IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.47514 OF 2015 (GM-PDS) BETWEEN:
Smt.Anusuyamma W/o late M.G.Rajappa, Aged about 55 years, R/o Devarahalli-577 2013, Channagiri Taluk, Davanagere District. ... Petitioner (By. Sri. Harish N.R. for Sri. Siddappa B.M., Advocate for petitioner) AND:
The Deputy Commissioner, Davanagere District, Davanagere-577001. ... Respondent (By Sri.Vasanth V Fernandes, HCGP) This Writ Petition is filed under Articles 226 and 227 of Constitution of India, praying to quash the endorsement issued by the respondent bearing No.AA.NA.SA.5:CR:21/2015-16 vide annexure-F and etc.
This petition is coming on for ‘preliminary hearing in ‘B’ group’ this day, the court made the following:
ORDER The petitioner filed this writ petition to quash the endorsement issued by the respondent-Deputy Commissioner bearing No.AA.NA.SA.5:CR:21/2015-16 vide annexure-F.
2. It is the case of the petitioner that the respondent-Deputy Commissioner has granted authorization in favour of petitioner’s husband namely Sri.M.G.Rajappa in the year 1993. The husband of the petitioner died on 09.06.2015. Therefore, the petitioner made an application dated 23.09.2015 to transfer the authorization in her favour on compassionate ground. The respondent- Deputy Commissioner issued an endorsement bearing No.AA.NA.SA.5:CR:31/2015-16 dated 28.09.2015 rejecting the request of the petitioner mainly on the ground that the petitioner has not passed seventh standard as per the Government Order dated 23.02.2014. Hence, present writ petition is filed.
3. The respondent-Deputy Commissioner has not filed statement of objections.
4. I have heard learned counsel appearing for both parties to the lis.
5. Sri. Harish N.R. learned counsel for petitioner would contend that the impugned order passed by the respondent is erroneous and utter violation of principle of natural justice, therefore, same is liable to be quashed. He would further contend that it is undisputed fact that the respondent issued authorization in favour of husband of the petitioner in the year 1993. After death of the petitioner’s husband she made an application dated 23.09.2015 requesting the respondent to transfer the authorization in her favour. Said application was rejected by the respondent mainly on the ground that she has not passed seventh standard, it is against the dictum of this Court in the case of Smt. Huvakka Vs. the State of Karnataka and others in W.P.No.26367/2015 dated 15.07.2015. The said order of this Court has reached finality. Therefore, the impugned endorsement issued by the Deputy Commissioner cannot be sustained and liable to be quashed.
6. Per contra, learned HCGP appearing for State sought to justify the impugned order and contended that as per the Government Order dated 23.02.2014, petitioner has to pass seventh standard. Admittedly, the petitioner has not passed seventh standard. As such, the respondent issued an endorsement which is just and proper. Hence, sought to dismissal of the petition.
7. Having heard the learned counsel for the parties, it is undisputed fact that the respondent- Deputy Commissioner who is the authorization Officer by exercising his power has granted authorization to run fair price shop in favour of petitioner’s husband in the year 1993. The petitioner’s husband died on 09.06.2015. Therefore, the application came to be filed by the petitioner on 23.09.2015 and same was rejected mainly on the ground that the petitioner has not passed seventh standard. This Court in an identical circumstances made in the case of Smt.Huvakka as stated supra, has held that “the issue as to whether such insistence for the compliance of the conditions as per the Circular could be made applicable to the authorization which had been issued earlier to such guidelines coming into force, had arisen for consideration before this Court in W.P.No.3586/2006 disposed of on 21.11.2008, wherein it was held that such insistence for transfer of authorization on compassionate ground cannot be made applicable”.
8. In the light, the dictum of this Court stated supra, the endorsement therein cannot be sustained and same was quashed. The 2nd respondent therein was directed to reconsider the application made by the petitioner seeking transfer of the authorization on compassionate grounds and pass fresh orders in accordance with law. The said order had reached finality.
9. It is also not in dispute that this Court in the case of B.Basavarajaiah Vs. State of Karnataka and others in 2019 (2) AKR 729 at paras 9 and 10 held that application for transfer of authorization is not applicable for transfer of the authorization on compassionate ground as under:
“9. 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 writ appeal. Therefore, this Court finds no reason to take a different view.
10. In the result, the impugned endorsement dated 31.08.2018 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 .”
In view of the aforesaid decision, the impugned order cannot be sustained. Hence, I proceed to pass the following:
ORDER Writ petition is allowed.
Impugned endorsement issued by the respondent bearing No.AA.NA.SA:5:CR:31/2015-16 dated 28.09.2015 is hereby quashed.
Respondent-Deputy Commissioner is hereby directed to reconsider the application of the petitioner for transfer of authorization on compassionate ground as expeditiously as possible, but not later than eight weeks from the date of receipt of copy of this order.
Accordingly, the writ petition is disposed off.
Sd/-
JUDGE JS/-