Allowed

Jayashree D/O Basavaraj Kotur v. State of Karnataka

Karnataka HC18 Feb 2019WP/104137/2018

Case brief

AI extract

What is this about?

Writ petition challenging a rejection of an application to transfer authorization for a fair price shop following the death of the applicant's father. The Court allowed the petition, setting aside the order of the Assistant Director and directing reconsideration without strict adherence to delay provisions, citing a coordinate bench order.

What did the court decide?

The impugned order dated 28.03.2018 passed by the 3rd respondent is set aside, and the 2nd respondent is directed to reconsider the petitioner's application without going into the question of delay.

Jayashree D/O Basavaraj Kotur Vs State of… — Contract and Commercial Disputes | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF FEBRUARY, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE G.NARENDAR

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WRIT PETITION No.104137/2018 (GM-PDS)

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BETWEEN:

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JAYASHREE D/O BASAVARAJ KOTUR, AGE: 45 YEARS, OCC: PRIVATE WORK, R/O: SHEELAVANTARA ONI, DHARWAD. ...PETITIONER

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(BY SRI S.H.MITTALKOD AND SRI VINAY S.KOUJALAGI, ADVOCATES)

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A N D :

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STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, VIKASA SOUDHA, BENGALURU-560001.

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THE DEPUTY COMMISSIONER, DHARWAD.

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THE ASSISTANT DIRECTOR, DEPARTMENT OF FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS, DHARWAD-01. ...RESPONDENTS

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(BY SRI A.R.RODRIGUES, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:28.03.2018 PASSED BY RESPONDENT NO.3 AND ISSUE A WRIT IN THE NATURE OF MANDAMUS TO CONSIDER THE APPLICATION AT ANNEXURE-C DATED 15.04.2016 OF THIS PETITION UNDER THE KARNATAKA ESSENTIAL COMMODITIES (PUBLIC DISTRIBUTION SYSTEM) CONTROL ORDER, 1992

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RULES AND ETC.,

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Learned Additional Government Advocate accepts notice for respondents 1 to 3.

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Heard the learned counsel for the petitioner and the learned Additional Government Advocate.

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Learned counsel for the petitioner places on record an order passed by this Court in similar circumstances in W.P.No.105404/2018 which reads as under:

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“ The petitioner’s father was running a fair price shop (shop No.84) in Hubballi and the authorization was being renewed from time to time. The petitioner’s father died on 16.10.2017 and the petitioner made an application to the respondent-Authorities seeking transfer of authorization in his name. The application is dated 25.06.2018. The Competent Authority i.e. respondent No.4-Assistant Director of Food, Civil Supplies and Consumer Affairs, Hubballi issued an endorsement dated 17.07.2018 rejecting the application, while referring to the proviso to Rule 13 of the Karnataka Essential Commodities Public

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Distribution System (Control Order), 2016 (hereinafter referred to as ‘Control Order, 2016’ for brevity).

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2. The learned counsel for the petitioner, Sri.S.H.Mittalkod submits that the Co-ordinate Benches of this Court have passed several orders in this regard holding that the prescriptions incorporated in the subsequent control orders as regards the age of the applicant, minimum educational qualification, etc., are not applicable to the case of the petitioner since what was sought by the petitioner was not a grant of fresh authorization to carry on the business of retail vending and the same requirement as were made applicable while granting the authorization earlier should be made applicable. Learned counsel for the petitioner would further submit that under the Control Order, 1992, which was applicable when the authorization was issued to the father of the petitioner, there is no prescription as is provided in the proviso to Rule 13 of the Control Order, 2016.

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3. Learned Addl. Government Advocate, appearing for the respondents would submit that since the application is made in the year 2017, the provisions of law as on 2017 should be made applicable.

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4. Having heard the learned counsels, what falls for consideration is whether the requirement of making the application within a period of 90 days as provided in the proviso to Clause 13 of the Control Order, 2016 would apply in the facts and

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circumstances of the case. Clause 13 of the Control Order, 2016 reads as follows:

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“13. Prohibition of Transfer of Authorization: No authorized dealer shall assign or transfer his authorization to any other person by and no person shall carry on business as a transferee or otherwise on behalf of any such authorized dealer.

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“Provided that the authorized authority may order for such transfer in the even of the death of the authorized dealer before 60 years of age, to the spouse or son or unmarried daughter, in case he or she is above 18 years and less than 30 years (or 40 years for unmarried daughters) of age having passed 10^th standard and has applied for transfer within 90 days of the death of the authorized dealer, with the prior approval of the commissioner for a maximum period of 3 years viz., the period of validity of a fresh authorization.””

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5. The Co-ordinate Benches of this Court in W.P.No.8586/2006 which was decided on 21.11.2008 and in many other writ petitions including W.P.No.55097/2017 dated 11.12.2017, W.P.No.204335/2014 dated 17.11.2017, have held that the provisions that were prevailing when the original authorization was granted has to be made applicable and not the new prescriptions that have come about subsequent to the issuance of authorization.

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6. There is substance in the argument of the learned counsel for the petitioner when he submits that this Court, while considering the proviso to

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Clause 13 of the Control Order, 2016 has held that the prescription of age and the minimum educational qualification for persons who seek transfer on compassionate grounds cannot be made applicable and directed the Authorities to consider their applications without insisting on the minimum educational qualification and the age limit prescribed in the proviso and when that being the case, the technical ground of making the application within a period of 90 days also should not be made applicable or should be considered with leniency.

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7. Therefore, this Court is of the opinion that even if there is a delay in making the application seeking transfer of authorization on compassionate grounds, the same could be condoned and the respondent-Authorities should consider the application.

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8. In the light of the above, the impugned order dated 17.07.2018 passed by respondent No.4 is hereby quashed and set aside. Respondent No.4 is hereby directed to reconsider the application of the petitioner without going into the question of delay, in the light of the observations made above.

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9. The petition is accordingly allowed. No order as to costs”

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Learned Additional Government Advocate fairly

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submits that the instant writ petition could also be

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ordered in similar terms as the order noted supra is not appealed against.

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The submission of both the counsels is placed on record. The instant writ petition is allowed. The impugned order dated 28.03.2018 passed by the 3^rd respondent is set aside. The second respondent is directed to reconsider the application of the petitioner without going into the question of delay in the light of the observations rendered by this Court in aforenoted W.P.No.105404/2018.

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The writ petition is ordered accordingly.

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(Sd/-) JUDGE

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jm/-

Jayashree D/O Basavaraj Kotur v. State of Karnataka

Case brief

What is this about?

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Jayashree D/O Basavaraj Kotur v. State of Karnataka

Case brief

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