Facts: The husband of Respondent No. 5 was the original licensee of Fair Price Shop License (FPSL) No. 74. Following his demise, the license was transferred to Respondent No. 5 as per government policy. The Petitioner, who worked as a caretaker for Respondent No. 5, claimed that she executed a registered Will-Deed in 2021 and a Partnership Deed in 2022 to transfer the FPSL to him. Based on these documents, an application for transfer was initially rejected by the District Supply Officer and the Deputy Commissioner (Supply) as government policy did not recognize such transfers. However, on further revision, the then Minister for Food and Civil Supplies ordered the Petitioner's name to be added as a partner and subsequently directed the deletion of Respondent No. 5's name, effectively transferring the license. Respondent No. 5 later disputed the documents and sought a review. A subsequent Minister recalled the earlier transfer order and restored the license to Respondent No. 5.
Procedural Posture: The Petitioner filed this Writ Petition before the High Court of Bombay at Aurangabad, challenging the order dated January 29, 2024, passed by the Minister for Food, Civil Supplies and Consumer Protection, which recalled the previous transfer of the FPSL and restored it to Respondent No. 5.
Issue: (i) Whether a Will-Deed is enforceable in law while the testator is still alive. (ii) Whether a Partnership Deed can be used as a legal mechanism to transfer a Fair Price Shop License or replace the name of the original licensee with a transferee.
Holding: No to both. The court held that a Will has no legal effect during the lifetime of the testator and that a Partnership Deed cannot override government policy prohibiting the transfer of an FPSL to a third party.
Reasoning: The Court reasoned that under Section 2(h) of the Indian Succession Act, 1925, a Will only becomes operational upon the death of the testator; since Respondent No. 5 is alive, the Petitioner's claim is "preposterous". Regarding the partnership, the Court noted that while a licensee may enter a partnership to run a business, the State Government does not recognize the firm or partners as the licensee. The FPSL is granted based on individual qualification and competency. The earlier Minister’s attempt to transfer the license via a partnership-then-deletion method was an "innovative way" to bypass the law. Applying the maxim "Quando aliquid prohibetur ex directo, prohibetur et per obliquum" (What cannot be done directly, cannot be permitted to be done indirectly), the Court ruled that such a transfer was a "perpetuity of illegality" and violated established government policy.