1 Writ Petition No.1358 of 2024.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

District: Aurangabad

WRIT PETITION NO.1358 OF 2024

Gulabsingh s/o. Gopichand Chavan,

Age : 44 Years, Occ.Business,

r/o. House No.12, Infront of Mahadeo Mandir,

Honaji Nagar, Jatvada Road, Aurangabad ..Petitioner

Vs.

1.The State of Maharashtra,

Through its Principal Secretary,

Food, Civil Supplies and Consumer Protection

Department, Mantralaya, Mumbai

2.The Hon’ble Minister,

Food, Civil Supplies and Consumer Protection

Department, Mantralaya, Mumbai

3.The Deputy Commissioner (Supply),

Aurangabad Division, Aurangabad

4.The District Supply Officer,

Aurangabad

5.Smt.Indubai w/o. Shankar Bhurewar,

age : 74 years, Occ. Nil,

r/o. Plot No.104, Near Saibaba Mandir,

Gajanan Nagar, Garkheda Parisar,

Aurangabad ..Respondents

----

Mr.P.S.Dighe, Advocate for petitioner

Mr.A.A.A.Khan, Advocate for respondent nos.1 to 4

Mr.S.D.Hiwrekar, Advocate for respondent no.5

---- 2026:BHC-AUG:13810

2 Writ Petition No.1358 of 2024.odt

CORAM : AJIT B. KADETHANKAR, J.

DATE : APRIL 01, 2026

ORAL JUDGMENT :-

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

3 Writ Petition No.1358 of 2024.odt

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.

4 Writ Petition No.1358 of 2024.odt

(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.

5 Writ Petition No.1358 of 2024.odt

(f) Vide order dated 21-06-2022, the District Supply Officer,

Chhatrapati Sambhajinagar rejected Respondent No.5’s application for

want of any policy and provision to transfer a FPSL on the basis of a

Will-Deed. The authority relied upon the Government Resolutions

dated 22-12-1997, 07-06-2000 and 11-06-2015 to reject Respondent

No.5’s application.

(g) A revision under Clause 4 of the Maharashtra Scheduled

Commodities (Regulations and Distribution) Order 1975 [hereinafter

1975 Order] was filed on behalf of Respondent No.5 before the Deputy

Commissioner, Civil Supply Department, Aurangabad Division. (page

39:Exh.C).

(h) The Revisional Authority concurred with the findings of the

District Supply Officer, Chhatrapati Sambhajinagar. The Dy.

Commissioner re-affirmed that FPSL can not be transferred on the basis

of the instrument relied upon by the Respondent No.5. Consequently,

the Respondent No. 5 suffered rejection of the revision application vide

order dated 30-11-2022 (page 52).

(i) On 04-12-2022, a further revision under clause 4 of the

1975 Order came to be filed on behalf the Respondent No. 5, before

the Honorable then Minister for Food, Civil Supplies and Consumer

6 Writ Petition No.1358 of 2024.odt

Protection, State of Maharashtra (for the sake of brevity, hereinafter

referred as ‘the Minister’).

(J) The Honorable Minister partly allowed Respondent No.5’s

revision petition vide order dated 13-12-2022. Transfer of FPSL on the

basis of Will-Deed was not accorded in view of the government policies

referred in the Government Resolutions dated 22-12-1997, 07-06-2000

and 11-06-2015.

However, it was ordered that Petitioner’s name be

incorporated in the FPSL No.74 on the basis of the Partnership Deed.

Pertinent to note, It was further directed to strike off Respondent

No.5’s name from the Subject-matter FPSL No.74, upon insertion of

Petitioner’s name on the basis of the Partnership Deed. (Page 69:

Exh.F).

(k) Record show that consequent to the order dated 13-12-

2022 passed by the Honorable then Minister, the authorities acted

upon it. Petitioner’s name alone was recorded as Licensee of the

Subject-matter FPSL No.74, Vishnunagar, Chhatrapati Sambhajinagar

on 13-01-2023.

(l) It appears that some differences cropped between the

Petitioner and the Respondent No.5, that triggered the Respondent

No.5 to file Review application before the Honorable Minister.

7 Writ Petition No.1358 of 2024.odt

(m) Respondent No.5 disputed genuineness, legality and

validity of the so called Partnership Deed dated 07-11-2022 as also the

Will-Deed No. 6341/2022. Respondent No.5 submitted that both the

documents were canceled by her. The Will deed was canceled on 06-

07-2023. She submitted that, while the Will-Deed was got executed

from her under undue influence, the partnership deed itself was a

bogus document. The Respondent No.5 submitted that none of the

proceedings were actually filed by her, but it was shown by the

Petitioner to have been filed by her. As such, the Respondent No.5

prayed to recall the earlier order dated 13-12-2022 and to restore the

Subject-matter FPSL No.74 in her name.

(n) The authorities as also the Petitioner submitted their

response. The Petitioner disputed Respondent No.5’s allegations, and

prayed to reject the review proceedings. He submitted that the

impugned transfer of the Subject-matter FPSL No.74 was effected at

the behest of the Respondent No.5, and that she can not turn away

from her initiative at such belated stage and on frivolous grounds.

(o) The Honorable Minister heard the parties and passed the

order dated 29-01-2024 impugned in this Writ Petition. Vide the

impugned order, the Honorable Minister recalled the order dated 13-

12-2022 and restored the FPSL no.74 in Respondent No.5’s name.

8 Writ Petition No.1358 of 2024.odt

As against, the Petitioner is before this Court vide present

Writ Petition.

4. Submissions:

Per Petitioner : Mr. P.S. Dighe, learned Counsel for the Petitioner

strenuously criticized the impugned order with the following

submissions:

1st The Honorable Minister erred in exercising the jurisdiction

for reviewing the order passed by the earlier Honorable Minister.

2nd The Petitioner was not given proper opportunity of hearing

in the Review proceedings. The necessary documents of the review

proceedings were not served on the Petitioner. That, the hearing was

concluded hurriedly and in hasty manner without responding the

genuine request of the Petitioner for an adequate opportunity to collect

the case documents, to go through, and to respond accordingly.

3rd The petitioner himself had filed intervention application

learning that the Respondent No. 5 has moved the review application.

4th There is a gap of three months between the date on which

the Judgment was reserved and the date on which the Judgment is

delivered. That, the gap shows that the Honorable Minister could not

have applied his mind judiciously to the merits in the review case.

9 Writ Petition No.1358 of 2024.odt

5th The Honorable Minister did not consider the vital aspect of

the matter that the Will-Deed was a registered one, and it held strong

presumptive value. He submits that the Petitioner must get the FPSL on

the basis of the will deed, if not by the partnership deed.

6th The Honorable Minister failed to consider the ground reality

that the Petitioner alone has taken whole care of the Respondent No.5

and hence, the Respondent No. 5 has cautiously executed the Will-

Deed and the Partnership deed to confer the Subject-matter FPSL

No.74 in the name of the Petitioner.

7th Mr. Dighe, learned Counsel for the Petitioner would

conclude his argument by submitting that the Honorable Minister has

passed utterly an un-reasoned order. He has strong objection as to the

silence maintained by the Respondent No.5 for a considerable time

after the FPSL was effected in his name, and the subsequent turn

about by the Respondent No.5. As such, he prays to allow the Writ

Petition and restore back the Subject-matter FPSL No.74 in his name.

He lastly argues for alternate directions at least relegating back the

parties for re-hearing in the Review Proceedings.

10 Writ Petition No.1358 of 2024.odt

Per Respondent No.5

1st Mr. S.D. Hiwrekar, learned Counsel for the Respondent No.

5 advocates the impugned order passed by the Honorable Minister.

2nd He submits that the Honorable Minister has rightly

corrected the mistake committed caused by the earlier order impugned

in the review proceedings.

3rd He counters the objection of Mr. Dighe that opportunity of

hearing was not given to the Petitioner by the Honorable Minister in the

review proceedings.

4th Learned Counsel Mr. Hiwrekar submits that authorities in

the earlier round of litigation that was taken up in the name of the

Respondent No.5 were rightly turned for want of government policies.

That, its only after the order dated 13-12-2022 passed by the

Honorable then Minister, the authorities had to act upon.

5th It is lastly submitted on behalf of the Respondent No. 5,

that all the facts are before this Court. That, the FPSL could not be

transferred devoid of provisions and rules. That, in-fact the order dated

13-12-2022 itself is unjustifiable which has been rightly cured by the

presently impugned order.

Per State Authorities :

1

st

Mr. Khan, learned Assistant Government Pleader would

fairly submit that on the same count on which the earlier order was

11 Writ Petition No.1358 of 2024.odt

passed by the Honorable then Minister allowing transfer of the FPSL,

the order presently impugned in the Writ Petition also stands on the

same reasoning, but from different perspective.

2

nd

Mr. Khan submits that he prefers to go by the record. He

relies upon the various orders passed by the authorities, would rely

upon the government resolutions referred herein, and prays to pass an

appropriate orders.

5. Consideration:

I heard learned Counsels for the respective parties and the

learned Assistant Government Pleader. With their able assistance I

went through the pleadings of the respective parties and the

annexures relied upon by them. I called upon learned Counsel for the

Petitioner to argue on the merits of his case. Accordingly, Mr. Dighe,

learned Counsel argued at full length on every point raising every

argument in support of the order dated 13-12-2022 passed by the

Honorable then Minister. On the last occasion, even time was also

sought by him to take further instructions from his client. Mr. Dighe,

besides demonstrating merits of his case, also countered the contents

of the reply affidavit filed by the other side. His argument is recorded

above categorically.

12 Writ Petition No.1358 of 2024.odt

I also called upon Mr. Hiwrekar and Mr. Khan for the

Respondent No. 5 and the State authorities also argued on all available

grounds. Their defenses are also recorded above.

In light of the real controversy noted by me, I frame the

core issues for adjudication as follows. These issues go to the root of

the rights and liabilities of the parties:-

(i)Whether the Will-Deed in question was and is enforceable

in law?

(ii)Whether the Partnership Deed in question can be used to

replace the name of original licensee by insertion of a

transferee’s name?

I record my observations and findings as follows:

5.1 Will deed is defined at Section 2(h) of the Indian Succession

Act 1925. It provides that a “Will” is a declaration of the intention of a

person with regards to his property, assets etc.

5.2 Two basic principles govern enforceability of a Will under

the Act of 1925 i.e. Firstly, the Will becomes operational and effective

only after the death of its scribe/author.

Secondly, until his/her death, the scribe/author of the Will

can create, cancel, revoke, improve any number of wills. The last Will

prevails over the earlier Will(s). Although a will deed is not a

compulsorily registrable document u/s 17 of the Indian Registration

13 Writ Petition No.1358 of 2024.odt

Act, proof of will and its contents are governed by the principles of Law

of Evidence.

5.3 In the case in hand, admittedly the Respondent No.5 is still

alive. Hence discussion on the rights and liabilities of parties on the

basis of such Will deed executed by Respondent No.5 would be

preposterous. As such, a right claimed by the Petitioner relying upon

the questioned Will is rejected at threshold. No right is accrued in favor

of the Petitioner on the basis of the Will, nor the Respondent No.5

incurred any liability or could be held to have waived/transferred any

right in favor of the petitioner vide the said Will.

5.4 So far as transfer of Subject-matter FPSL on the basis of

Partnership Deed is concerned, it is to be seen that the License under

the 1975 Order is a grant of permission to run a Fair Price Shop, which

is issued to a person or a body of persons subject to fulfillment of the

requisite qualification as laid down by the government policies.

5.5 Partnership is governed by the Indian Partnership Act

1932. Section 4 of the 1932 Act provides the definitions as follows:

“4. Definition of “partnership”, “partner”, “firm” and “firm name”.—“Partnership” is the

relation between persons who have agreed to share the profits of a business carried on by

all or any of them acting for all. Persons who have entered into partnership with one

another are called individually “partners” and collectively “a firm”, and the name under

which their business is carried on is called the “firm name”.”

14 Writ Petition No.1358 of 2024.odt

So also, a partnership deed is an understanding by the

‘partners’ of the ‘firm’ reduced into writing agreeing the terms and

conditions of the ‘Partnership’.

5.6 There does not seem to be any prohibition if a FPS Licensee

enters into partnership with anybody to run the shop/business. But the

partnership itself shall not prevail over the Government policy of

transferring the FPSL regulated by the 1975 Order and the Government

Resolutions. The FPSL remains in the name of the Licensee itself. The

State Government doesn’t identify and recognize the Partnership Firm

or the Partners over the FPSL.

5.7 l put a specific query to Mr. Khan, learned Assistant

Government Pleader as to whether if a Licensee of FPSL enters into a

trade relationship with others, whether the State Policy permits

transfer of the FPSL on the basis of such trade relationship i.e.

Partnership in this case. Mr. Khan, learned Assistant Government

Pleader clarified that FPSL can not be transferred in the name of the

trade association (Partnership in this case), nor names of the members

of the Trade association could be incorporated in the license.

5.8 The response advanced by Mr. Khan, learned Assistant

Government Pleader is absolutely logical. As observed supra, grant of

15 Writ Petition No.1358 of 2024.odt

FPSL is corresponding to the individual qualification and competency.

An individual means a single person as also an association/body of

persons recognized by Law. If the Partnership firm of Petitioner and the

Respondent No.5 could get an independent or fresh FPSL, it may be

granted by the State authorities subject to the terms of 1975 Order

and the Government Resolutions laying down terms of allotment.

5.9 However, ‘transfer of existing FPSL’ is altogether a

different thing. I have cautiously read the order dated 13-12-2022

passed by the Honorable then Minister. It is ordered that “name of the

present Petitioner be incorporated in the FPSL on the basis of the

Partnership with the present Respondent No.5, and later name of the

original licensee i.e. present Respondent No.5 be deleted”. This is what

the Petitioner wants to be restored by this Writ Petition, and this is

what the Law and the Government policy does not allow.

5.10 I do not comprehend with the argument of Mr. Dighe,

learned Counsel for the Petitioner that the order dated 13-12-2022 be

restored. Firstly, a FPSL can not be transferred in the name of a

Partnership Firm. Secondly, name of a Partner can not be recorded as a

joint licensee. And thirdly, name of original licensee can not be

annihilated from the license itself. The Honorable then Minister

explored this innovative way to transfer the FPSL in the name of the

16 Writ Petition No.1358 of 2024.odt

Petitioner taking exception to the Law and the Government policy. This

way of exercising the power to revise the orders passed by the

Authorities under the 1975 Order can not be approved. This is why,

the maxim “what you cannot do directly, you even can not do it

indirectly” needs to be applied in this case. That way, the order dated

13-12-2022 passed by the Honorable then Minister can not be restored,

otherwise it would be permitting perpetuity of illegality.

5.11 Thus, I find that despite the controversy raised by the

Petitioner on a number of grounds raised (supra), in no case the

Petitioner could achieve any benefit on the basis of the questioned

instruments i.e. the Will Deed and the Partnership Deed. I see that

although the presently impugned order dated 24-01-2024 is not

adequately worded with the craved reasons, yet the order dated 13-12-

2022 passed by the Honorable then Minister (Food,Civil Supply and

Consumer Protection), Government of Maharashtra can not be

sustained for the reasons recorded by me above.

6. In my view, the Writ Petition does not hold any merit for the

prayers made herein. In the light of the observations made above after

hearing the Petitioner at full length on each fact and objection, no

occasion remains for relegating the parties back before the Honorable

Minister. The petitioner may have his independent remedy for

17 Writ Petition No.1358 of 2024.odt

settlement of account against the Respondent No.5 in respect of his

alleged ‘partnership’, but fate of such claim would depend upon the

circumstances, the law and the evidence. But transfer of FPSL or any

claim of the Petitioner over the Subject-matter FPSL No. 74 can not be

even a subject matter in such claim.

7. In view of above discussion, I pass following order:

ORDER

I. The Writ Petition stands dismissed.

II. Rule stands discharged.

III. No costs.

[AJIT B. KADETHANKAR , J.]

………..

KBP