Fair Price Shop License transfer prohibited via will while licensee alive or indirectly through partnership deed substituting/deleting names, violating policy; direct prohibition extends to oblique methods.

JUDGMENT :

AJIT B. KADETHANKAR, J.

Rule. Rule made returnable forthwith. At the instance of the parties, heard them for final disposal of the Writ Petition.

2. Subject-matter :

“Quando aliquid prohibetur ex directo, prohibetur et per obliquum – What cannot be done directly, also cannot be permitted to be done indirectly”. The case in hand necessarily evoke this famous principle of Law to be observed.

2.1 A Fair Price Shop License (hereinafter ‘FPSL’ for brevity) held by the licensee – Respondent No. 5 was sought to be transferred in the name of the Petitioner on the basis of a will deed while the Respondent No.5 is still alive. Government policies prohibit transfer of FPSL on the basis of Will Deed. The Authorities rejected the proposal.

2.2 However, the Honorable then Minister for Food, Civil Supplies and Consumer Protection, Govt. of Maharashtra, ordered that if the Petitioner has entered into partnership with the Respondent No.5, Petitioner’s name could be incorporated in the FPSL with the Respondent No.5 as a partner, and later the name of Respondent No.5 can be deleted. Accordingly it was ordered so by the Honorable then Minister. Thus the subject-matter FPSL was transferred in Petitioner’s name on the basis of a ‘partnership’ deed. The transfer order eliminated the name of the Licensee- Respondent No.5 itself from the license.

2.3 In the extended round of litigation in Review Proceedings launched at the behest of the Respondent No.5, the subsequent Honorable Minister cured the error and recalled the order directing transfer of FPSL in the name of the Petitioner. The impugned order recalling the earlier FPSL transfer, manifestly say that the government policy doesn’t allow transfer of FPSL on the basis of any Partnership deed.

2.4 Feeling aggrieved, the Petitioner is before this Court. The Petitioner justifies the procedure adopted by the Honorable earlier Minister and seeks for continuation of the FPSL in his name. The Petitioner alternatively seeks transfer of FPSL on the basis of a registered will deed purportedly executed by the Respondent No.5 in his favor, while the Respondent No.5 is still alive.

3. Facts in brief:

(a) Respondent No.5’s husband was a licensee of FPSL No.74, allotted for the vicinity of Vishnunagar, Aurangabad (now Chhatrapati Sambhajinagar). Upon his demise, the FPSL devolved in the Respondent No.5 as per the prevalent Government policy. Its not in dispute that transfer of FPSL is permissible in such circumstances.

(b) The Petitioner was engaged by the Respondent No.5 as caretaker and assistant at the Subject-matter FPSL No.74.

(c) The Respondent No. 5 executed a will deed and got the same registered in the office of the Sub Registry Aurangabad on 05-10- 2021 at Serial No.6341 of 2024. Vide the said will deed, the Respondent No.5 recorded her will to transfer the Subject-matter FPSL No.74 in the name of the Petitioner, consequent to her death. She recorded that the Petitioner was looking after her since after her both daughters married and as she was living alone. The will deed is at page 27: Exh.A of the Writ Petition.

(d) The petitioner further avers that the Respondent No.5 even executed a Partnership Deed with the Petitioner on 07-11-2022 there by agreeing to run the Subject-matter Fair Price Shop No.74 in partnership on the terms as mentioned therein. The said instrument seems to be a notarized one, an is annexed at page No.74 of the Writ Petition.

(e) Consequent to the Will-Deed No.6341 of 2024, an application was moved on behalf of the Respondent No.5 to the District Supply Officer, Chhatrapati Sambhajinagar on 08-06-2022 seeking transfer of the Subject-matter FPSL in the name of the Petitioner on the basis of the Will-Deed No.6341 of 2024.

(f) Vide order dated 21-06-2022, the District Supply Officer, Chhatrapati Sambhajinagar rejected Respondent No.5’s