G.S. Dood Peer vs Deputy Commissioner, Chitradurga, Deputy Director, Food and Civil Supplies and Tasildhar

A.S. Bopanna, J.—Learned Government Advocate to accept notice for respondents No. 1 to 3. He is permitted to file memo of appearance in four weeks. The petitioner is before this Court seeking for issue of mandamus to direct the respondents No. 1 to 3 to transfer the kerosene license No. 32/92-93 which is in the name of late Khasim Sab to the name of the petitioner. The petitioner is also seeking for a direction to respondents No. 1 to 3 to take a decision on the applications dated 08.03.2013 and 21.05.2013 at Annexures-''N'' and ''O'' to the petition.

The undisputed facts are that the kerosene vending license bearing No. 32/92-93 is granted in favour Khasim Sab that is the grand father of the petitioner. The grand father of the petitioner has expired on 13.09.2012. His only son H.K. Syed Hussain i.e., the father of petitioner predeceased him on 15.06.2008. In a normal circumstance, keeping in view the provision as contained in the regulations, the son of Khasim Sab that is the father of the petitioner herein would have been entitled to seek for transfer of the license/authorization in his favour. The present situation has arisen in view of the son of the licensee having predeceased him.

At the first instance, the daughter-in-law, namely Smt. N.H. Razia Begum i.e., the wife of late H.K. Syed Hussain desired that the license be transferred in her name and in that regard, the grand mother of the petitioner Smt. Fatimabi had made an application. The said application came to be rejected by the endorsement dated 05.12.2012, since the regulation did not provide for transfer of the license in favour of the daughter-in-law. Subsequent thereto, the wife of late Khasim Sab that is the grand mother of the petitioner namely Smt. Fatimabi herself made an application seeking transfer of license in her favour. The respondents after considering the same have issued the endorsement dated 29.12.2012 indicating therein that the license cannot be transferred on compassionate ground in her favour, since she has not completed her SSLC. The said Smt. Fatimabi though had not questioned the said endorsement, the petitioner being the grand-son of the licensee late Khasim Sab has thereafter sought for transfer of the license in his favour. Since, the applications have not been considered, the petitioner namely the grand-son of the licensee is before this Court seeking for issue of mandamus.

At the first instance, it is to be noticed that the regulations provide for transfer of license in favour of the wife, son and unmarried daughter of the deceased licensee. In that circumstance, the question that would also arise is as to whether the petitioner being the grand-son could be considered for grant of license. Though such consideration in detail was required to be made, in the instant petition, the petitioner is before this Court seeking for mandamus to consider the application. From the facts since it is already noticed that the grand mother of the petitioner that is the wife of the licensee is still alive and she had also made an application and such application had been rejected by the endorsement dated 29.12.2012, this aspect of the matter would assume importance and the correctness or otherwise of the said endorsement would certainly arise for consideration in the instant petition, keeping in view the sequence of events that has been noticed above and the benefit of the business is for the family as a whole. In such situation, when such endorsement is not sustainable in law, certainly this Court would be entitled to mould the relief and appropriate direction could be issued in the instant petition itself, since the petitioner is not claiming any other rival interest as against the said Smt. Fatimabi, but is only proceeding further since her request had been rejected at an earlier point.

If these aspects of the matter are kept in view and in that context if the endorsement dated 29.12.2012 (Annexure-H) is perused, the manner in which the application of Smt. Fatimabi that is the wife of late Khasim Sab has been rejected is contrary to the legal position inasmuch as this Court in W.P. No. 8586/2006 disposed of on 21.11.2008 has already held that the requirement of the regulation to pass SSLC would not apply to the cases where license is to be transferred on compassionate grounds where license was granted prior to the date of the regulations. In such situation, in any event, the grand mother of the petitioner namely Smt. Fatimabi was entitled to be considered for transfer of license in her favour. In that view, I am of the opinion that the endorsement dated 29.12.2012 would not be sustainable and even though the said Smt. Fatimabi herself is not before this Court, the endorsement is quashed and liberty is granted to the said Smt. Fatimabi to pursue her application before respondent No. 2. The petitioner herein shall aid Smt. Fatimabi in pursuing her application, since no direction could be issued in favour of the petitioner in the instant petition to consider the application made by the petitioner for the reasons indicated above. In that view, the said Smt. Fatimabi and the petitioner herein are permitted the liberty of reviving the application by furnishing a fresh copy of the said application to respondent No. 1 seeking transfer of license in favour of Smt. Fatimabi. The said application shall be considered by the respondent No. 1 as expeditiously as possible, but not later than four weeks from the date on which a copy of the same is produced along with a certified copy of this order.

With the above directions, the petition stands disposed of.