Smt. Sharada vs The Deputy Commissioner (Food and Civil Supplies), The Tahsildar and The Assistant Director, Food and Civil Supplies

N.K. Patil, J.—The petitioner in this petition has sought for quashing the order dated 24th April 2006 bearing No. FSD.KRL.CR.26/2004-05/253 issued by first respondent vide Annexure B. Further, she has sought to declare that, the Notification dated 12th August 2003 issued by Government of Karnataka in No. FCS.204/DRA/2003 is not applicable to the case where the applications are made seeking grant of licence/authorization on compassionate grounds. Petitioner has further prayed to direct respondents 1 and 2 to grant kerosene retail dealer licence in favour of petitioner.

The grievance of petitioner in the instant writ petition is that, petitioner had earlier filed writ petition in W.P. No. 926/2006 seeking a direction, directing the respondents to consider her representation dated 29th April 2002 produced along with the writ petition. The writ petition filed by petitioner had come up for consideration before this Court on 233rd January 2006. After hearing both sides, the said writ petition was disposed of with a direction, to respondents 2 and 3, viz. the Tahildar, Bhadravathi Taluk, Shimoga District and Assistant Director of Food and Civil Supplies, Bhadravathi Taluk, Shimoga Dist. After disposal of the said writ petition, the first respondent herein took up the matter and issued the impugned endorsement dated 24th April 2006 vide Annexure B. But, the reference made in the said endorsement is only in respect of representation given by petitioner dated 29th April 2002 and there is no reference regarding the reminder applications filed by petitioner on 21st June 2004 and 33rd November 2005. The only ground taken by the authority for rejecting the claim of the petitioner is that, as per the Government Notification dated 12th August 2003, communication dated 4th December 2004 and 21st December 2005, the claim of petitioner cannot be considered on the ground that, she has not passed the 10th standard or SSLC examination, which is a pre-requisite for taking dealership in supply of kerosene oil. Assailing the correctness of the said endorsement dated 24th April 2006 and seeking further directions as referred above, petitioner felt necessitated to present the instant writ petition.

I have heard learned Counsel appearing for petitioner and learned Counsel appearing for respondents. After careful perusal of the contents of the impugned endorsement, it is manifest on the face of the same that, the reasons assigned for rejecting the claim of petitioner is contrary to the relevant material available on record and that, the authority has seriously erred in proceeding to issue the impugned endorsement. It is significant to note that, the case pleaded by petitioner is that, her husband belongs to Bhovi community, which is recognised as backward community and that her husband was a holder of kerosene oil dealer licence, which was granted 30 years back by respondents. Subsequently, on account of death of her husband on 7th March 2002, leaving behind the wife, petitioner herein and two minor children, she has given representation as early as on 29th April 2002 to respondent No. 2 to consider her request on compassionate ground and issue the licence/authorization for distribution of kerosene oil as per the Government notification. The authorities, instead of considering the case of the petitioner on the basis of the Government order/circular issued regarding eligibility of applicants seeking kerosene oil dealer licence, has proceeded to issue the impugned endorsement. In the instant case, the authority has referred the Government notification dated 12th August 2003 and the communication dated 4th December 2004 while rejecting the claim of petitioner. But, what was required to be looked into by the authority was the Government orders/circulars that existed as on the date of filing of application by petitioner seeking hawker''s licence for distribution of kerosene oil on compassionate grounds, i.e. on 29th April 2002. The competent authority is supposed to refer the relevant notification which is applicable as on the date of application of petitioner and is not entitled to refer the subsequent notifications issued by Government and that, the subsequent notifications will be prospective in nature. From a careful perusal of the said notifications, it can be seen that, there is no retrospective effect as such mentioned in the said notification. In that case, it proves beyond all reasonable doubts that, the authority has proceeded without application of mind and contrary to the relevant material available on file. It is not in dispute that, petitioner has given an application on 29th April 2002 and thereafter has given two representations/reminders requesting the authorities stating that, she has got two minor children and that is the only source of livelihood for her and that, if the said hawker''s licence is not granted to her, it will be difficult for her to eke her livelihood and to give education to her minor children. Therefore, she has sought for licence on compassionate grounds. It appears, this fact has neither been looked into by the authority nor the said authority has made sincere efforts to call for the report from the second respondent regarding the request made by petitioner as to whether there is any bona fide in her statements or there is any truth in the statements of, petitioner that, she has no other source of livelihood and that, her children are also dependent on the said income. Without doing the said exercise and without proper application of mind, the authority has proceeded and issued the impugned endorsement. Another relevant factor to be taken into consideration is that, this Court, on an earlier occasion, had directed the authority to consider the representation given by petitioner dated 29th April 2002, 21st June 2004 and 33rd November 2005. But, in the impugned endorsement, rejecting the claim of petitioner, there is no reference regarding the reminder applications dated 21st June 2004 and 33rd November 2005 given by petitioner, wherein, she has specifically pointed that, she has got two minor children and it is difficult for her to eke her livelihood.

Having regard to the facts and circumstances of the case, as stated above, I am of the considered view that, at any stretch of imagination, the impugned endorsement issued by the competent authority cannot be sustained.

Having regard to the facts and circumstances of the case, as stated above, taking into consideration, the totality of the case on hand, the impugned endorsement issued by first respondent cannot be sustained. Hence, the same is liable to be set aside.

For the foregoing reasons, the writ petition filed by petitioner stands disposed of with the following directions:

(i) The writ petition filed by petitioner is allowed;

(ii) The impugned endorsement issued by first respondent dated 24th April 2006 vide Annexure B is hereby set aside and the matter stands remitted back to first respondent for reconsideration afresh.

(iii) Further, the second respondent is hereby directed to consider the representations given by petitioner dated 29th April 2002, 2nd June 2004 and 3rd November 2005 and is directed to make spot inspection of the place where petitioner is residing, as shown in the cause title and submit a detailed report regarding the status of petitioner and the property owned by her and any other sources of income within four weeks from the date of receipt of a copy of this order.

(iv) First respondent herein is directed to consider the representations given by petitioner and the report that is to be submitted by second respondent and pass appropriate order in accordance with law, bearing in mind the observations made in the instant writ petition and dispose of the same, within eight weeks from the date of report received from second respondent.

With these observations the writ petition filed by petitioner stands disposed of.

Learned Government Pleader appearing for respondents is permitted to file memo of appearance within two weeks from today.