JUDGMENT :

ABHAY DHANAPAL CHOUGALA, J.

1. This appeal is preferred under Section 61(3) of the Karnataka Excise Act, 1965 (in short "the Act") challenging the order of the 1st respondent, dated 15-11-2018, passed in Appeal No. ECS/14/APP/2018 (in short "the impugned order"), under which he has dismissed the appeal of the appellant herein, filed under Section 61(2) of the Act, challenging the order of the 2nd respondent herein, dated 14-12-2017 passed in No. EXE/BLY-1/CL-9/03/2017-18, directing the appellant-firm herein, to shift its CL-9 to non-objectionable place.

2. In brief, the case of the appellant-firm may be stated as under:

The appellant-firm is CL-9 licensee, doing its business of bar and restaurant at Sirivara Village, Ballary Taluk. The said bar and restaurant is situated in the same place for past more than 10 years. The CL-9 of the appellant-firm was duly renewed for the excise years 2017-18 and 2018-19. The 2nd respondent without proper enquiry and without application of judicial mind, acting under Rule 5 of the Karnataka Excise (General Conditions of Licences) Rules, 1967 (in short "the Rules"), passed the order dated 14-12-2017, directing the appellant-firm to shift its business premises to some non-objectionable place, on the pretext that the same is situated within 42 mtrs. from the SC/ST colony and 19 mtrs. from a church. But, in fact the business premises of the appellant-firm is not within the SC/ST colony and even the distance of religious institution cannot be applied in view of the Government Notification No. FD 11 PES 2015, Bengaluru, dated 19-5-2017. Being aggrieved by the same, the appellant-firm preferred an appeal under Section 61(2) of the Act, before the 1st: respondent, who also without application of judicial mind dismissed the appeal. With other several contentions the appellant prays for setting aside the order passed by the respondents 1 and 2.

3. The learned Assistant State Representative (ASR) appeared for the respondents. The records of the authorities below have been secured.

4. We have heard both the sides. The learned Counsel for the appellant placed reliance on the decision of the Hon'ble High Court of Karnataka passed in W.P. Nos. 39539-59542/2010, dated 18-4-2011; W.P. Nos. 31923-927/2018, dated 27-9-2018; W.A. Nos. 2909/2018; 2910-2913/2018, dated 29-10-2018 and decision in H.M. Krishna Reddy vs. H.C. Narayana Reddy, AIR 2001 Kant. 442 : ILR 2001 Kar. 3940. We have carefully perused the material available on record and therefore, the following points arise for our consideration:

(1) Whether the 1st respondent is justified in confirming the order of the 2nd respondent dated 14-12-2017, directing the appellant-firm to shift its business premises to some non-objectionable place, as per Rule 5 of the Rules?

(2) What order?

5. Our findings to the above raised points are as under:

Point No. 1: In the negative.

Point No. 2: As per final order, for the following:

REASONS

6. Point No. 1: It is not in dispute that the appellant-firm is possessing licence (CL-9) to run its bar and restaurant business in the premises bearing No. 1686, situated at Sirivara Village of Ballary Taluk, which was renewed for the exercise year 2017-18. It appears that on 20-9-2017, the 2nd respondent herein, received a complaint from Karnataka Rakshana Sene of Ballary Division, as against the appellant-firm. In the said objections, it was alleged that the licenced premises of the appellant-firm is situated in an "objectionable place" i.e., just near the colony where predominantly inhabitants of Schedule Caste and Labours are residing and requested for shifting of the same to some non-objectionable place. It appears that based on the said complaint, the 2nd respondent herein, conducted enquiry by giving an opportunity of being heard to the appellant-firm and was convinced that te licensed premises of the appellant-firm is situated in an objectionable place within the meaning of Rule 5(1) of the Rules and therefore, passed an order