Karnataka High Court

Neeru Balakedharara Sahakara Sangha ... vs The State Of Karnataka And Ors on 29 July, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                     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.
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                                  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:
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                                        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

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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

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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

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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

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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

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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.

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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

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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.