In a landmark judgment, a bench comprising of A.S. Oka and A.S. Chandurkar, JJ held that married daughters continue to part of parents' family and any rule which discriminates against married women is violative of Articles 14, 15 and 19(1)(g) of the Constitution. In the present case, the petitioner had appealed against the rejection of her claim to the kerosene retail licence held by her deceased mother, by the Minister of Food and Civil Supplies on the ground that as a married daughter, she could not be considered a part of her mother's family.
Under the State Government Rules/Circulars, a "family" included the husband, wife, major son, major unmarried daughter, daughter-in-law, dependent parents, legal heir and adopted son. A divorced daughter or widow could be considered part of the family, but any licence granted would be revoked if she remarried. Mr Rahul D Motkari, the Counsel for the petitioner submitted that under the Hindu Succession Act, 1956 a daughter is entitled to succeed to the estate of her mother and prayed for setting aside the said government rules which prevented her from doing so. The lawyer for the state, Mr A.I Patel defended the rules, stating that when a daughter gets married, she moves out of her family and could not be included in the expression 'family' of her parents. After listening to both sides of the argument, the Court came to the conclusion that the exclusion of a married daughter did not appear to be based on any logic or other justifiable criteria. Marriage of a daughter who is otherwise a legal representative of a licence holder cannot be held to her disadvantage in the matter of seeking transfer of licence in her name on the death of the licence holder. The Court struck down the discriminatory rules 22.12.1997, 16.8.2001, 10.12.2003 and 20.2.2004 to the extent they excluded a married daughter from being considered as a member of the “family”and asked the state to reconsider the petitioner's application for grant of the kerosene retail licence.
CIVIL APPELLATE JURISDICTION
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WRIT PETITION NO.5592 OF 2009
Smt. Ranjana Murlidhar Anerao
Versus
The State of Maharashtra & Ors.
CORAM : A. S. OKA, AND
A. S. CHANDURKAR, JJ.
PRONOUNCED ON : 13th AUGUST, 2014
Citation;2014(5) MHLJ534
The question that arises for determination in this
1.
Writ Petition filed under Article 226 of the Constitution of
India is whether the exclusion of a married daughter
from the expression “family” for being entitled to be
considered for grant of retail kerosene license under
Government Resolution dated 20th February, 2004 can be
said to be legal and valid.
The factual background which gives rise to the
2.
aforesaid question is that one Godavaribai Jairam Jadhav
was holding a retail kerosene license issued to her under
provisions of the Maharashtra Scheduled Commodities
Retail Dealers' Licensing Order, 1979 (for short, the
Licensing Order of 1979). She expired on 9 th April, 2003
and was survived by her son – respondent No.4 and
daughter – the petitioner.
for
inclusion
proceedings
The petitioner had initiated
of
her
name
as
legal
representative and had sought issuance of license in her
In the aforesaid proceedings, the Hon'ble
name.
Minister, Food and Civil Supplies on 26 th September,
2007 had held the petitioner entitled for transfer of
aforesaid license in her name.
Pursuant thereto the
Collector had on 8.10.2007 issued aforesaid license in
favour of the petitioner. Against the aforesaid order, the
respondent No.4 preferred revision application under
Clause 16 of the Licensing Order of 1979 . The Hon'ble
Minister, Food and Civil Supplies considered the matter
and held that though the petitioner was a married
daughter of Smt. Godavaribai Jadhav she had not been
lawfully divorced. According to the Hon'ble Minister as a
married daughter was ineligible to be considered as a
member of the family of the deceased for being entitled
for grant of retail license under Government Resolution
dated 20th February, 2004, the order dated 8 th October,
2007 passed by the Additional Collector came to be set
aside and it was directed that the license be issued in the
name of the respondent No.4..
It is said order dated
17.6.2009 that is impugned in the present Writ Petition.
3.
During pendency of the present Writ Petition, the
respondent No.4 – son expired and his legal heirs were
brought on record. The Writ Petition was amended and a
challenge was laid to Government Resolutions / Circulars
dated 22.12.1997, 16.8.2001, 10.12.2003 and 20.2.2004
by which a married daughter had been excluded from the
meaning of the expression “family” for purposes of being
granted retail kerosene license.
Accordingly, the Writ
Petition was placed before the Division Bench.
The
parties were put to notice that the Writ Petition could be
disposed of finally at the stage of admission. Accordingly
we have heard Mr. Rahul D. Motkari, learned Counsel for
the petitioner, Mr. V.P Malvankar, learned AGP “A” Panel,
.
for
respondent
Nos.1
to
3
and
Ms.
Deepalaxmi
Matwankar, learned Counsel for respondent No.4(a).
Hence Rule. Rule made returnable forthwith and heard
4.
finally with the consent of the parties.
It is submitted by the learned Counsel for the
petitioner that the petitioner being the daughter of Smt.
Godavaribai J. Jadhav, she was entitled in law to succeed
to her properties.
It was urged that under the Hindu
Succession Act, 1956 a daughter is entitled to succeed to
the
estate of her mother.
It was only on account of
circular dated 20.2.2004 that the petitioner was held
disentitled from making a claim for grant of license in
her name. It was submitted that there was no justifiable
basis whatsoever to exclude
a married daughter from
being included in the expression of “family”. While an
license
holder,
however held not eligible.
that
the
aforesaid
a
married
daughter
was
deceased
unmarried daughter was treated as part of family of the
It was therefore submitted
Government
Resolution
dated
20.2.2004 was violative of Articles 14 and 300A of the
Constitution of India to the extent a married daughter
setting
The learned Counsel therefore prayed
aside
consequently
for
aforesaid Government Resolution and
“family”.
was excluded from the purview of the expression of
the
impugned
order
dated
17.6.2009
passed on that basis.
5.
The learned Counsel for the petitioner relied
upon the decision of the Division Bench of this Court in
Aparna Narendra Zambre & Anr. Vs. Assistant
Superintendent Engineer, Krishna – Koyna Upsa
Sinchan Project Board, Sangli & Ors.1, judgment of
the Division Bench of this Court at Aurangabad Bench in
Writ Petition No.9474 of 2011 decided on 13.2.2012
(Meena Dinkar Deshmukh @ Meena Sanjay Bawaskar Vs.
1 2011(5) Mh.L.J. 290
The State of Maharashtra & Ors.) and another judgment
of the Division Bench of this Court in Writ Petition
No.11987 of 2012 decided on 6.12.2013 (Sou.Swara
Sachin Kulkarni(Kumari Deepa Ashok Kulkarni) Vs. The
Superintending Engineer, Pune & Anr.) in support of his
On the other hand Shri A.I. Patel, the learned
6.
aforesaid contentions.
Assistant Government Pleader appearing for respondent
Nos.1 to 3 has opposed the Writ Petition.
It was
submitted that the impugned order had been passed
after considering the Government Resolution dated
20.2.2004. It was further submitted that on a daughter
getting married she, moves out of the family and hence
could not be included in the expression “family” of the
deceased license holder. It was therefore submitted that
there was no merit in the Writ Petition and the same
deserved to be dismissed.
.
The learned Counsel appearing for respondent
No.4(a) also supported the impugned order as having
passed on the basis of Government Resolution dated
7.
20.2.2004.
Initially, the State of Maharashtra had made the
Maharashtra Kerosene Dealers Licensing Order, 1966 in view
of the power conferred by Section 3(2) of the Essential
Thereafter the Licensing Order of
Commodities Act, 1955.
By
1966 was replaced by the Licensing Order of 1979.
Government Resolution dated 22.12.1997 it was directed that
while issuing license to a legal representative of a deceased
license holder it was not necessary to issue a proclamation.
In the category of legal representatives only the spouse of the
deceased,
major
son,
major
unmarried
daughter
and
dependent mother/father were included. By subsequent
Government Resolution dated 16.8.2001 certain changes
were made in the categories of Licensing Authorities.
The
expression “family” was explained to include husband, wife,
major son, major unmarried daughter, daughter-in-law and
dependent
10.12.2003,
parents.
divorced
expression “family”.
By
Government
daughter
was
Resolution
included
dated
in
the
However, it was stated that on
remarriage of such divorced daughter, the license would
come to an end. Thereafter, by Government Resolution dated
20.2.2004, the expression “family” as stipulated in earlier
Government Resolution dated 16.8.2001 was modified. The
expression “family” included widow / widower of the licensed
holder, major son, major unmarried daughter, daughter-in-
law, legal heir, adopted son, divorced wife dependent on the
head of the family of the license holder and dependent
representatives
were
included
in
the
expression
legal
parents. Thus, except a married daughter, other categories of
“family”.
The impugned order dated 17.6.2009 allowing
8.
the revision application preferred by respondent No.4 –
son of the deceased retail license holder records that as
the petitioner was a married daughter of the deceased
retail license holder, she could not be treated as a legal
heir for purposes of being eligible for grant of retail
dealers' license.
It is in this background that the
petitioner has challenged Government Resolution dated
22.12.1997, 16.8.2001, 10.12.2003 and 20.2.2004 to the
extent it excludes a married daughter from the purview of
the expression “family” of the deceased license holder.
Before considering the challenge to the aforesaid
9.
Government Resolutions it may be noted that the Control
Order of 1979 has been made in exercise of powers under
Section 3(2) of the Essential Commodities Act, 1955 with
a view to regulate supply of kerosene which is an
essential commodity through issuance of license. While
the Control Order of 1979 lays down the manner in which
a retail dealers' license is to be granted, manner in which
it is to be renewed and the consequence of contravention
of the conditions of the license, it is by way
of
Government Resolutions that the expression “family” of a
In other
retail license holder is sought to be defined.
words, by executive instructions the expression “family”
is defined thereby excluding a married daughter from its
purview.
.
In this regard, it would be appropriate to refer to
the decision of the Constitution Bench of the Supreme
Court of India in Shri Sitaram Sugar Co. Ltd. Vs.
Union of India2
wherein notifications issued by the
Central Government in exercise of power under Section
3(3-c) of the Essential Commodities Act, 1955 dividing the
country into 16 zones and fixing the price of sugar for
various zones were in challenge.
In para-52 thereof it
was observed as under :
“52. The true position, therefore, is that any
act of the repository of power, whether
legislative or administrative or quasi-judicial,
is open to challenge if it is in conflict with the
Constitution or the governing Act or the
general principles of the law of the land or it is
so arbitrary or unreasonable that no fair
minded authority could ever have made it.”
In this background, the challenge to aforesaid
executive instructions will have to be considered.
10.
Now coming to the principal challenge in the
Writ Petition to Government Resolution dated 20.2.2004
to the extent it excludes a married daughter from being
considered a member of the family of the deceased
license holder is concerned, it must be noted that legal
heirs of a deceased retail license holder are entitled to
2 (1990) 3 SCC 223
seek transfer of license in their name after the death of
of
the
deceased,
his/her
major
the license holder. However, by including only the spouse
son,
daughter above the age of 18 years,
or
unmarried
daughter-in-law,
legal representative, adopted son, divorced daughter
dependent on the head of the family and parents
expression
“family”,
marriage
and
a
a
married
daughter
has
been
Thus, a daughter prior to her
consciously excluded.
ig
dependent o the head of the family in the meaning of the
dependent
divorced
daughter
are
included within the purview of the expression “family”
but a married daughter has been left out. There does not
appear any rational basis for doing so. There could be a
license holder having only one daughter.
If the license
holder unfortunately expires prior to her marriage, she if
above 18 years of age would be eligible to be treated as a
member of the family of the license holder. Similarly, if
such daughter is divorced she would fall within the
purview of the expression “family”. But, if married and
also supporting the license holder in his/her old age, she
would be excluded from being included in the expression
This
of family in case the license holder expires.
exclusion of a married daughter does not appear to be
based on any logic or other justifiable criteria. Marriage
of a daughter who is otherwise a legal representative of a
license holder cannot be held to her disadvantage in the
matter of seeking transfer of license in her name on the
death of the license holder. Under Article 19(1)(g) of the
Constitution of India the right of a citizen to carry on any
trade or business is preserved.
Under Article 19(6)
reasonable restrictions with regard to professional or
technical qualifications necessary for carrying on any
trade or business could be imposed.
discrimination
is
prohibited
by
Similarly, gender
Article
15
of
the
Constitution. The exclusion of a married daughter from
the purview of expression “family” in the Licensing Order
of 1979 is not only violative of Article 15 but the same
also infringes the right guaranteed by Article 19(1)(g) of
the Constitution.
In Savita Samvedi (supra) (Ms) and Anr. Vs.
11.
Union of India and Ors.3, a circular of the Railway
Board holding that a married daughter of a retiring
official eligible to obtain regularization if her retiring
father had no son was considered. In that context it was
observed in paras-6 and 7 as under :
“6. A common saying is worth pressing into
service to blunt somewhat the Circular. It is –
“A son is a son until he gets a wife. A
daughter is a daughter throughout her
life.”
7. The retiring official's expectations in old
age for care and attention and its measure
from one of his children cannot be faulted, or
his hopes dampened, by limiting his choice.
That would be unfair and unreasonable. If he
has only one married daughter, who is a
railway employee, and none of his other
children are, then his choice is and has to be
limited to that railway employee married
daughter. He should be in an unfettered
position to nominate that daughter for
regularization of railway accommodation. It is
only in the case of more than one children in
railway service that he may have to exercise a
choice and we see no reason why the choice be
not left with the retiring official's judgment on
the point and be not respected by the Railways
authorities irrespective of the gender of the
child. There is no occasion for the Railways to
be regulating or bludgeoning the choice in
favour of the son when existing and able to
3 (1996) 2 Supreme Court Cases 380
In
Aparna
Narendra
Zambre
(Supra),
the
ig
maintain his parents. The Railway Ministry's
Circular in that regard appears thus to us to be
wholly unfair, gender-biased and unreasonable,
liable to be struck down under Article 14 of the
Constitution. The eligibility of a married
daughter must be placed on a par with an
unmarried daughter (for she must have been
once in that state), so as to claim the benefit of
the earlier part of the Circular, referred to in
its first paragraph, above-quoted.”
petitioner therein was not considered for appointment on
compassionate grounds by virtue of being married.
Though it was urged on behalf of the petitioner therein
that exclusion of a married daughter from consideration
for
appointment
on
compassionate
basis
was
discriminatory, the Court did not go into the said larger
issue as it was found that the name of the petitioner
therein had been rejected despite the fact that the
petitioner therein was unmarried when her case was
rejected.
.
In Meena Dinkar Deshmukh (supra), the Division
Bench of this Court referred to the decision in Aparna
Narendra Zambre (supra) and held that a candidate could
not be denied the benefits as available to a freedom
fighter's nominee only on the ground that she was a
married daughter of the freedom fighter.
.
In Swara Sachin Kulkarni (supra), the claim of a
married daughter for appointment on compassionate
basis was turned down by the authorities as she was not a
part of the family of the deceased. This Court held that
the stand of the State Government that a married
daughter would not be eligible
or could not be
considered for compassionate appointment was violative
of the mandate of Articles 14, 15 and 16 of the
Constitution of India.
It was further held that no
discrimination could be made in public employment on
gender basis.
It was directed that the claim of the
petitioner be considered irrespective of the fact that she
was married.
12.
It may be noted that after the decision of this
Court in Aparna Narendra Zambre (supra), the General
Administration Department of the State of Maharashtra
has issued Government Resolution dated 26.2.2013 and
has recognized the entitlement of a married daughter to
seek appointment on compassionate basis subject to she
and her husband furnishing an undertaking that they
would take care of the family. Similarly, after the decision
of this Court in Meena Dinkar Deshmukh (supra), the
General Administration Department of the State of
Maharashtra has issued Government Resolution dated
19.5.2014 and has permitted nomination of a married
daughter by a freedom fighter / his widow for being
entitled to benefits admissible to a freedom fighter.
The aforesaid Government Resolutions therefore
recognize the entitlement of a married daughter to seek
benefits in the matter of compassionate appointment in
State Government service and benefits admissible to a
freedom fighter.
It is thus obvious that the State of
Maharashtra has recognized the entitlement of a married
daughter
to claim compassionate appointment in State
Government services or seek benefits as a nominee of a
freedom fighter as the case may be. If this be so there is
the
expression
“family”
as
Resolution dated 20.2.2004.
itself
militate
to
the
stated
in
Government
Such non-inclusion would
decision
recognize entitlement
of
the
of a
State
married
Government
against
no reason why a married daughter cannot be included in
daughter in the case of compassionate appointment or
freedom fighter's benefits as the case may be. Hence, this
is one more reason by which aforesaid Government
Resolution dated 20.2.2004 to the extent it excludes a
married daughter from being considered as a member of
the family of a retail license holder is discriminatory and
hence violative of Article 14 of the Constitution of India
also.
13.
From the aforesaid discussion, we have no
hesitation
in
coming
to
the
conclusion
that
the
Government Resolution dated 20.2.2004 to the extent it
excludes a married daughter from being considered as a
member of the “family” a deceased retail license holder is
The Hon'ble Minister,
(g) of the Constitution of India.
violative of the provisions of the Articles 14, 15 and 19(1)
Food and Civil Supplies and Consumer Protection while
passing the impugned dated 17.6.2009 as taken into
consideration the position as obtained from Government
Hence the claim of the
Resolution dated 20.2.2004.
petitioner for being treated as a legal representative of
deceased Godavaribai J. Jadhav has not been considered
as the petitioner was considered to be a married
daughter. In view of our aforesaid findings, the revision
application under clause-16 of the Licensing Order, 1979
will have to be remitted back for fresh decision in the
light of our aforesaid findings. Hence, we pass the
following order :
(a) The
Government
Resolutions/Circulars
dated
22.12.1997, 16.8.2001, 10.12.2003 and 20.2.2004 to
the extent they exclude a married daughter from
being considered as a member of the “family” of a
deceased retail license holder are held to be violative
of the provisions of Articles 14, 15 and 19(1)(g) of
the Constitution of India;
(b) The respondent No.1 – State of Maharashtra is
directed to issue appropriate Government Resolution
13 of this judgment;
in the light of the conclusion recorded in paragraph-
(c) The impugned order dated 17.6.2009 is quashed and
set aside and the revision application No.450 under
Clause 16 of the Licensing Order of 1979 is remitted
to the State Government for fresh decision in
accordance with law.
It is clarified that this Court
has not gone into the merits of the findings recorded
in the order dated 17.6.2009 and the said revision
application shall be decided afresh in accordance
with law;
(d) The petitioner and respondent No.4(a) are directed
to appear before the Ministry of Food, Civil Supplies
and Consumer Protection on 16.9.2014. The revision
application shall be decided within a period of three
months from the date of appearance of the parties
before the said authority;
(e) The Writ Petition is partly allowed in aforesaid terms
(A. S. OKA, J.)
(A. S. CHANDURKAR, J.)
with no order as to costs.
No comments:
Post a Comment