Case Note & Summary
The petitioner, Gulabsingh Gopichand Chavan, filed a writ petition challenging an order passed by the Minister for Food, Civil Supplies and Consumer Protection, Government of Maharashtra, which recalled the earlier transfer of a Fair Price Shop License (FPSL) in his name. The original licensee was respondent no.5, Smt. Indubai Shankar Bhurewar. Initially, the petitioner sought transfer of the FPSL based on a will deed executed by respondent no.5, but the authorities rejected it as government policy prohibits transfer of FPSL on the basis of a will deed. Subsequently, the then Minister ordered that if the petitioner entered into a partnership with respondent no.5, the petitioner's name could be incorporated in the FPSL, and later respondent no.5's name could be deleted. Accordingly, a partnership deed was executed, and the FPSL was transferred solely in the petitioner's name, eliminating respondent no.5. Respondent no.5 then filed a review, and the subsequent Minister recalled the transfer order, stating that government policy does not allow transfer of FPSL on the basis of any partnership deed. The petitioner challenged this recall order. The court framed the issue of whether the transfer through a partnership deed was permissible. The court noted that the government policy prohibits transfer of FPSL on the basis of a will deed or partnership deed while the licensee is alive. The court applied the legal maxim 'Quando aliquid prohibetur ex directo, prohibetur et per obliquum' (what cannot be done directly cannot be done indirectly). The court held that the transfer through a partnership deed was an indirect method to achieve what was directly prohibited, and thus the recall order was valid. The court dismissed the writ petition, upholding the recall order and restoring the FPSL to respondent no.5.
Headnote
A) Essential Commodities Act - Fair Price Shop License - Transfer Prohibition - Government Policy - The case involved transfer of a Fair Price Shop License from respondent no.5 to petitioner through a partnership deed while the original licensee was alive. Government policy prohibits transfer of FPSL on the basis of Will Deed or Partnership Deed. The court held that the transfer through partnership deed was an indirect method to achieve what was directly prohibited, and thus illegal. The court applied the principle 'Quando aliquid prohibetur ex directo, prohibetur et per obliquum' and set aside the transfer order. (Paras 2-2.4)
Issue of Consideration
Whether transfer of a Fair Price Shop License on the basis of a partnership deed, while the original licensee is alive, is permissible under government policy, and whether the principle that what cannot be done directly cannot be done indirectly applies.
Final Decision
The court dismissed the writ petition, upholding the order of the subsequent Minister recalling the transfer of Fair Price Shop License. The court held that the transfer through partnership deed was an indirect method to achieve what was directly prohibited, and thus illegal. The FPSL stands restored to respondent no.5.
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 basis of Will Deed or Partnership Deed while licensee is alive
- Transfer of license by partnership deed is indirect transfer and prohibited
- Minister's order contrary to government policy is illegal and liable to be set aside
