Smt.Indu.S.K vs State Of Karnataka
2023 Latest Caselaw 2257 Kant

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                                                             WP No. 7010 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 18TH DAY OF APRIL, 2023

                                                 BEFORE

                               THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                               WRIT PETITION NO. 7010 OF 2023 (GM-PDS)

                        BETWEEN:

                        SMT. INDU S K,
                        AGED ABOUT 36 YEARS,
                        D/O LATE KRISHNAMURTHY S,
                        W/O P C VIJAY KUMAR,
                        RESIDING AT NO. 14/2, "VASAVI NILAYA",
                        24TH 'A' CROSS, 6TH MAIN ROAD,
                        KARESANDRA, B. S. K. II STAGE,
                        BANGALORE - 560 070.
                                                                    ...PETITIONER

                        (BY SRI. SHIVARAMU H C, ADVOCATE)

                        AND:

                        1.    STATE OF KARNATAKA,
           Digitally
           signed by
           PADMAVATHI
                              REPRESENTED BY ITS PRINCIPAL SECRETARY,
PADMAVATHI B K
BK         Location:          DEPARTMENT OF FOOD AND CIVIL SUPPLIES,
           HIGH COURT
           OF
           KARNATAKA
                              GROUND FLOOR, VIKAS SOUDHA,
                              BANGALORE - 560 001.

                        2.    THE DEPUTY DIRECTOR OF
                              FOOD AND CIVIL SUPPLIES,
                              SOUTH RANGE,
                              BANGALORE - 560 001.
                                                                 ...RESPONDENTS

                        (BY SMT. NAVYA SHEKHAR, AGA)

                            THIS WP      IS FILED UNDER ARTICLE    226 OF   THE
                        CONSTITUTION      OF INDIA PRAYING TO      QUASH    THE
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                                         WP No. 7010 of 2023




ENDORSEMENT DATED 23/02/2023 ISSUED BY THE R-2 IN
NO.DD (SOUTH) DRA/48/2010-11 AT ANNEXURE-B AND ETC.,

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

                            ORDER

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

the petitioner and Smt. Navya Shekar, learned AGA appearing

for the respondents.

2. The petitioner is before this Court seeking for the

following prayers:

"i) Issue a writ of certiorari or similar writ or order or direction to quash the endorsement dated 23.02.2023 issued by the second respondent in No.DD (South) DRA/48/2010-11 at Annexure-B;

ii) Issue a writ of mandamus to the respondent No.2 to consider the application dated 11.02.2023 produced at Annexure-A1 in terms of the order passed in WP.No.51361/2019 dated 24.08.2022 produced at Annexure - C for transfer of authorization on compassionate ground; and

iii) issue any other appropriate writ or order or direction to the respondents deem fit in the circumstances of the case in the interest of justice and equity."

3. The learned counsel appearing for the petitioner

would submit that the issue in the lis stands covered by the

WP No. 7010 of 2023

judgment rendered by the Co-ordinate Bench of this Court in

the case of SMT. G.V. HEMAVATHI Vs. STATE OF

KARNATAKA AND OTHERS1 wherein, the Co-ordinate Bench

has held as follows:

"Petitioner being a married daughter of deceased Fair Price Depot owner is grieving against the endorsement dated 23.09.2019 which denies transfer of authorization in her favour on the sole ground that by virtue of marriage she does not fit into the category of persons in whose favour such authorization can be transferred vide clause 13 of Public Distribution System Control Order 2016. Learned counsel for the petitioner in support of his case heavily banks upon the decision of a Co- ordinate Bench of this Court in BHUVANESHWARI V. PURANIK vs. STATE OF KARNATAKA & OTHERS, 2021(2) KCCR 1446, He also argues for the reading down of Clause 13 of PDS Control Order, 2016 which discriminates against daughter of the family only on the ground of marriage.

2. Learned AGA appearing for the official respondents vehemently opposes the petition making submission in justification of the impugned endorsement and the reasons on which it has been structured. He contends that transfer of uthorization is governed by the provisions of law, namely the PDS Control Order 2016 which provides for transfer of authorization inter alia to the unmarried daughter of the deceased Fair Price Depot owner. In the absence of challenge to the said provision, no relief can be granted to the petitioner who is a married daughter. So contending, he seeks dismissal of the Writ Petition.

W.P.No.51361/2019 disposed on 24.08.2022

WP No. 7010 of 2023

3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant in the matter for the following reasons:

a) The Karnataka Essential Commodities Public Distribution System (Control Order) 2016 as amended in 2021 provides for transfer of authorization in the event of death of authorized dealer before attaining the age of 65 years inter alia in favour of unmarried daughter or a widowed daughter having no source of income. There is absolutely no reason to deny such a facility to the married daughter if she is otherwise having no source of income, as rightly contended by the learned counsel for the petitioner. The discrimination of daughters of a person only on the ground of marriage, all other conditions remaining same falls foul of the equality class enacted in Articles 14 & 15 of the Constitution of India. This view gains support from Coordinate bench a decision in BHUVANESHWARI supra. Of course, the said case arose in the realm of service law relating to compassionate appointment. However, that does not make any difference for the invocation of rule of equality. It is not beside the point that this decision has been affirmed by the Apex Court in S.L.P.(C) No.20166/2021 disposed off on 17.12.2021.

b) The contention of the learned AGA that the subject clause of the PDS Control Order being a piece of delegated legislation enjoys presumptive validity and therefore, unless challenged, no relief can be granted to the citizen is bit difficult to countenance. The decree of presumptive validity is very high in the case of legislations vide RAMAKRISHNA DALIMIA Vs. JUSTICE TENDULKAR, AIR 1958 SC 538. However, the subordinate legislations of the kind do not much enjoy such a presumption. Secondly, what is being sought for is the reading down of Clause 13 (iii) which mentions "unmarried daughter above the age of 18 years" to

WP No. 7010 of 2023

mean, ' any daughter' who is otherwise not having the source of income. Such a course is open to the Writ Court which cannot deny relief to the aggrieved citizens by quoting some constitutional theories. Justice Oliver Wendell Holmes in DAVIS vs. MILLS, 194 U.S. 451 (1904) had observed: "Constitutions are intended to preserve practical and substantial rights, not to maintain theories ...".

In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned endorsement; matter is remitted to the 2nd respondent-Joint Director for consideration afresh for according transfer of authorization to the petitioner if she is otherwise eligible, regardless of her marriage.

Time for compliance is eight weeks.

No costs.."

4. In the light of the issue in the lis standing covered

by judgment rendered by the Co-ordinate Bench and the facts

being undisputed, the petition stands disposed on the same

terms.

Sd/-

JUDGE

VM

CT: BHK