IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.53671/2018 (EXCISE) BETWEEN:
B.K.VANAJA W/O C.R.PANDURANGE GOWDA, AGED ABOUT 59 YEARS, R/O CL-2 LICENSEE, NO.26/1, 2ND MAIN ROAD, 9TH CROSS, SARASWATHIPURAM, MYSURU-570 009 ... PETITIONER [BY SRI G.K.BHAT, ADV.] AND:
1. THE STATE OF KARNATAKA BY ITS ADDITIONAL CHIEF SECRERARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BENGALURU-560001 2. THE EXCISE COMMISSIONER IN KARNATAKA 2ND FLOOR, TTMC, A BLOCK, BMTC BUILDING, SHANTINAGAR, BANGALORE-560027 3. THE DEPUTY COMMISSIONER MYSURU DISTRICT, MYSURU-570009.
4. THE DEPUTY COMMISSIONER OF EXCISE MYSURU DISTRICT, MYSURU-570009.
5. KAMALAVALLI V., W/O VENKATESHAN, AGED ABOUT 82 YEARS, HOUSE WIFE, No.988, PANCHAMANTRA ROAD, KUVEMPUNAGAR, MYSORE-570023.
6. S.JANARDHANA, S/O LATE SRINIVASAIAH S., AGED ABOUT 54 YEARS, OCC. CONSULTENCY, R/O No.967, ‘SADHANA’, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
7. KAISER JAHAN BEGUM, D/O LATE ABDUS SUBHAN, AGED ABOUT 61 YEARS, OCC: PROFESSOR, No.953, 2ND CROSS, E AND F BLOCK, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
8. VENKATA KRISHNA SHETTY, S/O NAMA RADHA KRISHNA SETTY, AGED ABOUT 78 YEARS, RETIRED OFFICIAL, No.991, AGNIHAMSA ROAD, E AND F BLOCK, KUVEMPUNAGAR, MYSORE-570023.
9. E.LATHA, D/O H.S.ESHWAR, AGED ABOUT 49 YEARS, HOUSE WIFE, No.968, 1ST CROSS, AGNIHAMSA ROAD, E AND F BLOCK, KUVEMPUNAGAR, MYSORE-570023.
10. OMKARAPPA P., S/O PUTTAIAH GOWDA, AGED ABOUT 44 YEARS, OCC: SELF EMPLOYEE, R/O No.967, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
11. SOHAN PUROHIT, S/O BHIKAJI, AGED ABOUT 51 YEARS, OCC: BUSINESS, R/O 993, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
12. NAGARAJ RAO R.T., S/O R.S.THUKARAM RAO, AGED ABOUT 57 YEARS, OCC: BUSINESS, R/O No.906, 3RD CROSS, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
13. Dr. PRADHAN GURUDUTT, S/O P.THIMMAPPAIAH, AGED ABOUT 80 YEARS, RETD. PROFESSOR, R/O No.734, E AND F BLOCK, AGNIHAMSA ROAD, KUVEMPUNAGAR, MYSORE-570023.
14. Dr. S.L.BYRAPPA, S/O LATE LINGAIAH, AGED ABOUT 88 YEARS, RETD. PROFESSOR, R/O No.1007, UDHAYARAVI ROAD, KUVEMPUNAGAR, MYSORE-570023.
(CAUSE TITLE AMENDED VIDE COURT ORDER DATED 16.01.2019) …RESPONDENTS [BY SRI MOHAN BHAT, ADV. FOR R-5 TO R-14.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEX-D IMPUGNED ENDORSEMENT DATED 27.11.2018 ISSUED BY R-4 AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has assailed the endorsement dated 27.11.2018 issued by the respondent No.4, inter alia, seeking a direction to the respondent No.4 to permit the petitioner to shift the location of the CL-2 licensed retail liquor business from the present place at No.26/1, 2nd Main, 9th Cross, Saraswathipuram, Mysuru to the proposed premises in No.989, Panchatantra Road, Kuvempunagar, Mysuru.
2. The petitioner is claiming to be a transferee of CL-2 license from the transferor licensee Sri. V. Srinivas. It transpires that, said business was carried by the licensee at MIG 6, 2nd Stage, Bannimantapa, Mysuru and the petitioner sought for permission of the respondent No.4 to shift the same to the present location at No.989, Panchatantra road, Kuvempunagar, Mysuru. The respondent No.4 issued an endorsement rejecting the same. Hence, this writ petition.
3. Learned counsel Sri. G.K. Bhat appearing for the petitioner would submit that respondent No.4 has no authority to turn down the request of the petitioner for shifting the location of the business, the same being governed by Rule 5 of the Karnataka Excise Licences (General Conditions) Rules, 1967 (‘Rules’ for short). Indisputably, the reasons assigned by the respondent No.4 for rejecting the application would not come within the realm of Rule 5 of the Rules. To substantiate his arguments, the learned counsel placed reliance on the judgment of the Division Bench of this Court in the case of Vinobanagar Nagarika Hitha Rakshana Samithi and others vs. The State of Karnataka and others in W.A.No.2909/2018 and allied matters disposed of on 29.10.2018, whereby this Court has observed that the permission for a liquor outlet should only be refused for the reasons stipulated under Rule 5 of the Excise Rules, and such permission cannot be refused for any reason that is outside the contemplation thereof. Further reliance is placed on the order passed by this Court in the case of S. Nagabhusan vs. The State of Karnataka and others in W.P.No.38298/1995 disposed of on 14.11.1995.
4. Learned counsel further argued that the proceedings, referred to, by the respondent No.4 relating to the location of the business pertaining to the licensee Sri V. Srinivas has not reached finality and the same being withdrawn by this licensee in the appeal proceedings, has no bearing to the application now filed by the transferee-licensee (petitioner herein). Nextly, it was argued that the provisions of Rule 5(2-A) of the Rules would be invoked only in the circumstances where convenience, morality, tranquility, decency and safety of the public is affected. No such situation being arisen in the present case, respondent No.4 rejecting the application of the petitioner licensee invoking the Rule 5(2-A) of the Rules is unjustifiable.
5. The objectors in the original proceedings relating to shifting of the business of the licensee Sri V. Srinivas are impleaded in the present proceedings as respondent No.s.5 to 14. Statement of objections are filed by the said respondents refuting the claim made by the petitioner relating to the shifting of the location of the business.
6. I have heard the learned counsel appearing for the parties and perused the material on record.
7. At the outset, the petitioner has rushed to the Court invoking writ jurisdiction without availing alternative and efficacious remedy of statutory appeal available under the Karnataka Excise Act, 1965 (‘Act’ for short).
8. Rule 5 of the Rules deals with the restriction in respect of the location of shops and the same reads thus:-
“5. Restriction in respect of location of shops.- (1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 metres from any religious or educational institution or Hospital or any Office of the State Government or Central Government or Local Authorities or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 metres from the middle of the State Highways or National Highways.
Provided that where a shop is sanctioned to a village the population of which is less than two thousand five hundred, such shop shall be located outside the residential locality of the village.”
9. Rule 5(2-A) of the Rules contemplates that notwithstanding anything, contained in sub-rules (1) and (2) the Deputy Commissioner of Excise may with a view to secure, convenience, morality, tranquility, decency or safety of the public or for any other reason, reject the application for licence to a liquor shop or premises after recording the reasons therefor.
10. It is evident that the Deputy Commissioner has referred to the said Rule 5(2-A) while rejecting the request of the petitioner for shifting the location of the business. The contention of the petitioner that the said rule can be invoked only after the law and order problem, if any arise, is wholly misconceived. As the provision contemplates, it is with a view to secure the safety of the public or for any other reason, the said rule has to be invoked. It is as a preventive measure to maintain the law and order in the interest of public at large. It is not in dispute that respondent Nos.5 to 14 and others have earlier objected to shifting of the business to the present location. The original licensee Sri. V. Srinivas moved an application and the same was rejected, against which an appeal was preferred by the original licensee and the same was withdrawn. In such circumstances, the objection being to the location of the premises to carry on the business, it cannot be held that the decision taken earlier by the authorities concerned has no bearing to the present fact situation.
11. In these circumstances, the judgments referred to by the learned counsel for the petitioner are not applicable for the reason that, their lordships, while considering the provisions of Rule 5 of the Rules, have given a finding and in the present case, rule 5(2-A) is under consideration. Hence, the arguments advanced by the learned counsel for the petitioner requires to be negated. Moreover, the question involved herein is a mixed question of law and facts and the same cannot be entertained or adjudicated under writ jurisdiction.
12. For the aforegoing reasons, writ petition stands dismissed with liberty to the petitioner to resort to appropriate proceedings in accordance with law, if so advised. If such an appeal is filed within a period of two weeks from today, the Appellate Authority shall consider the same without objecting to the period of limitation subject to the petitioner complying with the other requirements provided under law.
Sd/- JUDGE PMR