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2013 DIGILAW 280 (PAT)

Shashi Gupta v. State Of Bihar

2013-03-01

RAVI RANJAN

body2013
ORDER I.A. No.1616 of 2013 Learned counsel is permitted to make necessary correction with regard to the number of annexure concerned. 2. This interlocutory application has been filed for addition of relief as petitioner wants to challenge Annexure-9 dated 31.07.2012 which has been passed during the pendency of this writ application by which the petitioner’s request for grant of licence on the compassionate ground has been rejected on the ground that the original licensee has died at the age of 76 years and, in view of the amended provision, the age of the licensee should have been 55 years or less at the time of his death to enable his dependent to get a licence on compassionate ground. 3. There is no opposition to the aforesaid prayer. 4. Accordingly, the aforesaid interlocutory application is allowed and learned counsel is permitted to assail Annexure-9 in this writ application. 5. Now I proceed to consider the case on its own merit. 6. Heard. 7. Learned counsel for the petitioner has submitted that the Public Distribution System (Control) Order, 2001 was enforced on 20.02.2007. Clause 2.5 of the aforesaid statute provides that wife/husband, son, unmarried daughter, daughter in law, widow of deceased son would be allotted shops under the Public Distribution System on priority basis if an application to that effect is filed by the dependent within two years from the date of death of the licensee. Subsequently vide Clause 4 of the Public Distribution System (Control) Amendment Order, 2011 following provision was added to the Clause 2.5:- “In case demise of licensee within Fifty Five of their age then only license on compassionate ground shall be admissible to their dependent.” 8. It is contended on behalf of the petitioner that the aforesaid provision having been introduced on 23.06.2011, the same would not be applicable in case of the petitioner as the death of her husband had occurred on 24.08.2010 and application to that effect was made by her on 22.09.2010 itself under the existing statute. Learned counsel has placed reliance upon unreported decision of this Court dated 06.09.2012 rendered in C.W.J.C. No.3809 of 2011 (Mohan Kumar Choudhay Versus the State of Bihar & Ors.), a copy of which has been produced at the time of hearing. Learned counsel has placed reliance upon unreported decision of this Court dated 06.09.2012 rendered in C.W.J.C. No.3809 of 2011 (Mohan Kumar Choudhay Versus the State of Bihar & Ors.), a copy of which has been produced at the time of hearing. It has been held in the aforesaid case that the notification dated 23rd of June, 2011 being of later date would not be applicable in the cases which are pending consideration prior to the aforesaid notification. The relevant passage from the aforesaid decision is reproduced as under: “Upon considering the rival submissions of the parties, it would appear that the father of the petitioner (the original licensee) died on 19.6.2010 and an application for transfer of the licence was filed on 6.8.2010 and as such, the notification issued on 23rd of June, 2011, as contained in Annexure A, could not be applicable in the cases which are pending consideration prior to the aforesaid date of notification. It has been clarified in the aforesaid letter no.6780 dated 17th of August, 2011 that the Public Distribution System (Control) Amendment Order, 2011 would be applicable from the date of its notification.” 9. Though no counter affidavit has been filed on behalf of the State but it has been stated that Annexure-5 written by the competent authority to the petitioner clearly discloses that unless the original licensee had died within 55 years of age the benefit would not accrue to the dependent for grant of licence on compassionate ground. However, learned counsel forgot to mention Annexure-8 dated 17.08.2011 issued by the State Government addressed to the District Magistrate, Patna/Buxar clarifying that in view of the amendment being effective from 23.06.2011, the new provision would be applicable from that date only. The aforesaid clarification of the Government is contrary to the submission made on behalf of the State. 10. This Court is in full agreement with the views expressed in C.W.J.C. No.3809 of 2011 and, accordingly, it is held that the amendment brought vide Public Distribution System (Control) Amendment Order, 2011 by addition of the aforesaid amended provision in Clause 2.5 would be applicable only from the date on which such amendment was enforced i.e., on 15.07.2011. 11. Thus, in my opinion, the impugned order, as contained in Annexure-9, so far it concerns the petitioner cannot be sustained in law and, as such is set aside. 11. Thus, in my opinion, the impugned order, as contained in Annexure-9, so far it concerns the petitioner cannot be sustained in law and, as such is set aside. Let the competent authority take a fresh decision with regard to the petitioner within four weeks from the date of production of a certified copy of this order in accordance with the views expressed by this Court. 12. Accordingly, this writ application stands allowed.