LOOKOSE JOSE v. CHANDY SKARIAH — 1975 DIGILAW 121 (KER)

Judgment :- 1. We are satisfied that the learned judge exceeded the limits for interference under Art.226 of the Constitution in interfering with the revisional order passed by the Government and evidenced by Ext. P3. The 1st respondent who was the petitioner who filed the writ petition which was allowed by the learned judge, was an applicant for grant of a licence or authority in respect of a ration shop No. ARD 141, Vaikom Taluk The appellant before us was another applicant for the said licence or authority The choice ultimately resolved itself to one between the appellant and the 1st respondent. The appellant strongly urged that the 1st respondent was disentitled to the grant of licence as he had been guilty of impersonation, had been convicted by a criminal court, and that, on a prior occasion a licence granted to him had been cancelled on account of its irregularities or misconduct These were considered in detail by Ext. P1 order of the District Supply Officer the first authority, who held that none of these grounds had been established or proved. He accordingly chose the first respondent as the fittest person to conduct the ration shop. Ext. P1 is a copy of his order. The appellant filed an appeal before the District Collector. The objections were repeated before him In an order evidenced by Ext. P2, the Collector affirmed the order of the District Supply Officer holding that the allegations of misconduct or criminal conviction made against the 1st respondent had not been proved. The appellant took up the matter further in revision before the Government. The Government observed: "...There are two factors which require serious consideration. Enquires conducted by the District Collector showed that Shri Chandy Skariah who was appointed as the licensee was previously convicted by a court for some criminal offence. He was then known by the name Chacko Skaria and had to undergo imprisonment in that criminal case The District Collector has reported that there was no information at the time of his appointment as licensee that he had undergone imprisonment in a criminal case. It is, therefore not clear whether he would have got the licence, in case the Civil Supplies Authorities had this information at that time, even though the conviction was not under the Essential Commodities Act or the Defence of India Rules. 6. It is, therefore not clear whether he would have got the licence, in case the Civil Supplies Authorities had this information at that time, even though the conviction was not under the Essential Commodities Act or the Defence of India Rules. 6. Secondly, it is seen that the licence issued to Shri Chandy Skaria to run "a ration shop some years back was subsequently cancelled. The reasons for cancellation of the shop have to be ascertained if possible.' In view of the above considerations the Government observed that it was not possible to come to a final decision immediately and directed a remand to the District Supply Officer to make further enquiries and give a fresh decision, This order was challenged by the 1st respondent in O.P. 3544 of 1974, which was allowed by a learned judge of this Courts. The learned judge, interfering with the order, observed that the Government's power, as a revisional authority, was confined to an examination of the records of the case, and that the Government was wrong in having gathered materials or in having conducted an enquiry behind the back of the petitioner by obtaining sports from the Collector and other authorities, and on the basis of the same, in remanding the matter back to the District Supply Officer. 2. We are unable to agree with the view taken by the learned judge in regard to the scope of the revisional power of the Government. The revisional power has been conferred by Clause.45 (II) of the Kerala Rationing Order, 1966, which reads as follows: "45. 2. We are unable to agree with the view taken by the learned judge in regard to the scope of the revisional power of the Government. The revisional power has been conferred by Clause.45 (II) of the Kerala Rationing Order, 1966, which reads as follows: "45. xx (11) The Government or the Commissioner may, either suo mote or on application, call for and examine the records of any order passed by a subordinate authority under the provisions of this clause, for the purpose of satisfying themselves or himself as to the legality or to the propriety of such order, and may (a) confirm, modify or set aside the order; (b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order; (c) remit the case to the authority which made the order or any other authority directing such further action or enquiry as the Government or Commissioner considers proper in the circumstances of the case; or (d) pass such other order as the Government or the Commissioner may deem fit: Provided that no application under this sub-clause shall be entertained after the expiry of 60 days from the date of service of the order against which the application is made; Provided further that no order to the disadvantage of a person shall be passed under this sub-clause unless the person concerned is given an opportunity of making any representation which he may wish to make against such order." The expression "propriety "occurring in the above clause has come in for judicial notice and interpretation (see Raman & Raman Ltd. v. State of Madras and another AIR. 1956 S.C. 463 and State of Kerala v. K M. Cheria Abdulla and Co. AIR. 1965 S. C. 1505). It is also well settled that the revisional jurisdiction conferred on terms similar to, or identical with, Clause.45(11) is wider than the revisional power under S.115 of the C.P.C. That was the view taken recently by a Division Bench of this Court, to which one of us was a party in Writ Appeal No. 342 of 1974. 3. It is also well settled that the revisional jurisdiction conferred on terms similar to, or identical with, Clause.45(11) is wider than the revisional power under S.115 of the C.P.C. That was the view taken recently by a Division Bench of this Court, to which one of us was a party in Writ Appeal No. 342 of 1974. 3. But the point that Was keenly debated before us was whether the revisional authority had perforce to be satisfied about the impropriety of the order on the records before the first authority, or whether it was open to it to feel so satisfied on the strength of the records produced before it at the revisional stage or on the strength of the materials brought to light before it at the revisional stage, in the light of which it felt further enquiry and re-examination was necessary. We feel that this matter has been concluded by the decision of the Supreme Court in favour of the appellant. We refer to the decision of the Supreme Court in Cheria Abdullah case (AIR. 1965 S.C.1505). The Court was there concerned with the scope of the revisional jurisdiction conferred on the Deputy Commissioner of Sales Tax by S.12(2) of the Madras General Sales Tax Act read with R.14A of the Rules framed thereunder. The Section confers revisional power almost in similar if not identical terms as Clause.45(11) of the Rationing Order. With respect to the Section and the Rule it was observed by the Supreme Court. "For exercising this power, he may suo mote or on application call for and examine the record of any proceeding or order. There is no doubt that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. Bur there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has commit led an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. The words of sub-section (2) of S.12 that Dy. Bur there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has commit led an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. The words of sub-section (2) of S.12 that Dy. Commissioner "may pass such order with respect thereto as he thinks fit" mean such order as may in the circumstances of the case for rectifying the defect be regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the. illegality or impropriety of the order or irregularity in the proceeding. It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record. (Paragraph 15) In our view the amplitude of the power conferred by sub-s. (1) and illustrated by sub-s. (2) of S.19 takes in the power to provide for making further enquiry enabling the revising authority to exercise his powers, and unless the power so conferred expressly or by clear implication nullifies or is inconsistent with any provision of the Act, it must be regarded as validly exercised. Conferment of power to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does cot amount to enlarging the jurisdiction conferred by S.12 (2). X" (Para. 17) It was found by the Supreme Court on examination of the provisions of the Act and the Rules that there was no ground for regarding the conferment of power to travel outside the record of the subordinate authorities as unauthorised. It was observed that investment of powers to make such enquiry as the appellate or the revising authority considers necessary, can manifestly be done under the relevant provisions of the Act. Reference made by the Supreme Court to the decision of the Madras High Court in The State of Madras t. Madura Knitting Co. It was observed that investment of powers to make such enquiry as the appellate or the revising authority considers necessary, can manifestly be done under the relevant provisions of the Act. Reference made by the Supreme Court to the decision of the Madras High Court in The State of Madras t. Madura Knitting Co. Ltd. (1959) 10 STC.155 (Mad.), is also significant, as the decision also bears out the contention that the revisional authority is not necessarily confined in exercising the revisional power to the records before the first authority. The Supreme Court further observed: "... The power to hold an enquiry to take additional evidence is a procedural power in aid of the exercise of the revisional jurisdiction and if the revisional jurisdiction is not restricted only to cases of arithmetical errors or as the Tribunal called it "arithmetical aspect", there is no reason to assume that the power under R.14A to make such enquiry as the appellate or the revising authority considers it just to order or to make would be so restricted. x x x x" (Para. 19) 4. In the light of the above ruling of the Supreme Court, we are of the opinion that the Government, in the instant case, was within the limits of its revisional power in directing further enquiry into the question as to whether it can reasonably and properly be said that the 1st respondent had not been convicted by a criminal court or that there had been any order of cancellation of the licence against him. 5. We may also point out that in the counter affidavit filed on behalf of the 3rd respondent State of Kerala, it was stated in Para.5 as follows: "After the receipt of the revision petition from the 4th respondent enquiries were conducted as to the allegations in the revision petition through the Tahsildar, Vaikom. The said enquiry revealed that Shri Chacko Skariah, Kulampallil and Shri Chandy Skariah are one and the same person and that there was a conviction against him in C.C. No. 220 of 1111 of the First Class Magistrate, Kottayam. However, on the basis of the information received as a result of the enquiry conducted by the Tahsildar, no decision adverse to the petitioner has been taken. However, on the basis of the information received as a result of the enquiry conducted by the Tahsildar, no decision adverse to the petitioner has been taken. On the other hand, the Government has only expressed its views in Ext.P3 that it is not possible to come to a final decision in the matter of appointing either the petitioner or the 4th respondent as A.R D. On the other hand, the 1st respondent was directed to make further enquiries in the matter and take a decision on the basis of the result of such enquiries." The action taken by the Government in Ext. P3 order is fully in conformity with what is stated in the above paragraph of the counter affidavit. We think too that it was fully within the limits of the Government's revisional power. The learned judge was, therefore, wrong in interfering under Art.226 with Ext, P3 order. 6. We allow this appeal, set aside the order of the learned judge and direct that O.P. 3544 of 1974 would stand dismissed. There will be no order as to costs. Allowed.