Karnataka High Court

Sulochana W/O Sharanappa vs The Commissioner And Ors on 24 June, 2022

Bench: S.Vishwajith Shetty

                              1         W.P.No.201433/2022


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 24TH DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

      WRIT PETITION No.201433/2022 (GM-EC)

BETWEEN:

Sulochana W/o Sharanappa,
Age: 47 years, Occ: Household,
R/o # 112, Nilogal,
Tq: Lingasugur, Raichur-584101.
                                               ... Petitioner

(By Sri. Mahantesh Patil, Advocate)

AND:

1.     The Commissioner,
       Food & Civil Supplies and Consumer,
       Affairs Department,
       No.8 Cunningham Road,
       Bengaluru-560 052.

2.     The Deputy Director,
       Food and Civil Supplies and Consumer,
       Affairs Department,
       Raichur, Dist: Raichur-584101.

3.     The Deputy Commissioner,
       Raichur, Dist: Raichur-584101.
                                 2      W.P.No.201433/2022


4.      The Tahsildar,
        Lingasugur, Tq: Lingasugur,
        Dist: Raichur-584101.

5.      Food Shirastedar,
        Tahasil Office, Lingasugur,
        Tq: Lingasugur,
        Dist: Raichur-584101.
                                                  ... Respondents

(By Sri. Sharanabasappa M.Patil, HCGP)

      This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to issue a writ in the nature
of certiorari to quash the endorsement dated 25.02.2022
bearing No.¸ÀA:DE/£Áå¨ÉCA/¹Dgï-62/2021-22, issued by the
respondent No.2, vide Annexure-E and etc.

      This petition coming on for Preliminary hearing this
day, the Court made the following:

                          ORDER

The petitioner, who is the married daughter of late

Annappa has filed the instant writ petition with a prayer

to quash the endorsement vide Annexure-E dated

25.02.2022 issued by the second respondent and to

issue a writ of mandamus directing the second

respondent to transfer the authorization allotted to her

late father in her favour for running a fair price shop at

Nilogal village Lingasugur taluka, Raichur district by

considering her application vide Annexure-D.

2. Heard the learned counsel for the petitioner

as well as the learned High Court Government Pleader

appearing for the respondents.

3. The petitioner's father late Annappa was

granted an authorization for distribution of food grains in

a fair price shop at Nilogal village, Lingasugur taluka,

Raichur district. The said authorization was being

renewed periodically and during subsistence of the said

authorization, the petitioner's father had expired on

11.03.2013. Immediately thereafterwards, on

05.04.2013, the petitioner had made an application

seeking for transfer of said authorization in her favour.

It is the case of the petitioner that her parents had no

male issues and therefore she had filed an application

seeking transfer of the authorization. Since the

application dated 05.04.2013 was not considered by the

second respondent, the petitioner had given a fresh

application on 06.03.2017 seeking for the similar relief.

The second respondent had called for report from the

competent authority and thereafterwards issued

endorsement rejecting the application on the ground

that the application was filed belatedly and since the

petitioner was a married daughter of late Annappa, who

was the holder of authorization, she was not entitled for

transfer of authorization on compassionate grounds as

per the Rules. Being aggrieved by the same, the

petitioner is before this Court.

4. The learned counsel for the petitioner submits

that the second respondent has erred in holding that the

application filed by the petitioner is belated. He submits

that the first application was filed on 05.04.2013 and

copy of the same is available on record. He also

submits that the second respondent was not justified in

rejecting the application of the petitioner on the ground

that she is a married daughter of authorization holder.

He has relied upon the judgment of the High Court of

Bombay passed in Writ petition No.5592/2009, wherein,

in identical circumstances, the High Court of Bombay

has held that exclusion of a married daughter from the

purview of expression 'family' in the Licencing Order,

1979 is not only violative of Article 15 of the

Constitution of India but the same also infringes the

right guaranteed by Article 19(i)(g) of the Constitution.

Further, he also submits that this Court in the case of

Smt.Bhuvaneshwari V. Puranik vs. State of

Karnataka, Department of Personnel and

Administrative Reforms reported in ILR 2021 KAR

5265, has held that the married daughters are also

entitled for appointment on compassionate grounds.

5. Learned High Court Government Pleader

appearing for the respondents submits that Rule 13 of

the Licencing Order specifically excludes the married

daughters and therefore, no fault can be found in the

order impugned passed by the second respondent.

6. The impugned endorsement has been issued

by the second respondent rejecting the claim of the

petitioner on two grounds, firstly on the ground of delay

and secondly on the ground that petitioner is the

married daughter of the holder of authorization i.e., late

Annappa. The material on record would go to show that

after the death of late Annappa i.e., on 11.03.2013, the

petitioner had filed her application for transfer of

authorization on 05.04.2013 itself. Since the said

application was not considered, she had filed a second

application on 06.03.2017. The second respondent has

failed to appreciate this aspect of the matter and has

erred in holding that the application filed by the

petitioner was belated. A perusal of Annexure-D, which

is the first application filed by the petitioner would go to

show that the same has been received in the office of

the Tahsildar, Lingasugur under a official seal.

Therefore, there cannot be any dispute that the

petitioner had filed the first application seeking transfer

of the authorization on 05.04.2013 itself, which was well

within the time.

7. Secondly, the second respondent has

rejected the application of the petitioner on the ground

she is the married daughter of late Annappa, who was

the holder of authorization. As rightly contended by the

learned counsel for the petitioner, a coordinate Bench of

this Court in the case of Smt.Bhuvaneshwari V.

Puranik (Supra) has held that even the married

daughters are entitled to seek appointment on

compassionate grounds. Further, in the case of

Smt.Ranjana Murlidhar Anerao vs. State of

Maharashtra and Ors., the High Court of Bombay in

identical circumstances, wherein, the Licencing Order

excluded the married daughters from the purview of

expression 'family' has observed as under:

"There does not appear any rational basis for doing so. There could be a license holder having only one daughter. If the license holder unfortunately expires prior to her marriage, she if above 18 years of age would be eligible to be treated as a member of the family of the license holder. Similarly, if such daughter is divorced she would fall within the purview of the expression "family". But, if married and also supporting the license holder in his/her old age, she 11 / 20 Deshmane wp.5592-

09.doc would be excluded from being included in the expression of family in case the license holder expires. This exclusion of a married daughter does not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a license holder cannot be held to her disadvantage in the matter of seeking

transfer of license in her name on the death of the license holder. Under Article 19(1)(g) of the Constitution of India the right of a citizen to carry on any trade or business is preserved. Under Article 19(6) reasonable restrictions with regard to professional or technical qualifications necessary for carrying on any trade or business could be imposed. Similarly, gender discrimination is prohibited by Article 15 of the Constitution. The exclusion of a married daughter from the purview of expression "family" in the Licensing Order of 1979 is not only violative of Article 15 but the same also infringes the right guaranteed by Article 19(1)(g) of the Constitution."

8. The second respondent has rejected the

application of the petitioner seeking transfer of the

authorization on compassionate grounds on only two

grounds. In view of the above observations, the

impugned endorsement issued by the second

respondent vide Annexure-E dated 25.02.2022 cannot

be sustained. Accordingly, following: