Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5816 of 2011 ====================================================== Rajeev Ranjan Gupta, son of late Raghunath Prasad Gupta @ Raghunath Prasad Sah, resident of village and P.O. Ranjeetpur, P.S Dumra, District, Sitamarhi…. .... .... Petitioner Versus 1. The State Of Bihar through the Secretary Food and Consumer Protection Department, Old Secretariat, Patna 2. The District Supply Officer, Sitamarhi, District, Sitamarhi, 3. The Sub-Divisional Officer, Sitamarhi, District, Sitamarhi…. .... .... Respondents ====================================================== Appearance :
Legal Reasoning
For the Petitioner : Mr. Rajeev Kumar Labh, Advocate For the State : Mr. Rishiraj Sinha Gp19, Mr. Rakesh Prabhat, A.C. to G.P. 19 Mr. Rakesh Kumar, A.C. to G.P 19 ====================================================== CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN ORAL ORDER 7 13-05-2013 I have heard learned counsel for the petitioner and the State. The Sub-Divisional Officer, Sitamarhi is present. 2 Patna High Court CWJC No.5816 of 2011 (7) dt.13-05-2013 2 / 6 Supplementary counter affidavit has been filed on behalf of the respondent nos.2 and 3. Through this writ application, the petitioner seeks quashing of the letter dated 25.9.08 (Annexure-1) by which the petitioner has been informed that the District Committee vide its proceeding held on 20.9.08 rejected his claim for grant of PDS licence on compassionate ground for the reason that his own brother is already running a PDS shop. Learned counsel for the petitioner has submitted that there was partition in the joint family on 05.10.1990 itself as his brother started living separately. Memorandum of such partition
Decision
has been appended as Annexure 3 to the writ petition. However, it is submitted that the petitioner was looking after his father. Thereafter, the brother of the petitioner applied for grant of licence and fresh licence was granted to him during the lifetime of his father who was a licensee. Subsequently, when father of the petitioner died, the petitioner had applied for grant of licence on the compassionate ground and has filed requisite documents. However, the same has been rejected on the ground that since the petitioner’s brother was already holding a licence for running a PDS shop another licence cannot be granted to the petitioner. This Court vide its order dated 14.03.2013 directed the State respondent 3 Patna High Court CWJC No.5816 of 2011 (7) dt.13-05-2013 3 / 6 to file counter affidavit disclosing as to whether the brother of the petitioner was holding a separate licence during the lifetime of the father, who admittedly was also having a PDS licence, or not. In the supplementary counter affidavit it has been clearly stated that since he became separate, the elder brother of the petitioner was granted PDS licence in the year 1991. However, learned counsel for the State has submitted that in view of the provision as contained in Clause 2.6 of the Public Distribution System (Control) Order, 2001 (hereinafter referred to be as the “Control Order”) shops cannot be allotted to more than one member of a joint family. Under the definition of the joint family, Mother, Father, Brother, Sister-in-law, Wife, Son, Daughter-in-law, Step brother are to be taken into consideration. It is urged that since the elder brother comes within such consideration zone, the petitioner has been rightly refused licence. Per contra, learned counsel for the petitioner has submitted that once the elder brother became separate and the concerned authority itself has issued separate licence, he cannot be construed to be still a member of the joint family as per the provision contained in Clause 2.6 (a) of the Control Order. I find force in the submission raised on behalf of the 4 Patna High Court CWJC No.5816 of 2011 (7) dt.13-05-2013 4 / 6 petitioner. Clause 2.6 (a) of the Control Order does not refer to the co-parcenary or concept of joint family governed by Mitrashraw Law or joint family under Dayabhag school etc. As per the relevant clause Mother, Father, Brother, Sister-in-Law, Wife, Son, Daughter-in-law, Step brother are to be considered as members of joint family. However, it has already been stated in the aforesaid Clause that this provision shall come into force on the date of its notification. Annexure-3, which is dated 5.10.90 indicates that there was a partition in the family which appears to have been accepted by the authorities. Since the elder brother of the petitioner became separate from the family, a licence was issued in his favour in the year 1991 itself. Once this stand has been taken by the State then it cannot be permitted to reject the claim of the petitioner on the ground that the elder brother is already having a separate licence as he ceased to be a member of the joint family after his separation from family. Secondly, the provision which is relied upon by the State clearly lays down that provision shall come into the force on the date of its notification. Admittedly the date of the notification of the Control Order is 20.02.2007 whereas the petitioner has already made his claim by filing an application in the year 2006 itself. Vide order dated 01.03.2013 passed in C.W.J.C. No.20331 of 2011(Most. Shashi 5 Patna High Court CWJC No.5816 of 2011 (7) dt.13-05-2013 5 / 6 Gupta Vs. State of Bihar & Ors.), this Court has already held, while considering amendment made in Clause 2.5 of the Control Order, that such amendment cannot be applied with retrospective effect upon pending applications. Thus, in my opinion, the application of the petitioner should have been disposed of considering the relevant provision which was available at the time of filing of such application. Be that as it may, on the first ground itself, the petition, in my considered opinion, is fit to be allowed as the moment separation of the elder brother from the family was accepted by the authority and a fresh and separate licence was granted to him during the lifetime of the father of the petitioner itself, now it would not be open for the authorities to take stand that, since elder brother being member of family is already running a PDS shop, the petitioner cannot be allowed the benefit on compassionate ground after the death of his father. As a result, the order dated 25.9.08 (Annexure-1) is set aside. Let a fresh decision be taken in accordance with law after considering the case of the petitioner as per the observation of this Court and also considering the order dated 01.03.2013 passed in C.W.J.C. No.20331 of 2011. Let the concerned District Committee take such decision within ten weeks from the date of production of a certified copy of this order by the petitioner 6 Patna High Court CWJC No.5816 of 2011 (7) dt.13-05-2013 6 / 6 before the Sub-Divisional Officer concerned. It is made clear that the Sub-Divisional Officer is required to forward the claim of the petitioner immediately along with his opinion in accordance with law to the concerned District Committee. Accordingly, this writ application stands allowed. Sanjay-II/- (Dr. Ravi Ranjan, J)