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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
PRASANNA B.VARALE, M.G.S. KAMAL, JJ.
Smt. Savitha K.R., W/o. Late Mahadev – Appellant
Versus
The State Of Karnataka, By Its Additional Chief Secretary, Finance Department and Ors. – Respondents
Writ Appeal No.1318 Of 2022 (Excise) C/W Writ Appeal No.26 Of 2023 (Excise)
Decided On : 27-09-2023
The court examined the provisions of the Karnataka Excise Act, 1965 and the Karnataka Excise Licences (General Conditions) Rules, 1997. It found that there were no provisions in these statutes that justified an inquiry by the Department of Excise into the disputed questions of fact in the case. The court also referred to Sections 30, 35, and 55 of the Karnataka Excise Act, 1965, which deal with the power to withdraw a license, penalties for offenses, and the power of Excise Officers in matters of investigation, respectively. However, these provisions did not provide a basis for the inquiry directed by the learned Single Judge. The court concluded that the directions for the inquiry were without jurisdiction.
Fact of the Case:
The writ petitioners sought relief in the form of a writ of certiorari to quash the transfer of an excise license. They claimed that the transfer was a result of fraud as it was done after the death of the original licensee. The learned Single Judge allowed the writ petition in part and directed an inquiry by the Department of Excise based on a police report. The Commissioner of Excise was instructed to conduct the inquiry and take further action accordingly. The court also ordered that no prejudicial action should be taken until the inquiry was completed. The writ appeals were filed against this order.
Finding of the Court:
The court considered the disputed questions of fact regarding the identity of the original licensee and the alleged fraud. It held that such disputed questions cannot be resolved in a petition under Article 226 of the Constitution of India. The court also examined the legality of the directions for inquiry by the Department of Excise and found that there were no provisions in the Excise Act or Rules justifying such an inquiry. Therefore, the directions were held to be without jurisdiction. The court further addressed the issue of delay in filing the writ petition and held that the fraud alleged by the petitioners vitiates the transfer of the license and can be invoked at any time. Thus, the delay in approaching the court was not a bar to the petitioners' claim.
Ratio Decidendi: The court held that disputed questions of fact cannot be resolved in a petition under Article 226 of the Constitution of India. It also held that there were no provisions in the Excise Act or Rules justifying an inquiry by the Department of Excise. The court further held that the fraud alleged by the petitioners vitiates the transfer of the license and can be invoked at any time, regardless of delay. Therefore, the delay in approaching the court was not a bar to the petitioners' claim.
Result: The writ appeals were allowed, and the order of the learned Single Judge was set aside. Any consequent orders passed by the excise authorities pursuant to the directions in the writ petition were deemed to have no effect and cannot be enforced.
JUDGMENT :
These writ appeals are filed against the order dated 07.09.2022 passed in W.P.No.50353/2019 (Excise) by which learned Single Judge while allowing the said writ petition in part had issued following directions;
(ii) the Commissioner of Excise shall conduct such inquiry based upon the aforesaid report and take all further action as a consequence thereof.
(iii) on conclusion of inquiry, the Commissioner of Excise shall pass such orders, in accordance with law. In the event, the first petitioner would be entitled to the benefit of any order as an outcome of the enquiry, the same shall be passed without any loss of time, failing which, status quo as on date, shall continue.
(iv) The said enquiry shall be completed within six months, if not earlier, from the date of receipt of a copy of this order. Till such time, no prejudicial action shall be taken against any protogonists in the lis".
2. The aforesaid writ petition is filed by the petitioners (who are arrayed as respondent Nos. 6 to 9 in W.A.No.1318/2022 and respondent Nos. 1 to 4 in W.A.No.26/2023) seeking relief in the nature of a writ of certiorari quashing the order dated 30.06.1997 (Annexure-E) made by the Deputy Commissioner of Excise, Bengaluru Urban District-respondent No.4 in the writ petition and for a writ of mandamus directing Deputy Commissioner, Bengaluru Urban District-respondent No.3 and respondent No.4 to transfer the licence in Form CL-2 that was standing in the name of one late Jayshankar.
3. It is the contention of the writ petitioners that deceased Jayshankar, who was their husband and father respectively was holding licence in Form CL-2 and that he had apparently executed a power of attorney in favour of one K.Shivarame Gowda to lookafter the business. That the said Jayshankar stated to have passed away on 09.02.1997 leaving behind the petitioners as his legal heirs. That on 30.06.1997 just a day before commencement of excise year 1997-98 respondent No.4 in excise of powers under Rule 17B of the Karnataka Excise Licences (General Conditions) Rules, 1997 (for short 'Rules, 1997') transferred the said licence in favour of Smt.K.R.Savitha the respondent No.5 in the writ petition. That subsequently by another order dated 23.09.2007 the said licence was transferred in favour of one Sri.K.Manjunath, respondent No.6 in the writ petition.
4. That the petitioner No.1 not being worldly-wise and petitioners Nos.2 to 4 being minors and school going children did not have any knowledge of the liquor business being run by deceased Jayashankar. However, on learning about the same based on the documents available at home, the petitioners became alert the made representation to the respondent -authorities seeking restoration of licence in their name and also issued notice on 06.03.2019. Though, in response thereof a show cause notice dated 14.06.2019 was issued by respondent No.4 there is no further progress in the matter. That the transfer of licence was a result of fraud as the same was effected subsequent to the death of Jayashankar. Since there was no action on the part of respondent-authorities, petitioners were constrained to approach this Court.
5. On behalf of the respondents it was contended that the petition was liable to be dismissed solely on the ground of delay and laches, inasmuch as the petition has been preferred after lapse of 22 years from the date of alleged cause of action. The claim of the petitioners that they were the legal representatives of deceased Jayashankar and that on the date of his death is also denied and disputed. It was contended that the documents produced and relied upon by the petitioners with regard to the identify of deceased Jayashankar suffered from gross discrepancies and that such disputed fact could not be gone into in a pe
The rule of alternative remedy limits the court's writ jurisdiction, which should not be exercised when statutory remedies are available, particularly in administrative licensing matters.
The cancellation of a license under the Odisha Excise Act, 2008 without providing reasonable notice or opportunity to be heard violates the principles of natural justice, rendering the order invalid.
Procedural lapses in the constitution of inspection teams under the Himachal Pradesh Excise Act invalidate administrative actions, emphasizing the necessity for adherence to established legal framewo....
The main legal point established is that the disputed factual questions should be adjudicated by the competent authority, and the grant of license in excise matter is not a fundamental right.
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