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Lookose Jose Vs. Chandy Skariah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 55 of 1975
Judge
Reported inAIR1975Ker206
ActsKerala Rationing Order, 1966 - Sections 45(11); Constitution of India - Article 226
AppellantLookose Jose
RespondentChandy Skariah and ors.
Appellant Advocate K. Kurian Joseph and Mathew Jacob
Respondent Advocate T.M. Cherian, Adv. and;Govt. Pleader
DispositionAppeal allowed
Cases ReferredState of Madras v. Madura Knitting Co..Ltd.
Excerpt:
.....in the act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. conferment of power to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by section 12 (2). xx xx xx' (para......all cases be restricted to the record maintained by the officer subordinate to him, and can never make enquiry outside that record. (para-graph 15), xx xx xx xx in our view the amplitude of the power conferred by sub-section (1) and illustrated by sub-section (2) of section 19 takes in the power to provide for making further enquiry enabling the revising authority to exercise his powers, and unless the power so conferred expressly or by clear implication nullifies or is inconsistent with any provision of the act, it must be regarded as validly exercised. conferment of power to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do.....
Judgment:

Gopalan Nambiyar, J.

1. We are satisfied that the learned Judge IN exceeded the limits for interference under Article 226 of the Constitution in interfering with the revisional order passed by the Government and evidenced by Ext. P-3. The 1st respondent who was the petitioner who filed the writ petition, which was allowed by the learned Judge, was an applicant for grant of a licence or authority in respect of a ration shop No. ARD 141, Vaikom Taluk. The appellant before us was another applicant for the said licence or authority. The choice ultimately resolved itself to one. between the appellant and the 1st respondent The appellant strongly urged that the 1st respondent was disentitled to the grant of licence as he had been guilty of impersonation, had been convicted by a criminal court, and that, on a prior occasion a licence granted to it had been cancelled on account of its irregularities or misconduct. These were considered in detail by Ext. P-1 order of the District Supply Officer, the first authority, who held that none of these grounds had been established or proved. He accordingly chose the first respondent as the fittest person to conduct the ration shop. Ext. P-1 is a copy of his order. The appellant filed an appeal before the District Collector. The objections were repeated before him. In an order evidenced by Ext. P-2, the Collector affirmed the order of the District Supply Officer holding that the allegations of misconduct or criminal conviction made against the 1st respondent had not been proved. The appellant took up the matter further in revision before the Government. The Government observed:

'...... There are two factors which require serious consideration. Enquiries conducted by the District Collector showed that Shri Chandy Skariah who was appointed as the licensee was previously convicted by a court for some criminal offence. He was then known by the name Chacko Skaria and had to undergo imprisonment in that criminal case. The District Collector has reported that there was no information at the time of his appointment as licensee that he had undergone imprisonment in a criminal case. It is, therefore, not clear whether he would have got the licence, in case the Civil Supplies Authorities had this information at that time, even though the conviction was not under the Essential Commodities Act or the Defence of India Rules.

6. Secondly, it is seen that the licence issued to Shri Chandy Skaria to run a ration shop some years back was subsequently cancelled. The reasons for cancellation of the shop have to be ascertained if possible.'

In view of the above considerations the Government observed that it was not possible to come to a final decision immediately and directed a remand to the District Supply Officer to make further enquiries and give a fresh decision, This order was challenged by the 1st respondent in O. P. 3544 of 1974, which was allowed by a learned Judge of this Court. The learned Judge, interfering with the order, observed that the Government's power as a revisional authority, was confined to an examination of the records of the case, and that the Government was wrong in having gathered materials or in having conducted an enquiry behind the back of the petitioner by obtaining reports from the Collector and other authorities, and on the basis of the same, in remanding the matter back to the District Supply Officer.

2. We are unable to agree with the view taken by the learned Judge in regard to the scope of the revisional power of the Government. The revisional power has been conferred by Section 45 (11) of the Kerala Rationing Order. 1966, which reads as follows:

'45. XX XX XX

(11) The Government or the Commissioner may, either suo motu or on application, call for and examine the records of any order passed by a subordinate authority under the provisions of this clause, for the purpose of satisfying themselves or himself as to the legality or to the propriety of such order, and may-

(a) confirm, modify or set aside the order;

(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;

(c) remit the case to the authority which made the order or any other authority directing such further action or enquiry as the Government or Commissioner considers proper in the circumstances of the case; or

(d) pass such other order as the Government or the Commissioner may deem fit;

Provided that no application under this Sub-clause shall be entertained after the expiry of 60 days from the date of service of the order against which the application is made;

Provided further that no order to thedisadvantage of a person shall be passedunder this Sub-clause unless the personConcerned is given an opportunity ofmaking any representation which he maywish to make against such order.'The expression 'propriety' occurring inthe above clause has come in for judicialnotice and interpretation (see Raman &Raman Ltd. v. State of Madras, AIR 1956SC 463 and State of Kerala v. K.M. Charis Abdulla and Co., AIR 1965 SC 1585).It is also well settled that the. revisionaljurisdiction conferred on terms similar to or identical with, Section 45 (11) is widerthan the revisional power under Section115 of the Civil Procedure Code. That was the view taken recently by a DivisionBench of this Court, to which one of uswas a party in Writ Appeal No. 342 of1974 (Ker).

3. But the point that was keenly debated before us was whether the revisional authority had per force to be satisfied about the impropriety of the order on the records before the first authority, or whether it was open to it to feel so satisfied on the strength of the records produced before it at the revisional stage or on the strength of the materials brought to light before it at the revisional stage, in the light of which it felt further enquiry and re-examination was necessary. We feel that this matter has been concluded by the decision of the Supreme Court in favour of the appellant. We refer to the decision of the Supreme Court in Charia Abdulla's ease (AIR 1965 SC 1585). The Court was there concerned with the scope of the revisional jurisdiction conferred on the Deputy Commissioner of Sales Tax by Section 12 (2) of the Madras General Sales Tax Act read with Rule 14-A of the Rules framed thereunder. The Section confers revisional power almost in similar if not identical terms as Section 45 (11) of the Rationing Order. With respect to the Section and the Rule it was observed by the Supreme Court:

'............ For exercising this power, he may suo motu or on application call for and examine the record of any proceeding or order. There is no doubt that the revising authority may only call for the record of the order or the proceeding, and the record alone may be scrutinised for ascertaining the legality or propriety of an order or regularity of the proceeding. But there is nothing in the Act that for passing an order in exercise of his revisional jurisdiction, if the revising authority is satisfied that the subordinate officer has committed an illegality or impropriety in the order or irregularity in the proceeding, he cannot make or direct any further enquiry. The words of subsection (2) of Section 12 that Dy. Commissioner 'may pass such order with respect thereto as he thinks fit' mean such order as may in the circumstances of the case for rectifying the defect he regarded by him as just. Power to pass such order as the revising authority thinks fit may in some cases include power to make or direct such further enquiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding. It is, therefore, not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction, the Deputy Commissioner must in all cases be restricted to the record maintained by the Officer subordinate to him, and can never make enquiry outside that record. (Para-graph 15),

XX XX XX XX

In our view the amplitude of the power conferred by Sub-section (1) and illustrated by Sub-section (2) of Section 19 takes in the power to provide for making further enquiry enabling the revising authority to exercise his powers, and unless the power so conferred expressly or by clear implication nullifies or is inconsistent with any provision of the Act, it must be regarded as validly exercised. Conferment of power to make further enquiry in cases where after being satisfied about the illegality or impropriety of the order or irregularity in the proceeding, the revising authority thinks it just for rectifying the defect to do so does not amount to enlarging the jurisdiction conferred by Section 12 (2).

xx xx xx' (Para. 17.)It was found by the Supreme Court onexamination of the provisions of the Actand the Rules that there was no groundfor regard in the conferment of power totravel outside the record of the subordinate authorities as unauthorised. It wasobserved that investment of powers tomake such enquiry as the appellate or therevising authority considers necessary,can manifestly be done under the relevant provisions of the Act. referencemade by the Supreme Court to the decision of the Madras High Court in theState of Madras v. Madura Knitting Co..Ltd., (1959) 10 STC 155 (Mad), is alsosignificant, as that decision also bears outthe contention that the revisional authority is not necessarily confined in exercising the revisional power to the recordsbefore the first authority. The SupremeCourt further observed:

'............ The power to hold an enquiry to take additional evidence is a procedural power in aid of the exercise of the revisional jurisdiction and if the revisional jurisdiction is not restricted only to cases of arithmetical errors or as the Tribunal called it 'arithmetical aspect', there is no reason to assume that the power under Rule. 14-A to make such enquiry as the appellate or the revising authority considers it just to order or to make would be so restricted.

xx xx xx' (Para. 19)

4. In the light of the above ruling of the Supreme Court, we are of the opinion that the Government, in the instant case, was within the limits of its revisional power in directing further enquiry into the question as to whether it can reasonably and properly be said that the 1st respondent had not been convicted by a criminal court or that there had been any order of cancellation of the licence against him.

5. We may also point out that in the counter-affidavit filed on behalf of the 3rd respondent -- State of Kerala, it was stated in paragraph 5 as follows:

'After the receipt of the revision petition from the 4th respondent enquiries were conducted as to the allegations in the revision petition through the Tahsildar, Vaikom. The said enquiry revealed that Shri Chacko Skariah, Kulamapallil and Shri Chandy Skariah are one and the same person and that there was a conviction against him in C. C. No. 220 of 1111 of the First Class Magistrate. Kottayam. However, on the basis of the information received as a result of the enquiry conducted by the Tahsildar, no decision adverse to the petitioner has been taken. On the other hand, the Government has only expressed its views in Ext. l'-3 that it is not possible to come to a final decision in the matter of appointing either the petitioner or the 4th respondent as A. R. D. On the other hand, the 1st respondent was directed to make further enquiries in the matter and take a decision on the basis of the result of such enquiries.'

The action taken by the Government in Ext. P-3 order is fully in conformity with what is stated in the above paragraph of the counter-affidavit. We think too that it was fully within the limits, of the Government's revisional power. The learned Judge was, therefore, wrong in interfering under Article 226 with Ext. P-3 order.

6. We allow this appeal, set aside the order of the learned judge and direct that O. P. 3544 of 1974 would stand dismissed. There will be no order as to costs.


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