Allowed

Smt R Aruna @ Aruna Y R v. State of Karnataka

Karnataka HC1 Dec 2022WP/23345/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an order rejecting the petitioner's application for transfer of a PDS shop authorization on compassionate grounds due to alleged delay, directing authorities to reconsider the matter.

What did the court decide?

Writ petition allowed; endorsement dated 06.01.2018 quashed; mandamus issued to reconsider application without going into the question of delay.

Smt R Aruna @ Aruna Y R Vs State of Karnataka — Service and Employment | Karnataka HC (2022)

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WP No. 23345 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF DECEMBER, 2022 BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 23345 OF 2022 (GM-PDS)

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BETWEEN:

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SMT. R. ARUNA @ ARUNA Y. R. AGED ABOUT 41 YEARS W/O LATE N. LAKSHMINARAYANA R/O. KADRI PALYA, SIDDLAGHATTA TOWN, CHICKBALLAPUR DISTRICT-562 101.

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…PETITIONER

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(BY SRI. SHIVARAMU H.C., ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF FOOD AND CIVIL SUPPLIES GROUND FLOOR, VIKAS SOUDHA, BANGALORE-560 001.

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THE DEPUTY DIRECTOR OF FOOD AND CIVIL SUPPLIES CHICKBALLAPUR DSITIRCT CHICKBALLAPUR-562 101.

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WP No. 23345 of 2022

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THE THASILDAR SIDDLAGHATTA TALUK, SIDDLAGHATTA, CHICKBALLAPUR DISTRICT-562 101.

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…RESPONDENTS

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(BY SRI. M. VINODKUMAR, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 06.01.2018 ISSUED BY THER2 IN NO.AA NA SA/CR/C JA. 09/2017-18 AT ANNEXURE-B; QUASH THE NOTIFICATION DATED 03.08.2022 ISSUED BY THE R2 IN NO.AA NA SA/DRA/CR/NYAYA BE/02/2022-23 AT ANNEXURE-H AND ETC.,

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question an endorsement dated 06.01.2018, by which, the application of the petitioner seeking transfer of authorization on compassionate grounds comes to be rejected.

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Heard Sri. H.C. Shivaramu, learned counsel

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appearing for the petitioner, Sri. M. Vinodkumar, learned counsel appearing for the respondents and have perused the material on record.

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WP No. 23345 of 2022

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Sri. H.C. Shivaramu, learned counsel appearing for

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the petitioner would contend that the reason for rejection of the transfer of authorization is on the ground that the application for such transfer is filed after a delay of 90 days, as is required in law.

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Learned counsel for the petitioner would also submit that an identical issue has met its consideration at the hands of this Court in the case of M/S. SHRI. MALLIKARJUN ASHOK MATTI Vs. STATE OF KARNATAKA AND OTHERS in WP.No.105404/2018 disposed on 04.12.2018, wherein, the Co-ordinate Bench of this Court in the aforesaid case has held as follows:

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

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WP No. 23345 of 2022

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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 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

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WP No. 23345 of 2022

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passed 10th 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 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

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WP No. 23345 of 2022

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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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(Emphasis supplied)

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The learned AGA though would refute the

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submissions and contend that there is an inordinate delay on the part of the petitioner in approaching this Court, which is

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close to 4 years, as the endorsement is issued on 06.01.2018 and third party rights would be created by now, on allowing the same to some other person. The said submission is noted.

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6. For the aforesaid reasons, following:

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ORDER

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I. Writ petition is allowed.

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