B.S.Jayaprakash vs State Of Karnataka
2023 Latest Caselaw 45 Kant

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                                                      WP No. 25947 of 2022




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 2ND DAY OF JANUARY, 2023

                                          BEFORE
                        THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        WRIT PETITION NO. 25947 OF 2022 (GM-PDS)
                 BETWEEN:

                 1.    B.S.JAYAPRAKASH,
                       AGED ABOUT 42 YEARS,
                       S/O LATE SRINIVAS,
                       R/O KUMARANAHALLI VILLAGE,
                       BHADRAVATHI TALUK,
                       SHIMOGA DISTRICT.

                                                             ...PETITIONER

                 (BY SRI. SHIVARAMU H C., ADVOCATE)

                 AND:

                 1.    STATE OF KARNATAKA,
                       REPRESENTED BY ITS
                       PRINCIPAL SECRETARY
                       TO GOVERNMENT,
Digitally signed by    DEPARTMENT OF FOOD AND
PADMAVATHI B K         CIVIL SUPPLIES,
Location: HIGH
COURT OF               VIKAS SOUDHA,
KARNATAKA              DR. B.R.AMBEDKAR VEEDHI,
                       BENGALURU - 560 001.

                 2.    THE DEPUTY COMMISSIONER (FOOD),
                       SHIMOGA DISTRICT,
                       SHIMOGA - 577 201.
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                                            WP No. 25947 of 2022




3.    THE JOINT DIRECTOR OF FOOD
      AND CIVIL SUPPLIES,
      SHIMOGA DISTRICT,
      SHIMOGA - 577 201.

4.    THE THASILDAR,
      BHADRAVATHI TALUK,
      SHIMOGA DISTRICT - 577 201.

                                                   ...RESPONDENTS

(BY SRI.M.VINOD KUMAR, AGA)

     THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT DATED 26.07.2022 ISSUED BY THE R3 IN NO.
FSD/FPS/CR-15/2016-17 AT ANNEXURE - E AND ETC.,

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
                              ORDER

The petitioner is before this Court calling in question an

endorsement dated 10.05.2019, by which, the application of

the petitioner seeking transfer of authorization on

compassionate grounds comes to be rejected.

2. Heard Sri. H.C. Shivaramu, learned counsel

appearing for the petitioner, Sri. M. Vinod Kumar, learned

Additional Government Advocate appearing for the respondents

and have perused the material on record.

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3. Learned counsel, Sri. H.C. Shivaramu, appearing for

the petitioner would submit that the endorsement comes about

on two grounds; one being, the application for such transfer is

filed after a delay of 90 days, as is required in law and the

other ground is that, the age of the petitioner which is beyond

30 years at the time of the death of his father to hold the

license of authorization as a transferee.

4. It is not in dispute that the authorization was

subsisting in the name of the father of the petitioner at the

time of his death. Both these grounds are held to be contrary

to law in terms of the judgments rendered by Co-ordinate

Benches of this Court in the case of M/S. SHRI.

MALLIKARJUN ASHOK MATTI Vs. STATE OF KARNATAKA

AND OTHERS in WP.No.105404/2018, disposed on

04.12.2018, wherein, the Co-ordinate Bench of this Court has

held as follows:

"The petitioner's father was running a fair price shop (shop No.84) in Hubballi and the authorization was being renewed from time to time. The petitioner's father died on 16.10.2017 and the petitioner made an application to the respondent-

Authorities seeking transfer of authorization in his name. The application is dated 25.06.2018. The

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Competent Authority i.e. respondent No.4-Assistant Director of Food, Civil Supplies and Consumer Affairs, Hubballi issued an endorsement dated 17.07.2018 rejecting the application, while referring to the proviso to Rule 13 of the Karnataka Essential Commodities Public Distribution System (Control Order), 2016 (hereinafter referred to as 'Control Order, 2016' for brevity).

2. The learned counsel for the petitioner, Sri.S.H.Mittalkod 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 is no prescription as is provided in the proviso to Rule 13 of the Control Order, 2016.

3. Learned Addl. Government Advocate, appearing for the respondents would submit that since the application is made in the year 2017, the provisions of law as on 2017 should be made applicable.

4. 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

WP No. 25947 of 2022

circumstances of the case. Clause 13 of the Control Order, 2016 reads as follows:

"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.

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

5. The Co-ordinate Benches of this Court in 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.

6. There is substance in the argument of the learned counsel for the petitioner when he submits that this Court, while considering

WP No. 25947 of 2022

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 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.

7. 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.

8. In the light of the above, the impugned order dated 17.07.2018 passed by respondent No.4 is hereby quashed and set aside. Respondent No.4 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.

(Emphasis supplied)

and in W.P.No.15098/2017, wherein it has held as follows:

"2. The petitioner is before this Court assailing the endorsement dated 31.08.2016 impugned at Annexure-C to the petition. In that light, the petitioner is seeking issue of mandamus to direct the respondent No.1 to consider the application dated 19.07.2016 as at Annexure-B to the petition.

WP No. 25947 of 2022

3. The father of the petitioner was granted the authorization for running the fair price shop and distributing the food grains and kerosene to the cardholders. The authorization was renewed from time to time and was effective when the father of the petitioner died on 29.05.2016. The petitioner, in that view has made an application seeking transfer of the authorization on compassionate grounds. The respondent No.1 on taking note of the application has issued the endorsement dated 31.08.2016 informing the petitioner that the application cannot be considered as it does not meet the age criteria that has been indicated therein. It is in that view, the petitioner is before this Court assailing the said endorsement dated 31.08.2016.

4. Though, contentions have been urged in this petition, the same need not be adverted to in detail inasmuch as this Court, while disposing of W.P.No.204335/2014 dated 17.11.2014 has considered this aspect of the matter and has held that the condition relating to age of the deceased or the applicant for the purpose of transfer of authorization on compassionate grounds would not be justified. In that light, a similar endorsement has been quashed by this Court. The said decision had been relied on by this Court in a similar petition in W.P.No.49519/2016 dated 26.10.2016.

5. If that be the position, the impugned endorsement dated 31.08.2016 assailed herein also would not be sustainable, the same is accordingly quashed. A direction is issued to respondent No.1 to consider the application dated 19.07.2016 filed by the petitioner for the transfer of authorization on compassionate grounds. The consideration shall be made as expeditiously as possible but, not later than two months from the date on which a copy of this order is furnished."

(emphasis supplied)

4. The learned Additional Government Advocate would

refute the submissions to contend that there is an inordinate

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delay on the part of the petitioner in filing the application,

which is close to 4 years after the death of the deceased -

licensee and the endorsement is issued on 10.05.2019, third

party rights would be created by now. He would therefore, seek

this Court to pass appropriate orders protecting those interests.

5. In the light of the issue being covered by the

judgments rendered by the Co-ordinate Benches of this Court

(supra), I deem it appropriate to pass the following:

ORDER

I. The writ petition is allowed.

II. The endorsement dated 10.05.2019 passed by

respondent No.3, stands quashed.

III. Respondent No.3 is directed to reconsider the

application of the petitioner bearing in mind the

observations made in the course of the order,

within 12 weeks from the date of receipt of a copy

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of this order, if the same is not allotted to any other

person as on date.

Sd/-

JUDGE

SJK