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V.i. Varkey Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberW.A. No. 165 of 1984
Judge
Reported inAIR1984Ker189
ActsEssential Commodities Act, 1955 - Sections 3; Kerala Rationing Order, 1966
AppellantV.i. Varkey
RespondentState of Kerala and ors.
Advocates: M.I. Joseph, Adv.
DispositionAppeal dismissed
Cases ReferredLalithambika v. Secretary
Excerpt:
- - if there is a mandatory requirement under the statutory rule that certain particulars are to be furnished, or certain certificates are to accompany the application, the failure to comply with those requirements would result in the summary rejection of the application, particularly where the rules themselves make it clear that failure to comply with the requirements would result in the summary rejection of the application. in this case, we have already noticed that there is no statutory rule which requires that the certificates referred to above were to accompany the application, or that the failure to do so would result in the summary rejection of the application......be rejected. according to him, the application from respondent 4 was not accompanied either by the solvency certificate or the certificate of consent by the owner of the building in which respondent 4 proposed to conduct the depot in case the licence for that purpose was granted to him. his argument was that respondent 2 had found that the fourth respondent's application was not accompanied by these certificates and it was sufficient reason for rejecting his application summarily, and therefore there was no valid reason why the government in exercise of its power of revision should have interfered with ext. p4 order passed by respondent 2. 3. the question before us is whether we should, in exercise of the power under article 226 of the constitution, interfere with the decision of the.....
Judgment:

Bhaskaran, Ag. C.J.

1. This writ appeal is filed by the petitioner in O. P. No. 5206 of 1981 which has been dismissed by a learned Judge of this Court by the judgment dt. 22-12-1983. The District Collector, Alleppey, has published under Clause 51 (ii) of the Kerala Rationing Order, 1966, a notification inviting applications in the prescribed form for the appointment of an authorised wholesale distributor in respect of a particular depot within the Thiruvalla Municipality. The appellant-petitioner and the respondent 4 were two among other applicants. The 3rd respondent- District Collector decided the matter in favour of respondent 4 as per his order dt. 30-6-1980, a true copy of which is Ext. P3, and ordered the issue of licence to him. On appeal, as per the order dt. 14-1-1981, a true copy of which is Ext. P4, respondent 2, the Commissioner of Civil Supplies, Board of Revenue, set aside Ext. P3 order and remanded the matter to respondent 3, District Collector, directing him to go through the entire procedure ab initio. There was also a direction to issue a fresh notification inviting applications for the A.W.D., and the selection to be made after due process according to the statute. In para 7 of Ext. P4 order respondent 2 has stated as follows:--

'Even though it is true that the statute does not enforce the automatic rejection of applications not accompanied by the necessary supporting documents of solvency etc., it is neither prudent nor fair to extend opportunities for applicants to plug loopholes as they arise.'

A revision filed by respondent 4 was allowed by respondent 1, the Government of Kerala, by G. O. Rt. 333/81/Food dt. 30-9-1981, a true copy of which is Ext. P9.

2. Sri M. I. Joseph, the counsel for the appellant-petitioner. submitted that the notification issued by respondent 3 required the application to be submitted in the prescribed form; and in the form it was stated that incomplete applications would be liable to be rejected. According to him, the application from respondent 4 was not accompanied either by the solvency certificate or the certificate of consent by the owner of the building in which respondent 4 proposed to conduct the depot in case the licence for that purpose was granted to him. His argument was that respondent 2 had found that the fourth respondent's application was not accompanied by these certificates and it was sufficient reason for rejecting his application summarily, and therefore there was no valid reason why the Government in exercise of its power of revision should have interfered with Ext. P4 order passed by respondent 2.

3. The question before us is whether we should, in exercise of the power under Article 226 of the Constitution, interfere with the decision of the Government. We have not been shown any provision in the relevant Rules which requires that an application should be accompanied by solvency certificate or certificate of consent from the owner of the building. Even in the application form, which is not a statutory form, but only a form prescribed by the executive authority, there is no mention that the solvency certificate or the consent certificate is to accompany the application, The only requirement in terms of the application form itself is that if the answer to the question whether the applicant was solvent was in the affirmative, the certificate in proof of the extent of the solvency was to be produced. It would serve the same purpose even if the certificate is produced any time before the Collector takes up the matter for decision. There is not only no non-compliance with the requirements of the relevant provisions, but also no prejudice caused to any of the parties by the fact that the application was not accompanied by the certificates, but were made available before the Collector took up the matter for consideration.

4. The counsel for the appellant-petitioner cited a decision of the Supreme Court and three decisions of this Court in support of his contention that where there was non-compliance with the provisions in the rules governing the grant of the licence, the application ought to have been rejected summarily. The decisions are : (1) Tara Singh v. State of Rajasthan (AIR 1975 SC 1487); (2) Kerala Public Service Commission v. Saroja Nambiar, ILR (1978) 2 Ker 241); (3) Kerala Public Service Commission v. Johnson (1979 Ker LT 665) : (1980 Lab IC 109); and (4) Lalithambika v. Secretary, KPSC (1981 Ker LT 98 (SN) : (1982 Lab IC 452). We have gone through these decisions. We find none of these decisions is applicable to the facts of the case. If there is a mandatory requirement under the statutory rule that certain particulars are to be furnished, or certain certificates are to accompany the application, the failure to comply with those requirements would result in the summary rejection of the application, particularly where the rules themselves make it clear that failure to comply with the requirements would result in the summary rejection of the application. In this case, we have already noticed that there is no statutory rule which requires that the certificates referred to above were to accompany the application, or that the failure to do so would result in the summary rejection of the application. The decisions cited could easily be, therefore, distinguished on facts.

For the foregoing reasons we find no merit in this writ appeal; accordingly it is dismissed.


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