Karnataka High Court
Neeru Balakedharara Sahakara Sangha ... vs The State Of Karnataka And Ors on 29 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC-K:5417
WP No. 200132 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.200132 OF 2022 (GM-EC)
BETWEEN:
NEERU BALAKEDHARARA
SAHAKARA SANGHA NIYAMITA
SIDRAMPURA,
TQ: SINDHANURU,
DIST: RAICHUR
REP. BY ITS SECRETARY,
SRI NAGANAGOUDA,
S/O VEERANAGOUDA PATIL,
AGED ABOUT 40 YEARS,
R/O. SIDRAMPURA
TQ: SINDHANURU
DIST: RAICHUR
...PETITIONER
(BY SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE)
Digitally signed AND:
by
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
1. THE STATE OF KARNATAKA
Location: HIGH
COURT OF
REP. BY ITS SECRETARY,
KARNATAKA
DEPARTMENT OF FOOD, CIVIL SUPPLIES
AND CONSUMER AFFAIRS DEPARTMENT,
BENGALURU-1.
2. THE DEPUTY COMMISSIONER
(FOOD) RAICHUR,
DIST: RAICHUR-585 401.
3. THE DEPUTY DIRECTOR OF
FOOD AND CIVIL SUPPLIES
RAICHUR,
DIST: RAICHUR-584 101.
-2-
NC: 2024:KHC-K:5417
WP No. 200132 of 2022
4. THE TAHASILDAR
SINDHANURU,
TQ: SINDHANURU,
DIST: RAICHUR
5. SOMANAGOUDA
S/O AYYANAGOUDA PATIL
AGED ABOUT 50 YEARS,
OCC: AGRI R/O SIDRAMAPURA,
TQ: SINDHANURU
DIST: RAICHUR-584 128.
...RESPONDENTS
(BY SRI SHIVAKUMAR R. TENGLI, ADVOCATE FOR R1;
SRI BASAVARAJ R. MATH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR
ORDER, WRIT IN THE NATURE OF CERTIORARI, QUASHING
THE IMPUGNED ORDER DATED 31.07.2021 IN NO.AAHARA:
NYABEAN.CR-21/2021-22 PASSED BY RESPONDENT NO.3 VIDE
ANNEXURE-D. A) ISSUE A WRIT OR ORDER, WRIT IN THE
NATURE OF MANDAMUS, DIRECTING THE RESPONDENT NOS.2
AND 3 TO GRANT THE AUTHORIZATION/LICENSE TO THE
PETITIONER SOCIETY BY CONSIDERING HIS APPLICATION
VIDE ANNEXURE-B. c) ISSUE A WRIT OR ORDER, WRIT IN THE
NATURE OFF MANAMUS, DIRECTING THE RESPONDENT NOS.2
TO CONSIDER THE OBJECTIONS OF THE PETITIONER SOCIETY
VIDE ANNEXURES-E AND E1 RESPECITIVELY, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-3-
NC: 2024:KHC-K:5417
WP No. 200132 of 2022
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioner is before this court seeking for the following reliefs.
a) "Issue a writ or order, writ in the nature of certiorari, quashing the impugned order dated 31.07.2021 in NO.Aahara:NyaBeAn.CR-
21/2021-22 passed BY respondent No.3 vide Annexure-D.
b) Issue a writ or order, writ in the nature of mandamus, directing the respondent Nos.2 and 3 to grant the authorization/license to the petitioner society by considering his application vide Annexure-B.
c) Issue a writ or order, writ in the nature of mandamus, directing the respondent No.2 to consider the objections of the petitioner society vide Annexure-E and E1 respectively, in the interest of justice and equity."
2. The petitioner claims to be a Society registered under the Karnataka Co-operative Societies Act, 1959. Insofar as Fair Price Shop No.70 coming under Sidrampura Gram Panchayat which was run earlier by one Sri.Ayyanagouda Patil, he having expired his -4- NC: 2024:KHC-K:5417 WP No. 200132 of 2022 son respondent No.5, had filed an application for transfer of the authorisation which initially came to be rejected on the ground that the applicant was over-aged. This was challenged by his son in W.P.No.201245/2021 which came to be allowed on 05.07.2021 in the following terms: "6. It is not in dispute that the father of the petitioner after obtaining authorisation from respondent No.3 was running a fair price shop at Sidrampur village, taluk Sindhanur, district Raichur. The father of the petitioner died on 02.04.2021 leaving behind the petitioner as his legal representative. The petitioner has applied for transfer of authorisation in his favour and the same was rejected on the ground that as per Rule 13 of the Order, 2016 the petitioner was over- aged. This Court on various occasions in W.P.No.22448/2015 and W.P.No.204335/2014 held that the restriction with regard to age and qualification is not applicable so far as granting transfer of such authorisation of dealership on compassionate ground. Respondent No.4 without considering the order passed by this Court has rejected the application. Hence, respondent No.4 has committed an error in rejecting the application filed by the petitioner.
7. In the light of the decisions of the Co- ordinate Bench of this Court referred to supra, it would be just and proper to direct the fourth respondent to transfer the authorization in the name of the petitioner as requested in the -5- NC: 2024:KHC-K:5417 WP No. 200132 of 2022 representation dated 03.05.2021 vide Annexure- E.
8. In view of above discussion, I proceed to pass the following:
ORDER i. The writ petition is allowed. ii. The impugned endorsement dated 22.06.2021 issued by the fourth respondent vide Annexure-E is hereby quashed.
iii. The fourth respondent is directed to transfer the authorization in favour of the petitioner within a period of two months from the date of receipt of copy of this order."
3. Subsequent thereto, when the application was under
the process of consideration, the petitioner submitted objections stating that respondent No.5 did not qualify the requirement of the amendment to Rule- 13 of the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016, (for short, hereinafter referred to as 'Control Order') as amended under Notification dated 16.01.2021.
Inasmuch as the transfer on compassionate grounds -6- NC: 2024:KHC-K:5417 WP No. 200132 of 2022 can only be made if the person in whose favour the transfer is to be made has no other source of income and in that background, the petitioner had contended that respondent No.5 and the family members had adequate sources of income as they own more than 70 acres of land. This aspect has not been considered by respondent No.3-Deputy Director Of Food and Civil Supplies and without such consideration vide impugned judgment dated 31.07.2021 at Annexure-D, the authorisation has been transferred in favour of respondent No.5. Challenging the said order that the petitioner is before this Court.
4. Smt.Ratna N.Shivayogimath, learned counsel for the petitioner would submit that transfer of authorisation on the basis of compassionate ground is not an absolute right which is vested in the legal representative or the person who held the authorisation earlier, the requirements of amended -7- NC: 2024:KHC-K:5417 WP No. 200132 of 2022 Rule 13 of the Control Order have to be complied with, in the event of applicant seeking for transfer of authorisation having adequate sources of income, no such transfer on compassionate ground can be made. Her submission is that the transfer of authorisation on the basis of compassionate ground is only to tide over the immediate difficulties that the family may have on account of bread winner of the family expiring and the sole source of income being the authorization if not transferred, the family would be left destitute and on that ground, she submits that if the person seeking for transfer of authorisation has other source of income, the authorisation cannot be made on the compassionate basis.
5. Sri Basavaraj R.Math learned counsel for respondent No.5 firstly, would submit that the order passed by a Co-ordinate bench of this Court in W.P.No.201245/2021 is an absolute order. The -8- NC: 2024:KHC-K:5417 WP No. 200132 of 2022 transfer of authorisation in favour of respondent No.5 being on the basis of said order if it all the petitioner is aggrieved by the same, the remedy would be by way of appeal and not for consideration of any representation or objections made by the petitioner to respondent No.3 inasmuch as once this Court wide order dated 05.07.2021 had directed transfer of authorisation the question of consideration of any objection would not arise.
5.1. Secondly, he submits that the properties which the petitioner claims to be owned by respondent No.5 is infact not owned by respondent No.5, it is owned by several other family members there is litigation regarding the rights of the parties, apart therefrom there are liabilities which have ensued on account of bank loans etc., and as such, the respondent No.5 cannot be said to fall within the mischief of Amended Rule 13 of Control Order 2016.
-9-
NC: 2024:KHC-K:5417 WP No. 200132 of 2022
6. Heard learned counsel for the petitioner and the respondents. Perused the writ papers.
7. Though there may be merit in the contention of the learned counsel for the petitioner that in terms of Amended Rule 13 of the Control Order, the person who seeks for transfer of authorisation has to establish that he has no other source of income. The same cannot be considered by this Court in the present matter, nor could have been considered by respondent No.3 since the order dated 05.07.2021 in W.P.No.201245/2021, there is a positive direction which had been issued by this Court to transfer the authorisation in favour of respondent No.5, within a period of two months from the date of receipt of certified copy of the order. That being the case as submitted by learned counsel Sri.Basavaraj R. Math, respondent No.3 could neither consider any objection filed by the petitioner nor could pass any order
- 10 -
NC: 2024:KHC-K:5417 WP No. 200132 of 2022 thereon, his only duty is to implement the order of this Court.
8. In the event of the petitioner being aggrieved by such transfer, the said transfer having been made in pursuance of the order of this Court, the only remedy available to the petitioner is to challenge the order dated 05.07.2021 in W.P.No.201245/2021, on the basis of the grounds which have been urged in the present petition, this Court being a Co-ordinate court cannot consider the said submissions. Hence, I pass the following:
ORDER i. The writ petition is dismissed. ii. Liberty is however reserved to the petitioner to file a writ appeal challenging the order in W.P.No.201245/2021, if so permitted.
Sd/-
(SURAJ GOVINDARAJ) JUDGE VNR List No.: 1 Sl No.: 29