A legal heir challenged a ration dealer's appointment made on his mother's nomination, alleging absence of consent from all heirs. The court dismissed the appeal and upheld the judgment setting aside the administrative cancellation orders, leaving the nominee's appointment undisturbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 26TH DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944
WA NO. 159 OF 2014
[AGAINST THE JUDGMENT IN WP(C) NO.24718/2010 DATED 23.11.2011 OF HIGH COURT OF KERALA]
APPELLANT/5TH RESPONDENT:
SMT. A.L. ANANDAKUMARI, ANGANVADI TEACHER, NEDUVANVILA, RESIDING AT CHANDRAVILASOM BUNGLOW, NEDUVANVILA, PARASSALA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 502.
BY ADV. SRI.K.MOHANAKANNAN
RESPONDENTS:PETITIONER & RESPONDENTS 1 TO 4:
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R1 BY ADVS. SRI.K.JAJU BABU (SENIOR) SMT.M.U.VIJAYALAKSHMI SRI. BRIJESH MOHAN
R2 TO R4 BY SENIOR GOVT. PLEADER SRI. V. TEK CHAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 26th day of October, 2022
S.Manikumar, C.J.
Instant appeal is filed by the 5th respondent in W.P.(C) No.24718 of 2010, challenging the judgment of a learned single Judge dated 23.11.2011, by which, the following relief sought for by the petitioner was granted and the writ petition was allowed.
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Thiruvananthapuram, who, after conducting necessary enquiry, submitted Exhibit P5 proceedings dated 04.12.2008 before the Government rejecting her claim. The 5th respondent later approached the Director of Civil Supplies challenging Exhibit P5 and the 2nd respondent – the Commissioner of Civil Supplies, as per Exhibit P6, set aside Exhibits P1 and P2 invoking suo motu powers under clause 45(11) of the Kerala Rationing Order.
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“10. Counsel for the 5th respondent contended that even if appointment is made, such appointment is liable to be invalidated if there is any disagreement among the legal heirs. In support of this plea, he relied on the second proviso to Clause 45(2). First and second proviso to Clause 45(2) of the Kerala Rationing Order reads thus:-
Clause 45(2)
“[Provided that the authorised retail distributor shall nominate a member of his family for appointment as the authorised retail distributor, in the event of his being incapable of running the ration business, owing to old age or illness or in the event of his death. The nominee shall be appointed, as a temporary licensee forthwith, on the death of the licensee, without insisting on the proof of financial stability, production of legal heirship certificate etc. The willingness of the nominee shall be obtained by the authorised retail distributor before his/her nomination. The above appointment shall be made permanent, on production of satisfactory proof of financial stability of the nominee. If, the authorised retail distributor dies, without exercising his nomination as provided above, the district supply officer shall appoint any of the legal heirs, nominated jointly by all the other legal heirs, as a temporary authorised retail distributor. Such temporary appointment shall be made permanent, only on production of Legal Heirship Certificate from the concerned authority and after conducting such enquiry, as the District Supply Officer may consider necessary, regarding the financial position of such person and also on executing necessary agreement, as provided under this order.]
[Provided further that in the case of disputes regarding heirship or in the event of disagreement among legal heirs either before the appointment, or after the appointment District Supply Officer may cancel the appointment if already ordered, call for applications and make fresh appointments as provided for under these rules.]”
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appointment being on the basis of the nomination made by his mother, cannot be dependent upon Ext.R5(a). Therefore, even if there is substance in what is contended, the legal heirship certificate which is stated to have been obtained cannot invalidate the appointment of the petitioner. Exts.P6 and P9 will stand set aside.
Writ petition is allowed.”
submissions.
material on record.
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by the 4th respondent and the same is reproduced:
“PROCEEDINGS OF THE DISTRICT SUPPLY OFFICER, TRIVANDRUM
(Present: Shri M. Muraleedharan)
No.CS-1-3536/2005 Dated: 16/08/2005
Smt. B. Leela Bai, Aswathy Bhavan, Muriankara, Parassala, wife and legal heir of Shri Appukuttan Nair, the deceased licensee of ARD. No.42, Neyyattinkara, has put in an application for getting appointment as permanent substitute to ARD. No.42, Neyyattinkara under the preferential treatment provided in proviso (1) to Sub clause (2) of clause 45, K.R.O. 1966.
Application has been enquired into through the Taluk Supply Officer, Neyyattinkara. The Taluk Supply Officer, Neyyattinkara submitted his report vide reference read as 2nd paper above. The enquiry reveals the following:
Smt. Leela Bai is aged 59 years and produced the Certificate No.A1-29586/05/K.dis dt. 02/08/2005 issued by the Tahsildar, Neyyattinkara stating that she is the wife of the deceased V. Appukuttan Nair. She has produced a third party solvency certificate No.A5-25733/05/K.dis dt. 13/7/05 in the name of Smt. Santhosh Kumary for Rs.30,000/- issued by the Tahsildar, Neyyattinkara along with consent of the solvency holder to register it on demand. To house the ARD she has proposed the building No.X/274 in Parassala Panchayath which is a rended one and has produced the Ownership Certificate, rent agreement etc. The building proposed is reported to be strong, spacious to conduct the
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ration shop and the same building the depot was functioning previously. The applicant was summoned for hearing on 12/08/2005.
Heard the applicant and also perused the connected records.
In the circumstances, the authorisation issued to Shri Appukuttan Nair to conduct the ARD 42 Neyyattinkara is revoked and in lieu, his wife and legal heir Smt. Leela Bai, Aswathy Bhavan, Muriankara, Parassala is appointed as the permanent substitute to ARD 42 Neyyattinkara by virtue of the powers conferred on me under proviso (1) to clause 45(2) of K.R.O.1966.
The Taluk Supply Officer, Neyyattinkara will implement this order after observing all the usual formalities like furnishing Bank Guarantee, execution of bonds, registration of solvency, taking out licenses etc., and report compliance. The Taluk Supply Officer, Neyyattinkara should also ensure that no liabilities are outstanding against late Shri Appukuttan Nair at the time of implementation of this order.
Sd/-
District Supply Officer”
the 4th respondent and the same is reproduced:
““PROCEEDINGS OF THE DISTRICT SUPPLY OFFICER,
TRIVANDRUM
(Present: Shri A. Sasikumar)
No.C.S-1/958/07 Dated: 03/03/2007
Sub: C.S.A.R.D – 42/Neyyattinkara – Appointment of legal heir orders issued - Reg.
Read: 1. Consent letter dated 12/02/2007 of Smt. B. Leelabai.
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Smt. B. Leelabai, Licensee of ARD 42 of Neyyattinkara informed that due to various ailments, etc. she could not pay proper attention in the administration of the Depot and requested to transfer its license to her son, Sri A. Santhosh Kumar, as the legal heir. Thereafter, Sri. A. Santhosh Kumar submitted application for appointment of successor to the Depot. An enquiry was conducted through Taluk Supply Officer, Neyyattinkara and a report obtained.
The Taluk Supply Officer, Neyyattinkara reported that Smt. B. Leelabai is over aged and suffering from various diseases, hence reported to transfer the licence of the Depot in the name of Sri. A. Santhosh Kumar. Smt. Leelabai had submitted a Medical Certificate from Dr. Laly Alexander, Cosmopolitan Hospital, Thiruvananthapuram.
Shri. A. Santhosh Kumar who had submitted appointment of successor licensee is aged 39 years and studied upto SSLC and he is working as Full time Salesman in ARD No.43 with effect from 12/08/2003. He had produced Solvency Certificate No.359/07 dated 05/02/2007 from the Village Officer, Parassala for Rs.50,000/-. He had produced the Ownership Certificate of the existing Depot and the shop room in which it is proposed to be continued along with the consent letter of the owner of the shoproom. Copy received.
Sd/- Leelabai Sd/- Santhosh Kumar
On the basis of the report of the Taluk Supply Officer, Neyyattinkara, and of the hearing conducted on 07/03/2007, it is found that Shri A. Santhosh Kumar can be appointed as the licensee.
O R D E R
In the above circumstances, in exercise of the powers conferred to me under sub section (1) of section 45(2) of the Kerala Rationing Order, 1966, the license of ARD No.42 in Neyyattinkara Taluk in the name of Smt. B. Leelabai is hereby cancelled and Shri A. Santhosh Kumar, Bhagavathy Vilasam Bungalow, Muryankara, Nedumanvila, Parassala is appointed in the place, as the licensee.
The Taluk Supply Officer, Neyyattinkara shall implement this order following usual procedures after
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ensuring that Smt. B. Leelabai had no liabilities due to Government.
(Sd/-)
District Supply Officer”
04.12.2008 (Exhibit-P5), on the complaints regarding cancellation of
approval granted to the writ petitioner - Mr. Santhosh Kumar, is reproduced:
“Collectorate
Kudappanakunnu Civil Station, Thiruvananthapuram Date : 04/12/2008
No.C.S.1-3039/08
District Collector, Thiruvananthapuram.
Under Secretary, 'Sutharya Kerala' Chief Minister's complaint redressal cell, Secretariat, Thiruvananthapuram.
Sir,
Sub:- Civil Supplies - ARD No.42 of Neyyattinkara Taluk - complaint regarding cancellation of approval granted to Shri Santhosh Kumar - submission of enquiry report - Reg.
Your kind attention is invited to the references cited. Enquiry was conducted on the complaint regarding the cancellation of the licence granted to Santhosh Kumar in respect of ARD No.42 of Neyyattinkara Taluk. And the enquiry report in the matter has already submitted to you Officer as per reference 2nd cited.”
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Based on the further report received in the matter as per reference 3rd cited, a detailed report is submitted herewith.
Shri Appukuttan Nair, licensee of ARD No. 42 of Neyyattinkara Taluk died on 02/12/1998. Consequently, Smt. B. Leelabai, W/o. late Appukuttan Nair has been appointed as the licensee under the provisions of appointment of legal successorship, vide Order No. C.S.13536/05 dated 16/08/2005 of District Supply Officer, Thiruvananthapuram. Later Smt. B. Leelabai (Mother of the Applicant) informed that she is over aged and due old age decease she could not give proper attention in the administration of the Ration Depor produced. She produced written consent to grant the license to her son, A.Santhosh Kumar in stamp paper worth Rs.50/-. Accordingly he has been considered as the Nominee and the Depot's license was issued to him considering him as the legal heir under the provisions of transfer of license as per Order No. C.S.1.958/07 dated 09/03/2007 of the District Supply Officer. The existing Licensee if due to old age or decease is unable to look after and administer the Ration Depot properly, he can nominate his successor as per records and the license can be transferred. Such nominee can be appointed as the licensee as per the provisions in 1966 Kerala Rationing Order. Shri. A. Santhosh Kumar was appointed as the Licensee as per the above provisions.
As per the Certificate No. A.1.29586/05 K.Dis dated 02/08/2005 of Tahsildar, Neyyattinkara, Smt. Leelabai, Aswathy Bhavan, Muryankara, Parassala, Neyyattinkara is the W/o. late Shri. Appukuttan, now died on 02/12/1998 and as per the Hindu Succession Act, if the husband is died the wife will obtain power and right based on which the consent of any other legal heirs of her husband is not necessary to appoint her as Licensee of ARD No. 42.
Besides as the Registered Joint deed No. 2968/92 dated 25/05/1992 of Sub Registrar Office, Parassala executed by Shri. B. Appukuttan Nair and Smt. B. Leelabai and the father and mother of Shri. Appukuttan Nair viz. Shri. Velayudhan Pillai and Smt. Bhagathy Pillai, the
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administration of ARD No. 42 of Neyyattinkara Taluk and the shop buildings in which the Ration Depot is functioning have been registered in the name of Shri Santhosh Kumar and Santhosh Kumari.
In the above circumstances, it is informed that Smt. A.L. Anandakumari could not raise any valid claim in respect of appointment of successor Licensee of succession right of ARD No.42 of Neyyattinkara Taluk. The original petition is also returned herewith.
Yours Faithfully,
Sd/-
For District Collector”
(Exhibit-P6), canceling the appointment of Smt. Leela Bai and Mr. Santhosh
Kumar, and directing issuance of a fresh notification inviting application for conducting ARD No.42 is reproduced:
“OFFICE OF THE CIVIL SUPPLIES COMMISSIONER PROCEEDINGS OF THE CIVIL SUPPLIES COMMISSIONER (Present : Smt. K.B.Valsalakumari, L.A.S)
No.(C.S)A8-22592/09 Thiruvananthapuram, Date: 24.11.09.
Ref:- 1) Proceedings No. C.S.1.3536/05 dated 16/08/05 of the District Supply Officer, Thiruvananthapuram.
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01/09/2008 to the Chief Minister's Public Grievances Redressal Cell.
Shri. Appukuttan Nair, Licensee of ARD No. 42 in Neyyattinkara Taluk died on 02/12/1998. Consequently, Smt. B. Leelabai, W/o late Appukuttan Nair appointed as the Licensee as the sole legal heir of the deceased vide order 1st cited of the District Supply Officer. Later, Smt. B. Leelabai due to her old age disease informed that she is unable to look after and manage the Ration Depot and filed a consent in Rs.50/- stamp paper to the effect that she has no objection to transfer and approve the license of the Ration Deport in the name of her son, Shri. A. Santhosh Kumar. Accordingly, as being nominee and successor of the Licensee, he was appointed as the Licensee of Ration Depot vide order 2nd cited.
xxxxxxxxxxxxxxxxx
O R D E R
The main argument of Shri Santhosh Kumar is that Smt. Anandakumari had raised any objection regarding the appointment of Smt. Leelabai. Against this, Smt.Anandakumari contested that she only knew about the
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transfer of License to Smt. Leelabai by the District Supply Officer only on 21/11/2009 as per the reply obtained under Right to Information Act. As she came to know very late that after the death of her father, the District Supply Officer had transferred the License to her mother. Hence, no complaints against the same had been filled earlier. No documents to disaprove the above contention was produced by Shri. Santhosh Kumar.
Another contention is that the order under dispute is issued as rule 45(2) of the Kerala Rationing Order. That order shall be challenged only under Rule 45(10) either to file Appeal or Revision. But instead of that Smt. Aandakumari filed complaints. Hence, requested to reject the complaints and to allow the Appeal, since no complaints are sustainable in this current circumstances.
Another contention is that since the appointment order was issued by the District Collector, the Appeal has to be filed before the District Collector as a Revision before the Commissioner. And the Director, Civil Supplies have no power to admit this case. Therefore, the Director has no power to cancel the order of the District Supply Officer. This argument is not correct. The Director, Civil Supplies has not cancelled any orders. But based on the complaint received he has informed the District Supply Officer to take action as per the provisions in Kerala Rationing Order and directed to take action accordingly.
However, as per the provisions in clause 45(11) of the Kerala Rationing Order, the Commissioner is empowered to take action suo motu or on the basis of an application to call for the records leading to any orders passed by any of his subordinate Officers and either to confirm that order or to revise the order or to cancel the orders or to remit back the case to the Officer who had issued the order.
The Appellant contested in his appeal that after the death of his father who was the Licensee of ARD No. 42 his mother, Smt. Leelabai was appointed as the Licensee as per Order No. CS.1/3536/2005 of the District Supply Officer and also based on the Hindu Succession Act. The Licensee is appointed as per the Kerala Rationing Order and not as per the Succession Act. As per provisions under Cl. 45(2) of the Kerala Rationing Order, on the death of a Licensee, all the
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legal heirs have to jointly nominate one Licensee, the District Supply Officer can appoint such persons as the License. In this case, Smt. Anandakumari, being one of the legal heirs of late Shri Appukuttan Nair, all of the legal heirs including Anandakumari should have jointly nominate Smt. Leelabai, the widow of late Appukuttan Nair (the mother of the Appellant and also the 4th respondent, Smt. Anandakumari) Since, in the process Smt. Anandakumari had not been included, the appointment of Smt. Leelabai as the licensee by the District Supply Officer is illegal. Therefore, the action of Smt. Leelabai nominating her son Shri Santhosh Kumar as the Licensee of ARD No. 42 and based on that the District Supply Officer had issued orders appointing Shri Santhosh Kumar as the Licensee of the shop is not in accordance with law.
Therefore, orders of appointing Smt. Leelabai and Shri Santhosh Kumar as the Licensee of ARD No. 42 as per the orders of the District Supply Officer in the 1st and 3rd cited is cancelled. The show cause notice issued as per reference 9 cited issued by District Supply Officer is also cancelled. All the concerned parties shall submit the application for conducting of the Ration shop by the legal heirs as per the provision of Kerala Rationing Order with all documents before the District Supply Officer within 2 months from the date of receipt of this order. And on receipt of the Application District Supply Officer shall pass orders therein within one month from the date of receipt of the application after hearing all the parties after issuing notices. If no applications are not received within 2 months, the District Supply Officer shall issue notification Inviting application for conduct of ARD No. 42 and take further action in the matter. Until a new license is appointed for Ration Shop No 42, the continuance of the ration shop will be entrusted to the present Licensee Shri. Santhosh Kumar in ref 10th cited is disposed, accordingly.
This order is issued in exercise of the powers conferred on me under the provisions in rule 45(11) A, B, C and D of the Kerala Rationing Order, 1966.
Sd/-
Civil Supplies Commissioner” 14. Exhibit-P9 order in G.O.(Rt.) No.200/2010/F&CSD dated
21.06.2010 of Food and Civil Supplies (B) Department confirming the
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proceedings of the Commissioner of Civil Supplies is reproduced:
“GOVERNMENT OF KERALA
Abstract
Food and Civil Supplies Department – Rationing-Neyyattinkara Taluk – ARD 42 – appointment on succession – Revision Petition submitted by Sri.A.Santhoshkumar – Judgment of the Hon'ble High Court of Kerala in Writ Petition No.332/10 dated 15.01.2010 – compliance of directions – orders issued.
FOOD AND CIVIL SUPPLIES (B), DEPARTMENT
G.O(Rt.) No.200/2010/F&CSD
Dated, Thiruvananthapuram, 21-06-2020
Read: 1. Proceedings No.CSI/3536/05 dated 16/08/2005 of the District Supply Officer, Thiruvananthapuram.
O R D E R
Consequent to the demise of Appukuttan Nair on 02/12/1988, the licensee of ARD No.42 of Neyyattinkara Taluk, his wife Smt. Leela Bai has been appointed as the licensee of the said ARD, under succession-ship terms as per order 1st cited of the District Supply Officer, Thiruvananthapuram. Thereafter, due to due to old age deceases Smt.Leela Bai informed that she is unable to look after and administer the ARD hence requested to grant the licensee of the ARD in the name of her son Sri.A.Santhoshkumar and submitted her consent in the matter in stamp papers with Rs.50/-
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Accordingly considering Sri.A.Santhoshkumar as the nominee, the licence of the ARD has granted to him by the District Supply Officer, Thiruvananthapuram as per the reference read as 2nd above.
Against the above appointment, Smt. Anandakumari, one of the daughter of late Sri. Appukuttan Nair made complaint dated 30-8-2008 before the District Collector, and complaint dated 17-9-2008 before the Chief Ministers Public Grievances Redressal Cell. The District Collector had submitted a report to Govt in the matter as detailed below:
"As per the Certificate No.A1/29586/05 dated 2-8-05 of the Tahsildar, Neyyattinkara, it is evident that Smt. B. Leelabai, Aswathy Bhavan, Mariyankara, Parassala, Neyyattinkara is the wife of late Sri.Appukuttan Nair, who died on 2-121998, and based on the fact that as per the Hindu Succession law, if the husband died, the deceased's wife will derive all the rights and power, Smt.B.leelabai has been appointed by the District Supply Officer as the licensee of the above ARD without the consent of other legal heirs".
If an existing licence is nominating a person as successor, due to the old age illness/deceases unable to lookafter and administer the Ration Depot, the licence can be transferred and the person nominated can be appointed under succession as the licensee under the provisions in 45(2) of the Kerala Rationing Order, 1966.
Moreover, as per the Joint deed No.2968/92 dated 25-51992 executed by Sri.V.Appukuttan Nair and Smt.B.Leelabai and the father and mother of late Appukuttan Nair viz; Velayudhan Pillai and Smt Bhagavati Pillai regarding the management of ARD 42 and the building in which the Ration Depot is functioned has been registered in the name Santhoshkumar and Smt. Santhoshkumari.”
In view of the aforesaid facts, the District Collector as per the reference read as 3rd cited, dated 4-12-08, reported to govt, that Smt.Anandakumari had no legitimate right to claim under succession in respect of ARD 42 of Neyyattinkara Taluk.
Thereafter, Anandakumari filed a complaint before the Civil Supplies Director. In the complaint it is alleged that
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during the pendency of the dispute over the successionship of the licence of ARD 42 of Neyyattinkara Taluk after the death of her father without obtaining his consent or signature, B.Leelabai and thereafter, A. Santhoshkumar was appointed as the licensee of the shop, therefore, requested to take action against the District Supply Officer and also requested to cancel the licence.
As per the directions of the Civil Supplies Director, the District Supply Officer had submitted a report on 29-5-2008. As per the request, it is stated that it is evident from the cert. No.A1-29586/05/K.Dis dated 2-8-2005 of the Tahsildar, Neyyattinkara Smt.B.Leelabai, Aswathy Bhavan, Mariyankara, Parassala, Neyyattinkara is the wife of late Appukuttan Nair who died on 2-12-98 and on the death of husband as per the Hindu Succession Law all the right and power of her husband shall vest with the wife. Accordingly, B.Leelabai has been appointed as the licensee of the above Ration Depot with obtaining the consent of Successors, by the District Supply Officer However after considering this report, the Civil Supplies Director found that the appointment of B.Leelabai as the licensee of the shop, without attaining the consent of other successor, is irregular. Accordingly the Director issued directions to the District Supply Officer as per the ref. read as 4 cited to cancel the licence if there is dispute regarding the successorship of the licensee in view of the provisions in 45(2) of the Kerala Kerala Rationing Order, 1966 and District Supply Officer has power to invite fresh application for granting licence in such cases. Accordingly Director requested the District Supply Officer to take appropriate action in the matter under the Kerala Rationing Order 1966 and to forward action taken report.
Consequent to the above directions int heir. The District Supply Officer issued show cause Notice dated 24-8-09. In the notice, 7 days time was granted canceling the licence. Sri.Santhoshkumar informed that the said notice was received on 14-9-2009 and informed that he had submitted RTI application and copy of the letter o the Civil Supplies Director and time for submitting reply to the notice may be grant, till the receipt of the copies of the reports/letter vide his application dated 17-09-2009.
On 23-9-2009, Sri. Santhoshkumar had submitted an appeal before the Commissioner of Civil Supplies against the
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decision of the Civil Supplies Director. The appeal petition has been admitted by the Commissioner and further proceedings in pursuance to the directions contained in the letter of the Civil Supplies Director, 4th cited, has been stayed. Thereafter Smt. Anandakumari submitted an application before the Commissioner of Civil Supplies. Commissioner of Civil Supplies heard both the parties and based on that, the appeal petition of Santhoshkumar and application of Smt. Anandakumari have been finalised by order read as 5th paper above, the relevant and operative of the order is stated below:
The proceedings of District Supply Officer appointing Smt. B.leelabai and Sri Santhoshkumar as the licensee of ARD No. 42 and the show cause notice is set aside and the concerned parties shall submit application with all relevant documents as per the provision of the Kerala Rationing Order within 2 months from the date of receipt of copy of the order and the District Supply Officer shall take a decision thereon after hearing them in person by serving notice to the parties and a decision shall taken in the matter within one month from the date of receipt of copy of application. If the prescribed applications are not within the time limit of 2 months, notification shall be published inviting applications for granting Permanent licence in respect of ARD No.42 and further action shall be taken in the matter. Until a new licensee is appointed, the present licensee Sri.Santhoshkumar will continue to operate the ARD No.42
Against the above order of the Commissioner of Civil Supplies, Santhoshkumar filed a Revision/stay Petition dated 8-1-2010 before the Government.
Government had not granted any stay against the implementation of the order of the Commissioner of Civil Supplies. Meanwhile, Sri. Santhoshkumar filed Writ Petition No.332/2010. That was disposed by the Hon'ble High Court of Kerala vide its Judgment dated 15-10-2010 read as 7th paper above, directing the Government to consider and pass orders in the Revision within 3 months and the stay Petition within one month from the date of receipt of copy of Judgment. Regarding the consideration and disposal of the Revision, the Addl. Secretary to the Government, Food and Civil Supplies Department had personal hearing with the parties on 19-042016. However, due to the delay in receipt of the notice of hearing, they had informed that they could not prepare for the
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same and requested to adjourn the hearing. Accordingly, the hearing was adjourned and the parties were informed to appear on 03/5/2010 and 7/05/2010 by then Joint Secretary to Government consequent to the change of post in the Cadre I of Addl. Secretary to Govt in the Food and Civil Supplies Department as Joint Secretary to Government. In that hearing, for the Revision Petitioner Adv.Velappan Nair had appeared for the hearing and for 5th Respondent viz, Smt.A.L.Anandakumari, Adv.S.K.Ajithkumar appeared and presented their arguments. Apart from these advocates, the Revision Petitioner and 5th Respondent were present at the time of hearing. The contentions of the appeal Petition hearing note and the arguments at the time of hearing are detailed below. Adv.K. Velappan Nair (For Revision Petitioner):
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seveal years, the 5th Respondent has no right and power to challenge the appointment of Sri.A.Santhoshkumar as the licensee as per the procdure as the nominee of Smt. Leelabai.
Even though the 5th Respondent is aware of that, Smt Leelabai and Sri.A.Santhoshkumar were appointed as the licensee of ARD. However, instead of filing an appeal or Revision, before the appropriate authority, she had submitted a Petition before the Minister for Food and Civil Supplies Department. Even though there is an opportunity to file appeal or Revision, that has been done by the 5th Respondent. Therefore, her complaint is not maintainable. Hence, she is not at all a party to the above proceedings which is substantiate on perusal of Clauses 45(1) and 45(11) of Kerala Rationing Order, 1966 which reads "Appeal/ Revision cane be filed by any person aggrieved and that filing of appeal on Revision is not confined to the parties in the proceedings.”
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i. Sri. V. Appukuttan Nair, the ARD Licensee at Parassala died on 2-12-1998. His legal heirs are (i) Smt. Leelabai (wife), (2) Sri.A.Santhoshkumar (son) 3) Smt.A.L.Anandakumari (daughter). After the death of Appukuttan Nair, Sri.Santhoshkumar and Smt.Santhoshkumari obtained a false legal heirship Certificate from the Tahsildar, Neyyattinkara. In that Certificate, the name of 5th Respondent had not been included. Against the same, the 5th Respondent filed a complaint before the District Collector, Thiruvananthapuram. Based on that, detailed enquiry was conducted by the Tahsildar, Neyyattinkara and cancelled the legal heirship Certificate vide order dated 16-4-2003 and the facts was informed by the Taluk Supply Officer, Thiruvananthapuram, to the District Supply Officer. But, without considering the same, the District Supply Officer Thiruvananthapuram vide order No.CS-1/3536/2005 dated 16-8-2005 has appointed Smt.Leelabai as the licensee of ARD shop No.42. That appointment is in violation of the provisions of 42(2) of Kerala Rationing Order, and therefore, it is illegal. The 5th Respondent had not approved the appointment of Leelabai as the licensee of ARD No.42. Therefore, the cancellation of the order of the District Supply Officer appoint Smt.Leelabai as the licensee of the ARD by the Commissioner of Civil Supplies is in order.
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challenged in appeal/Revision by Anandakumari immediately, the following reply was given by Smt.Anandakumari.
I was not a party to the proceedings. Only after receiving reliably information regarding the appointment of Leelabai as the licensee of the ARD, complaint has been filed. Since, I was not a party to the proceedings, it was not challenged in Appeal/Revision and it is not a matter of public interest to file an appeal or Revision. Therefore, the contention of the Petitioner that as per Section 5 of the Limitation Act, the 5th Respondent’s application is not maintainable is unsustainable.
Appointment of ARD licensee is not based on succession laws, but as per the provisions of Kerala Rationing Order. Therefore, the order of the Commissioner for cancellation of the appointment of Leelabai as the ARD licensee, and appointment of petitioner as licensee based on the nomination of Smt. Leelabai may be upheld and the Revision Petition may be dismissed.
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On examining the arguments of the parties and their documents and also examining the other available records leads to arrive at the following conclusions:
Late Appukuttan Nair, being the licensee of ARD No.42 had not nominated anybody as his nominee. The Petitioner had not submitted any documents to prove that there is any valid nomination. If the licensee is died without any valid nomination, all the legal heirs have to nominate one among them so as to appoint him as the licensee(provision to Clause 45(2) KRO, 1966). But, in this case that Leelabai the widow of late Appukuttan Nair has been appointed as the licensee of the ARD by the District Supply Officer, without the consent of one of the legal heir, ie. A.L.Anandakumari. The above appointment is in total violation of the provisions in the Kerala Rationing Order and hence it is illegal. Since the appointment of Smt.Leealbai itself is illegal, the action of her nomination of the Petitioner as the licensee of the ARD and based on that nomination, the District Supply Officer appointed the Petitioner viz; Santhoshkumar as the licensee is also found to be illegal. The appointment of ARD licensee shall be made as per the Kerala Rationing Order and not based on the succession law.
Even though, the Commissioner of Civil Supplies initiated the proceedings on suo-moto power, but later, it was continued based on the Petition of Smt.Anandakumari and based on the Petition of A.Santhoshkumar. The order read as 5th paper above, was passed by the Commissioner on2 4-11-09 after hearing the parties in person and after examining the documents produced by them. Therefore the contention of the Petitioner that the order was passed without complying the proceedings required as per Clause 45(11), is contrary to the facts of the case and hence it is rejected.
Another contention of the Petitioner is that the appointment of Leelabai as the licensee has not been objected and challenged by the 5th Respondent in time. However, soon on receipt of the correct information regarding the said appointment it is found that Smt.Anandakumari had challenged it. Therefore, the case does not come under the purview of the limitation Act.
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In the above circumstances, the Petitioner failed to produce any evidence and substantiate his case by controverting the reasons and grounds stated by the Commissioner for issuance of the order read as 5th paper above. Therefore, the order of the Commissioner read as 5th paper above is upheld and the Revision Petition of Sri.A. Santhoshkumar read as 6th paper above is rejected and orders passed, accordingly. Accordingly, orders are issued in compliance of the directions of the Hon'ble High Court of Kerala in Judgment read as 7th paper above.
By order of the Governor,
Sd /- V.V.Vinayakumaran Addl. Secretary”
“(2) Application for appointment as authorised retail distributor shall be made to the District Supply Officer in the
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form prescribed by the Commissioner by notification in the Gazette:
"Provided that the authorised retail distributor shall nominate a member of his family for appointment as the authorised retail distributor, in the event of his being incapable of running the ration business, owing to old age or illness or in the event of his death. The nominee shall be appointed, as a temporary licensee forthwith, on the death of the licensee, without insisting on the proof of financial stability, production of legal heirship certificate etc. The willingness of the nominee shall be obtained by the authorised retail distributor before his/her nomination. The above appointment shall be made permanent, on production of satisfactory proof of financial stability of the nominee. If, the authorised retail distributor dies, without exercising his nomination as provided above, the district supply officer shall appoint any of the legal heirs, nominated jointly by all the other legal heirs, as a temporary authorised retail distributor. Such temporary appointment shall be made permanent, only on production of Legal Heirship Certificate from the concerned authority and after conducting such enquiry. as the District Supply Officer may consider necessary, regarding the financial position of such person and also on executing necessary agreement, as provided under this order.
Provided further that in the case of disputes regarding heirship or in the event of disagreement among legal heirs either before the appointment, or after the appointment District Supply Officer may cancel the appointment if already ordered, call for applications and make fresh appointments as provided for under these rules.
Provided also that whenever the appointment of any Co-operative society as authorised retail distributor in respect of any area is revoked, cancelled the District Supply Officer may give preference to the salesman of the concerned retail depot while making the appointment of a substitute retail distributor for that area.
Provided also that an applicant who is an exserviceman may be given preference in the appointment of Authorised Retail Distributor, if he is otherwise eligible and if there is no eligible heir of a deceased Authorised Retail
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Distributor or salesman of a Co-operative Society available for substitute appointment.
Provided also that an applicant who is an unemployed rural youth may be given preference in the appointment of authorised retail distributor, if he is otherwise eligible and if there is no eligible heir of a deceased authorised retail distributor or sales man of a co-operative society or exserviceman available for substitute appointment.”
Neyyattinkara Taluk. He died on 02-12-1998. Consequently, Smt. B. Leela Bai, wife of late Appukuttan Nair was appointed as a licensee, since she is the sole heir, vide proceedings dated 16.08.2005 of the District Supply Officer, Thiruvananthapuram.
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WA.159/2014
the District Supply Officer, ought not to have appointed Smt. Leela Bai as authorised retail distributor, for ARD No.42 of Neyyatinkara, and subsequently, the writ petitioner/Mr. A. Santhosh Kumar, material on record discloses that Exhibit-P1 order, which was issued as early as on 16.08.2005, appointing Smt. B. Leela Bai, wife of later Mr. Appukuttan Nair and mother of the appellant, and the writ petitioner, as ARD, was not challenged.
“8. First of all, though the 5th respondent is also a legal heir, a reading of Ext.P6 shows that even according to the 5th respondent, she made complaint only after November, 2008, which means that the first complaint made by the 5th respondent was more than three years subsequent to the appointment of the deceased mother of the parties. The specific case of the petitioner, which is also not contradicted, is that the 5th respondent is a resident of a neighboring property. Therefore, even if she was not initially informed of the appointment of her mother, it is improbable to think that she was unaware of the appointment. If that be so, if she had any complaint in the
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matter, one would have expected her to make complaint within a reasonable time. She having not done that, the complaint made by her is highly belated and should not have been taken cognizance of.
The first part is that “provided that the authorised retail distributor shall nominate a member of his family for appointment as the authorised retail distributor, in the event of his being incapable of running the ration business, owing to old age or illness or in the event of his death. The nominee shall be appointed, as a temporary licensee forthwith, on the death of the licensee, without insisting on the proof of financial stability, production of legal heirship certificate etc. The willingness of the nominee shall be obtained by the authorised retail distributor before his/her nomination. The above appointment shall be made permanent, on production of satisfactory proof of financial stability of the nominee”.
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WA.159/2014
supply officer shall appoint any of the legal heirs, nominated jointly by all the other legal heirs, as a temporary authorised retail distributor. Such temporary appointment shall be made permanent, only on production of Legal Heirship Certificate from the concerned authority and after conducting such enquiry, as the District Supply Officer may consider necessary, regarding the financial position of such person and also on executing necessary agreement, as provided under this order”.
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the learned single Judge, in W.P.(C) No.24718 of 2010 dated 23.11.2011, warranting interference.
In the result, writ appeal fails and accordingly, dismissed. No costs.
Sd/-
S. Manikumar
Chief Justice
Sd/-
Shaji P. Chaly Judge
krj
//true copy//
P.A. To C.J.
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APPENDIX
APPELLANT'S EXHIBITS:-
P2:- ENGLISH TRANSLATION OF THE PROCEEDINGS NO.CS-1/958/07 DATED 03/03/2007 OF THE DISTRICT SUPPLY OFFICER, THIORUVANANTHAPURAM.
P3:- ENGLISH TRANSLATION OF THE REPRESENTATION FILED BY THE PETITIONER/APPELLANT DATED 01/09/2008 BEFORE THE HON'BLE CHIEF JUSTICE.
P4:- ENGLISH TRANSLATION OF THE REPRESENTATION FILED BY THE PETITIONER/APPELLANT DATED 31/10/2008 BEFORE THE HON'BLE CHIEF MINISTER.
P5:- ENGLISH TRANSLATION OF THE PROCEEDINGS NO.C.S.1-3039/08 DATED 04/12/2008 ISSUED BY THE DISTRICT COLLECTOR.
P6:- ENGLISH TRANSLATION OF THE PROCEEDINGS NO. (C.S)A8-22592/09 DATED 24/11/2009 ISSUED BY THE CIVIL SUPPLIES COMMISSIONER.
P7:- ENGLISH TRANSLATION OF THE CONVEYANCE DEED DATED 25/05/92.
P9:- ENGLISH TRANSLATION OF THE GO(Rt.) NO.200/2010/F&CSD DATED 21/06/2010.
R5(A):- ENGLISH TRANSLATION OF THE PROCEEDINGS NO.A129800/2003 DATED 25/08/2004 OF THE TAHSILDAR, NEYYATINKARA.
R5(B):- ENGLISH TRANSLATION OF THE PROCEEEDINGS NO.A1/29809/03 RTI ACT, 2005 OF THE DISTRICT COLLECTOR DATED 05/09/2003.
R5(C):- ENGLISH TRANSLATION OF THE CERTIFICATE NO.29809/03/A5 DATED 01/02/2008 OF THE TAHSILDAR, NEYYATIINKARA.
P13:- ENGLISH TRANSLATION OF THE CONSENT GIVEN BY B. LEELABAI, W/O. LATE V. APPUKUTTAN NAIR TO THE DISTRICT SUPPLY OFFICER, THIRUVANANTHAPURAM DATED 11/08/2010.
P14: ENGLISH TRANSLATION OF THE CONSENT GIVEN BY L. SANTHOSH KUMARI, D/O. LATE V. APPUKUTTAN NAIR TO THE DISTRICT SUPPLY OFFICER, THIRUVANANTHAPURAM DATED 11/08/2010.
RESPONDENTS' EXHIBITS:- 'NIL'
//TRUE COPY//
P.A. TO C.J.
2 issues framed by the court
Could another legal heir's lack of consent invalidate the appointment of a ration dealer nominated by an existing permanent licensee under Clause 45(2)?
Could the existing licensee's appointment be challenged belatedly to invalidate her nominee's appointment?
1 provisions across 1 enactments
A.L. ANANDAKUMARI
A. SANTHOSHKUMAR
STATE OF KERALA
THE COMMISSIONER OF CIVIL SUPPLIES
THE DISTRICT COLLECTOR
THE DISTRICT SUPPLY OFFICER
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
