THE KERALA RETAIL RATION DEALERS ASSOCIATION v. NONE

S. Siri Jagan, J.=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=W. P (C) No. 21550 of 2008=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=Dated this, the 17th July, 2008.J U D G M E N TPetitioners challenge Ext. P2 circular issued by the CivilSupplies Commissioner, whereby it has been decided to recover fromlicensed ration dealers the value of stock found excess or short at therate mentioned therein. The contention raised by the petitioners isthat it cannot be done because the Kerala Rationing Order authorisessuch recovery of value of excess or deficit stock only at the ration rateand not at any rate in excess of the rate at which the articles are soldthrough ration shops. Their contention is that Kerala Rationing Orderitself being a delegated legislation, the Government or the CivilSupplies Commissioner cannot issue an order contrary to what hasbeen stated in the Kerala Rationing Order. Their contention is thatunder Clause 45(8), it is specifically provided that for the excess ordeficit stock, what has to be realised is the cost at the rate rationedarticles are being sold through ration shops. They therefore seek thefollowing reliefs:“i.Call for the records leading to Ext. P2 and quash the sameby the issuance of a writ in the nature of certiorari;ii.issue a writ in the nature of mandamus or any otherappropriate writ, direction or order directing the respondents notto implement Ext. P2 circular and to realize the value of therationed articles found to be short or in excess at the market valueas per Ext. P2;iii.Declare that the petitioners and other members of the 1stpetitioner association are not liable to pay penalty on the basis ofmarket value of rationed articles found to be in excess or shortduring the inspection of respondents 2 to 4 and their subordinateson the basis of Ext. P2 circular.”2. I have considered the contentions of the petitioners andheard the learned Government Pleader.3. Clause 45(8) reads as under:“(8) If the District Collector or any officer of the Civil SuppliesDepartment not below the rank of a Taluk Supply Officer finds that W.P.C. No. 21550/2008-: 2 :-the authorised retail distributor has contravened any of theprovisions of this Order, or any of the directions issued thereunderor on receipt of the report from any of the officers referred to insub-clause (7) or on his own inspection of the stocks and accountsin a shop finds any shortage or excess in the quantity of rationedarticles or any irregularities in the accounts or detects noncompliance with any of the directions, issued by the competentauthorities or contravention of the provisions of any order issuedby a competent authority under section 3 of the EssentialCommodities Act, 1955 (Central Act 10 of 1955), which is for thetime being enforced he may after giving the authorised retaildistributor any opportunity of stating his case and an opportunityof hearing him in person and for reasons to be recorded inwriting, amend, vary, suspend or cancel his appointment and/ororder forfeiture of the whole or any part of the amount depositedby the authorised retail distributor as security under sub-clause(5).Notwithstanding anything contained in this sub-clause, hemay order the realisation of an amount equivalent in value to thecost of the quantity of rationed articles found to be short or inexcess and the cost of any quantity of rationed articlesmisappropriated by falsification of accounts and all sums collectedin excess by way of transport charges handling charges, profit ectand gained by the authorised retail distributor due to incorrectfixation of price or any other defect in calculation when themistake is subsequently detected at the time of inspection. Ifconsidered necessary he may suspend the appointment of theauthorised retail distributor temporarily pending enquiry.Provided that the power of cancellation of appointment shallbe exercised only by the authority competent to make theappointment or a higher authority.”3. What is referred to by the petitioners is the non-obstanteclause therein. According to the petitioners, the words 'an amountequivalent in value to the cost of quantity of rationed articles foundto be short or in excess' means that the value to be realised is thevalue at the rate rationed articles are sold through ration depots. Iam unable to agree. That would be reading words into that clausewhich are not there. Those words only say that the amount equivalentin value to the cost of the quantity of rationed articles can be orderedto be realised. The price fixed for articles to be distributed in thepublic distribution system is not the actual price of the same, but W.P.C. No. 21550/2008-: 3 :-subsidised rate. Therefore, according to me, the above words wouldmean the cost fixed by the Government for the purpose. It can eitherbe the price at which said articles are being sold in the market orany other price which the Government decides to fix. Here, theGovernment has fixed the price as in Ext. P2. While interpreting this,we must keep in mind the object behind this. The purpose of thisclause is to bring to book dishonest dealers. If the value realised forthe articles found in short or excess is only the ration value, then suchdishonest dealers would be encouraged to do it again because theydo not lose anything. The dishonest dealers actually sell that stocktaken by them in open market at much higher price. That being so, itis only appropriate that the value is fixed at a higher rate than thevalue at which the same are sold through ration shops so as todiscourage dishonest dealers from repeating the same or even if theshortage or excess is not on account of dishonesty, to make themmore careful about maintaining stock and accounts. The same onlyhas been done by Ext. P2. Therefore, I do not find anything wrong inExt. P2 and accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge.Tds/[True copy]P.S to Judge.