Karnataka High Court
Mehaboob Saheb Jamadar S/O Riyaz Hamed ... vs Government Of Karnataka on 30 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC-D:1912
WP No. 106891 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 106891 OF 2024 (GM-PDS)
BETWEEN:
MEHABOOB SAHEB JAMADAR S/O RIYAZ HAMED JAMADAR,
AGE 35 YEARS, R/AT NO.14 RASULAPURA GALLI,
H.M. DASANAKOPPA ROAD, RASULAPURA,
WARD NO 11, DHARWAD 580001.
... PETITIONER
(BY SRI. S.H.MITTALKOD, ADVOCATE)
AND:
1. GOVERNMENT OF KARNATAKA,
REPRESENTED BY PRINCIPAL SECRETARY,
FOOD AND CIVIL SUPPLIES DEPARTMENT,
VIKASA SOUDHA, BANGALORE 560001.
2. DEPUTY COMMISSIONER,
UB HILLS ROAD, NEAR HINDI PRACHAR SABHA CIRCLE,
Digitally MALMADDI, DHARWAD, KARNATAKA 580001.
signed by 3. JOINT DIRECTOR,
VISHAL
NINGAPPA FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS,
PATTIHAL DHARWAD 580001.
Location: High ... RESPONDENTS
Court of (BY SRI. SHARAD V.MAGADUM, AGA)
Karnataka,
Dharwad THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
Bench THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE ANNEXURE-A PASSED BY RESPONDENT
NO.3, BEARING NO. ¸ÀA/J¸ïAiÀÄĦ/«ªÀ-261/2023-24 DATED 22.11.2023
REJECTING THE APPLICATION OF THE PETITIONER IN THE INTEREST
OF JUSTICE AND TO ISSUE A WRIT OF MANDAMUS TO RESPONDENT
NO.3 TO CONSIDER THE APPLICATION OF THIS PETITIONER
ANNEXURE-D ON THE COMPASSIONATE GROUNDS WITHOUT
APPLYING THE RESTRICTIONS MENTIONED IN PROVISO TO CLAUSE
13 OF THE 2016 ORDER AND ETC.,
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WP No. 106891 of 2024
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. The petitioner is before this Court seeking the
following prayer:
"a. Issue a writ of certiorari quashing the
Annexure-A passed by Respondent No.3,
Bearing No. ¸ÀA/J¸ïAiÀÄĦ/«ªÀ-261/2023-24 dated
22.11.2023 rejecting the application of the
petitioner in the interest of justice
b.Issue a writ of mandamus to Respondent no.3
to consider the application of this petitioner
Annexure-D on the compassionate grounds
without applying the restrictions mentioned in
proviso to clause 13 of the 2016 order
c. Issue any such other orders or directions as
the Hon'ble court deems fit and proper in the
nature and circumstances of the case in the
interest on justice and equity."
2. Learned counsel appearing for the petitioner
submits that the issue in the lis stands covered by the
judgment rendered by the Coordinate Bench of this Court in
the case of Shri Malikarjun Ashok Matti Vs. State of
Karnataka and others1, wherein it is held as under:
W.P. No.105404/2018, DD: 04.12.2018
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"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
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
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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 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.
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6. There is substance in the argument of
the learned counsel for the petitioner when he
submits that this Court, while considering 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.
9. The petition is accordingly allowed.
No order as to costs."
3. Learned AGA would not dispute the position of
law as is considered by the Coordinate Bench of this Court
quoted supra. In that light, the petition deserves to
succeed.
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4. For the aforesaid, the following:
ORDER
(i) The petition is disposed.
(ii) The impugned order dated 19.02.2024
passed by respondent No.4 at Annexure-A
is hereby quashed.
(iii) The respondent No.4 is directed to
reconsider the application filed by the
petitioner, within a period of three months
from the date of receipt of copy of this
order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
VNP / CT: ASC
