DISTRICT.
RESPONDENT ANNEXURES
ANNEXURE R4(a) TRUE COPY OF THE REPORT AND MAHASSAR
DATED 04.08.2022.
ANNEXURE R4(b) TRUE COPY OF THE REPORT OF RATIONING
INSPECTOR, AGALI DATED 06.08.2022.
ExhibitR2(a) A copy of the testimony given by the
petitioner to the Enquiry Officer
dated 27.04.2022.
ExhibitR2(b) Order No. CCS/1687/2022-A7 dated
30.07.2022 issued by the 2nd
respondent.
PETITIONER EXHIBITS
ExhibitP7 True copy of the salesman register
maintained in the ARD No.157 in
W.P.(C) No.25388, 25396 and 25395 of 2022
mannarkkad taluk
Exhibit P8 True copy of the statement of the
account maintained by the writ
petitioner with the mannarkkad branch
of the State Bank of India for the
period betwen 01/01/2021to31/12/2021
Exhibit P9 True copy of the order no. G.O.
(P).No.26/2022/ FCS D dated 01/02/2022
issued by the Food and Civil Supplies
(B) Department
W.P.(C) No.25388, 25396 and 25395 of 2022
APPENDIX OF WP(C) 25388/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER
NO.CS.34648/2012 DATED 16/10/2012
ISSUED BY THE D.S.O., PALAKKAD
APPOINTING THE WRIT PETITIONER AS
LICENSEE OF A.R.D.NO:103.
Exhibit P2 TRUE COPY OF THE ORDER
NO.CCS/1687/2022-A7, DATED 21/07/2022
ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT.
Exhibit P3 TRUE COPY OF THE ORDER NO.
DSOPKD/348/2022-CS4, DATED NIL ISSUED
BY THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE ORDER NO.TSO MKD
160/2022-B, DATED 03 /08/2022 ISSUED
BY THE 4TH RESPONDENT.
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED
23/02/2022 RENDERED BY THE HON'BLE
HIGH COURT OF KERALA IN W.P.
(C).NO.30868/2015.
Exhibit P6 TRUE COPY OF THE CERTAIN BILLS
PERTAINING OF THE SALE DONE ON 05-08-
2022 IN ARD NO. 103 IN AGALI PANCHAYAT
IN MANNARKKAD TALUK IN PALAKKAD
DISTRICT.
Exhibit P7 TRUE COPY OF THE PROCEEDINGS NO.
C.S.3.3435/2001, DATED 13-06-2001, OF
THE DSO, PALAKKAD.
Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO.
C.S.3.4648/2012, DATED 16-10-2012, OF
THE DSO, PALAKKAD.
RESPONDENT ANNEXURES
ANNEXURE R4(a) TRUE COPY OF THE REPORT AND MAHASSAR
DATED 04.08.2022.
ANNEXURE R4(b) TRUE COPY OF THE REPORT DATED
06.08.2022.
ExhibitR2(a) A copy of the testimony dated
27.04.2022 given by the petitioner to
the Enquiry Officer.
W.P.(C) No.25388, 25396 and 25395 of 2022
Exhibit R2(b) Order No. CCS/1687/2022-A7 dated
30.07.2022 issued by the 2nd
respondent.
PETITIONER EXHIBITS
Exhibit P9 True copy of the salesman register
maintained in the FPS No.103 in
Mannarkkad Taluk
Exhibit P 10 True copy of the statement of account
maintained by the writ petitioner with
the mannarkkad branch of the State
Bank Of India for the period
between26/12/2021to04/07/2022
