IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.31069/2019 (EXCISE) BETWEEN:
V.KUMARASWAMY S/O VENKATARAJU AGED 45 YEARS FORMER EXCISE CONTRACTOR No.43, FIRST STAGE 2ND CROSS ROAD, OKALIPURAM BANGALORE-560021. …PETITIONER (BY SRI ABDULLA.T.I., ADV.) AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF FINANCE AND EXCISE VIDHANA SOUDHA, Dr. AMBEDKAR VEEDHI BANGALORE-560001.
2. THE COMMISSIONER OF EXCISE GOVERNMENT OF KARNATAKA SECOND FLOOR, TTMC BUILDING A BLOCK, BMTC BUS-STAND K.H. ROAD, SHANTHINAGAR BANGALORE-560027.
3. THE DEPUTY COMMISSIONER FOR EXCISE TUMKUR DISTRICT TUMKUR-572101. …RESPONDENTS (BY SMT.NILOUFER AKBAR , AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ORDER DATED 10.05.2018 AT ANNEXURE-N PASSED BY THE RESPONDENT No.3; AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the parties.
2. The petitioner has sought for the following reliefs:
“A] Issue an order / writ of Certiorari or any other writ quashing order bearing No.EXS/31/2001-2002 dated 10.05.2018, Annexure-H passed by the third respondent;
B] Issue a writ in the nature of writ of mandamus or any other writ directing the respondents to adjust the entire forfeited E.M.D amount paid by the petitioner towards the arrears of Excise dues/Revenue as has been directed by this Hon’ble Court in W.P.No.11852/2011 and other connected matters dated 04.02.2013;
C] Issue such other order/orders as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity.”
3. The petitioner is an excise contractor having participated in the excise auction with the highest bid for Rs.90,00,000/- per annum in respect of Tumkur district during March 2001. It is contended that as per the records of the Excise Department, the petitioner is allegedly due in a sum of Rs.1,32,63,616/- [Rupees One Crore Thirty Two Lakhs Sixty Three Thousand Six Hundred Sixteen Only] to the State Government towards excise arrears. As per the Karasamadhan Scheme introduced by the State Government, the petitioner is entitled for waiver of interest if the entire principal amount is paid as per Rule 15A of the Karnataka Excise [General Conditions of Licenses] Rules, 1967 [‘Rules’ for short].
4. The Government having introduced Karasamadhana Scheme, the application was filed by the petitioner to avail the benefit of the said Karasamadhana Scheme-IV. The petitioner had filed W.P.No.11852/2011 and connected matters before this Court which came to be disposed of with certain directions. It was declared that the respondents shall give deductions to the forfeited earnest money deposit paid by the petitioners while recovering the losses from the petitioners on account of termination of contract. In view of the said order, the petitioner has claimed to adjust the forfeited earnest money deposit towards recovery of losses on account of termination of contract while considering the application filed under the Karasamadhan Scheme. However, rejecting the same, the respondent No.3 has issued an endorsement impugned herein. Hence, this writ petition.
5. Learned counsel Sri.Abdulla.T.I., appearing for the petitioner reiterating the grounds urged in the writ petition submitted that, the endorsement issued by the respondent No.3 is without jurisdiction. In terms of the Government order dated 08.06.2016, issued by the Government of Karnataka, while considering the applications seeking waiver of interest payable under Rule 15 of the Rules, 1967, the applications filed by the respective applicants shall be thoroughly scrutinized by the Deputy Commissioner of the District with regard to the correctness of the facts mentioned in the application and if the particulars are found correct the Deputy Commissioner of the District shall send proposal with his recommendations to the Excise Commissioner in Karnataka, expeditiously. The Excise Commissioner will further scrutinize the claims and issue necessary orders. The respondent No.3 has issued the endorsement impugned herein in contravention of the said Government Order without jurisdiction.
6. Learned counsel would submit that the order of this Court passed in W.P.Nos.11852-855/2011 and allied matters [D.D. 04.02.2013] has been misinterpreted by the respondent No.3. Further, the learned counsel invited the attention of the Court to the notification dated 25.09.2017 issued by the Government of Karnataka, amending Rule 18 of the Karnataka Excise (Lease of the Right of Retail Vend of Liquors), Rules 1969 by inserting the proviso. Placing reliance on this proviso, it is submitted that the earnest money deposit forfeited has to be adjusted towards the losses sustained by the State Government and the same has to be considered while taking a decision on the application filed under Karasamadhana Scheme-IV.
7. Learned Additional Government Advocate would submit that the order impugned at Annexure-H is appealable and no writ petition is maintainable. The petitioner has rushed to this Court without exhausting the alternative and efficacious remedy of statutory appeal available under the Act. Hence, on this ground alone, the writ petition deserves to be rejected. Learned Additional Government Advocate made an endeavor to justify the order impugned at Annexure-H.
8. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
9. It is well settled that the alternative remedy of appeal is no bar to entertain the writ petition under Articles 226 and 227 of the Constitution of India if the order impugned (i) is passed without jurisdiction (ii) hit by the principles of natural justice (iii) in breach of fundamental right or (iv) ex-facie erroneous. It is ex- facie apparent that the endorsement dated 10.05.2018 impugned suffers from the aforesaid aspects. In terms of the Government order dated 08.06.2016, the Excise Commissioner is the competent authority to further scrutinize the claims and issue necessary orders relating to the applications seeking waiver of interest payable under Rule 15 of the Rules, 1967 on the proposal with the recommendations made by the Deputy Commissioner of the District.
10. The order of this Court dated 04.02.2013 in W.P.Nos.11852-855/2011 and allied matters is clear inasmuch as the adjustment of the earnest money deposit forfeited by the Government. It is categorically declared that the respondents shall give deductions to the forfeited earnest money deposit paid by the petitioners while recovering the losses from the petitioners on account of termination of contract. It is further supported by the amendment of Rule 18 of the Rules, 1969.
11. In view of the aforesaid, the endorsement impugned at Annexure-H dated 10.05.2018 cannot be approved accordingly stands quashed. The matter is restored to the file of the Excise Commissioner – respondent No.2 to consider the claim of the petitioner and take a decision in accordance with law in an expedite manner in any event not later than four weeks from the date of receipt of certified copy of the order.
Writ petition stands disposed of accordingly.
Sd/- JUDGE NC.