Dismissed

Smt. J. Rukhimini v. State of Karnataka

Karnataka HC19 Sept 2024WP/1978/2024

Case brief

AI extract

What is this about?

Legal heirs of a deceased CL-2 retail liquor licensee challenged the Deputy Commissioner of Excise's orders renewing respondent No.4's licence and permitting shop relocation, contending the original 1997 transfer was fraudulent. Since the transfer order was never set aside and prior litigation concluded under estoppel principles, both writ petitions were dismissed.

What the court decided

AI extract

Smt. J. Rukhimini Vs State of Karnataka — Writ and Judicial Review | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:38678 WP No. 1978 of 2024 C/W WP No. 4159 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 1978 OF 2024 (EXCISE)

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C/W

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WRIT PETITION NO. 4159 OF 2024 (EXCISE)

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IN WP No. 1978/2024:

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BETWEEN:

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SMT. J. RUKHIMINI, W/O LATE JAYSHANKAR, AGED ABOUT 54 YEARS, OCCUPATION HOUSE WIFE.

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J, NAGARJUN S/O LATE JAYSHANKAR AGED ABOUT 35 YEARS

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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RANJITH, S/O LATE JAYSHANKAR AGED ABOUT 33 YEARS

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J. NAGBHARAN S/O LATE JAYSHANKAR AGED ABOUT 26 YEARS.

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ALL ARE R/OF NO.64, 3^RD CROSS, 1^ST STAGE, OKALIPURAM, BENGALURU - 560 021.

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…PETITIONERS

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(BY SRI. G.K. BHAT, SENIOR ADVOCATE FOR SMT. D. SUDHA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY ITS ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BENGALURU - 560 001.

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THE EXCISE COMMISSIONER IN KARNATAKA, 2^ND FLOR, TTMC 'A' BLOCK, BMTC BUILDING, SHANTINAGAR BENGALURU - 560 027.

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THE DEPUTY COMMISSIONER OF EXCISE, BENGALURU URBAN DISTRICT (BUD-2) BANASAVADI-560 043, BENGALURU.

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K. MANJUNATH S/O KRISHNAPPA, R/AT NO.232, 2^ND BLOCK, III STAGE, WEST OF CHORD ROAD, BASAVESHWARANAGARA, BENGALURU - 560 007.

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…RESPONDENTS

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(BY SRI. K. MANJUNATH, HCGP FOR R1 TO R3; SRI. D.R. RAVISHANKAR, SENIOR ADVOCATE FOR SRI. MOHAN MAHABALESHWARA BHAT, ADVOCATE FOR R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18/01/2024 IN

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- 3 - NC: 2024:KHC:38678 WP No. 1978 of 2024 C/W WP No. 4159 of 2024

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NO.EXE/VA.NO.12/BHATHAMA/CL-2.18.2023-24PASSED BY THE R3-COMPETENT AUTHORITY AS PER ANNEXURE-R IN FAVOUR OF R4 AND ETC.,

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IN WP NO. 4159/2024:

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BETWEEN:

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SMT. J RUKHIMINI, W/O LATE JAYSHANKAR, AGED ABOUT 54 YEARS, OCCUPATION: HOUSE WIFE

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J. NAGARJUN S/O LATE JAYSHANKAR, AGED ABOUT 35 YEARS.

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RANJITH, S/O LATE JAYSHANKAR, AGED ABOUT 33 YEARS

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J. NAGBHARAN S/O LATE JAYSHANKAR, AGED ABOUT 29 YEARS,

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ALL ARE RESIDENT OF NO.64, 3^RD CROSS, 1^ST STAGE, OKALIPURAM, BENGALURU 560 021

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...PETITIONERS

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(BY SRI. G.K. BHAT, SENIOR ADVOCATE FOR SMT. D. SUDHA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY ITS ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BENGALURU 560 001

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THE EXCISE COMMISSIONER IN KARNATAKA, 2^ND FLOOR, TTMC 'A' BLOCK, BMTC BUILDING, SHANTINAGAR, BENGALURU 560 027

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THE DEPUTY COMMISSIONER OF EXCISE, BANGALORE URBAN DISTRICT (BUD-2), BANASAVADI 560 043, BANGALORE.

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K. MANJUNATHA S/O KRISHNAPPA, R/AT NO.232, 2^ND BLOCK, III STAGE, WEST OF CHORD ROAD, BASAVESWARANAGARA, BENGALURU 560 007

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...RESPONDENTS

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(BY SRI. K. MANJUNATH, HCGP FOR R1 TO R3; SRI. D.R. RAVISHANKAR, SENIOR ADVOCATE FOR SRI. MOHAN MAHABALESHWARA BHAT, ADVOCATE FOR R4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT QUASHING THE ORDER DATED 31.01.2024 IN NO. EXE/BUD-2/VA-08/IML/SA.STHA/36/2023-24 PASSED BY THE R-3 AS PER ANNEXURE-W IN FAVOUR OF R-4 AND ETC.

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THESE PETITIONS, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL COMMON ORDER

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Petitioners in W.P.No.1978/2024 have called in

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question the order dated 18.01.2024 passed by respondent No.3-Deputy Commissioner of Excise (BUD-2) as per Annexure-R, renewing the licence of respondent No.4.

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In W.P. No.4159/2024 the petitioners have

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called in question the order dated 31.01.2024 passed

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by respondent No.3-Deputy Commissioner of Excise as per Annexure-W, permitting respondent No.4 to shift the location of the business/shop.

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Heard Sri G.K. Bhat, learned Senior counsel

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appearing for the petitioners and Sri D.R. Ravishankar, learned Senior counsel appearing for respondent No.4

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and Sri K. Manjunath, learned HCGP for respondent

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Nos.1 to 3 and perused the material on record.

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Brief facts:

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The husband of petitioner No.1 and father

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of petitioner-Nos.2 to 4 one Jayashankar was holding a licence in Form CL-2 and was running a retail liquor shop at premises No.203, Arabic Collage, post Venkateshpura Main Road, Bengaluru. The said Jayashankar died on 09.02.1997 in a road traffic accident, leaving behind the petitioners as the sole surviving legal heirs. It is the contention of the petitioner that the Deputy Commissioner of the Exciserespondent No.3, without taking steps to transfer the licence in terms of Rule 17-A of the Karnataka Excise Licences (General Conditions) Rules, 1967 in favour of the petitioners and without their knowledge transferred the licence in favour of one Smt. K.R. Savitha, by order dated 30.06.1997.

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The petitioners came to know about the

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fraudulent transfer in favour of Smt. K.R. Savitha, approached this Court in W.P. No.50353/2019 seeking relief to quash the order dated 30.06.1997, transferring the licence in favour of Smt. K.R. Savitha and for a writ of mandamus directing to transfer the licence in their favour. In the said writ petition, the petitioners contended and explained the delay in approaching the Court, and with regard to the fraudulent transaction, an order was passed by this Court in W.P. No.50353/2019 on 26.02.2021, to hold

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enquiry by the Central Crime Branch Police regarding fraudulent transfer, as contended by the petitioners. The enquiry report was submitted by the Assistant Commissioner of Police Central Crime Branch, Bengaluru City, in the said writ petition. The Co-ordinate Bench of this Court after hearing, allowed the writ petition. The operative portion of the order reads as under:

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"i) Writ petition is allowed in part.

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ii) The transfer of licence dated 30.06.1997 shall be subject to further inquiry by the Department of Excise based upon the report of the Assistant Commissioner of Police submitted before this Court.

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iii) The Commissioner of Excise shall conduct such inquiry based upon the aforesaid report and take all further action as a consequence thereof.

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iv) On conclusion of the enquiry, the Commissioner of Excise shall pass such orders, in accordance with law. In that event, the 1^st petitioner would be entitled to the benefit of any orders 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.

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v) 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, non prejudicial action shall be taken against any protagonists in the lis."

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6. Aggrieved by the order in the aforementioned

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writ petition, respondent No.4 preferred W.A. No.26/2023

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and Smt. K.R. Savitha, preferred W.A. No.1318/2022. The Division Bench of this Court, set aside the order of the learned Single Judge and at paragraph No.29, the Division Bench observed as under:

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29. Having thus found it is clarified that the authorities under Act, 1965 and the Rules framed thereunder would be entitled to initiate any enquiry with regard to violation of provisions contained thereof in respect of transfer of licence. This order would also not foreclose legal remedy or options if any available to the petitioners before the competent courts of law, forum or authority and the petitioners are at liberty to seek such remedy as may be permissible under law. The observation and reasoning made in this order is only with regard to sustainability of the impugned order passed in the writ petition and all contentions that may be available and raised by the petitioners are kept open."

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Sri G.K. Bhat, learned Senior counsel

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appearing for the petitioners would vehemently contend:

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i. That the petitioners in light of the liberty

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granted by the Division Bench of this Court, approached respondent No.2-the Excise Commissioner by invoking Section 3 of the Karnataka Excise Act, 1965 to bring the culprits to books by registering a criminal case and to annul the order dated 30.06.1997, by which the licence of the deceased licencee-Jayashankar was fraudulently transferred.

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ii. In the meanwhile, respondent No.4 has made an application for renewal of the license in Form CL-2, the petitioners submitted their representation and sought for an opportunity of being heard, in the event of consideration of the application for renewal of the licence in Form CL-2, that respondent No.3 has passed the impugned order renewing the licence in Form CL-2 in favour of respondent No.4 and the petitioners again approached this Court in W.P. No.27001/2023, and this Court allowed the petition with a direction to respondent No.3 for fresh

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consideration in accordance with law, and it is contended that, pursuant to the order of remand by this Court, respondent No.3 has again passed the order of renewal of Form CL-2 in favour of respondent No.4.

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iii. Taking this Court to Anneuxre-R, the impugned order passed by respondent No.3, contends that the impugned order is without application of mind and that there is a grave error by not securing the presence of the first transferee-Smt. K.R. Savitha, against whom the charges has been established.

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iv. That the impugned order at Annexure-W granting permission for shifting of the location of business is erroneous and the order is passed in a mechanical manner relying upon the reports submitted by the officer.

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v. That the Division Bench of this Court had

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granted liberty to the petitioners to avail the legal remedy/options available to the petitioners and in light

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of the same, the petitioners have approached the

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Excise Commissioner and the Excise Commissioner has not passed any appropriate orders on the appeal preferred by the petitioners.

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Per contra , the learned Senior counsel appearing for respondent No.4 would vehemently contend:

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i. Drawing the attention to this Court to the order passed by the Division Bench of this Court, would contend that the liberty granted to the petitioners was to approach the Competent Courts of law, forum, or authority and the petitioners having accepted the judgment of the Division Bench of this Court, cannot have grievance against the renewal of licence of the respondent, as the transfer order in favour of Smt. K.R. Savitha is not been set aside and the transfer order being intact, the petitioners cannot challenge the renewal of licence.

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ii. Petitioners have no locus standi to file the

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present writ petition questioning the renewal of licence in favour of respondent No.4, when original transfer of licence has not been set aside and the order of the Division Bench having been accepted, now the petitioners cannot raise any objection for renewal of licence.

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iii. That the principle of doctrine of “issue estoppels as also” “cause of action estoppels” arise in the present case, as identical issue is been raised by the petitioners, which has been concluded in the earlier proceedings and in such an event, the bar is absolute in relation to all which has been decided in the earlier proceedings.

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9. Reliance is placed on the decisions of the

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Apex Court in the cases of Bhanu Kumar Jain v. Archana Kumar¹ (Bhanu Kumar Jain) and Hope

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1 (2005) 1 SCC 787

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Plantations Ltd. v. Taluk Land Board, Peermade and

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Another² (Hope Plantations Ltd.) .

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Having heard learned counsel for the

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parties, the point that arises for consideration is:

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“Whether the petitioner is entitled for the relief as prayed in the present writ petition in the peculiar facts and circumstances of the case?”

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This Court has carefully considered the rival

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contentions urged by the learned counsel on both sides and perused the material on record.

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The Division Bench of this Court in writ appeal preferred by Smt. K.R. Savitha and respondent No.4, against the allowing of the writ petition in W.P. No.50353/2019 filed by the petitioners, seeking to cancel the transfer made in favour of Smt. K.R. Savitha, and seeking for licence in their favour, the Division Bench of this Court observed that the

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2 (1999) 5 SCC 590

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petitioners have approached this Court in W.P. No.50353/2019, after a delay of 22 long years and observed that the petitioners were aware of their husband and father respectively carrying on the business of liquor during his life time and pleading and submission regarading the ignorance of the same and economic condition preventing them from approaching the Court for 22 long years cannot at any stretch of imagination be accepted as a justifiable explanation or reason. The Division Bench of this Court observed at paragraph Nos.18, which reads as under:

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18. "Thus a perusal of the aforesaid provisions make it clear that there are no other provisions which enables the authorities to undertake inquiry/investigation particularly with regard to the aspect of fraud and fabrication of documents and the identity of a person. The investigation and enquiry contemplated under Section 55 are in respect of offences under Sections 32, 33, 34, 35, 37, 38 and 38A which are dealt with under Chapter VII of the Act. Learned Senior counsel Sri. G.K.Bhat fairly submit that inquiry/investigation into the nature of the matter involved in the present lis can be undertaken upon filing of a compliant before the jurisdictional police. Thus, there is no qualms about the fact that the Excise Act, 1965

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or the Rules, 1967 do not contemplate any provisions to deal with the situation at hand."

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Further, the Division Bench observed that

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there are no other provisions which enables the authorities to undertake enquiry/investigation particularly with regard to the aspect of fraud and fabrication of documents and the identity of a person and further observed that , there is no qualms about the fact that the Excise Act, 1965 or the Rules, 1967

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do not contemplate any provisions to deal with the situations at hand. The Division Bench, further clarified that the authorities under the Act, 1965 and Rules framed thereunder would be entitled to initiate any enquiry with regard to violation of provisions contained thereof in respect of transfer of licence and further observed that the order of the Division Bench would not foreclose legal remedy or options if any available to the petitioner before "the Competent Court of law, Forum or Authority" and the petitioners are at liberty to seek such remedy as may be

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permissible under law, w hile observing so, the Division Bench of this Court set aside the order in W.P.

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No.50353/2019 and the consequent orders.

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In light of the setting aside of the order in

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writ petition, what remains is that the transfer of licence, which was challenged by the petitioners in the aforesaid writ petition has not been set aside by any competent Court of law. In the said circumstances, the grievance of the petitioners against the renewal of licence of respondent No.4, without setting aside the transfer order in favour of Smt. Savitha, the petitioners cannot proceed against respondent No.4.

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The petitioners in the earlier round of litigation in W.P. No.50353/2019 sought for following reliefs:

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"WHEREFORE, it is most humbly and respectfully prayed that this Hon'ble court be pleased to,

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a) issue a writ of certiorari or any other appropriate writ, order or direction quashing the order dated 30.06.1997 in No.EXE/IML/FTR/1/32/96-97 made by the 4^th respondent as per Annexure-E.

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b) issue a writ of mandamus directing the respondent No.3 and 4 to transfer the license in Form CL-2 that was standing in the name of the deceased husband of the 1^st petitioner and father of the other petitioners which was the subject matter of the order as per annexure-E dated 30.06.1997 in No.EXE/IML/FTR/1/32/9697.

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c) issue any other appropriate writ, order or direction as the Hon'ble Court deems it fit under the facts and circumstances of the case to meet the ends of justice."

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The relief sought by the petitioners was

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granted in favour of the petitioners. The order in the writ petition has been set aside by the Division Bench of this Court and there is a transfer licence in Form CL-2 standing in the name of Smt. K.R. Savitha, the Apex Court in the case of Bhanu Kumar Jain has held in paragraph Nos.18, 20, 21 and 29 as under:

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"18. "It is now well settled that principles of rea judicata apply in different stages of the same proceedings. (See Satyadhyan Ghosal v. Deorajin Debi and Prahlad Singh v. Col. Sukhdev Singh.)

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20. In Vijayabai (supra), it was held: (SCC p.68, para 4)

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"13. We find in the present case the Tahsildar reopened the very question which finally stood concluded, viz., whether Respondent 1 was or was not the tenant of the suit land. He further erroneously entered into a new premise of reopening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute?"

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21.Yet again in Hope Plantations Ltd., this Court laid down the law in the following terms: (SCC p. 604, para 17)

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"17. …One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice."

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29. There is a distinction between "issue estoppel" and "res judicata" (See Thoday vs. Thoday).

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The "cause of action estoppel" has been

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defined in the decision is that which 'prevents a party to an action from asserting or denying, as against the

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other party, the existence of a particular cause of

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action, the non-existence or existence of which has been determined by a Court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam .’

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Learned Senior counsel for the petitioners

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placed reliance on the decision of this Court in the case of K. Balakrishna Rao Vs. The State of Karnataka & Others ( K. Balakrishna Rao ) reported in ILR 1998 KAR 4113, to contend that the liberty which was granted to the petitioner was to approach the appropriate Court, as there is a bar to the Civil Court. The decision of the K . Balakrishna Rao , the Division

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Bench of this Court Has held at paragraph No.16 as under:

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16. "It has been alternatively argued that notwithstanding the incorporation of Sections 68-B, 68-C and 68-D in the Act, the power of Civil Court cannot be deemed to have been taken away because what is barred under the Act is the remedy of such actions which are purported to 'have been done under the Act'. There cannot be any dispute with this general proposition of law. What is barred under the offending section is the jurisdiction of the Civil Courts in respect of "any matter determined and decided by any officer or the authority under the Act" and no blanket ban has been put with respect to the institution of the suits against the officers or authorities of the Excise Department by virtue of the alleged offending provisions. It would mean that if the action complained of in the Civil Court is referrable to any order or action of an excise officer or the authority under the Act, the Civil Court shall have no jurisdiction to entertain, try and adjudicate such a matter, but the Civil Court shall not be precluded from entertaining and adjudicating a suit if the action complained of is prima facie shown to be without jurisdiction or actuated by extraneous considerations or not referrable to any authority of law or the statutory powers conferred upon the excise officers and other authorities under the Act. This does not however mean giving a licence to the defaulters to approach the Civil Court only by declaring the action of the excise officers and other authorities to be without jurisdiction or not referrable to law without prima facie substantially satisfying the Court regarding their plea. The words "under this Act" would be deemed to mean "purported to be done under the Act". The Federal Court in Hori Ram Singh v The Crown , observed that it was neither possible nor desirable to lay down any hard and fast rule regarding the interpretation of the clause, "purported to be done under the Act".

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It was held the question was substantially one of fact which was required to be determined with reference to the act complained of and the attendant circumstances. Such a view was approved by the Supreme Court in B.K. Bhandar Limited v Municipal Committee, Dharmangaon. On the basis of what has been noted herein above, it can be said that any person claiming to be a contractor or otherwise dealing with the Excise Department shall not be entitled to file a civil suit against the alleged acts of commission and omission or the orders of the Excise Officers and the authorities empowered by the Act, unless such acts of commission and omission or the order is prma facie shown to be completely without jurisdiction and not referrable to any authority of law. Such a question as and when raised before the Civil Court shall be determinable according to the facts and circumstances of the case and the burden to prove that the Court had the jurisdiction to entertain, try and adjudicate the suit shall always be upon the person filing the suit."

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The Division Bench of this Court as held

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that the power of the Civil Court cannot be deemed to

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have been taken away because what is barred under the Act is the remedy of such actions, which are purported to 'have been done under the Act'. There cannot be any dispute with this proposition of law as to what is barred under the section is the jurisdiction

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of the Civil Courts in respect of "any matter

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determined and decided by any officer or the authority under the Act" and the said decisions is not applicable

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to the present facts, as in the present case, the petitioners’ specific assertion is that the transfer of licence itself was a result of fraud played and the licence was effected subsequent to the death of Jayashankar.

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The Division Bench of this Court in writ appeal No.1318/2022 connected with W.A. No.2663/2023 has categorically held that the Excise Commissioner lacks jurisdiction to enquire the petitioners grievance and the petitioners were granted liberty to avail the remedy before the Competent Courts of Law, Forum or Authority, as may be permissible under law. The present petitions seeking to challenge the renewal of licence, without the transfer of licence in favour of K.R. Savitha, being not set aside, this Court is of the considered view, that the

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