Krishna S/O. Sri. Sukhadev Kamble Vs the Deputy Commissioner /

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI/QUASH THE ORDER DTD. 21.11.2023 MADE IN NO. NO. PÀæ. D¥ÀÆ«/£Áå¨ÉCA/ªÉÄÃ®ä£À«-07/2022-23 DATED 21.11.2023 PASSED BY THE RESPONDENT NO.1 (ANNEXURE-H) & ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

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The petitioner is before this Court seeking for the following reliefs:

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1. Issue writ of certiorari/quash the order dtd. 21.11.2023 made in No. No. PÀæ. D¥ÀÆ«/£Áå¨ÉCA/ªÉÄÃ®ä£À«- 07/2022-23 dtd. 21.11.2023 passed by the Respondent No.1 (Annexure-H).

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2. Call for records from the file of R-1 bearing order No. - PÀæ. D¥ÀÆ«/£Áå¨ÉCA/ªÉÄÃ®ä£À«- 07/2022-23 dated 10.01.2023 and allow the appeal filed by the petitioner before the 1^st respondent.

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3. Direct the Respondent No.1 to issue a license to the Petitioner in accordance with the provisions outlined in the Karnataka Essential Commodities Public Distribution System (Control) Order 2016, for operating a fair shop, as specified in the notification. this directive is necessary in the interest of justice.

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4. Issue any other directions or reliefs as deemed fit by this Hon’be Authority, considering the facts and circumstances of the case, and in the interest of justice and equity.

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HC-KAR

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A notification was issued on 22.11.2022 under the

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Karnataka Essential Commodities Public Distribution System (Control) Order, 2016 (for short the order 2016) and its subsequent amendment dated 21.05.2018, inviting applications for the grant of authorization to operate a fair price shop in Palambhavi Village, Raibag Taluk, Belagavi District. The petitioner, claiming to belong to the Scheduled Caste category, submitted his application. Three other applicants also applied, and Respondent No. 4 was granted the authorization by rejecting the petitioner’s application. The petitioner is now challenging this decision before this Court.

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Sri.Sabeel Ahmad, learned counsel for the petitioner submits that

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3.1. The petitioner’s application could not have been rejected on the ground of non-production of the police verification report. The report had, in

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fact, been submitted along with the application and is included as Annexure-C6 and AnnexureD.

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3.2. Regarding the grant of authorisation to Respondent No. 4, he submits that Respondent No. 4 is registered under the Karnataka Souharda Sahakara Act, 1997, not under the Karnataka Co-operative Societies Act, 1959. Therefore, Respondent No. 4 is not eligible for consideration under Rule 6 of the Control Order, 1992.

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3.3. He contends that only societies registered under the Karnataka Co-operative Societies Act, 1959, are eligible for consideration under Rule 6(1)(b)(ii). A Souharda Co-operative Society does not fall within this priority list.

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3.4. He further contends that as a Scheduled Caste applicant, the petitioner is entitled to priority.

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HC-KAR

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Since Respondent No. 4 is ineligible, the petitioner should have been granted authorisation.

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Sri.Sharad V Magadum, learned AGA submits that Respondent No.4 has been considered under the priority for a society involved in multipurpose activities. He further submits that once Respondent No. 4 was granted priority, a person from the Scheduled Caste category would fall below such priority. Therefore, the endorsement issued and the selection made are proper and correct.

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Heard Sri Sabeel Ahmad, learned counsel for the petitioner, and Sri Sharad V. Magdum, learned AGA for the respondents and perused the papers.

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The points that would arise for determination are:

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i) Whether a Society registered under the Karnataka Souharda Sahakara Act, 1997 can be considered on priority in terms of Rule 6 of the Karnataka Essential

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Commodities Public Distribution System (Control) Order, 2016?

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ii) Whether the ranking of the applicants in the present matter satisfies the requirements of Rule 6?

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iii) What order?

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I answer the above points as under

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Answer to Point No.(i) : Whether a Society registered under the Karnataka Souharda Sahakara Act, 1997 can be considered on priority in terms of Rule 6 of the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016?

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8.1. Rule 6 of the Order, 2016 provides the order of priority for granting authorization, which is reproduced for ready reference:

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“6 Order of Priority for Grant of authorization: (1) subject to the provisions of Clause 5, the authorized authority shall follow the following order of priority for granting authorization.

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(a) Authorized Wholesale Dealer :-

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(i) Karnataka Food and Civil Supplies Corporation

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(ii) Co-operative Societies registered under the Karnataka Co-operative Societies Act which have been in existence for at least one year.

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(b) Fair Price Shops :-

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(i) Stree Shakthi Groups recognized by the Women and Child Development Department, Government of Karnataka and which have been in existence for not less than one year as on the date of application;

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(ii) Consumer Co-operative Societies;

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(iii) Other Co-operative Societies;

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(iv) A Society or Association, not being a youth club or Youth Association, registered under the Karnataka Societies Registration Act 1960 (Karnataka Act 17 of 1960);

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(v) If eligible applicants from the categories (i) to (iv) are not available to run the fair price shops, in particular area, then the authorized authority may grant authorization to open a fair price depot to individuals who are above 18 years of age, and who have passed 10th standard, in the following order of priority, namely –

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(a)Persons belonging to the Scheduled Castes;

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(b)Persons belonging to the Scheduled Tribes; (c) Un-employed graduates; 4 (d) Physically handicapped persons; (e) Ex-servicemen;

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(f) Others.

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Provided that, out of the authorization for fair price depot issued to individuals during the official year by an authorized authority, a minimum of fifteen percent shall be reserved for the persons belonging to the Scheduled Castes and a minimum of five percent for the persons belonging to the Scheduled Tribes and if persons belonging to those categories are not available then such authorization, may be issued to other persons.”

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8.2. The said Rule 6 of the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016 (for short the Order, 2016) was amended on 21.05.2018. The amendment reads as follows:

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“ 1. Title and commencement. (1) This Order may be called the Karnataka Essential Commodities Public Distribution System (Control) (Amendment) Order, 2018.

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(2) It shall come into force from the date of its publication in the Official Gazette.

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2. Amendment of clause 6. - In the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016, in clause 6, in sub-clause (1) in item (b), for sub-items (ii) and (iii), the following shall be substituted, namely:-

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"(ii) subject to the provisions of Clause 5, the authorized authority shall follow the following order of priority for granting authorization.-

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(a) Authorized Wholesale Dealer:State Government owned Corporation/Undertakings or Companies;

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(b) Fair Price Shops:-

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(i)State Government owned Corporations/ Undertakings or Companies or Gram Panchayats/Urban Local bodies.

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(ii) Societies:-

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(1) Taluk Agricultural Primary Societies, Co-operative Marketing Society;

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(2) Primary Agricultural Cooperative Society or VSSMS;

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(3) HOPCOMS;

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(4) Registered Cooperative Societies;

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(5) Registered Primary Consumer Co-operative Society;

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(6) LAMPS (Large Size Adivasi's Multipurpose Society);

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(7) Registered Weavers Cooperative Society;

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(8) Registered Women Multipurpose Co-operative Society;

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(9) Registered Multipurpose Co-operative Society;

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(10) Physically disabled Welfare Co-operative Society;

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(11) Banks run by Cooperative Societies or Cooperative Bank.

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(iii) Individuals:-

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(a) Persons with bench mark disability category (400 shops to start with); and

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(b) Persons of trans genders category (30 shops to start with)

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(iv) The Bench Mark for measuring the quality of the above Co-operative Societies are based on their awarded auditing grading of A, B and C which shall be considered.,

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(v) The society shall be more than three years old and shall have maintained a minimum balance of rupees two lakhs continuously for last two years."

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8.3. Under the amended Rule 6 of the Order 2016, a

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Souharda Co-operative Society does not fall within the purview of any of the classifications in Rule 6(1)(b)(ii).

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8.4. It is only a Co-operative society which is registered under the KCS Act 1959 which can be considered for the grant of priority. Respondent No. 4 does not meet the requirements for any of the categories. Therefore, the petitioner, being a person with a benchmark disability, should have been favorably considered for the authorisation.

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9. Answer to Point No. ii : Whether the ranking of the applicants in the present matter satisfies the requirements of Rule 6?

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9.1. In view of my answer to Point No.i, it is clear that the respondents did not apply Rule 6 correctly by considering a Co-operative Society registered under the Karnataka Sovadhana Cooperative Societies Act, 1997.

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9.2. Hence, I answer Point No. ii by holding that the procedure followed by the respondents was not in accordance with Rule 6 of the Order 2016.

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10. Answer to Point No. iii : In view of my findings on Points Nos. i and ii, I pass the following:

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ORDER

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i. The writ petition is allowed.

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ii. A writ of certiorari is issued, quashing the order dated 21.11.2023 passed by Respondent No. 1.

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iii. Respondent No. 1 is directed to issue a license to the petitioner in accordance with the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016, within six weeks from the date of receipt of a copy of this order.

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Sd/(SURAJ GOVINDARAJ) JUDGE

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Vb/Ct:vp LIST NO.: 1 SL NO.: 37

Krishna S/O. Sri. Sukhadev Kamble v. the Deputy Commissioner /

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Krishna S/O. Sri. Sukhadev Kamble v. the Deputy Commissioner /

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