Allowed

Anaz Babu v. the District Supply Officer

Kerala HC14 Dec 2020WP(C)/22058/2020

Case brief

AI extract

What is this about?

The petitioner challenged the cancellation of his ration shop license initiated by an unauthorized order. The High Court set aside the cancellation order, observing it was passed without a proper hearing or recorded reasons after a significant delay, and mandated a fresh process.

What did the court decide?

The impugned cancellation order was set aside, and the District Supply Officer was directed to pass fresh orders after affording an opportunity of hearing within two months.

Anaz Babu Vs the District Supply Officer — Specific Performance | Kerala HC (2020)

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W.P(C).No.22058/2020-F

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942

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WP(C).No.22058 OF 2020(F)

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PETITIONER:

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ANAZ BABU, AGED 45 YEARS, VELUTHAKADAVUKARAN HOUSE, VALIYAPARAMBU DESOM, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER FATHIMABEEVI, W/O BEERAVU, AGED 74 YEARS, VELUTHAKADAVUKARAN HOUSE, VALIYAPARAMBU DESOM, KURUVILASSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT.

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BY ADVS. SRI.S.SAJU SRI.A.V.SAJAN SMT.NEELANJANA NAIR

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RESPONDENTS:

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1 THE DISTRICT SUPPLY OFFICER, DISTRICT SUPPLY OFFICE, CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT, PIN-680003.

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2 THE DISTRICT COLLECTOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR DISTRICT, PIN-680003.

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3 TALUK SUPPLY OFFICER, OFFICE OF THE TALUK SUPPLY OFFICE, 1ST FLOOR, MUNICIPAL JUBILEE BUILDING, CHAKKUDY, THRISSUR DISTRICT, PIN-680 307.

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4 COMMISSIONER OF CIVIL SUPPLIES, OFFICE OF COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM, PIN-695 001.

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5 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

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SMT.VINITHA.B, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.12.2020, THE COURT ON 14.12.2020 DELIVERED THE FOLLOWING:

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W.P(C).No.22058/2020-F

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P.V.ASHA, J.

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W.P(c) No.22058 of 2020-F

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Dated this the 14^th day of December, 2020

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JUDGMENT

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The petitioner challenges Ext.P5 order terminating his licence to conduct ration shop No.179 and seeks a direction to restore the licence.

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The petitioner was appointed as Authorised Retail Distributor (ARD No.179/Mukundapuram Taluk), as per Ext.P2 order dt.29.9.2008, under the provisions of the Kerala Rationing Order, 1966 and the terms and conditions of the agreement to be executed under clause 45 of the rationing order. The petitioner was to carry on the business in ward No.9 of Mala panchayat. While he was conducting the ration shop, the Taluk Supply Officer, as per Ext.P3 order dt.8.10.2013, suspended his licence, alleging lapses on his part in not lifting the stock of ration articles allotted for his shop for the week ending on 05.102.2013, which affected the distribution of ration articles based on which several complaints were received against him. It was stated that the petitioner acted in violation of various provisions of Kerala Rationing Order and the provisions in the agreement with the Government. The petitioner claims that he had submitted a representation against the suspension in November, 2013 and thereafter he left for Kuwait in search of a job. It is stated that on 10.12.2019, he came to know that a charge memo was issued to him on 30.11.2019 and therefore he submitted Ext.P4 reply dated 11.12.2019 requesting to restore his

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W.P(C).No.22058/2020-F

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license. The petitioner submits that thereafter without considering his representation, the District Supply Officer issued Ext.P5 order dated 22.09.2020 cancelling the licence issued to him permanently. The petitioner submits that the cancellation was ordered without issuing any notice or opportunity of hearing under sub clause 8 of Clause 45 of the Kerala Rationing Order and without disclosing any reasons for the same.

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Ext.P5 order is issued by the District Supply Officer in exercise of his powers under clause 45 of Kerala Rationing Order, 1966. It was stated that after suspending the licence of the ARD as per order dt.5.10.2013 in connection with the failure on the part of the petitioner in lifting the stock in time, a memo of charge was issued to the licensee on 30.11.2019. It was stated that the Taluk Supply Officer had as per his letter dt. 06.02.2020 informed that the licensee has not received the memo of charge issued on 30.11.2019 as he is abroad. It was further stated that the action of the petitioner was in violation of the agreement executed with the Government and it was also in violation of the provisions contained in the Kerala Rationing Order. It was therefore ordered that the entire security amount (Rs.3500/-) remitted by him would be forfeited by the Government and the licence granted to him shall stand withdrawn. .

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The 1^st respondent has filed a statement. It is stated that the functioning of ARD 87 was in a disordered manner due to the improper management of the petitioner which adversely affected the ration distribution to the people of the locality; as he did not lift the stock allotted to the ration shop

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W.P(C).No.22058/2020-F

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on time, several complaints were received and the order of suspension was issued thereafter as there was violation of the Kerala Rationing Order. It is stated that though a memo of charge was issued to him, it could not be served on him; at the same time it was served on his father who informed that the petitioner was abroad. On the basis of the report received from the 3^rd respondent regarding the lapses on the part of of the petitioner in violation of Kerala Rationing Order, the 3^rd respondent recommended that licence issued to the petitioner need not be restored. It is stated that the petitioner stayed out of the location without the consent of the Government, which is a serious offence under Kerala Rationing Order and of the agreements entered into between the licensee and the Government. The licence issued to the petitioner was thereupon cancelled in accordance with the provisions of Kerala Rationing Order and the instructions received from the Government. It is stated that Annexure R1(a) memo of charge was issued to the petitioner on 30.11.2019. The Taluk Supply Officer, who was authorised to serve the memo on the licensee, could not find the licensee and he was informed by the father of the petitioner that the petitioner was abroad. The respondents stated that they did not receive any representation like Ext.P4. It is stated that in case the petitioner had submitted his explanation in answer to the memo of charge, he would have got a chance to represent his submission before the 1^st respondent; he left India without prior sanction from the Government; as per clause 45(1) of the KRO, the licensee should be a resident of the service area of the ARD concerned; the

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W.P(C).No.22058/2020-F

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petitioner's activities were in violation of the provisions contained in clause 45(1). It is stated that he left India without getting permission from the Government and stayed abroad for a long time, which is a major irregularity. Producing Ext.R1(b) statement submitted by the petitioner's father to the effect that the petitioner was abroad, it is stated that the petitioner continued to be abroad even on the date of Annexure R1(b). It is their further case that the licence was cancelled on account of serious irregularities.

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The learned counsel for the petitioner relying on the judgment of a Full Bench of this Court in State of Kerala v. Beevi Kannu [ 2014(4)KHC 673: 2014(4) KLT 973] argued that the cancellation of the licence is illegal and contrary to the provisions contained in clause 45 of the Kerala Rationing Order. According to the petitioner, the decision to cancel the licence is taken unilaterally and no valid reasons are stated in the order of cancellation. Stating that the petitioner has come back from Gulf and is in need of the authorised retail distributorship, he seeks a direction to restore the ARD and to allow him to conduct the same.

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Heard both sides. Clause 45(8) of the KRO provides that if the District Collector or any officer of the Civil Supplies Department not below the rank of Taluk Supply Officer finds that the authorised retail distributor has contravened any of the provisions of the order, or any of the directions issued thereunder or on receipt of the report from any of the officers referred to in sub-clause (7) or on his own inspection of the stocks and accounts in a shop

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W.P(C).No.22058/2020-F

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finds any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non compliance with any of the directions, issued by the competent authorities or contravention of the provisions of any order issued by a competent authority under Section 3 of the Essential Commodities Act, 1955, which is for the time being enforced he may after giving the authorised retail distributor any opportunity of stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security as the case may be. Sub clause 9 of clause 45 provides that the District Collector or any officer of the Civil Supplies Department not below the rank of District Supply Officer may after giving the authorised retail distributor an opportunity of hearing his case and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment whenever in the opinion of the District Collector or other officer it is in the interest of the general public necessary or expedient so to do, and in every such case the authorised retail distributor shall surrender on demand to the District Collector or other officer the order of appointment for endorsement or cancellation as the case may be.

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It is seen that after the licence was suspended in the year 2013, no

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action was taken by the Department to finalise the proceedings against the petitioner. It is seen that petitioner was also not taking any interest after 2013,

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W.P(C).No.22058/2020-F

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to get the suspension revoked. It is not disputed that the petitioner was abroad when the memo of charge was attempted to be served in 2019.

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However, even though the petitioner's father had given a statement that the petitioner has been abroad, the charge against the petitioner is not seen explained or adjudicated apparently because of his absence. Though the learned Government Pleader vehemently argued that the petitioner ought not have gone abroad without informing the respondents, Ext.P3 order of suspension does not stipulate any condition that he should be available in the station or that he shall not leave the station without permission or go abroad without permission. The respondents have not stated whether there was any such condition stipulated in the agreement. Therefore, the respondents cannot accuse the petitioner for going abroad. At any rate there is no such charge against him even in the memo of charge produced by the respondents, Therefore they cannot justify the cancellation of license on that ground.

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Similarly, it is also seen that when the memo of charge was handed over to the father, he had stated that the petitioner would be coming after 3 to 4 months. The respondents have no case that they had requested his father to inform the petitioner about the charges or get the explanation from the petitioner. It is also seen that the petitioner, who claims to have come back in June, 2019, also did not respond to the memo of charges which his father had received. He has also not approached the respondent, though a representation Ext.P4 is stated to have been submitted, the receipt of which the respondents

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W.P(C).No.22058/2020-F

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have denied.

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However, in Ext.R1(a) memo of charge issued by the District Supply Officer on 30.11.2019, there is nothing more than what was alleged in the order of suspension. It is relevant to note that the order of suspension was issued in the year 2013. The cancellation was issued after a period of more than 7 years. The allegation against him is that there was delay in lifting the stock of ration articles- (1) 15 quintal of rice, AAY CMR 9 quintal and SS CMR 9.3 quintal, which was allotted to his ration shop on 5.10.2013. Without any further action on such a report received in the year 2013, the respondents have ordered the cancellation, without arriving at any finding on the charges in accordance with law. It is not even stated the provision which the petitioner has violated, based on which the suspension was found required for a period of more than 7 years and had to be culminated in cancellation.

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It is seen that though an appellate remedy was available for the petitioner against the order passed by the District Supply Officer, he has not chosen to invoke the same. It is seen that an appeal under clause 45(10) of KRO has to be filed within 30 days' time from the date of service of the order. No provision is seen for condoning the delay in filing appeal against the order issued by the District Supply Officer. Therefore, the petitioner cannot now be relegated to the appellate authority.

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As the impugned order of cancellation is seen passed without following any of the procedural formalities for arriving at the guilt of the

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W.P(C).No.22058/2020-F

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petitioner, Ext.P5 order is set aside. The District Supply Officer shall pass fresh orders after affording an opportunity of hearing to the petitioner through electronic media, within a period of two months from the date of receipt of a copy of this judgment.

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The Writ Petition is allowed to the extent indicated above.

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Sd/- (P.V.ASHA, JUDGE)

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rtr/

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W.P(C).No.22058/2020-F

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO F2.4180/08 DATED 29.9.20008 OF THE 1ST RESPONDENT, DISTRICT SUPPLY OFFICER, THRISSUR DATED 29.9.2008. EXHIBIT P2 TRUE COPY OF THE ORDER OF APPOINTMENT AS AUTHORISED RETAIL DISTRIBUTOR REF NO F24180/08 DATED 29.9.2008. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 8.10.2013 ISSUED BY THE TALUK SUPPLY OFFICER. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 11.12.2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE ORDER NO F56758/13/GDO DATED 22.9.2020 ISSUED BY THE 1ST RESPONDENT, DISTRICT SUPPLY OFFICER, THRISSUR.

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RESPONDENTS' EXHIBITS

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ANNEXURE R1(a) TRUE COPY OF CHARGE MEMO. ANNEXURE R1(b) TRUE COPY OF THE STATEMENT OF SRI.V.M.BERRAVU PRODUCED IN STAMP PAPER BEFORE THE TALUK SUPPLY OFFICER.

Anaz Babu v. the District Supply Officer

Case brief

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Anaz Babu v. the District Supply Officer

Case brief

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