AHAMED 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.) BEFORE closing, I should dispose of a contention raised by the counsel for the 5th respondent, who is conducting A. R. D. No. 127 and to whom charge of A. R. D. 57 was given temporarily. Mr. Rajagopal counsel, argued that the Controller of Rationing was justified in treating the complaint petition filed by the card holders as an appeal under Clause. 51 (10) of the rationing Order. I have found that no appeal will lie at the instance of the card holders under Clause. 51 (10) of the Rationing Order. If no appeal will lie at the instance of card holders, the complaint petition sent by them cannot be treated as an appeal by the Controller of Rationing. Reliance was placed by counsel on the ratio of the decision by the Supreme in Asiad case (AIR 1982 SC 1473), for contending that the Controller of Rationing could treat the complaint as an appeal. This argument is ill conceived. In my opinion, the controller of Rationing has arrogated to himself a jurisdiction not vested in him under law. It should be remembered that the powers exercised by the Supreme court and the High Courts in adjudicating, what is now familiarly known as "public interest litigation" treating letters or complaints as petitions filed in court, is so done in exercise of the powers vested in such courts to issue prerogative writs and/or order or direction under Art. 32 and 226 of the Constitution of India. Such powers are very wide in content and import. 1958 In S. Barrow v. State of U. P. (AIR All. 154 at p. 158) a Bench of the Allahabad High Court observed: "art. 226 of the Constitution does not confine the powers of Courts to issuing prerogative writs in cases where a party makes an application for the purpose and we think the words are wide enough to authorise the High Court to quash an order suo motu. In any case, we think we have power under Art. 227 of the Constitution to set aside that order. " Another Bench of the Allahabad High Court in the decision reported in Smt. Abida Begam v. Rent Control and Eviction Officer (AIR 1959 all. 675 at p. 681) held: "we think that this Court has a jurisdiction under art. 226 of the Constitution to grant the relief. . . . . . even though this matter had not come in its writ jurisdiction on an application under Art. 226. " It is settled law that the powers vested in the High Courts under Art. 227 of the Constitution can be exercised suo motu. Thus in exercise of the powers under Art. 226 and/or/art. 227 of the Constitution the Court is enabled to issue prerogative writs or other orders or directions and to remedy injustice when it is brought to its notice. It should be remembered that the jurisdiction so vested and the powers exercised by the Supreme Court and High courts, flows from the Constitution , which is the paramount law of the Nation unlike the powers vested in Statutory Authorities like the Controller of rationing, under a particular Statute or statutory order. The jurisdiction or powers of the statutory authorities, which are creatures of particular statutes, should be only as enshrined within the frame work and express provision specified in the respective statutes. Their powers are limited and they cannot claim any prerogative jurisdiction or powers. It is surprising that the controller of Rationing who is only a statutory authority has arrogated to himself a power not vested in him under law and the plea is put forward that it could be so done, by placing reliance on the Supreme Court decision in Asiad case (AIR 1982 SC 1473 ). The following observations of Bhagwati, J. in S. P. Gupta and others versus President of India and others (AIR 1982 SC 749 at p. 188) which was cited with approval in Asiad case (AIR 1982 SC 1473) are pertinent in this connection: "17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under An. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Art. 32 and they require various formalities to be gone through by a person seeking to approach this court. But it must not be forgotten that procedure is but a hand-maiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. " It is evident that the Controller of Rationing acted wholly without jurisdiction in treating the complaint-petition as an "appeal", as mentioned in Ext. P4 teleprinter message in O. P. No. 8629/82, and this is due to a total misconception of his jurisdiction. In the circumstances I declare Ext. P4 in O. P. No. 8629 of 1982 as illegal, void and without jurisdiction and further direct respondents 2 to 4 in O. P. No. 7395 of 1982 of implement the order of the District Supply Officer (Vigilance) Palghat pv-1113/82/cs/ dated 15-9-1982 and re-entrust the shop ARD No. 57 to the petitioner forthwith. (The order of D. S. O. (Vigilance) Palghat is Ref. No. 2 in Ext. P3 in O. P. No. 7395 of 1982 ). In the result, the Original Petitions are allowed with costs including Advocate's fees of Rs. 500/- in each Original Petition. . .