P.K. AHMED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a licensee under the Rationing Order,1966,of A.R.D.57 Ambalaparamba in Perinthalmanna Taluk from 1979.Some irregularities were detected in the petitioner's depot.This led to the suspension of the authorisation issued to the petitioner to run the authorised ration depot(ARD ).The stock found in the petitioner's shop was handed over to the 5th respondent in the O.P.who is conducting A.R.D 127,as a temporary measure.Finally by Ext.P3 order dated 20 -9 -1982 the Taluk Supply Officer,Perintalmanna informed the petitioner that the District Supply Officer,Vigilance,Palghat by order dated 15 -9 -1982 has ordered to forfeit the amount of Rs.250/ - from the security deposit and to recover the cost of 4.75 kilo grams of sugar and 22 litres of Kerosene oil from the petitioner.It was also mentioned that the said order has directed the re -entrustment of the shop to the petitioner after remittance of the above amount.Ex.P4 shows that the amount ordered was deposited by the petitioner.It is alleged that the Rationing Inspector,Mankada came to the spot on 29 -9 - '82,but due to the resistence of the 5th respondent the charge of A.R.D.No.57 could not be given to the petitioner.The petitioner filed an application before the 2nd respondent.District Collector,Malappuram,requesting him to take effective steps against the 5th respondent and to compel him to hand over charge of A.R.D.No.57 to the petitioner.( Vide Ext.P6.) Alleging that the District Collector,Malappuram,the District Supply Officer,Malappuram,and the Taluk Supply Officer,Perinthalmanna - respondents 2,3 and 4 did not take proper steps to re -entrust the shop to the petitioner,O.P.'7395 of 1982 was filed praying that respondents 2 to 4 may be directed to implement Ext.P3 order and for other reliefs.In the said O.P.the 4th respondent,Taluk Supply Officer,filed a detailed counter affidavit dated 18th October,1982.It is stated in the said counter affidavit that on 21 -9 -1982 when the 4th respondent visited the spot to ascertain the situation,a good number of card holders,formerly attached to A.R.D.No.57 and temporarily attached to A.R.D.No.127,raised serious objections regarding the owner of A.R.D.No.57(petitioner)and also against the retransfer of the cards to the owner of A.R.D.No.57(the petitioner ).The matter seems to have been reported to the District Supply Officer,Malappuram.It is definitely averred by the 4th respondent that he received a message on 23rd September 1982 from the Controller of Rationing,Trivandrum informing that the Controller of Rationing had received a mass petition from the former card holders of A.R.D.No.57 and till further orders,the order of the District Supply Officer dated 15 -9 -1982 mentioned in Ext.P3 whereby re -entrustment of the shop was ordered to the petitioner may be kept in abeyance.It is also stated that on 15 -10 -1982 another message was received by the deponent of the affidavit,from the Controller of Rationing stating that the complaint petitions received from the card holders were treated as an appeal,by the Controller of Rationing against the orders of the District Supply Officer(Vigilance)and so further action may be kept in abeyance.In the light of the averments in the counter affidavit,the petitioner filed O.P.No.8629 of 1982 and prayed for quashing Ext.P4,the said teleprinter message No.CS/A5/46903/82 dated 23 -9 -1982 sent by the Controller of Rationing(2nd respondent)to the District Supply Officer stating that the orders of the District Supply Officer dated 15 -9 -1982 may "be kept in abeyance as stayed till disposal of the complaint petitions received from card holders which is actually an appeal against the above " ;.According to the petitioner Ext.P.4 communication is totally unauthorised,illegal and without jurisdiction and respondents 2 to 4 are bound to implement the order of the District Supply Officer,Palghat dated 15 -9 -1982 mentioned in Ext.P3 which has become final.The petitioner also stated that the shop should have been re -entrusted to him in implementation of Ext.P3 long ago.

(2.) IT is common ground that respondents 1 to 4 are bound to implement the order of the District Supply Officer(Vigilance)Palghat dated 15 -9 -1982 and re -entrust the shop.A.R.D.No.57,to the petitioner.But according to the Government Pleader re -entrustment mentioned in Ext.P3 was stayed by the Controller of Rationing,the second respondent in O.P.No.8629 of 1982 as per Ext.P4 in that case.Counsel contends that till the disposal of the complaint petition received from the card holders(which was treated as an appeal)it is only fair and proper that the order of the District Supply Officer(Vigilance)dated 15 -9 -1982 is kept in abeyance.Counsel for the 5th respondent in O.P.7395 of 1982 supported the learned Government Pleader and further contended that the Controller of Rationing was justified in treating the complaint received from card holders as an appeal from the order of District Supply Officer dated 15 -9 -1982.It is common ground that Ext.P3 order or the order of the District Supply Officer,Palghat dated 15 -9 -1982 were not taken in appeal by the petitioner.No revision was taken suo motu impugning the order of the District Supply Officer(Vigilance)Palghat dated 15 -9 -1982.Counsel for the 5th respondent in O.P.No.7395 of 1982 contended that there is no legal bar in treating the complaint -petition of the card holders as an appeal,by the Controller of Rationing,acting under S.51(10)of the Rationing Order.Nay,the Controller was justified in 'suo motu 'treating the complaint received as an appeal under S.51(10)of the Rationing Order and in passing the stay order and reliance was placed by counsel on what is now known as "Asiad case(AIR 1982 SC 1473)in support of his submissions.

(3.) DISTRICT Supply Officer 1.Taluk Supply Officer. 2.City Rationing Officer. 4.The petitioner,owner of A.R.D.No.57,is a person,no doubt,aggrieved by the order of the District Supply Officer(Vigilance)dated 15 -9 -1982 and referred to in Ext.P3.He has not filed an appeal.Nor has the revisional authority exercised the powers vested in it suo motu in this case.The sole question is:can be card holders be considered to be persons aggrieved by the order of the District Supply Officer(Vigilance)Palghat dated 15 -9 -1982? It should be remembered that there should be a specific or express provision conferring the right of appeal on any person.A reading of Clause.51(10)along with other sub clauses therein leaves no room for doubt that the persons who filed the complaints in the instance case,( the card holders)cannot be considered to be persons "aggrieved "by the order of the District Supply Officer(Vigilance)Palghat dated 15 -9 -1982 or by order Ext.P3 passed by the 4th respondent.It follows that the attempt of the 2nd respondent in O.P.No.8629 of 1982 to treat the complaints received from the card holders as an appeal against the order of the District Supply Officer(Vigilance)dated 15 -9 -1982 is unjustified and unwarranted.Clause.51(10)of the Rationing Order does not provide for an appeal at the instance of the card holders.In the light of the above,can a complaint petition filed by the card holder be treated as an appeal by the 2nd respondent,the Controller of Rationing? It is trite law that what cannot be done directly,cannot be achieved indirectly.If so,the Controller of Rationing cannot treat the complaint of the Card holders as an appeal.He had no jurisdiction or authority 'to do so.The Controller of Rationing is only an authority functioning under the statute and his jurisdiction and powers should be as provided or envisaged by the statute.It is settled law that "it is the duty of persons upon whom statutory powers are conferred to keep strictly within those powers " ;.( Vide Halsbury's Laws of England,Third Edn.Vol.30,para 1324 p.686 ).No appeal is provided at the instance of the card holders from either Ext.P3 order or the order of the District Supply Officer(Vigilance)dated 15 -9 -1982.Similar contention as to whether an appeal will lie at the instance of card holders in cases where re -entrustment of the shop was ordered to a dealer,came up for consideration in O.P.No.348 of 1981.Justice Sri.V.Khalid took the view that a complaint petition,as one in the instant case,cannot be treated as an appeal under Clause.51(10 ).In Write Appeal No.61 of 1982 dated 5 -2 -1982 the Division Bench held; "No doubt any person aggrieved by Ext.A1 could have filed an appeal.Ext.P8 was treated as an order on an appeal filed by a number of persons one of whom is the 4th respondent in the Original Petition who is said to be a radon card holder drawing ration from the petitioner's shop.Ext.P3 representation filed by these persons cannot be an appeal under the Kerala Rationing Order as it cannot be an appeal under the Kerala Rationing Order as it cannot be said that the 4th respondent or the signatories are aggrieved by Ext.P1 order.It is the petitioner who is aggrieved by the order as a punishment has been imposed against him.Therefore in treating it as an appeal and enhancing the punishment by Ext.P8 order the 3rd respondent did not act in accordance with the Kerala Rationing Order." In the light of the above decisions,of this court,the communication of the Controller of Rationing,Board of Revenue,Trivandrum,evidenced by Ext.P4 in O.P.No.8629 of 1982 is unauthorised and totally wanting in jurisdiction.It deserves to be quashed.I hereby do so.As a consequence,it follows that the failure of respondents 2 to 4 in O.P.7395 of 1982 in not implementing the order of the District Supply Officer(Vigilance)dated 15 -9 -1982 evident from Ext.P3 and failing to re -entrust the shop A.R.D.57 to the petitioner is a failure to discharge the duty imposed on them by law.I hereby direct respondents 2 to 4 to implement the order of the District Supply Officer(Vigilance)Palghat dated 15 -9 -1982 and hand over A.R.D.No.57 shop to the petitioner,the authorised dealer.