STATE OF KERALA Vs. M K VANAJAKSHY

JUDGEMENT

(1.) Heard Mr. Alexander Thomas, Government Pleader for appellants and Mr. T. S. Radhakrishna Pillai for respondent.

(2.) This appeal has been filed against the judgment of Koshy, J. dated 9-9-1998 in O.P.2518/93 allowing the Original Petition filed by the respondent herein following an earlier Division Bench judgment of this court reported in Taluk Supply Officer v. Parakkottil Brothers ( 1991 (2) KLT 901 ) which held that the wholesale dealers are not agents of the Government and there is no relationship of principal and agent and therefore the State Government cannot direct the wholesale dealers to remit or pay the so called excess profit or the differential cost or profit made by the sale in excess of the price fixed and Government also cannot make such a demand. We have gone through the above decision. In our opinion the principles laid down in the said judgment squarely applies to the facts and circumstances of the case on hand. Therefore we hold that the judgment of the learned single Judge setting aside Exts. P4, P6 and P8 is in order.

(3.) In this case we are concerned with Exts.P4, P6 and P8. Ext. P4 relates to the period 1-4-1983 to 31-5-1984. Under Ext. P4 respondent was requested to remit the amount realised in excess under the head of account - 088(a)(1) and produce the receipted chalan on or before 6-5-1985. Ext. P6 is the charge memo dated 1-3-1985 issued by the Taluk Supply Officer, Tirur calling upon the respondent to offer his explanation in writing as to why the entire security deposit furnished by K.W.D. should not be forfeited to Government besides the realisation of excess cost. The date mentioned in Ext. P6 relate to 1-6-1984 to 30-4-1985. Ext. P8 is the final order in relation to Ext. P6. In our opinion the notice issued by the appellants under Exts.P4 and P6 are incompetent in view of the Division Bench judgment reported in 1991 (2) KLT 901 (supra). As held by the Division Bench the respondent who is the wholesale dealer is not the agent of the Government nor they have any fiduciary capacity to Government so as to enable the Government to claim excess or differential profit earned by the dealers. When there is no relationship of principal and agent, it is incomprehensible as to how the appellant state can demand wholesale dealers to remit or pay the so called excess profit or the differential cost or profit said to have been made by the wholesale dealers by the sale in excess of the price fixed. Therefore we hold that the action initiated by the State Government under Exts.P4, P6 and P8 are not permissible in law.