Allowed

Sri S Narasimha Bharathi v. State of Karnataka Department of

Karnataka HC5 Oct 2023WP/5199/2023

Case brief

AI extract

What is this about?

Petitioner sought transfer of fair price shop authorization from deceased mother on compassionate grounds. Competent authority rejected application citing 90-day delay and new age/education norms. Court held delay condonable and order quashed.

What did the court decide?

Quashed the order dated 03.08.2022; directed respondent to reconsider application without regarding delay.

Sri S Narasimha Bharathi Vs State of… — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC:36006 WP No. 5199 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 5199 OF 2023 (GM-PDS)

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BETWEEN:

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SRI. S. NARASIMHA BHARATHI, S/O S. SIDDAPPA, AGED ABOUT 70 YEARS, R/AT 821 , LINK ROAD, T. NARASIPURA TOWN, TIRUMAKUDALU NARASIPUR, T. NARASIPURA, DISTRICT MYSURU, MYSURU - 571 124.

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…PETITIONER

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(BY SRI. P. UDAYASHANKAR RAI, ADVOCATE)

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AND:

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Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA DEPARTMENT OF FOOD AND CIVIL SUPPLIES, VIKAS SOUDHA, BENGALURU - 560 001, REPRESENTED BY ITS PRINCIPAL SECRETARY, PINCODE - 571 124.

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JOINT DIRECTOR, DEPARTMENT OF FOOD AND CIVIL SUPPLY AND CONSUMER AFFAIRS, MYSURU DISTRICT - 571 124.

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THE TAHASILDAR, T. NARASIPURA TALUK, T. NARASIPURA - 571 124 …RESPONDENTS

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(BY SRI. RAJENDRA K.R, AGA)

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2 - NC: 2023:KHC:36006 WP No. 5199 of 2023

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DTD. 03.08.2022 BEARING NO. FPS/TNP/14/2021-22 ISSUED BY THE R-2 AT ANNX-F.

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

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ORDER

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R.DEVDAS J., (ORAL):

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Learned Additional Government Advocate is directed to take notice for all the respondents.

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The petitioner’s mother was running a fair price shop in T.Narasipura Village, Mysore District and the authorization was being renewed from time to time. The petitioner’s mother died on 28.01.2022 and the petitioner made an application to the respondent-Authorities seeking transfer of authorization in his name. The application is dated 28.02.2022. The Competent Authority i.e. respondent No.2-Joint Director of Food and Civil Supplies, Mysore District, issued an endorsement dated 03.08.2022 rejecting the

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application, while referring to the proviso to Rule 13 of

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NC: 2023:KHC:36006 WP No. 5199 of 2023

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the Karnataka Essential Commodities Public Distribution System (Control Order), 2016 (hereinafter referred to as ‘Control Order, 2016’ for brevity).

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The learned counsel for the petitioner 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 was no prescription as is provided in the proviso to Rule 13 of the Control Order, 2016.

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Learned Additional Government Advocate

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appearing for the respondents would submit that since

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NC: 2023:KHC:36006 WP No. 5199 of 2023

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the application is made in the year 2021, the provisions of law as on 2021 (amended) should be made applicable.

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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 passed 10th standard and has applied for transfer within 90 days of the death of the authorized dealer, with the prior approval of the

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NC: 2023:KHC:36006 WP No. 5199 of 2023

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commissioner for a maximum period of 3 years viz., the period of validity of a fresh authorization.”

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The Co-ordinate Benches of this Court in

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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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There is substance in the argument of the

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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

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6 - NC: 2023:KHC:36006 WP No. 5199 of 2023

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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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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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In the light of the above, the impugned

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order/endorsement dated 03.08.2022 passed by respondent No.2 is hereby quashed and set aside. Respondent No.2 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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