KERALA STATE RETAIL RATION DEALERS ASSOCIATION v. STATE OF KERALA

W.A.No.2034 of 2008 - 2 - 5. THE DISTRICT COLLECTOR, COLLECTORATE, TRIVANDRUM.BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA.BY STANDING COUNSEL SMT.MOLLY JACOB. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer, J.-------------------------------------------W.A.No.2034 of 2008--------------------------------------------Dated, this the 4th November, 2008JUDGMENTH.L.Dattu,C.J. Being aggrieved by the order passed by the learned SingleJudge in W.P.(C).No.21082 of 2008, dated 5th August, 2008, thepetitioners in the writ petition have presented the present appeal.(2) 1st appellant before us is an Association of Kerala StateRetail Ration Dealers. 2nd appellant is a retail dealer of rationed articles.(3) In the writ petition filed, the petitioners had primarilycalled in question Exhibit P1 Circular issued by the State Government.The Circular gives an indication, at what rate the excess or shortage of therationed articles found in the shop at the time of inspection by theInspecting authority requires to be recovered. The said Circular wasquestioned by the petitioners solely on the ground, that, the KeralaRationing Order, 1966 is a delegated legislation and pursuant to thatdelegated legislation, there cannot be yet another legislation by way of aCircular by the State Government. It is further contended in the writpetition, that, if at all any amounts have to be collected either for excessor shortage found at the time of shop inspection, the same shall be at therate of rationed articles. WA.No.2034 of 2008 - 2 -(4) The learned Single Judge, by his order dated 5th August,2008, has dismissed the writ petition, following the earlier order passedby him in W.P.(C).No.21550 of 2008, disposed of on 17th July, 2008. Inthe order passed in W.P.(C).No.21550 of 2008, the learned Single Judge,after noticing the aforesaid Circular and the purport of Clause 45(8) of theRationing Order, has come to the conclusion that the said Circular is inaid of Clause 45(8) of the Rationing Order. (5) It is the correctness or otherwise of the order passed bythe learned Single Judge, is the subject matter of this Writ Appeal.(6) We have heard learned counsel appearing for theappellants. The learned counsel would contend, that, the excess orshortage of stock of rationed articles could be for various reasons and,therefore, the authorities under the Act cannot mulct the owner of theshop to pay up the price at the rate prevailing in the market. It is furtherstated, that ,Exhibit P1 Circular issued by the State Government iscontrary to Clause 45(8) of the Kerala Rationing Order.(7) In order to appreciate the contention of the learnedcounsel for the appellants, we need to extract the translated versionof Circular No.3/2008 dated 6.5.2008 and Clause 45(8) of theKerala Rationing Order. The translated version of the Circular reads as WA.No.2034 of 2008 - 3 -under: “Circular No.3.2008Sub: Inspection of wholesale and retail ration dealersshop - realisation of value of rationed articlesfound in short or in excess at the time ofinspection @ economic cost - reg:Ref: Economic costing of rice and wheat obtainedfrom the F.C.I. and that of kerosene obtainedfrom I.O.C.While inspecting wholesale and retail ration dealersshops the value of the articles like rice, wheat, kerosene, etc.found short or in excess of the stock are at present realisedat the rates of rationed articles for confiscation to theGovernment. (Rice @ Rs.8.90 per kg., wheat @ Rs.6.70 perkg., kerosene @ Rs.9.30 per litre). Ration cost is seen muchlesser compared to the economic cost of articles.In the circumstances, from 1.4.2008, the stock ofarticles found in short or in excess at the time of inspectionof wholesale and retail ration dealers shops are to beconfiscated to the Government realising value as under:Rice (Grade A): Rs.17.10 per kg.Wheat: Rs.15.76 per kg.Kerosene: Rs.47.77 per litre.The District Supply Officer shall acknowledgereceipt of the circular. Likewise the Taluk Supply Officersand City Rationing Officers shall keep copies of the circularin their respective files”. WA.No.2034 of 2008 - 4 - (8) Clause 45(8) of the Kerala Rationing Order is as under:The same reads as under:“(8) If the District Collector or any officer of the CivilSupplies Department not below the rank of a Taluk SupplyOfficer finds that the authorised retail distributor hascontravened any of the provisions of this Order, or any of thedirections issued thereunder or on receipt of the report fromany of the officers referred to in sub-clause (7) or on his owninspection of the stocks and accounts in a shop finds anyshortage or excess in the quantity of rationed articles or anyirregularities in the accounts or detects non-compliance withany of the directions, issued by the competent authorities orcontravention of the provisions of any order issued by acompetent authority under section 3 of the EssentialCommodities Act, 1955 (Central Act 10 of 1955), which is forthe time being enforced he may after giving the authorisedretail distributor any opportunity of stating his case and anopportunity of hearing him in person and for reasons to berecorded in writing, amend, vary, suspend or cancel hisappointment and/or order forfeiture of the whole or any partof the amount deposited by the authorised retail distributoras security under sub-clause (5).Notwithstanding anything contained in thissub-clause, he may order the realisation of an amountequivalent in value to the cost of the quantity of rationedarticles found to be short or in excess and the cost of anyquantity of rationed articles misappropriated by falsification WA.No.2034 of 2008 - 5 -of accounts and all sums collected in excess by way oftransport charges handling charges, profit etc. and gained bythe authorised retail distributor due to incorrect fixation ofprice or any other defect in calculation when the mistake issubsequently detected at the time of inspection. If considerednecessary he may suspend the appointment of the authorisedretail distributor temporarily pending enquiry.Provided that the power of cancellation ofappointment shall be exercised only by the authoritycompetent to make the appointment or a higher authority”.(9) Sub-clause (8) of the said Order would authorise theauthorities under the Rationing Order to take punitive measures, if, forany reason, the retailer has contravened any of the provisions of theRationing Order.(10) The sub-clause appended to Clause 45(8) of the Orderwould make it clear, that, apart from sub-clause (8) of Clause 45 of theOrder, if there is any contravention by a dealer, dealing in rationedarticles, the Inspecting authority may realize an amount equivalent invalue to the cost of the quantity of rationed articles, either found to beshort or in excess. The measure that requires to be adopted for the purposeof sub-clause (8) of Clause 45 of the Rationing Order is not indicated inthe said clause. To facilitate the authorities to collect the amount, if, forany reason, on inspection the Inspecting authority finds, that, there is WA.No.2034 of 2008 - 6 -either excess or shortage of rationed articles, the same requires to becollected at the market rate. The Circular so issued by the StateGovernment is in aid of sub-clause (8) of Clause 45 of the KeralaRationing Order. Therefore, it cannot be said that the State Governmentcould not have issued Exhibit P1 Circular. In that view of the matter, weare of the firm opinion, that, the learned Single Judge has not committedany error, whatsoever, which would call for our interference in appeal.Therefore, the Writ Appeal requires to be rejected and it is rejected. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer Judgevku/dk