Kerala High Court
Smt. Swarnamma Rebecca vs The District Supply Officer on 27 January, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
WA.No.116 OF 2020
AGAINST THE JUDGMENT DATED 04-12-2019 IN WP(C) NO.
33016/2019(B) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SMT. SWARNAMMA REBECCA,
AGED 57 YEARS
W/O.JOHNSON, JOYBHAVAN, NEERAMKOTTU,
KUNNATH VEEDU, UNDAPPARA, POOVACHAL.
BY ADVS.
SRI.ABRAHAM MATHEW (VETTOOR)
SRI.ANIL ABEY JOSE
RESPONDENTS/RESPONDENTS:
1 THE DISTRICT SUPPLY OFFICER,
THIRUVANANTHAPURAM, PIN-695 143.
2 THE TALUK SUPPLY OFFICER, KATTAKKADA,
THIRUVANANTHAPURAM DISTRICT, PIN-695572.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
CIVIL SUPPLIES DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
BY SR. GOVT. PLEADER SRI.ARAVINDKUMAR BABU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.116 of 2020 2
"C.R"
JUDGMENT
Dated this the 27th day of January, 2020 S.Manikumar, CJ.
Instant writ appeal is filed against the judgment dated 04.12.2019 passed in W.P.(C) No.33016 of 2019, by which a learned Single Judge of this Court held as under:
"6. If as a matter of fact the aforesaid irregularities were noticed, the competent authority under the Rationing Order cannot be found fault with for having placed the dealership under suspension, for the power under Clause 45(8) of the Rationing Order is contemplated to be exercised in such cases. In the absence of any specific case of malice attributed against the first respondent for suspending the dealership of the petitioner without any cause, the correctness of the factual allegations made against the petitioner is a matter to be considered only at the time of enquiry contemplated against the petitioner. Further, the question as to whether a notice is required to be issued before a dealership is placed under suspension, has been considered by the Full Bench of this Court in W.A. No.1297 of 2014 and it was held that such a notice is not required.
In the said view of the matter, there is no merit in the writ petition and the same is, accordingly, dismissed in limine."W.A.No.116 of 2020 3
2. Short facts leading to the appeal are that, petitioner/appellant is a licensee of ration shop ARD No.26 in Kattakkad Taluk, which is within the limits of The Taluk Supply Officer, Kattakkara, Thiruvananthapuram, respondent No.2. Prior to that, her husband has been conducting ration depot ARD 311 in Poovachal Panchayat, Nedumangad. The appellant was appointed as a licensee of the shop, in the status as legal representative of her husband, vide Exhibit-P2. Appellant has stated that she has been conducting the ration depot for past one year, without any complaints.
Subsequently, the rival owners prevailed upon the Taluk Supply Officer, Kattakkada, respondent No.2, to issue letter dated 05.10.2017 (Exhibit-P2) directing to shift the shop of the appellant to some other place. Since Exhibit-P2 was not acted upon by the appellant and since salesman, as required was also not appointed, invoking the powers under Section 45(8) of the Kerala Rationing Order, the 2 nd respondent issued Exhibit-P3 memo dated 25.11.2017 to the appellant alleging that, despite orders to shift the shoproom to some other premises, she has not taken any action sofar.
3. Petitioner/appellant challenged the abovesaid notices before the writ court in W.P.(C) No.38944 of 2017. After hearing the rival contentions, writ court disposed of the said writ petition by judgment dated 7.3.2019 directing the 2nd respondent to finalise the proceedings W.A.No.116 of 2020 4 pertaining to the notice dated 05.10.2017 and the memo dated 25.11.2017 taking into account the objection submitted by the writ petitioner, at the earliest and at any rate, within a month from the date of receipt of a copy of the judgment. Writ court further ordered that the interim order dated will continue to be in force till then. According to the writ petitioner/appellant, in order to get over the judgment dated 7.3.2019 in W.P.(C) No.38944 of 2017, a surprise inspection was conducted on 22.11.2019, in which, Exhibit-P8 stock report was issued. Subsequently, Exhibit-P9 communication dated 2.12.2019 was issued by the District Supply Officer, Thiruvananthapuram, suspending the licence of the writ petitioner on the basis of certain artificial allegations concocted by the inspecting team. Being aggrieved, writ petition has been filed with the following prayers:
(a) "Issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit-P9 communication dated 2.12.2019 issued by the District Supply Officer, Thiruvananthapuram.
(b) Issue a writ of mandamus or other appropriate writ, order or directing commanding respondent Nos.1 and 2 not to interfere with the functioning of ARD No.56 allotted to the petitioner as has been proposed in Ext.P9."
4. The Taluk Supply Officer, Kattakada, Thiruvananthapuram, respondent No.2, has filed a counter affidavit in W.P.(C) No.38944 of W.A.No.116 of 2020 5 2017, raising the following contentions:
A) "The authorization given to the petitioner is as the legal of former licensee. The ration shop No.311 is being conducted by the petitioner in Building No.13/1774 of Poovachal Panchayath.
Adjacent to the said shop room, the petitioner is also conducting a provision store. Both the ration shop and the provision store are being conducted by the petitioner herself and the business in both the shops are of an identical nature.
B) Complaints have been received by the 2nd respondent that the petitioner is paying least concern to the ration shop and she is more interested in conducting her provision store. Since the business in both the ration shops and that in the provision store are dealing with the supply of essential articles, there is every likelihood of the ration articles being diverted to the provision store, which is adjacent to one another. Therefore, on receipt of the complaints from the locals, an inspection was conducted on 24.11.2017 at 11 am and the ration shop was found closed that that time.
C) The 2nd respondent has further contended that due to the popular demand from ration card holders, originally Ext.P4 letter was issued to the petitioner requiring her to shift the ration shop to some other convenient location so that there is no room for any complaint from the public. Even though Ext.P4 letter was received by the petitioner, she did not respond to the same. Besides conducting a provision store adjacent to the ration shop, the petitioner, in spite of the repeated request requiring her to appoint a salesman, omitted to comply with the same. According to the 2nd respondent, since Ext.P4 notice W.A.No.116 of 2020 6 was not acted upon and since the salesman as required was also not appointed, invoking the powers under Section 45(8) of the Kerala Rationing Order, they issued Ext.P5 memo on the petitioner requiring her to submit her explanation for the same.
D) The 2nd respondent has further contended that Ext.P6 reply given by the petitioner to Ext.P5 was found to be unsatisfactory. It was further contended that in Paragraph 5 of the statement of facts forming part of the writ petition, the petitioner even though has admitted that she is prepared to construct a shop room in her own property, no positive steps were taken in that direction and no assurance was given as to when the said shop room would be completed and the ration shop would be shifted to the said new location.
E) Before the writ court, it was further contended that authorisation to run the ration shop was given to the petitioner under a bonafide belief that she would perform her duties as a licensee without complaints from the public in a fair and reasonable manner. The petitioner herself conducting a provision store adjacent to the ration shop was not conducive as it is likely to result in diversion of ration articles to the provision store run by herself leaving room for complaints from the public. When a person is dealing with public in the business distribution of ration articles at controlled rate, transparency should maintained and every precaution should be taken so that there is no chance for any allegation and misuse. According to the 2nd respondent, Exts.P4 and P5 were issued in the best interest of public to see that the ARD conducted by the petitioner is in a transparent manner without any complaint from the public.
W.A.No.116 of 2020 7F) It was further contended that in the interest of the public, it is essential that the petitioner should shift the ration shop at a convenient distance from the provision store run by her and the same shall be complied within reasonable time so that the public interest is protected in this case. The petitioner is also duty bound to man the ration shop with a salesman. The 2 nd respondent is not opposing for granting to the petitioner a reasonable time, to establish the ration shop in a nearby locality or in an alternate place that she may find out suitable , to shift the present shop. The ration shop and the provision store of the petitioner cannot be permitted to be conducted in adjacent rooms. Hence, the 2nd respondent sought for dismissal of the writ petition."
5. After hearing both the parties, writ court by judgment dated 04.12.2019, dismissed W.P.(C) No.33016 of 2019. Being aggrieved, instant appeal is filed on the following grounds:
(a) Writ court ought to have appreciated the fact that the very inspection of the ration shop was one conducted in a malafide manner, in order to get over Exhibit-P7 judgment dated 7.3.2019 passed in W.P.(C) No.38944 of 2017 when respondents 1 and 2 wanted to close down the appellant's shop under collision with neighbouring shop owners.
(b) Writ court has erred in not considering the allegation of malafide made by the appellant in the writ petition with respect to the inspection conducted by the officers of the Secretariat staff.
(c) Along with Exhibit-P6 reply affidavit, appellant had W.A.No.116 of 2020 8 produced reply dated 9.8.2018 issued by the Director of Civil Supplies stating that no complaint has been received against ARD 56 conducted by the petitioner. This document itself demolishes the entire allegations made against the ration depot being conducted by the petitioner as per Ext.P3.
(d) In fact, allegation No.2 made in Exhibit-P9 was one made in furtherance of mala fides, on the part of respondents and the inspection team. It was a fact, that before weighing the ration articles given to Smt.Savithri, the package had fell down in the shop and broken resulting in the ration articles to be spread in the shop and what has been weighed is the ration articles collected from the floor of the shop and articles had not been collected even before taking the weight.
(e) The appellant has contended that her husband had come to the shop only on knowing about the visit of the inspection team and he was not a licensee removed from the same on any allegation but, she was appointed as the licensee as his legal representative on his attaining the age of
65. Thus, all the allegations in Ext. P9 made for the purpose of justifying Ext. P9, are without any bonafide.
(f) The appellant was not furnished with a copy of the mahazer alleged to have been prepared by the respondents at the time of inspection and, therefore, the writ court ought not have placed any reliance on the same. Even after issuing Ext. P9, no enquiry was conducted so far, and the ration articles kept in the shop are getting damaged. The respondents ought to have taken steps to complete the enquiry complete pursuant to Ext. P9 in a time frame.
W.A.No.116 of 2020 9(g) The Learned Single Judge ought to have found that the allegation made against the petitioner are minor in nature which does not warrant suspension of licence.
6. Heard learned counsel for the parties and perused the material available on record.
7. Exhibit-P2 is the proceedings of the Taluk Supply Officer, Kattakada, dated 05.10.2017 informing the appellant to shift her ration shop and the same reads thus:
"District Supply Office Kattakkada Date:05/10/17 No. A3.1667/17 From, Taluk Supply Officer, Kattakkada.
To Smt. Swarnamma Rebecca ARD.56 Sir, Sub:- Public Distribution- Regarding shifting of Shop Ref:- Complaint received from the public It is informed to shift your ration depot from the present shop room to a new shop room at the earliest as several complaints are being obtained from the public.
Yours Faithfully Sd/-
Taluk Supply Officer"W.A.No.116 of 2020 10
8. Since Exhibit-P2 was not acted upon by the appellant, Exhibit-P3 charge memo dated 25.11.2017 has been issued and the same is extracted hereunder:
"No.A3-1667/17 Taluk Supply Office Kattakada, Date 25/11/2017 CHARGE MEMO Sub: Public Distribution-explanation regarding the manipulations in ARD New 56 Depot, Kattakkada Taluk Ref: Inspection report of the Rationing Inspector/Taluk Supply Officer.
The rationing Inspector/Taluk Supply Officer, Kattakkada Taluk had inspected the new ARD Depot No. 56 conducted by Smt. Swarnamma Rebecca on 24-11-2017 and the following misappropriations/drawbacks have been found.
(1) The depot remained closed at 11 A.M. on 24-11-2017 (2) No steps has been taken by the licensee to shift the depot as directed by the Taluk Supply Officer.
(3) Direction to appoint a sales man has also not been complied with.
The abovementioned manipulations are of serious nature which shows the unsatisfactory conduct of business by the licensee and are in violation of the provisions of Kerala Rationing Order 1966/ Kerosine Control Order, 1968 and the instructions given on a regular basis from the Civil Supplies Department. Hence, under the power vested on me by virtue of Rules 45(8) and 51(8) of the Kerala Rationing Order 1966, Rule 6(1)(c)/ 12(1) of the Kerosine Control Order, 1968, it is directed to show cause as to why no coercive measures as mentioned below should be initiated against the dealer withing 7 days from the date of receipt of this notice.
1. not to suspend the license of the depot.
2. not to confiscate entire bailiffs.
3. not to confiscate Rs. 3500 to the government W.A.No.116 of 2020 11
4. not to recover the price of the difference in stock/reduced stock Unless a reply is issued to this memo within the stipulated period, it will be deemed that no reply is there to be given and above actions will be initiated. If the licensee intends to arrange a meeting, that should also be mentioned in the reply.
Sd/-
Taluk Supply Officer"
9. To Exhibit-P3 charge memo, appellant has submitted reply dated 28.11.2017, which is reproduced as hereunder:
"Reply filed by Smt. Swarnamma Rebacca, Licensee ARD No. 56 Depot before the Hon'ble Taluk Supply Officer, Kattakkada Sub. Your Charge Memo No. 1667/17 dated 24-11-2017 None of the mischieves alleged in your memo is true and hence it is requested to withdraw the memo by passing an order to that effect.
The allegation that my depot was inspected on 24-11- 2017 and the same remained closed at that time is totally false. The shop remained open from 8AM to 12 PM and there were so many transactions on that day. Certain interested parties have been making such false allegation against my shop which are with out any basis at all. Any actions taken against my shop will be in violation of the natural justice as all the allegations are baseless.
The allegation that the licensee has not taken any steps to shift the shop in compliance with the directions of the Taluk Supply Officer is also false. The ration depot has been conduced in the above shop room for nearly 10 years without any complaints and it is only on the basis of the complaints filed by certain interested parties who are enimical towards me that such decisions have been taken without hearing me. I have taken appropriate steps against that. I have never failed in appointing any salesman. I have appointed a sales man already and made necessary applications before the RI to add his name. Hence none of the W.A.No.116 of 2020 12 actions mentioned therein can be initiated against me. I have never done any misappropriations or violated any law. Hence it is requested to withdraw the above memo.
Yours Sincerely, Swarnamma Rebacca 28/11/2017 Kappikad."
10. Exhibit-P9 dated 02.12.2012 is the order suspending the licence of the appellant and the same is extracted hereunder:
"Proceedings of the District Supply Officer, Thiruvananthapuram (Present: Jalaja G.S.Rani) No. C.S.2-5080/19 Sub:- Pubic Distribution - Kattakada Taluk -- ARD 56 -- Inspection conducted by the state Inspection Squad - Irregularities found-- ordering temporary suspension.
Ref: Letter No. A2/362/ 19 dated 29-11-2019 of Civil Supplies Department Upon the inspection conducted by the State Inspection Squad in depot bearing ARD No. 56 in Kattakkada Taluk, the following irregularities were found.
1. On inspecting the stock, red rice was found to be 58.5 Kg less.
2. Previous licensee was inside the shop. Upon checking the bill issued to Smt. Savitri, a Card holder in the ration shop, it was found that instead of 2 kg of boiled rice, 1.85 Kg was only seen distributed and instead of 2 kg red rice, only 1.85 Kg was distributed.
3. The sacks were stocked in a small room making it difficult to count the items.
4. It could be noticed that the ration items were kept stacked alternately along with the items in the adjacent W.A.No.116 of 2020 13 provisional shop owned by the licensee. Even though in the earlier inspection conducted by the previous Rationing Inspector the licensee had been warned not to keep stocks like that, such directions has not been complied with.
5. Even though the previous licensee was removed and his wife was appointed as licensee on the basis of complaints received against him, it could be found that even now he is conducting the shop.
The above misappropriations are of very serious nature and deserves punishment. They are also in violation of the agreements entered with the Government and violative of the direction issued from the department, the license granted to ARD No. 56 of Kattakkada under Rule 45(8) of the Kerala Rationing Order, 1966 is ordered to be temporarily suspended pending enquiry.
It is also to be ensured that the licensee or the salesman does not interfere with the functioning of the ARD 56 and that the card holders are not put to suffer any difficulties. The Supply Officer, Kattakkada Taluk is to file a report on ensuring that this order come in to effect on this day itself.
Sd/-
District Supply Officer Recipient: Smt. Swarnamma Rebecca, Licensee ARD 56, Kattakada.
Copy: 1) Taluk Supply Officer, kattakada.
2) Extra copy"
11. In exercise of the powers conferred by sub-sections (1) and (2) of Section 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Food, Agriculture, W.A.No.116 of 2020 14 Community Development and Co-operation (Department of Food) No.GSR.906 dated 9th June, 1966 published in the Gazette of India Extraordinary Part II Section 3, sub-section (i) dated the 9 th June, 1966, the Government of Kerala have made the Kerala Rationing Order, 1966 (hereinafter referred to as, 'the Act'). Clause 45(8) of the Order is extracted hereunder:
"45(8): If the District Collector or any officer of the Civil Supplies Department not below the rank of a Taluk Supply Officer finds that the authorised retail distributor has contravened any of the provisions of this Order, or any of the directions issued thereunder or on receipt of the report from any of the officers referred to in sub-clause (7) or on his own inspection of the stocks and accounts in a shop finds any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non compliance with any of the directions, issued by the competent authorities or contravention of the provisions of any order issued by a competent authority under section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955), which is for the time being enforced he may after giving the authorised retail distributor any opportunity of stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security under sub-clause (5).W.A.No.116 of 2020 15
Notwithstanding anything contained in this sub-clause, he may order the realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of any quantity of rationed articles misappropriated by falsification of accounts and all sums collected in excess by way of transport charges handling charges, profit etc. and gained by the authorised retail distributor due to incorrect fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary he may suspend the appointment of the authorised retain distributor temporarily pending enquiry.
Provided that the power of cancellation of appointment shall be exercised only by the authority competent to make the appointment or a higher authority."
12. An appeal remedy is provided under Clause 45(10) of the Rationing Order, which reads thus:
"45(10). Any person aggrieved by any order passed under this clause may within thirty (3) days from the date of service of such order appeal:
1. In the case of an order passed by the Commissioner to the Government.
2. In the case of an order passed by the District Collector to the Commissioner, and
3. In the case of an order passed by any other officer to such authority as the Government may specify in this behalf and the decision of the Government, Commissioner or such authority shall subject to the provisions of sub-clause (11) be final."W.A.No.116 of 2020 16
13. Question as to whether an opportunity has to be given before issuing a temporary suspension pending enquiry, has been considered by a Hon'ble Full Bench of this Court in State of Kerala and Others v. A. Beevi Kannu reported in 2014 (4) KLT 973. After considering a catena of decisions on the notwithstanding clause, the Hon'ble Full Bench held that temporary suspension pending enquiry is permissible in law. It is worthwhile to reproduce the relevant paragraphs of the judgment of the Hon'ble Full Bench and the decision on the issue of providing an opportunity before temporary suspension.
"6. Clause 45(8) with which we are concerned in the present case provides as follows:
"(8) If the District Collector or any officer of the Civil Supplies Department not below the rank of a Taluk Supply Officer finds that the authorised retail distributor has contravened any of the provisions of this Order, or any of the directions issued thereunder or on receipt of the report from any of the officers referred to in sub-clause (7) or on his own inspection of the stocks and accounts in a shop finds any shortage or excess in the quantity of rationed articles or any irregularities in the accounts or detects non compliance with any of the directions, issued by the competent authorities or contravention of the provisions of any order issued by a competent authority under Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955), which is for the time being enforced he may after W.A.No.116 of 2020 17 giving the authorised retail distributor any opportunity of stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security under sub-clause(5).
Notwithstanding anything contained in this sub- clause, he may order the realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of any quantity of rationed articles misappropriated by falsification of accounts and all sums collected in excess by way of transport charges handling charges, profit etc and gained by the authorised retail distributor due to incorrect fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary he may suspend the appointment of the authorised retail distributor temporarily pending enquiry:
Provided that the power of cancellation of appointment shall be exercised only by the authority competent to make the appointment or a higher authority."
7. The main provision of Clause 45(8) indicates that the District Collector or any officer of the Civil Supplies Department has the power to suspend or cancel or vary the appointment or, order forfeiture of the whole or any part of the amount deposited by the authorised retail distributor as security under sub-clause(5), after giving the authorised retail distributor an opportunity of stating his case. That W.A.No.116 of 2020 18 means an opportunity of hearing in person may be given.
The second part of Clause 45(8) begins with words "notwithstanding anything contained in this sub-clause". Thus in the second part it is provided that notwithstanding anything contained in sub-clause (8) the District Collector or any officer may order realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of any quantity of rationed articles misappropriated by falsification of accounts and all sums collected in excess by way of transport charges, handling charges, profit etc and gained by the authorised retail distributor due to incorrect fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary, he may suspend the appointment of the authorised retail distributor temporarily pending enquiry.
8. The aforesaid provision contains different nature of orders to be passed by the District Collector, notwithstanding the power which are mentioned in first part of sub-clause (8) of Clause 45 and the amended part is suspend or cancel the license. We hasten to add that the second part of sub-clause(8) relates to various other orders which can be passed apart from those contemplated in first part of sub-clause (8). The second part is obviously regarding "realisation of any amount" which has to be arrived at after due enquiry and opportunity.
9. Now we come to the last sentence of second part of Clause 45(8) which falls for consideration before this W.A.No.116 of 2020 19 Bench i.e. "if considered necessary he may suspend the appointment of ARD temporarily pending enquiry". At the last sentence of second part of sub-clause(8) beginning with words "notwithstanding anything contained", the legislature has consciously designed and included the above clause with clear intention that parties cannot override anything contrary to sub-clause (8). As noted above, the main provision of sub-clause (8) mandates a notice and opportunity of hearing before suspending a license. The above power of suspending license temporarily pending enquiry, is a power additionally given with a purpose and object and is not to be abrogated. The suspension as mentioned in sub-clause(8) whether it is a suspension or cancellation, the final decision should be taken after notice and opportunity to the parties concerned, whereas, the power of suspension temporarily pending enquiry is a power given for a different purpose and object. It is also relevant to note that before exercising the power of suspending temporarily pending enquiry, attention has to be given to the words "if considered necessary" meaning thereby that, the suspension temporarily pending enquiry has to be resorted, not as a matter of course but rather the said power is to be exercised after consideration and if found necessary. We have to interpret this Clause to mean that to exercise the power of suspension temporarily pending enquiry, no notice is required to be given. Otherwise the very purpose of enacting the above provision becomes redundant and the said Clause is to be ignored being without any purpose. It is a well settled principle of statutory interpretation that every part of the statute has W.A.No.116 of 2020 20 to be given the meaning and purpose. Legislature does not waste a word or does not use a word unnecessarily."
10....In Aswini Kumar Ghose and Another v.
Arabinda Bose and Another, reported in AIR 1952 SC 369, the Hon'ble Supreme Court at paragraph 27, held as under:
"27. It has been said in the course of the argument that, notwithstanding the absence of such reservations in the new Act, it must be assumed that the advocates of the Supreme Court have become entitled to practise in any High Court only subject to the Rules and regulations of that Court or, as the High Court put it "Section 2 does not confer an uncharted freedom on the advocates of the Supreme Court to practise in any High Court in any way they like, but only puts them, in each different High Court, on a par with the advocates of that Court, where they must submit to the same terms and conditions as bind those advocates."
Otherwise, it was said, the Supreme Court advocates would be "let loose" to practise in all courts freed of all obligations to observe the rule and regulations of those courts and the result would be confusion and chaos. Therefore, it was urged, the Rules of the Calcutta and Bombay High Courts, which preclude advocates of those Courts from acting on the original side of their jurisdiction or from pleading without the intervention of an attorney, are binding upon Supreme Court advocates as well. We see no force in the argument which seems to proceed on a misconception. The right of an advocate to practise, as we have seen, normally Comprises the exercise of his two-fold function of acting and pleading without the intervention of W.A.No.116 of 2020 21 anybody else. Any rule or condition that prevents him from exercising one of those functions is plainly a cutting down of his right to practise and, affecting as it does the substance of his right, is in its operation, quite unlike the rules and conditions of practice under which all advocates normally carry their business in courts. No one suggests that a Supreme Court advocate is, by becoming entitled to practise in the High Courts, freed from all obligation to conform to the rule of practice and regulations as to costume and such other matters, according to which the profession of law must be exercised in the various High Courts. There is a vital distinction between such rules and regulations and the rules which seek to cut down the substance of an advocate's right to act and to plead by excluding him from the exercise of the one or the other of those two functions. The Bar Councils Act recognises this distinction by expressly reserving the power of the High Courts of Calcutta and Bombay to exclude or impose restrictions upon the right of advocates to plead and to act on the original side, whereas no similar reservation has been considered necessary in respect of the power to make rules and regulations of the former type, because they were not regarded as derogating from the substance of the statutory right to practise. Suppose, for instance, the Calcutta High Court made a rule that no person other than those mentioned in Rule 2(1), Chapter I of the original side Rules (i.e. practising barristers in England, N. Ireland etc.) will be entitled to appear and plead on its original side, could it reasonably be suggested that such a rule was only a matter of "internal administration" and, as such, would W.A.No.116 of 2020 22 bind all advocates practising in that Court even apart from Section 9(4)? Any rules which prevent an advocate from acting on the original side or appearing on that side without the intervention of an attorney constitute a serious invasion of his statutory right to practise, and unless the power to make such rules is reserved in the statute which confers the right they cannot prevail against that right."
11. Chandavarkar Sita Ratna Rao v. Ashalatha S Guram [(1986) 4 SCC 447] was again a case where the principle of statutory interpretation, in the context of non obstante clause in Section 15A(1) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, came up for consideration. In paragraphs 67 and 68 following was laid down:
"67. A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in South W.A.No.116 of 2020 23 India Corpn. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum.
68. It is well settled that the expression "notwithstanding" is in contradistinction to the phrase "subject to", the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. This will be clarified in the instant case by comparison of subsection (1) of Section 15 with sub-section (1) of Section 15- A. We are therefore unable to accept, with respect, the view expressed by the Full Bench of the Bombay High Court as relied on by the learned Single Judge in the judgment under appeal."
12. In R.S. Raghunath v. State of Karnataka and another [(1992) 1 SCC 335], the Hon'ble Apex Court has considered the scope and ambit of interpreting the non- obstante clause. Following was laid down in paragraphs 11 and 12:
"11. In Aswini Kumar Ghose v. Arabinda Bose it was observed as under: (SCR pp. 21-22) "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment."
It was further held that: (SCR p. 24) "Nor can we read the non-obstante clause as specifically repealing only the particular provisions which the learned W.A.No.116 of 2020 24 Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Calcutta and Bombay High Courts. If, as we have pointed out, the enacting part of Section 2 covers all advocates of the Supreme Court, the non-obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to control the nonobstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broom's Legal Maxims, 10th edn., p. 347)."
(emphasis supplied) In Dominion of India (now the Union of India) v. Shrinbai A. Irani, it was observed as under: (AIR pp. 599- 600, para 10) "While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non- obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co- extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut W.A.No.116 of 2020 25 down the construction and restrict the scope of its operation. In such cases the nonobstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment."
(emphasis supplied) In Union of India v. G.M. Kokil, it was observed as under: (SCC p. 203, para 11) "It is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."
In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram the scope of non-obstante clause is explained in the following words: (SCC p. 477-78, para 67) "A clause beginning with the expression 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract' is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act W.A.No.116 of 2020 26 or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the nonobstante clause would not be an impediment for an operation of the enactment."
On a conspectus of the above authorities it emerges that the non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules.
12. Further, the influence of a non-obstante clause has to be considered on the basis of the context also in which it is used. In State of W.B. v. Union of India it is observed as under: (SCR p. 435) "The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the W.A.No.116 of 2020 27 setting in which the clause to be interpreted occurs."
It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., it is observed that: "That interpretation is best which makes the textual interpretation match the contextual." In this case, Chinnappa Reddy, J. noting the importance of the context in which every word is used in the matter of interpretation of statutes held thus: (SCC p. 450, para 33) "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in W.A.No.116 of 2020 28 isolation. Statutes have to be construed so that every word has a place and everything is in its place."
If we examine the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear. It is not enacted to supersede the Special Rules."
13. In Geeta v. State of Uttar Pradesh and others [(2010) 13 SCC 678] the Hon'ble Apex Court had an occasion to consider the amendments made in U.P. Kshettra Panchayats and Zila Panchayats Act, 1961 and the effect of 2007 amendments made therein. In the amendment made in 2007, non-obstante clause was used and interpreting the said non-obstante clause following was laid down by the Apex Court in paragraphs 38 to 45:
"38. Interpretation of non obstante clauses has come up for consideration before this Court in a large number of decisions. In Aswini Kumar Ghose v. Arabinda Bose, a Constitution Bench of this Court speaking through Patanjali Sastri, C.J. observed that: (AIR p. 377, para 27) "27. ... the non obstante clause can reasonably be read as overriding 'anything contained' in any relevant existing law which is inconsistent with the new enactment."
But His Lordship made it clear that: (Arabinda Bose case, AIR p. 377, para 27) "27. ... The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously."
39. Again in another Constitution Bench judgment of this Court in Dominion of India v. Shrinbai A. Irani, W.A.No.116 of 2020 29 Bhagwati, J. observed at AIR para 10 as follows: (AIR pp. 599-600) "10. ... although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment." (emphasis added)
40. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram this Court stated that: (SCC pp. 477-78, para 67) "67. ... the expression 'notwithstanding anything contained in this Act.... is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause ... the enactment following it will have its full operation...."
W.A.No.116 of 2020 30(emphasis added)
41. Further, this Court in A.G. Varadarajulu v. State of T.N., observed that: (SCC p. 236, para 16) "16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the Court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision."
42. The Bench in A.G. Varadarajulu case referred to the principle in the Constitution Bench decision in Madhav Rao Jivaji Rao Scindia v. Union of India, wherein this Court held that: (A.G. Varadarajulu case, SCC p. 236, para 16) "16. ... the non obstante clause [was] a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but 'for that reason alone we must determine the scope' of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands alone by itself."
(underlined for emphasis)
43. This Court also held in ICICI Bank Ltd. v. SIDCO Leathers Ltd. that the wide amplitude of a non obstante clause must be kept confined to the legislative policy and it can be given effect to, to the extent Parliament intended and not beyond the same and that in construing the provisions of a non obstante clause, it was necessary to determine the W.A.No.116 of 2020 31 purpose and object for which it was enacted.
44. In Central Bank of India v. State of Kerala, this Court reiterated that while interpreting a non obstante clause the Court is required to find out the extent to which the legislature intended to give it an overriding effect.
45. In view of such consistent opinion expressed by this Court on the purport and meaning of non obstante clause we are of the view that the operation of a non obstante clause in Section 7(3) of the amended Act shall be subject to the intent of the legislature, and must be interpreted in line with the scheme of the Act and the purpose for which it was enacted."
The above pronouncement of the Apex Court has categorically laid down that every word in a Statute has to be looked into for interpreting the non-obstante clause used in the Section or provision. It has further been held that use of nonobstante clause in a Section or Clause is primarily used to improve the overriding effect to other provisions which do not see eye to eye. Following the above statutory interpretation, we have no doubt that in second part of Clause 45(8) the only interpretation of the words "if considered necessary he may suspend the appointment of the authorised retail distributor temporarily pending enquiry" is that the said power can be exercised notwithstanding anything contained in first part of Clause 45(8) i.e. suspend after giving the ARD an opportunity. Taking any other interpretation shall be making the provision redundant.
W.A.No.116 of 2020 32...................
15. Reliance has also been placed on the Hon'ble Apex Court judgment in M/s.Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others [(1982) 1 SCC 31]. In this case Clause 11 of Punjab Foodgrains Dealers Licensing and Price Control Order, 1978 came up for consideration which provides for cancellation or suspension of license. The main proviso under Clause 11 provided that suspension of a license can be ordered by the authorities provided that no order can be passed unless the licencee has been given a reasonable opportunity of stating his case. The said proviso was followed by another provision were the power of cancellation of license was given for a period not exceeding 90 days during pendency of the Contempt of Court proceedings. Thus the second proviso was considered and it was held that it is not an arbitrary or uncontrolled power. It is useful to quote paragraphs 8 to 11 of the judgment which reads as under:
"8. It is plain upon the terms of sub-clause (1) of clause 11 of the Order that it deals with the substantive punishment of cancellation or suspension of a licence. The power of cancellation or suspension of a licence of a foodgrains dealer under sub-clause (1) of clause 11 of the Order is, however, subject to the limitation contained in the first proviso. The power of cancellation or suspension of a licence is, therefore, not exercisable by the licensing authority until it affords a reasonable opportunity to the licensee of stating his case. This necessarily entails the holding of an inquiry into the question of the alleged W.A.No.116 of 2020 33 breach. The making of an inquiry into the breach of licence conditions by a foodgrains dealer is a time-consuming process which may many a time verily frustrate the purpose and object of the Order. The State Government was evidently of the opinion in the light of the experience gained in the recent past, that for effective control and regulation of the trade in foodgrains, it was necessary and expedient that the licensing authority should be clothed with powers to suspend a licence on the spot when it detects contravention of any of the terms and conditions of the licence or any of the provisions of the Order. Otherwise, a foodgrains dealer after committing flagrant breaches of the terms and conditions of his licence and the provisions of the Order, may, with impunity, carry on his trading activities without any check or control.
9. The power of suspension conferred by the second proviso to sub-clause (1) of clause 11 of the Order is by way of an interim measure, pending the holding of an inquiry as to whether there is any breach which must result in cancellation of the licence. It is true that the suspension of licence is a drastic measure, if taken without affording to the dealer a reasonable opportunity of stating his case, but it is a measure of social control in the interests of the community. The power of suspension is a necessary concomitant of the power to grant a privilege or a licence. By reason of clause 3 of the Order, no dealer can engage in the business of purchase and sale of foodgrains except under and in accordance with the terms and conditions of a licence issued by the licensing authority in that behalf. The W.A.No.116 of 2020 34 dealers are free to carry on their trade or business in foodgrains, subject to their complying with the terms and conditions of their licence and the provisions of the Order. But, if they commit a breach, they must face the consequence that their licence may be cancelled or suspended under sub-clause (1) of clause 11 of the Order. They must face the further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for cancellation of the licence, if the breach is of such a nature that it must result in the cancellation of a licence. As already stated, the power of suspension is a necessary adjunct of the power to grant a licence. In view of the acute shortage of foodstuffs in the country, the Government is bound to take all effective steps to implement the provisions of the Act and the various orders issued under Section 3 thereof, from time to time. The conferal of the power of suspension of the licence of a foodgrains dealer under the second proviso to sub-clause (1) of clause 11 of the Order during the pendency or in contemplation of the proceedings for cancellation of his licence, is an important step taken by the Government to subserve the object of the legislation and is in public interest. It cannot be said that the second proviso to subclause (1) of clause 11 of the Order does not satisfy the test of reasonableness. It seeks to strike a proper balance between the freedom of trade or business guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19 of the Constitution. It is, therefore, difficult to hold that the second proviso to sub-clause (1) of clause 11 of the Order is of an excessive W.A.No.116 of 2020 35 nature beyond what is required in the interests of the general public.
10. There is no warrant for the submission that the second proviso to sub-clause (1) of clause 11 of the Order confers upon the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence and is, therefore, void by reason of Article 14 of the Constitution. It is urged that the impugned orders of suspension in these cases are for a period of 89 days, and the licensing authority would, as in the past, pass fresh orders of suspension ad infinitum completely paralysing the business of the petitioners. There is no substance in the contention that repeated orders of suspension of a licence can be passed under the second proviso in respect of the same breach. The second proviso expressly states that the licensing authority may suspend a licence for a period not exceeding 90 days. It, therefore, fixes the period of suspension. From its very terms, it is obvious that there cannot be repeated orders of suspension of a licence under the second proviso in respect of the same breach. Normally, the order of suspension under the second proviso to sub- clause (1) of clause 11 of the Order after the expiry of the period of 90 days, would automatically lapse. However, if the licensee commits another breach, after the expiry of the period of suspension, there is nothing to prevent the licensing authority to suspend his licence afresh.
11. On a fair reading of the second proviso to sub- clause (1) of clause 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and W.A.No.116 of 2020 36 Supplies Controller, who is the licensing authority, the power of suspension of a licence. It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstances or grounds on which the power may be exercised. Such guidelines are expressly and specifically stated. In the first place, the power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the licence. The substantive provision contained in sub-clause (1) of clause 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the "terms and conditions of his licence or any provision of this Order".
The first proviso is in the nature of a limitation on the power contained in sub-clause (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The proper function of the second proviso is to carve out an exception to the first proviso. It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in contemplation of the proceedings for cancellation. It must, however, be read along with the main enacting provision in sub-clause (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of W.A.No.116 of 2020 37 suspension. The period of suspension would necessarily depend upon the nature of the breach, and in no case, can it exceed 90 days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly, as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to the Director, Food and Supplies, under clause 13 of the Order. This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. It would, therefore, appear that the second proviso to sub-clause (1) of clause 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a licence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Article 14 of the Constitution. On the contrary, as already indicated, it affords reasonable safeguards."
16. There is one aspect of the matter which needs to be noted. The Kerala Rationing Order, 1966 is a statutory order which has been framed by the State in exercise of Essential Commodities Act, 1955. The object of the order is to maintain the supply of foodgrains by securing their equitable distribution and availability at fair price to W.A.No.116 of 2020 38 general public. The policy adopted is to carry on the act of distribution as per the Government Scheme and distribution is regulated and controlled by statutory provision. The provisions under the Rationing Order are not only for the benefit of the ration dealer rather the principal beneficiary of these provisions is the public in general. The power is given to the District Authorities or to the Civil Supplies Department. Taking into account the purpose and object of second part of sub-clause(8) of Clause 45, there may be an emergent situation where authority has to immediately suspend or close the shop and take such action which may prohibit the dealer not to supply further commodities. In the event it is held that in each and every case notice is to be given, the purpose and object in drafting the second part of sub-clause (8) of Clause 45 shall be defeated. The last line of second part has been thus added with some purpose and putting the interpretation that no notice need be issued will defeat the purpose and object.
....................
19. In view of the forgoing discussions we answer the above noted two questions in the following manner:
(1) Under sub-clause (8) of Clause 45 of Order 1966 there can be temporary suspension pending enquiry and it is not mandatory to give a notice or opportunity as contemplated in first part of Clause (8) for ordering temporary suspension pending enquiry. The Division Bench judgment in Kumaranellur Cooperative M. Society's case (supra) does not lay down the correct law. In view of our above answer, we do not find any justification to keep the W.A.No.116 of 2020 39 writ appeal pending since the writ petition is already pending consideration before the learned Single Judge and apart from that, there are other factual issues which need to be gone into by learned Single Judge. In the above view of the matter, we dispose of the appeal. Let the matter be placed before the learned Single Judge to decide the writ petition at an early date. The Writ Appeal is disposed of accordingly."
14. In the light of the above Full Bench decision of this Court, contentions of the appellant that an opportunity ought to have been given before issuing an order of temporary suspension, is not tenable. The competent authority if, on the basis of the material available, considers that temporary suspension is necessary, he can issue orders. In the case on hand, having regard to the irregularities noticed, the competent authority has resorted to temporary suspension. That apart, the Kerala Rationing Order, 1966, provides for appeal against the order of temporary suspension to the Commissioner of Civil Supplies. Appellant has not availed the alternate remedy.
15. Following the decision of the Hon'ble Full Bench of this Court in State of Kerala and others v. A.Beevi Kannu (cited supra), and considering the material on record, in particular, the irregularities noticed during inspection, we are of the view that no ground is made out in this writ appeal warranting inteference with the judgment impugned.
W.A.No.116 of 2020 40In the result, judgment dated 04.12.2019 in W.P.(C) No.33016 of 2016 is sustained. Writ appeal is dismissed. No costs.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P.CHALY JUDGE Krj.1/2 //TRUE COPY// P.A. TO JUDGE