The Assistant Supply Officer, Civil Supplies vs Azizunnisa Begum

Ar. Lakshmanan, C.J.—Heard Smt Nanda R Rao, learned Government Pleader for Civil Supplies appearing for the appellants and Sri A. Rajasekhar Reddy, learned counsel for the respondent.

This appeal is directed against the order in writ petition No. 2163 of 2002, dated 6-2-2002, allowing the writ petition filed by the respondent herein. The writ petition was filed to direct the respondents therein - appellants herein to transfer the kerosene licence No. B/89/ASOV/K.Oil/81 in the name of the petitioner or to grant fresh licence to the petitioner. The learned single Judge, following the judgment of a Division Bench of this Court in writ appeal No. 107 of 2001, dated 8-2-2000, allowed the writ petition at the stage of admission and directed the appellants herein to consider the representation, dated 4-11-2001, submitted by the respondent herein in the light of the said judgment of the Division Bench. The said order of the learned single Judge is under challenge in this appeal.

Smt Nanda R Rao submitted that the learned single Judge ought not to have directed the appellants herein to consider the representation of the respondent herein in the light of the judgment of the Division Bench of this Court in writ appeal No. 107 of 2001 wherein no reference nor discussion nor finding was made to the relevant memos and circulars of the Government in regard to issuance of licence to a kerosene dealer. Our attention was also drawn to the Government memo No. 1655/C.S.II/98-1, dated 15-6-1998, at the time of hearing which reads as under:

In the reference cited, orders were issued that in case a kerosene hawker dies, the legal heir shall be eligible for transfer of the licence in his name, provided the legal heir proves this fact to the satisfaction of the licensing authority with all necessary evidence.

The Hon''ble High Court of A.P., Hyderabad in W.P. No. 8201/94 on 18-3-1996 ordered that licence is not transferable, as it is only a licence in favour of the person. The ownership of licence, therefore, cannot accrue to his legal heirs.

In the light of the orders passed by the Hon''ble High Court of A.P., the orders issued in the references cited are hereby withdrawn with immediate effect.

All the Collectors, Chief Rationing Officer, Hyderabad are informed that in future, there shall be no transfer of a licence (whether retailers or hawkers) to the legal heirs in the event of demise of the licence holder.

The above instructions shall be followed scrupulously.

It is submitted that the above Government memo was not brought to the notice of the Division Bench which rendered the judgment in writ appeal No. 107 of 2001. It is also seen from the above memo that the same was issued pursuant to an order passed by this Court in writ petition No. 8201 of 1994, dated 18-3-1996 wherein it was held that licence is not transferable as it is only a licence in favour of a person and, therefore, the above Government memo was issued instructing the Collectors and the Chief Rationing Officer that in future there shall be no transfer of a licence, whether of retailers or hawkers, to the legal heirs in the event of demise of the licence holder. This Government memo dated 15-6-1998 and the order in writ petition No. 8201 of 1994, dated 18-3-1996, were not brought to the notice of the learned Judges of the Division Bench who passed the judgment in writ appeal No. 107 of 2001. The learned Judges of the Division Bench in writ appeal No. 107 of 2001 directed the authorities to transfer the licence in order to render substantial justice. There is no other discussion in regard to the relevant rules or the Government memos, etc.

Another Division Bench of this Court presided over by the then Chief Justice Sri M.S. Liberhan with V.V.S. Rao, J in writ appeal No. 1244 of 1999, dated 31-8-1999, passed the following judgment:

The appellant is seeking licence for sale of kerosene solely on hereditary claim. It has not been accepted by the Department. It is axiomatic now that after the Constitution came into force, a person cannot have hereditary claim by privilege whatsoever. We see no ground to interfere in the order under appeal. The appeal is therefore dismissed.

The judgment of the Division Bench in writ appeal No. 107 of 2001, dated 8-2-2000, is subsequent to the judgment of the Division Bench in writ appeal No. 1244 of 1999, dated 31-8-1999. The learned single Judge should have noticed that as per the Government memo dated 15-6-1998 there shall be no transfer of licence to the legal heirs in the event of demise of the licence holder and further vide memo No. 1584/CS.II/94 F&CS (CS) Department, dated 26-4-1994, the Government instructed the Collectors and the Chief Rationing Officer that there shall not be any appointment of new hawkers or new kerosene retailers in future. We have already referred to the Division Bench judgment of this Court in writ appeal No. 1244 of 1999, dated 31-8-1999 wherein it is held that transfer of licence for sale of kerosene is not permissible in law and that a person cannot have a hereditary claim by privilege whatsoever. In our opinion, the licence issued in the name of the respondent-writ petitioner''s husband cannot be transferred in the name of the respondent-writ petitioner as it is against the Government memos issued in this regard. This apart, it is also a policy decision of the Government and the same being not against public policy, the learned single Judge has erred in directing the appellants herein to consider the application of the respondent-writ petitioner for transfer of licence in her favour. The Writ Appeal succeeds and is allowed. Therefore, the order of the learned single Judge is set aside. There will be no order as to costs.