Karnataka High Court
Sri Mufeez R A vs State Of Karnataka on 11 January, 2024
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W.P.No.18379 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.18379 OF 2023 (GM-PDS)
BETWEEN:
1. SRI. MUFEEZ R.A.
S/O ABDUL RAHEEM
AGED ABOUT 41 YEARS
R/AT SOMESHWARAPALYA
MULBAGAL - 563131
KOLAR DISTRICT.
Digitally signed ...PETITIONER
by RUPA V
Location: HIGH (BY SRI. HARSHA KUMAR GOWDA H.R. ADV.,)
COURT OF
KARNATAKA AND:
1. STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT
DEPARTMENT OF FOOD AND
CIVIL SUPPLIES, VIKAS SOUDHA
DR. B.R. AMBEDKAR VEEDHI
BANGALORE - 560001.
2. THE DEPUTY DIRECTOR
DEPARTMENT OF FOOD AND
CIVIL SUPPLIES, KOLAR DISTRICT
KOLAR - 563129.
3. THE THASILDAR
KOLAR DISTRICT
KOLAR - 563129.
...RESPONDENTS
(BY SMT. SAVITHRAMMA, AGA)
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W.P.No.18379 of 2023
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ENDORSEMENT DTD 18.03.2023 ISSUED BY THER -2 IN NO.
DRA(1)/CR/75/2022-23 AT ANNX-C. DECLARE THAT THE
ORDER 13 OFTHE AMENDMENT OF KEC (PDS) CONTROL
ORDER 2016 AND 2017 CANNOT BE MADE APPLICABLE TO
THE CASE ON HAND. ISSUE A WRIT TO THE R-3 TO
CONSIDER THE APPLICATION FILED BY THE PETITIONER DTD
23.01.2023 PRODUCED AT ANNX-B IN TERMS OF THE ORDER
DTD 08.02.2019 PASSED IN WP NO. 17131 /2018 AND THE
ORDER DTD 13.07.2023 PASSED IN WP NO. 13093/2023 AT
ANNX-D AND E FORTHWITH & ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Learned Additional Government Advocate accepts
notice to the respondents.
The petitioner is before this Court calling in question,
the rejection of the application of the petitioner by the 2nd
respondent seeking transfer of the authorization on
compassionate grounds. The ground on which it is turned
down is that the petitioner has not passed 10th standard
examination. It is not in dispute that the authorization in
favour of the father of the petitioner was subsisting at the
time of his death.
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2. Heard Sri. Harsha Kumar Gowda.H.R., learned
counsel appearing for the petitioner, learned Additional
Government Advocate appearing for the respondents and
have perused the material on record.
3. The learned counsel for the petitioner submits
that the issue in lis stands covered by the judgment
rendered by a Co-ordinate Bench of this Court in
W.P.No.8586/2006 disposed on 21.11.2008,
W.P.No.22448/2015 disposed on 21.09.2016 and
W.P.No.17048/2021 disposed on 20.09.2021.
(i) This Court in the case of R. GAYATHRI Vs. THE DEPUTY
COMMISSIONER (FOOD AND CIVIL SUPPLIES) AND
OTHERS1 has held as follows:
" The petitioner's husband held a Kerosene Oil Hawker
licence under the provisions of the Essential Commodities
Licensing Order. 1986 valid upto 31.12.2003 and on his
death on 8.9.2003, having made an application for transfer
of the said licence, on compassionate ground in terms of the
notification dated 3.12.1984, which when refused by order
dated 4.5.2006 Annexure B, on the premise that the
notification dated 12.8.2003 Annexure C prescribed
minimum educational qualification of 10th standard, has
presented this petition to quash Annexure B and to declare
W.P.No.8586/2006 disposed on 21.11.2008
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Annexure C as not applicable to the petitioner and the like,
as also for a mandamus to respondents 1 and 2 to grant
licence in petitioner's favour.
2. The petition is opposed by filing statement
objections dated 18.12.2006 of the respondent inter
alia contending that on and after coming into force of
the notification dated 12.8.2003 Annexure C issued
under Karnataka Essential Commodities (Public
Distribution System) Control Order, 1992, prescribing a
pass in the 10th standard as eligibility to run a Fair
Price Shop and as the petitioner's qualification was a
pass in 9th standard falling short of eligibility criteria,
the claim of the petitioner for grant of fresh
authorization on compassionate ground was not
acceptable and that the order impugned is well
merited, fully justified and not calling for interference.
Having heard the learned counsel for the parties,
perused the pleadings and examined the order
impugned, there is considerable force in the submission
of the learned counsel for the petitioner that the
notification Annexure C under Karnataka Essential
Commodities (Public Distribution System) Control
(Amendment) Order 2003 dated 12.8.2003 prescribing
pass in 10th standard as eligibility to run Fair Price
Shop in a particular area for the purpose of grant of
authorization to open a fair price depot, is not
applicable to the case of the petitioner since what was
sought by the petitioner was a grant of fresh
authorization to carry on business of retail vending of
kerosene which her husband was carrying on in terms
of Essential Commodities Order which did not prescribe
any educational qualification. The State Govt. failed to
notice that the Amendment Order 2003 Annexure C
would have application to fresh candidates applying
pursuant to a notification issued under CL(4) of PDS
Control Order, 1992, fixing the eligibility as pass in
10th standard amongst other conditions. These
conditions had no bearing on the claim of the petitioner
for grant of fresh authorization on compassionate
ground in terms of circular dated 21.7.1995. In that
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view of the matter, the order impugned is
unsustainable and deserves to be quashed
In the result, the petition is allowed in part. The
order dated 4.5.2006 Annexure B is quashed and it is
hereby declared that the notification dated 12.8.2003
Annexure C is not applicable to the case of the
petitioner. A mandamus is issued directing the
respondents 1 and 2 to consider the application of the
petitioner afresh and to pass orders thereon in
accordance with law, in any event, within a period of
30 days from the date of receipt of a certified copy of
this order.
(ii) In the case of SMT. B.V. GANGARATHNAMMA Vs. THE
DEPUTY COMMISSIONER (FOOD) AND OTHERS2, this
Court has held as follows:
The petitioner is before this Court assailing the
endorsement dated 17.01.2015 impugned at Annexure-
G to the petition. The petitioner in that light is seeking
issue of mandamus to direct respondents No.1 and 2 to
transfer the authorization and licence in favour of the
petitioner in terms of the order dated 25.07.2014
passed in W.P.No.33639/2014.
2. The petitioner is claiming transfer of
authorization for distribution of the Kerosene in Licence
No.3/91 which had been issued to the husband of the
petitioner. The husband of the petitioner died on
21.01.2014 and as such the petitioner had sought
transfer of authorization on compassionate grounds. At
the first instance, when the endorsement dated
28.05.2014 was issued to the petitioner rejecting her
claim on the ground that she does not satisfy the
educational criteria and inasmuch as she had not
completed her matriculation, the petitioner was before
W.P.No.22448/2015 disposed on 21.09.2016
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this Court in W.P.No.33639/2014. This Court by the
order dated 25.07.2014 on taking note of the order
dated 21.11.2008 passed in W.P.No.8586/2006 as
also the order dated 24.04.2014 passed in
W.P.No.18787/2014, had set aside the endorsement
and directed that the application of the petitioner be
reconsidered. On reconsideration the impugned
endorsement dated 17.01.2015 is issued wherein the
application is once again rejected by stating that the
petitioner does not satisfy the educational criteria of
having completed the VII standard. It is in that view the
petitioner is before this Court seeking benefit of the
earlier order passed by this Court.
3. Learned Government Advocate would however
point out that the issue that had arisen for
consideration in W.P.No.33639/2014 was with regard
to the insistence of matriculation qualification and not
relating to the VII Standard. Hence, it is contended that
the very benefit granted under the said order cannot be
extended unless the petitioner satisfies the condition of
completing the VII standard.
4. Though such contention is put forth by the
learned Government Advocate, what is necessary to be
noticed is that this Court in the earlier order had relied
on the order dated 21.11.2008 passed in
W.P.No.8586/2006. What had arisen for consideration
in the said petition is as to whether the minimum
educational qualification prescribed for making
application for grant of authorisation could be insisted
upon in respect of the application filed seeking transfer
of authorization on compassionate grounds. In that
regard this Court had held that the educational
qualification prescribed can only be insisted upon
prospectively in respect of the fresh applications filed
seeking authorization and cannot be made applicable
to transfer of authorisation on compassionate grounds
in respect of the authorisation which had been issued
earlier.
5. If that be the position, when an application is
considered for transfer of authorization on
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compassionate grounds either insisting on the
matriculation or the lesser educational qualification of
VII standard would not be justified as otherwise the
very purpose of considering an application for
compassionate transfer would be defeated. Therefore
the endorsement dated 17.01.2015 is quashed.
6. A direction is issued to the first respondent to
consider the application filed by the petitioner and
transfer the authorization which stood in the name of
the husband of the petitioner to the name of the
petitioner as expeditiously as possible, but not later
than eight weeks from the date on which a copy of this
order is furnished.
The petition stands disposed of accordingly.
(iii) In the case of HEMANTH KUMAR B O Vs. STATE OF
KARNATAKA AND OTHER3, this Court has held as follows:
The subject matter of this Writ Petition is
substantially similar to the one in W.P.No.17131/2018
disposed off by a Co-ordinate Bench of this Court on
8.2.2019, copy whereof is at Annexure-F; at para Nos.9
& 10 of the order, said judgment reads as under:
"From close scrutiny of the aforesaid
paragraph, it is evident that in
W.P.No.22448/2015 which was decided by
an order dated 21.09.2016, it has been
held that the requirement with regard to
having passed SSLC and restriction of age
is not applicable when the transfer of
authorization is sought on compassionate
ground. The aforesaid finding has
admittedly attained finality and is binding
on the respondents as they have not
challenged the same either by filing a
review petition or by filing a writ appeal.
W.P.No.17048/2021 disposed on 20.09.2021.
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Therefore this Court finds no reason to take
a different view.
10. In the result, the impugned
endorsement dated 23.03.2018 is hereby
quashed and set aside and a direction is
issued to respondent No.1 to take note of
the application filed by the petitioner and to
consider the same for transfer of the
authorization on compassionate ground as
expeditiously as possible, but not later than
eight weeks from the date on which a copy
of this order is furnished."
2. The Division Bench of this Court in
W.A.Nos.932- 933/1974 between A.V.VINODA &
ANOTHER Vs. STATE OF KARNATAKA BY ITS
COMMISSIONER & SECRETARY disposed of on
11.12.1974, has held that the Court should treat like-
cases alike and if relief is granted to litigant, similar
relief cannot be denied to other similarly circumstanced
litigant as well, there being no derogatory
circumstances.
In the above circumstances, this Writ Petition is
allowed; impugned endorsement dated 03.09.2021 at
Annexure-B is quashed; second respondent is directed
to consider the petitioner's application without
reference to age and qualification.
Time for compliance is two months.
No costs".
In the light of the issue standing covered by the
judgments rendered by a co-ordinate Benches (supra), I
deem it appropriate to pass the following:
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ORDER
i. Writ Petition is allowed.
ii. The impugned endorsement dated 18.03.2023 issued
by respondent No.2 in DRA(1)/CR/75/2022-23 stands
quashed.
iii. Respondent No.2 is directed to re-consider the
application of the petitioner for transfer of
authorization bearing in mind the observations made
in the course of this order, within 12 weeks from the
date receipt of copy of this order, if not already
allotted.
Sd/-
JUDGE
RV
