Disposed

A.H.Noushad v. the Palakkad Co-Op.Marketing So.Ltd.

Kerala HC15 Nov 2010RP/961/2010

Case brief

AI extract

What is this about?

This court disposed of a review petition filed against a writ disposal where a godown allotment favored the appellant. The court directed the Government to pass a fresh final order, hearing all parties and considering actual facts regarding the lease and surrender of the premises, without being bound by the impugned judgment's observations.

What did the court decide?

Review petition disposed. Directing the Government to pass a fresh final order on the award of license and allotment, hearing all parties, and considering actual facts regarding the premises.

A.H.Noushad Vs the Palakkad… — Constitutional and Fundamental Rights | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932

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RP.No. 961 of 2010

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---------------------AGAINST THE JUDGEMENT IN WA.1707/2010 DATED 4.10.2010 ....................

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REVIEW PETITIONER/APPELLANT/4TH RESPONDENT

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--------------------------------------------------------A.H.NOUSHAD, S/O.HAMZA, 26/706(3)MUGHAL HOUSE,CHAKKAMTHARA, PALAKKAD-678 007.

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BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE

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RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3& ADDL.5

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--------------------------------------------------------------------------------------1. THE PALAKKAD CO-OP.MARKETING SOCIETY LTD. NO.F1078,CHITTUR ROAD, PALAKKAD-REPRESENTED BY ITS SECRETARY,SMT.T.R.SUMATHY.

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THE DISTRICT COLLECTOR, PALAKKAD-678 001.

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THE COMMISSIONER OF CIVIL SUPPLIES, PUBLIC OFFICE BUILDING THIRUVANANTHAPURAM-01.

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THE SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES (B) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-01.

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P.S.ABDUL RAHIMAN, VICE PRESIDENT, ALL KERALA RATION DEALERS ASSOCIATION, PALAKKAD, RESIDING AT 1/1013,SHABIR MANZIL, FRIENDS COLONY, OLAVAKKODE, PALAKKAD-2.

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R1 BY ADV. SRI.S.SUJIN

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R2 TO R4 BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS R5 BY ADV.SRI.GEORGE POONTHOTTAM

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 15/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.

R.P. No. 961 of 2010

W.A.No. 1707 OF 2010

- - - - Dated this the 15^th day of November, 2010

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O R D E R

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Ramachandra Menon, J.

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The appellant has filed this review petition, stating that by virtue of the observations made by this Court while passing the final verdict in the appeal, as given in paragraphs 5

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and 6; there is chance for the factual position to be misconceived or misinterpreted by the Government at the time of finalising the proceedings as ordered.

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Sri.V.Chitambaresh, learned Senior Counsel appearing for the review petitioner submits that with reference to the 'rent deed' and the 'consent statement' stated as given by the concerned owners of the building, that the petitioner had made appropriate arrangements to have the premises taken on lease as per the lease deed executed on 16.02.2010 and that, as on the date of passing the impugned order in the writ petition (i.e., Ext.P7) on 30.07.2010, the said building was

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R.P. No. 961 of 2010 IN W.A. No. 1707 OF 2010

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very much available with the review petitioner and as such, the observation to the contrary has to be deleted.

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At the very out set, we would like to make it clear

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that, while passing the judgment, we did not intend to go into the merits of the case and all the relevant aspects have been left open. However, we noted that, while passing Ext.P7 by the Government whereby the claim of the writ petitioner was negated and allotment was made in favour of the review petitioner herein, some material aspects were not considered especially with regard to the 'building'. As evident from Ext.P7 itself, a specific ground

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of challenge was raised by the writ petitioner, who was the counter petitioner before the Government, with regard to the building in question as projected under Clause(g); which reads as follows:

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“ (g) Lack of godown facility - The petitioner had proposed building No.35/495 as godown. But in the above building Aristo Kalyana Mandapam is being run for the last several years.”

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Admittedly, the review petitioner was not having possession of the said premises, while seeking for the allotment of the

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R.P. No. 961 of 2010 IN W.A. No. 1707 OF 2010

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wholesale distribution; but for another building/godown which was admittedly surrendered in 2007; i.e. before passing Ext.P7.

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It is revealed from paragraph 3 of the counter

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affidavit filed by the Review Petitioner (who was the 4^th respondent in the writ petition) in I.A. No.11388 of 2010 in the Writ Petition that Since there was inordinate delay in finalization of award of license the building was surrendered to the owner of the building in the year 2007 in order to avoid huge financial loss and thereafter, the present building was taken on rent on 16.02.2010.

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From the above, it is very much clear that the particular building/godown, which originally was shown cited in the application had already been surrendered in the year 2007 in order 'to avoid huge financial loss'. It was thereafter that the present building was allegedly taken on rent on 16.02.2010; as covered by Exts.R4(l) and (m). Obviously, Ext.P7 order in favour of the review petitioner happened to be passed by the Government only on 30.07.2010. If the version of the petitioner is accepted, referring to the huge loss that was being caused,

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R.P. No. 961 of 2010 IN W.A. No. 1707 OF 2010

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making him to surrender the original building in 2007, the correctness of the version of the petitioner as to the procurement of the building 'on 16.02.2010' (with reference to Ext.R4(l) and (m)) has also to be meticulously analyzed by the Government; while passing the final orders on reward and thats' all.

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In the above circumstances, the Review Petition is disposed of, making it clear that the final order shall be passed by the Government afresh, after hearing all the parties concerned as already directed, with reference to the actual facts and figures and also the relevant provisions of the law. It is further made clear that we have not expressed any opinion on the merits and the final order shall be passed untrammelled by the observations made in the judgment dated 04.10.2010 in W.A. No.1707 of 2010.

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J.Chelameswar, Chief Justice.

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P.R.Ramachandra Menon, Judge.

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ttb

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R.P. No. 961 of 2010 IN W.A. No. 1707 OF 2010

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A.H.Noushad v. the Palakkad Co-Op.Marketing So.Ltd.

Case brief

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A.H.Noushad v. the Palakkad Co-Op.Marketing So.Ltd.

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