IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.28680/2017 (EXCISE) BETWEEN :
SRI NARAYANASWAMY S/O LATE B.RANGAPPA AGED ABOUT 60 YEARS R/AT KATHARIPALYA KOLAR TALUK & DISTRICT-563103 PROPRIETOR OF M/s ASHOKA WINES, NARASAPURA KOLAR TALUK & DISTRICT ...PETITIONER (BY SRI DILLI RAJAN N., ADV. FOR SRI SUBBA REDDY K.N., ADV.) AND :
1. STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF EXCISE VIDHANA SOUDHA BENGALURU-560001 2. THE EXCISE COMMISSIONER OFFICE OF THE EXCISE COMMISSIONER SHANTHINAGAR, BENGALURU-560027 3. THE DEPUTY EXCISE COMMISSIONER KOLAR, KOLAR DISTRICT-563103 4. THE EXCISE ASSISTANT COMMISSIONER KOLAR, KOLAR DISTRICT-563103 5. D.C.JAGADISH S/O D.L.CHANDRASHEKAR AGED ABOUT 45 YEARS PROPRIETOR OF CHIRAG WINES, R/AT DHARMARAYA TEMPLE STREET, KATHARIPALYA, KOLAR TALUK & DISTRICT-563103 (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 01.07.2017) …RESPONDENTS (BY SMT.JYOTHI M., AGA FOR R-1 TO R-4; SRI MOHAN BHAT, ADV. FOR R-5.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 27.06.2017 PASSED BY THE R-3 VIDE ANNEXURE-A1.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON 20.03.2019, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, S.SUJATHA J., PASSED THE FOLLOWING:
O R D E R The petitioner has challenged the order dated 27.6.2017 passed by the respondent No.3 inter alia seeking a direction to the respondent No.4 not to proceed with the shifting process of the shop in question of the respondent No.5.
2. The petitioner is claiming to be the proprietor of M/s Ashok Wines at Narasapura village, Kolar Taluk and District. The petitioner has obtained a retail outlet licence in Form No.CL-2 for retail vending of Indian liquor other than arrack or foreign liquor or both. The said licence was issued on 14.6.1996 and it is renewed from time to time. It is the grievance of the petitioner that on the request made by the respondent No.5 to shift the shop relating to the retailed outlet business of CL-2 licence from Chakarasanahalli village to Narasapura village, the official respondents proceeded to accord the permission despite the representation dated 27.6.2017 submitted by him seeking for rejection of the same and the said representation has remained unconsidered. Hence, this writ petition.
3. Learned counsel for the petitioner submitted that the shifting of CL-2 licence business of respondent No.5 is contrary to Rules 5 and 23 of the Karnataka Excise Licences (General Conditions) Rules 1967 (‘Rules 1967’ for short) as well as Rule 8 of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 (‘Rules 1968’ for short). The shifting of Chirag Wines located at Chakarasanahalli village Gram Panchyat to Narasapur Village Panchayat is against the Government order dated 27.06.2017 whereby power has been conferred upon the Deputy Commissioner of Excise for shifting of licnece within the purview of the same Gram Panchayat granting exemption to the provisions contemplated under proviso 2 to Rule 23 of the Rules, 1967.
4. The learned counsel Sri.Dilli Rajan appearing for the petitioner placed reliance on the judgment of the Hon'ble Apex Court in the case of The State of Tamilnadu Vs. K. Balu & another in Civil Appeal Nos.12164-12166/2016 as well as the order of this Court in W.P.No.47357/2017 and allied matters.
5. The learned counsel Sri.Mohan Bhat appearing for the contesting respondent No.5 submitted that the petitioner has no locus to challenge the shifting of location of the CL-2 licence business of the respondent No.5. Rival competitor has no locus to challenge any shifting order. No monopoly can be claimed by the petitioner more particularly, no fundamental right being vested with the citizens to carry on the business in liquor. Nextly, it was contended that the shifting of CL-2 licnece relating to respondent No.5 is in conformity with the Rules 5 and 23 of the Rules 1967. It was further argued that the Government Order dated 27.6.2017 indeed supports the case of the respondent No.5.
6. The application for shifting of CL-2 licence was filed since the licence premises was located within the distance of 71 meters from National Highway-75 and as per the order of the Hon'ble Apex Court, no liquor shop could be allowed to function within a distance of 220 meters from the State National Highway with effect from 1.7.2017 and a notice in this behalf has also been issued to respondent No.5. Considering these aspects and the suitability of the place to be shifted, the orders were passed by the respondent No.3. Accordingly, he seeks for dismissal of the writ petition.
7. Learned counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & others reported in AIR 1976(SC) 578.
8. Learned AGA justifying the impugned order submits that Rule 23 of Rules 1967 contemplates for shifting of the CL-2 licence from one Gram Panchyat to another Gram Panchayat. The Government order dated 27.06.2017 clarifies the shifting of liquor shops from National Highway/State Highway to any place in the district.
9. Heard the learned counsel for the respective parties and perused the material on record.
10. As regards the locus of the petitioner to challenge the order impugned inasmuch as permitting the respondent No.5 to shift the location of shop to Narasapura village where the petitioner is running his CL-2 licence business, it is apt to refer to the ratio laid down by the Hon'ble Apex Court in the case of the The Nagar Rice and Flour Mills and others Vs. N.Teekappa Gowda and Bros. and others reported in AIR 1971 SC 246 in the context of a competitor in the business sought to prevent change of location of another Rice Mill, it is held that a competitor in business cannot seek to prevent the owner of the Rice Mill from exercising their right to carry on business. A business rival has no locus to question the grant of licence to the other shops in the area where the petitioners are running the shops. The Hon'ble Apex Court in the case of Jasbhai Motibhai supra, has observed that the result of exercise of the discretionary powers in the case of cinema business where the challenge was made by the competitor to the order of the District Magistrate granting no objection certificate, will, on balance, be against public policy, it will eliminate healthy competition in the business which is so essential to raise commercial morality; it will tend to perpetuate monopoly of cinema business in the town and further observed that the case therein falls well-nigh within the ratio of the Hon'ble Apex Court’s decision in Nagar Rice and Flour Mills supra. It is reiterated that the competitor of the business has no locus to invoke the special jurisdiction under Article 226 of the Constitution. The stand of the petitioner suggests that shifting of the location of the shop by respondent No.5 would adversely affect his monopolistic commercial interest which would result in pecuniary loss of business from competition. Thus, it is clear that no monopoly of liquor business can be claimed by the petitioner against public policy.
11. Rule 23 of the Rules 1967 deals with shifting of shops which reads thus:
“23. Shifting of shops – Subject to the restrictions specified in Rule 5, the Deputy Commissioner may permit a licensee to shift the location of his shop from one place to another within the limits of a Grama Panchayat or within the Municipal Area or City Municipal Corporation on payment of a fee equivalent to fifty percent of the licence fee charged on the licence in respect of such shops.”
Clause (c) of second proviso of said Rule reads thus: “Provided further that subject to Rule 5, in case of CL-2 licences, the Deputy Commissioner may permit a licensee to shift the location of his shop.
(a)….
(b)….
(c) within category (e) area of item 2 of sub-rule(1) of Rule 8 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 within the District.
Category (e) of item 2 of Rule 8 of Rules 1968 relates to other areas.
12. With different Village Panchayats coming within the District, Deputy Commissioner is empowered to permit the licencee to shift the location of the shop from one Gram Panchayat to any other Gram Panchayat. Government order dated 27.6.2017 is in consonance with the said Rule 23 of Rules 1967. The interpretation of the learned counsel for the petitioner relating to clause (3) of the Government order dated 27.6.2017 that the proviso to Rule 23 of Rules 1967 could not be invoked for shifting of shops, is wholly misconceived. The said clause provides that the Deputy Commissioner is empowered to shift the location of shops even without strictly adhering to the restrictions provided in the provisos. Indeed it widens the powers of the Deputy Commissioner to permit a licencee to shift the location of his shop irrespective of the restrictions imposed under the proviso. Rule 5 of Rules 1967 contemplates the restriction in respect of location of shops. In terms of the said Rule, no licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 220 meters from the middle of the State Highways or National Highways. It is following the due procedure contemplated under the Rules, the permission for shifting the CL-2 licence of the respondent No.5 from Chakarasanahalli Village, Kolar Taluk to Narasapura Village, Kolar Taluk is granted. There is no inhibition to accord permission for shifting the location of the shop from one village panchayat area to another village panchayat area coming under the same district. In view of the aforesaid, it is clear that the order of shifting of the location of shop of the respondent No.5 impugned herein cannot be held to be unjustifiable.
13. It is only pursuant to the order passed by the Hon'ble Apex Court the petitioner has sought for shifting of the location of his shop situated on the National Highway. The judgments referred to by the learned counsel for the petitioner are rendered in a different context, hence would not come to the assistance of the petitioner in challenging the order impugned herein.
No good ground found to interfere with the order impugned.
For the aforegoing reasons, writ petition stands dismissed.
Dvr:
Sd/- JUDGE