Partly allowed

Sri. Shankar a Kunder v. the Commissioner of Excise

Karnataka HC17 Nov 2023WP/7126/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the writ petition in part against an order directing the petitioner to shift a liquor license premises. The order was quashed due to lack of hearing and restored to the second respondent for reconsideration on principles of natural justice and statutory compliance.

What did the court decide?

Impugned order directing to shift was quashed, restored for reconsideration with fresh notice, observing statutory requirements and natural justice.

Sri. Shankar a Kunder Vs the Commissioner of Excise — Service and Employment | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:41174 WP No. 7126 of 2023

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 17^TH DAY OF NOVEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE B M SHYAM PRASAD

¶6

WRIT PETITION NO. 7126 OF 2023 (EXCISE)

¶7

BETWEEN:

¶8

SRI. SHANKAR A KUNDER S/O AYHTAPPA SALIYAN, AGED ABOUT 60 YEARS, CHAKRAVARTHI BAR AND RESTAURANT, BALEKUDURU GRAMA, DOOR NO.3-13, AIRODY VILLAGE AND POST-576226 BHRAMAVARA TALUK, UDUPI DISTRICT.

¶9

…PETITIONER

¶10

(BY SRI. CHANDRANATH ARIGA K.,ADVOCATE)

¶11

AND:

¶12

Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

¶13

THE COMMISSIONER OF EXCISE THE STATE OF KARNATAKA, 2^ND FLOOR, TTMC A BLOCK, BMTC, K H ROAD, SHANTHINAGAR, BENGALURU-560027.

¶14

THE DEPUTY COMMISSIONER EXCISE, UDUPI DISTRICT, UDUPI-576101.

¶15

…RESPONDENTS

¶16

(BY SRI SHAMANTH NAIK, HCGP)

¶17

¶18

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶19

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER NO.UPD-2/IML-CL-9/54/2022-23 DATED 13.02.2023 ISSUED BY THE R-2 (ANNX-C); DIRECT THE RESPONDENTS TO AFFORD AN OPPORTUNITY TO THE PETITIONER BEFORE PASSING AN ORDER TO SHIFT.

¶20

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

¶21

ORDER

¶22

The petitioner, who is operating CL-9 license in premises No.9379 [D.No.3-13], Belekudru of Hangarkatte Village, Brahmavara Taluk [the subject property], has impugned the second respondent’s order dated 13.02.2023 in No.UDP-2/IML/CL9/54/2022-23 [Annexure-C]. The second respondent, by this impugned order, has informed the petitioner that he must shift the place of business to another place where there cannot be objections for operating the license.

¶23

It is seen that the second respondent has observed that this direction would be necessary

¶24

¶25

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶26

because the building license granted by Airody Grama Panchayath for certain construction in the subject property has been cancelled. The petitioner’s principal grievance as canvassed is that the second respondent has passed the impugned order without due opportunity and hence in violation of the principles of natural justice. Sri K Chandranath Ariga, the learned counsel for the petitioner, and Sri Shamanth Naik, the learned High Court Government Pleader for the respondents, are heard for disposal of the petition in the light of this primary grievance while recording the following circumstances.

¶27

The petitioner’s case is that he has been operating the subject CL-9 license at the subject premises for over a period of three decades, but in the year 2019, because the liquor stock in the premises was removed taking advantage of the lockdown that was in place because of Covid-19, the petitioner had to replace the tiled roof with RCC roof and as such

¶28

¶29

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶30

the renovation work is commenced after securing necessary building license from the Airody Grama Panchayath. This building license is cancelled according to the petitioner for extraneous reasons, and the petitioner has filed the writ petition in W.P. No.2513/2022 as against the decision to cancel the license. This writ petition is disposed of on 23.09.2022 with directions to the concerned to conduct a spot inspection and then consider the cancellation. After this Court’s order in the aforesaid writ petition in W.P. No.2513/2022, it is stated that the concerned Grama Panchayath has reiterated the decision to cancel the building license and such decision is pending consideration in a properly instituted appeal before the Karnataka State

¶31

Appellate Tribunal.

¶32

In the meanwhile, the second respondent

¶33

has cancelled the CL-9 license and this cancellation is as a consequence of the cancellation of the

¶34

¶35

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶36

building license. The petitioner has filed writ petition in W.P. No.12888/2022 calling in question the cancellation of the subject liquor license. This writ petition in W.P. No.12888/2022 is disposed of on 15.07.2022 observing that the decision to cancel the license will be subject to the outcome of the writ petition in W.P. No.2513/2022¹ . It is after this Court’s order dated 15.07.2022 that the second respondent has passed the impugned order directing the petitioner to shift the business to an alternative premises. This Court on 29.03.2023 has granted interim order, and during the pendency of this petition i.e., on 06.07.2023, the license is renewed for the period upto 30.06.2024. Consequentially, the petitioner is operating the license from the subject property.

¶37

1 It is seen in this order, the writ petition is mentioned as W.P. No.2516/2022. but it is verified that such writ petition does not relate to the parties to this proceedings and appropriate writ petition will be W.P. No.2513/2022.

¶38

¶39

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶40

Sri Shamanth Naik, who has assisted the Court in discerning the aforesaid circumstances, cannot contest the canvass that the second respondent has proceeded to pass the impugned order without an opportunity being extended to the petitioner; in which event, there must be interference restoring the proceedings to the second respondent for reconsideration after issuing fresh notice to the petitioner. This Court must observe that the second respondent, while deciding on the question whether the petitioner must be called upon to shift the business, must also examine whether cancellation of license or direction to shift would be just and reasonable only because the building license is cancelled by the concerned Grama Panchayath if the petitioner is indeed only undertaking certain renovations as now asserted by the petitioner, and must also examine whether the decision to direct the petitioner to shift will be in accordance with the relevant Rules.

¶41

¶42

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶43

This Court must next observe that the

¶44

examination of this facet would be necessary because under the provisions of Section 29 of the Karnataka Excise Act, 1965, a license can either be cancelled or suspended if the conditions as contemplated under the Act are breached or violated. In the light of the afore, the following:

¶45

ORDER

¶46

[a] The petition is allowed in part, and the second respondent’s impugned order in No.UDP-2/IML/CL-9/54/2022-23 dated 13.02.2023 [Annexure-C] is quashed restoring the proceedings for

¶47

reconsideration observing that the second respondent shall take the proceedings on record consequent to this order and issue fresh notice of hearing to the petitioner.

¶48

[b] It would be needless to observe that the petitioner will be at liberty to raise all

¶49

¶50

NC: 2023:KHC:41174 WP No. 7126 of 2023

¶51

grounds including any grounds based on

¶52

this Court’s observation in the course of

¶53

this order.

¶54

Sd/JUDGE

¶55

AN/-

Sri. Shankar a Kunder v. the Commissioner of Excise

Case brief

What is this about?

What did the court decide?

Sri. Shankar a Kunder v. the Commissioner of Excise

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Shriram Vs the Deputy

Mr. Narayanaswamy Perumanna Vs Income Tax Officer

Putta Vs the State of Karnataka

M/S Balaji Enterprises Vs the Commissioner of Excise

Assistant Executive Engineer Vs Doddathimmappa

Smt Shahida Begum Vs the Assistant Commissioner