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2013 DIGILAW 1279 (KAR)

Shivakumar v. Deputy Commissioner Mandya

2013-11-07

A.S.BOPANNA

body2013
Judgment : 1. The petitioner is before this Court assailing the endorsement dated 07.01.2013. By the said endorsement, the respondent has rejected the request of the petitioner seeking transfer of the licence in favour of the petitioner as provided under the Karnataka Essential Commodities (Public Distribution System) Control Order, 1992 (for short the 'Control Order'). 2. The case of the petitioner is that he is the adopted son of late C. Rudraiah of Kadu Kothana Halli, Maddur Taluk. Since late C. Rudraiah did not have any children, the petitioner was adopted at the age of three years and has thereafter been taken care of late C. Rudraiah. The said late Rudraiah had been granted authorisation in respect of a Fair Price Depot and he is stated to have been running the same till his death. Since the Control Order provides that in the case of death of a licensee, the authorisation could be transferred on compassionate ground in favour of the 'spouse', 'son' or 'unmarried daughter', the petitioner claiming to be the 'adopted son' of the licensee had made the application seeking transfer of the authorisation on compassionate ground. In reply to the same, the endorsement dated 07.01.2013 has been issued by which the request of the petitioner has been declined. While doing so, the respondent has also made reference to an earlier order dated 10.10.2011 wherein detailed consideration was made and a similar request of another applicant had been rejected. 3. In the light of the above, two aspects arise for consideration herein. Firstly, the question is as to whether an 'adopted son' can seek the benefit as provided under the Control Order for transfer of authorisation under the compassionate ground. Second question is with regard to the nature of consideration that is required to be made by the authorities with regard to the claim of the persons contending that he or she is the adopted son or daughter of a licensee. 4. Second question is with regard to the nature of consideration that is required to be made by the authorities with regard to the claim of the persons contending that he or she is the adopted son or daughter of a licensee. 4. On the first aspect of the matter, though the Deputy Commissioner has referred to a similar order dated 10.10.2011 and in the said order reference has been made to the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, to deny the benefit to the applicant therein, I am of the opinion that the said order even if it has attained finality cannot be made applicable to the present facts of the case only for that reason without making factual determination. On this aspect, it is to be clarified that the benefit of compassionate appointment under the Rules 1996 is not available to an adopted son or daughter, since by the said Rules, it has been specifically excluded by Sub-Rule 3 therein. If in that context, the provision contained in the Control Oder is perused, the proviso reads as hereunder: "Provided that the authorised authority may order for such transfer in the event of the death of the authorised dealer to the spouse or son or unmarried daughter with the prior approval of the Government." 5. A perusal of the said proviso would indicate that the authorised authority is permitted to transfer the licence to the 'spouse' or 'son' or 'unmarried daughter' with the prior approval of the Government. The said transfer to an 'adopted son' has not been excepted under the said Control Order as has been done in respect of compassionate appointment. If that be the position, if as per Personal Law governing the applicant, there is a valid adoption made, such adopted son who satisfies the requirement of the Personal Law is also to be considered as a 'son' of the licensee and the consideration thereafter is to be made. Needless to mention that when I have indicated that the adoption shall be as per the Personal Law, the statutory requirement thereto providing for a valid adoption also would have to be satisfied by the applicant. Therefore, on the first aspect, I am of the considered opinion that an 'adopted son' who has been validly adopted as per the requirement of law, would be entitled to seek transfer of the licence. 6. Therefore, on the first aspect, I am of the considered opinion that an 'adopted son' who has been validly adopted as per the requirement of law, would be entitled to seek transfer of the licence. 6. If the above aspect of the matter is kept in view, the second aspect that would arise for consideration is as to whether the request of the petitioner could be accepted? 7. Insofar as the endorsement dated 07.01.2013 impugned herein, it is seen that the respondent has only relied on the earlier order and has rejected the claim of the petitioner without examining as to whether the adoption as claimed by the petitioner is valid and as to whether it is in accordance with law. Hence, only to the said extent, I am of the opinion that the endorsement in the form as it had been issued is not sustainable and the same is accordingly quashed. 8. In that view of the matter, a direction is issued to the respondent to reconsider the application of the petitioner by calling upon the petitioner to produce the materials to support his claim that his adoption as claimed by him has been done in accordance with law. If the petitioner satisfies the respondent by producing all necessary documents to establish the valid adoption, the respondent based on his satisfaction may take a decision on the application. If the documents produced are not satisfactory and if any further declarations are required from the court in accordance with law, that aspect of the matter shall also be borne in mind by the respondent and appropriate consideration be made in that regard. In terms of the above, the petition stands disposed of with the above directions.