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2006 DIGILAW 430 (KER)

Selvaraj v. State of Kerala

2006-07-17

P.R.RAMAN, S.SIRI JAGAN, V.K.BALI

body2006
ORDER : V. K. Bali, J. A Division Bench of this Court in Jose v. Nesamony ( 1994 (1) KLT 369 ) while dealing with the meaning of the expression 'normally resident in the locality' in clause 45(1) of Rationing Order, 1966 (Kerala), hereinafter referred to as 'Order of 1966', held that it would be the normal residence of the person in the Panchayat/Municipality/Corporation area, where the ration shop is sanctioned by the authorities. When this Original Petition came up for hearing before a learned Single Judge of this Court, he referred the matter to a Division Bench by observing that neither in the provisions of Order of 1966 nor in the decision of the Division Bench in Jose v. Nesamony (supra) it has been clearly mentioned as to whether an applicant who resides in the same Panchayat, but in a different Ward, for which sanction was accorded, can be called 'normally resident in that locality' and, therefore, the matter required to be decided by the Division Bench. The Division Bench, however, doubted the very correctness of the decision in Jose v. Nesamony (supra) and, thus, referred the matter to the Full Bench to examine the correctness thereof. 2. In the context of the reference thus doubting the decision of the Division Bench in Jose v. Nesamony (supra), it may not be necessary to give facts in all its minute details. Suffice it, however, to mention that C. Selvaraj, the petitioner herein, and D. Amose, the 5th respondent in the Original Petition, are fighting each other for appointment as Authorised Retail Distributor (A.R.D.) in Pulinkudi, of Ward III of Ariyancode Panchayat in pursuance of a notification issued way back on 5th May, 1993. In this period of more than a decade, it is the second round of litigation in this Court. 3. The District Supply Officer, Thiruvananthapuram invited applications for appointment as Authorised Retail Distributor in Pulinkudi, of Ward No. III of Ariyancode Panchayat, vide notification dated 5.5.1993. The petitioner herein, who was residing in Ward No. Ill of Ariyancode Panchayat where the A.R.D. was notified, applied pursuant to the notification aforesaid. The 5th respondent too was an applicant for the same. He was, however residing in Ward No. II of the same Panchayat. There were some other claimants also, but at this stage the contest is between the petitioner and the 5th respondent only. The 5th respondent too was an applicant for the same. He was, however residing in Ward No. II of the same Panchayat. There were some other claimants also, but at this stage the contest is between the petitioner and the 5th respondent only. The 4th respondent vide order dated 28/05/1993 appointed the petitioner as Authorised Retail Distributor (Ext. P2). Constrained, the 5th respondent along with another applicant filed appeal under clause 45(10) of the Order of 1966 before the 3rd respondent, who, vide order dated 12.3.1994 set aside Ext. P2 and remitted the matter to the District Supply Officer to re-examine the matter and pass orders thereafter (Ext. P4). Aggrieved by the order aforesaid, the petitioner preferred a revision under clause 45(1) of the Order of 1966 before the 2nd respondent. Against the very same order, the 5th respondent also filed a revision. The same was dismissed without even taking the same on file. The 2nd respondent allowed the revision filed by the petitioner vide order dated 15.3.1995 by observing that the A.R.D. was notified for Ward No. III and the 5th respondent was residing in Ward No. II, whereas the petitioner was residing in Ward No. III (Ext. P7). The fluctuation in the fate between the parties, this time constrained the 5th respondent to file OP No.4408 of 1995 in this Court and vide order dated 18.1.1996, the 5th respondent was relegated to the remedy of revision before the Government. The revision was directed to be disposed of within three months and till such time the revision was to be disposed of the order Ext. P7 dated 15.3.1995 was directed to be kept in abeyance. Both the petitioner and 5th respondent were aggrieved by the order passed by the learned Single Judge and preferred Writ Appeals, which were disposed of by a common order dated 26.2.1996 (Ext. P9). Learned Division Bench of this Court modified the order passed by the learned Single Judge to the extent that order dated 15.3.1995 would be enforced and would not be kept in abeyance. The Government vide order dated 2.8.1996, Ext. P-13, however, held the 5th respondent more suitable for appointment as Authorised Retail Distributor in the concerned area. We may mention here that the Government vide order aforesaid held that the petitioner and 5th respondent were residing in the same locality. The Government vide order dated 2.8.1996, Ext. P-13, however, held the 5th respondent more suitable for appointment as Authorised Retail Distributor in the concerned area. We may mention here that the Government vide order aforesaid held that the petitioner and 5th respondent were residing in the same locality. Since the fate of the case on this occasion turned against the petitioner, obviously, he challenged the order-Ext. P-13 by the present Original Petition. The learned Single Judge referred the matter to the Division Bench for the only reason that in the judgment of the Division Bench in Jose v. Nesamony (supra), the meaning of expression 'normally resident in the locality' was given to be as the normal resident in the same Panchayat/ Municipality/Corporation where the ration shop is sanctioned by the authorities and the question in the present writ petition was whether an applicant who resides in the same Panchayat, but in a different Ward, for which sanction has been accorded, could be called a resident of that locality. In the view of the learned Single Judge, this question was not clearly mentioned in the Order of 1966 or in the Division Bench judgment of this Court referred to above and, therefore, the matter required to be decided by a Division Bench. The reason for reference, in other words, was that an aspirant for appointment as an Authorised Retail Distributor has to reside in the same Ward for which sanction has been accorded by the authorities concerned or that such a spirant maybe residing in a different Ward, but in the same Panchayat/Municipality/Corporation and that would be enough to clothe him with the eligibility for appointment as an Authorised Retail Distributor. This was not clear either from the Order of 1966 or from the Division Bench judgment of this Court as mentioned above. The learned Division Bench, however, has doubted the very correctness of the Division Bench decision in Jose v. Nesamony ( 1994 (1) KLT 369 ). 4. The Government of Kerala, exercising the powers conferred by sub-sections (1) and (2) of Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with the Order of the Government of India in the Ministry of Food dated 9th June, 1966, made the order known as 'Kerala Rationing Order, 1966'. 4. The Government of Kerala, exercising the powers conferred by sub-sections (1) and (2) of Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) read with the Order of the Government of India in the Ministry of Food dated 9th June, 1966, made the order known as 'Kerala Rationing Order, 1966'. The Order of 1966 thus having come into being by virtue of the provisions contained in Section 3 of the Central Act of 1955, would be statutory in nature. 'Authorised Retail Distributor' has been defined in clause 2(3), which reads as follows: "(3) 'authorised retail distributor' means a retail dealer who has been appointed or deemed to be appointed as such under the provisions of sub-clause (1) of clause 45 and shall include a person in charge of a shop or godown appertaining to a rationed article and under the control of the State or Central Government." 'Rationed area' has been defined in sub-clause (16) of clause 2 to mean that any area in which the Order of 1966 has been brought into force. Clause 45 deals with appointment of Authorised Retail Distributor. The same, insofar as it is relevant for the purpose of deciding the question referred by the Division Bench, reads as follows: "45(1). For the purpose of distributing rationed articles, the District Supply Officer may, by order, appoint in respect of any area any person as authorised retail distributor in respect of any rationed article: Provided xxx xxxx xxx Provided xxx xxxx xxx Provided also that a person who is a full time employee in any establishment or who is not normally resident in the locality shall not be eligible to hold an authorisation to run the retail ration depot under this order. (2) Application for appointment as authorised retail distributor shall be made to the District Supply Officer in the form prescribed by the Commissioner by notification in the Gazette: Provided that where an authorised retail distributor is incapable of running the ration business owing to old age or sickness, any legal heir nominated by him and in the case of death of an authorised retail distributor, any of the legal heirs of the deceased nominated jointly by all the other legal heirs shall be appointed by the District Supply Officer as a temporary authorised retail distributor and on production of heir ship certificate from the concerned Tahsildar and after conducting such enquiry as the District Supply Officer may consider necessary regarding the financial position of the legal heir and also on executing necessary agreements afresh as provided for under this order, such appointment shall be made permanent: Provided xxx xxxx xxxx Provided xxx xxxx xxxx Provided xxx xxxx xxxx" As per the provisions contained in R.45(1), ration articles are to be distributed by appointing an Authorised Retail Distributor in respect of any rationed article by an order passed by the District Supply Officer in respect of any area. As per third proviso to clause 45(1), a person who is a full I time employee in any establishment or who is not normally resident in the locality shall not be eligible to be appointed as an Authorised Retail Distributor. Sub-clause (2) of clause - 45 deals with application for appointment as Authorised Retail Distributor, which shall be made to the District Supply Officer. The first proviso to clause 45(2) was substituted as per S.R.O. No. 527/85, which was published in the Kerala Gazette dated 6th April, 1995. It would be clear from the proviso that though the same appears to be inserted in sub-clause (2) of clause 45, it seems to be a proviso to clause 45(1), as the said proviso has nothing at all to do with and is wholly unconnected and unrelated to sub-clause (2) of clause 45. 5. The learned Division Bench while doubting the correctness of the decision in Jose v. Nesamony (supra) placed reliance upon the aforesaid proviso, which covers the situation where an Authorised Retail Distributor is incapable of running the ration business owing to old age or sickness as also in the event of his death. 5. The learned Division Bench while doubting the correctness of the decision in Jose v. Nesamony (supra) placed reliance upon the aforesaid proviso, which covers the situation where an Authorised Retail Distributor is incapable of running the ration business owing to old age or sickness as also in the event of his death. In the case of old age or sickness, an Authorised Retail Distributor may nominate a legal heir to run the ration business, whereas in the case of death, any of the legal heirs of the deceased nominated jointly by all the other legal heirs be appointed by the District Supply Officer as a temporary Authorised Retail Distributor and on the production of heir ship certificate, such appointment shall be made permanent. The learned Division Bench is of the view that the first proviso to clause 45(2) would indicate that so far as legal heir of the deceased is concerned without any insistence that he be a resident of the locality his application can be allowed and if that be so, it would be difficult to accept the meaning of the expression 'normally resident in the locality' as has been held in the decision of the Division Bench in Jose v. Nesamony (supra) that it would be the normal residence of the person in the Panchayat/Municipality/Corporation area, where the ration shop is sanctioned by the authorities. 6. We have heard learned counsel for the parties and with their assistance examined the records of the case and also the relevant clauses contained in the Order of 1966. From the language employed in clause 45(1) dealing with appointment of Authorised Retail Distributor in respect of any area, for which alone appointment is made, it would appear that the third proviso to clause 45(1) would confine itself to such appointment of the person who is normally or ordinarily a resident in the locality where the retail shop is located and for which area an appointment has to be made as an Authorised Retail Distributor. There cannot be any dispute whatsoever that for initial appointment of an Authorised Retail Distributor the applicant has to be a person who is normally residing in the locality. The first proviso, which we have already mentioned, does not appear to be a proviso to clause 45(2) and seems to be a proviso to clause 45(1) and operates in an entirely different situation. The first proviso, which we have already mentioned, does not appear to be a proviso to clause 45(2) and seems to be a proviso to clause 45(1) and operates in an entirely different situation. In the case of an already appointed Authorised Retail Distributor who has become incapable of running the ration business owing to old age or sickness or even dies, the Legislature in its wisdom thought of different parameters for continuing the ration business, and prescribed appointment of Authorised Retail Distributor in the case of old age or sickness through his legal heirs nominated by him and in the event of death, of the legal heirs of the deceased nominated jointly by all the other legal heirs. The initial appointment of an Authorised Retail Distributor and continuation of such appointed distributor operate in entirely different circumstances. The only fact that in case of the heirs of an already appointed Authorised Retail Distributor they may not be normally residing in the locality and yet continue the depot of the initially appointed distributor would be of no meaning and consequence while finding out eligibility for initial appointment of an Authorised Retail Distributor. There seems to be a purpose for doing so. In the case of continuation of a ration shop by the legal heirs of an initially appointed Authorised Retail Distributor, sympathetic consideration may follow, whereas it cannot be the case with regard to initial appointment. The provisions with regard to initial appointment and continuation by legal heirs even though may have different eligibility criteria, in our considered view, it would not mean that the criteria or eligibility mentioned in clause 45(1) is obliterated or effaced That apart, while doubting the correctness of the decision of the Division Bench in Jose v. Nesamony (supra), the Division Bench has placed reliance upon the proviso, which is an exception to the main clause. Once, the proviso, as re-produced above, is an exception to the main clause, it would obviously operate in different terms to the main provision. If that be the position, it cannot be said that only because in the proviso a different criteria is mentioned, by virtue of which a person who may not be a resident of that locality may continue with ration shop, it cannot be said that anyone residing anywhere would be eligible for appointment as Authorised Retail Distributor. If that be the position, it cannot be said that only because in the proviso a different criteria is mentioned, by virtue of which a person who may not be a resident of that locality may continue with ration shop, it cannot be said that anyone residing anywhere would be eligible for appointment as Authorised Retail Distributor. Still further, the proviso or the exception cannot have the effect of deleting the main clause, Surely, if the expression 'normally resident in the locality' can be enlarged as to mean any person residing anywhere, the main clause would be rendered nugatory. 7. In view of our discussion as made above, we are of the view that the decision of the Division Bench in Jose v. Nesamony (supra) lays down the correct law by interpreting the expression 'normally resident in the locality' in sub-clause (1) of clause 45 of the Order of 1966. For initial appointment as Authorised Retail Distributor, one has to be normally residing in the Panchayat/Municipality/Corporation area, where the ration shop is sanctioned by the authorities. 8. Having held that the decision of the Division Bench in Jose v. Nesamony (supra) lays down law correctly, the question framed by the learned Single Judge and referred to Division Bench shall also have to be answered. At this late stage, it would not be appropriate to send the case to the Division Bench for answering the question referred by the learned Single Judge vide order dated 10th March, 1997. It may be recalled that the question referred by the learned Single Judge was as to whether an applicant, who resides in the same Panchayat but in a different Ward for which sanction was accorded it could be said that he normally resides in that locality. According to the learned Single Judge, this question was not clearly mentioned either in the order of 1966 or the Division Bench judgment in Jose v. Nesamony (supra) and, therefore, the matter required to be decided by a Division Bench. 9. 'Rationed area' has been defined in sub-clause (16) of clause 2 to mean any area in which the Order of 1966 has been brought into force. Surely, as per the definition of 'rationed area', it means the entire area as per the Order of 1966. 9. 'Rationed area' has been defined in sub-clause (16) of clause 2 to mean any area in which the Order of 1966 has been brought into force. Surely, as per the definition of 'rationed area', it means the entire area as per the Order of 1966. Clause 6(1) of the Order of 1966, however, gives a clue with regard to a rationed area in which alone a person or class of persons or public generally can come for ration articles. Sub-clause (1) of clause 6 reads as follows: "6(1). With a view to controlling the distribution of any rationed article, the Government may issue or cause to be issued to any person or class of persons or to the public generally in any rationed area, ration documents for the purpose of rationing of such article." The rationed area may not have been specified, but a person or class of persons or public generally comes to obtain ration articles has to be with regard to a rationed area. It would further appear from clause 45(1) that for the purpose of distributing rationed articles, appointment of an Authorised Retail Distributor has to be made with respect to an area. It appears that Authorised Retail Distributor cannot distribute ration items beyond the area of his operation. There is, however, no evidence led in the instant case as to whether by notification dated 5.5.1993 any area for distribution of rationed items has been specified. From the relevant provisions re-produced above, it appears to this Court that an Authorised Retail Distributor may be appointed with regard to a particular area. It, therefore, follows that if an Authorised Retail Distributor has been appointed for a specified area or otherwise the operation of his distributing the ration articles is limited, the applicant seeking appointment as Authorised Retail Distributor should normally be residing in the said area. If, however, no such demarcation of area might have been specified and an Authorised Retail Distributor may be able to distribute rationed articles anywhere in the concerned locality, obviously, the expression 'normally resident in the locality' would mean that it would be the normal residence of the person in the Panchayat/Municipality/Corporation area where the ration shop is sanctioned by the authorities as has been held by the Division Bench of this Court in Jose v. Nesamony (supra). The observations as made above in addition to the relevant provisions mentioned above would also emanate from the intent of the expression 'normally resident in the locality' and the purpose sought to be achieved. Person normally residing in an area for which the depot operates would ordinarily have personal knowledge of the persons residing in that area, which would be helpful in distributing ration to genuine persons. It would minimise distribution of ration to bogus card holders. As to whether an Authorised Retail Distributor has to be appointed with regard to a particular area is, however, a question of fact and a party who may try to oust his opponent by claiming preferential right on the basis of the expression 'normally resident in the locality' shall have to show that an Authorised Retail Distributor is meant for a specified area for which alone a notification has been issued. Surely, as stated above, the petitioner may be able to show that Authorised Retail Distributor was to be appointed with regard to Ward No. I11 alone and that his activities in the matter of rationed articles could not go beyond that operational area and the ration card holders of an area beyond Ward No. III would not be able to draw ration from him, the expression 'normally resident of the locality' would be from the said Ward only. The matter would now be listed before the learned Single Judge for determining the issue in the light of the observations made above to question posed by the learned Single Judge.