Case Note & Summary
The case pertains to a Fair Price Shop License (FPSL) originally held by Respondent No.5, Smt. Indubai Shankar Bhurewar. The Petitioner, Gulabsingh Gopichand Chavan, sought to have the license transferred to his name based on a Will deed executed by Respondent No.5. However, government policy prohibits transfer of FPSL on the basis of a Will deed. The authorities rejected the proposal. Subsequently, the then Minister for Food, Civil Supplies and Consumer Protection, Government of Maharashtra, ordered that if the Petitioner entered into a partnership with Respondent No.5, the Petitioner's name could be incorporated in the FPSL with Respondent No.5 as a partner, and later Respondent No.5's name could be deleted. Accordingly, a partnership deed was executed and the FPSL was transferred in the Petitioner's name, eliminating Respondent No.5's name entirely. Respondent No.5 filed a review petition before the subsequent Minister, who recalled the earlier order, stating that government policy does not allow transfer of FPSL on the basis of any partnership deed. Aggrieved, the Petitioner filed the present writ petition. The Court examined the principle 'Quando aliquid prohibetur ex directo, prohibetur et per obliquum' (what cannot be done directly cannot be done indirectly). It found that the transfer via partnership deed was an indirect method to circumvent the policy prohibition on transfer via Will deed. The Court held that the subsequent Minister's order recalling the transfer was valid and in accordance with policy. The writ petition was dismissed, and the rule was discharged.
Headnote
A) Administrative Law - Transfer of License - Indirect Transfer - Quando aliquid prohibetur ex directo, prohibetur et per obliquum - The principle that what cannot be done directly also cannot be done indirectly was applied. The case involved an attempt to transfer a Fair Price Shop License from the licensee (Respondent No.5) to the Petitioner through a partnership deed, while the licensee was still alive. The government policy prohibited transfer on the basis of a Will Deed. The earlier Minister ordered the transfer via partnership, but the subsequent Minister recalled that order. The Court upheld the recall, holding that the transfer was an indirect method to circumvent the policy and was rightly set aside. (Paras 2-2.4) B) Food and Civil Supplies - Fair Price Shop License - Transfer Policy - Government policy prohibits transfer of Fair Price Shop License on the basis of a Will Deed or Partnership Deed during the lifetime of the licensee. The Court noted that the transfer via partnership deed was a colourable device to achieve what was directly prohibited. The subsequent Minister's order recalling the transfer was valid and in accordance with policy. (Paras 2.1-2.3)
Issue of Consideration
Whether a Fair Price Shop License can be transferred during the lifetime of the licensee through a partnership deed when the government policy prohibits transfer on the basis of a Will Deed, and whether the subsequent Minister's order recalling such transfer is valid.
Final Decision
The writ petition is dismissed. The rule is discharged. No order as to costs.
Law Points
- Principle of 'Quando aliquid prohibetur ex directo
- prohibetur et per obliquum' (what cannot be done directly cannot be done indirectly)
- Government policy prohibits transfer of Fair Price Shop License on the basis of Will Deed or Partnership Deed
- Transfer of license during lifetime of licensee is impermissible
- Minister's order cannot override government policy
- Review proceedings can cure errors in earlier orders.
