Karnataka High Court
M/S Vijayshre Tourist Home vs The Commissioner Of Excise And Anr on 7 June, 2022
Bench: S.Vishwajith Shetty
1 W.P.No.200519/2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY
WRIT PETITION NO.200519/2022 (EXCISE)
BETWEEN:
M/s. Vijayshree Tourist Home
A Partnership firm
CL-7 licensee
No.10977, Door No.12-2-172, 12-2-174
Manavipattana, Raichur District-584101.
Rep. by its Partners.
i) G.Somashekar
ii) G.S.Chandrashekar
... Petitioner
(By Smt. Geeta Sajjanshetty, Advocate)
AND:
1. The Commissioner of Excise,
O/o. Commissioner of Excise,
2nd Floor, TTMC "A" Block
BMTC Complex, Shanthi Nagar,
Bangalore-560 027.
2. The Dy. Commissioner of Excise,
O/o. Commissioner of Excise,
Raichur District, Raichuy-584101.
... Respondents
(By Sri. Veeranagouda Malipatil, HCGP for R1 & R2)
2 W.P.No.200519/2022
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue a writ in the nature
of certiorari to set aside the impugned orders of transfer of
licences vide Order No.EXE/RCR/IML/Manavi/03/CL-7/2021-
22 dated 27.08.2021 passed by the 2nd respondent Dy.
Commissioner of Excise, under Rule 17-A of the Karnataka
Excise Licence (General Condition) Rules 1967, and the
direction issued for prior approval by the 1st respondent vide
his Order No.ES 20210625175/17-A Raichur dated
26.08.2021 as per Annexures-A & A1 respectively, as illegal
and unsustainable in law and etc.
This petition coming on for Preliminary Hearing this
day, the Court made the following:
ORDER
The petitioner firm represented by its Partners has filed
the instant writ petition with a prayer to quash the order
dated 27.08.2021 passed by the second respondent and the
order dated 26.08.2021 passed by the first respondent vide
Annexures 'A' and 'A1' respectively.
2. Petitioner's have also made a further prayer to
issue a writ of mandamus directing the respondents No.1 and
2 to transfer and refund the fee illegally collected under
Rule 17-B of the Karnataka Excise Licence (General
Condition) Rules, 1967 (hereinafter referred to as 'Rules') for
transferring the licence in the name of the legal heirs of the
deceased partners of the petitioner firm.
3. Heard the learned counsel for the petitioners as
well as the learned High Court Government Pleader
appearing for the respondents.
4. Facts of the case as revealed from the records it
is necessary for disposal of the writ petition are as under :-
5. The petitioner firm which originally consisted two
partners by name G.Venkoba and his brother S.Sadappa,
was issued with a CL-7 licence which stood in the name of
petitioner firm. The said licence was periodically renewed.
When the matter stood thus, the partners of the petitioner
firm namely Sri G.Venkoba and his brother S.Sadappa died
on 14.04.2021 and 27.04.2021 respectively. The legal
representatives of the deceased partners had
thereafterwards made an application to transfer the CL-7
licence by including the name of the legal heirs of the
deceased G.Venkoba and his brother S.Siddappa who were
the partners of the partnership firm, on the basis of the pre
constituted registered partnership deed. The said application
made by the legal heirs of the original partners was disposed
of by the respondents holding that the legal heirs are
required to pay the transfer fee as provided under
Section 17-B of the Rules.
6. The legal heirs of the deceased partners had paid
the amount of `23.00 lakhs as demanded by the respondents
under protest on 31.08.2021 and thereafterwards they have
preferred this writ petition.
7. Learned counsel appearing on the behalf of the
petitioners submits that the authorities concerned have erred
in coming to a conclusion that petitioners case is required to
be considered under Rule 17-B of the Rules whereas the
petitioners case was required to be considered by authorities
under Rule 17-A of the Rules. He has relied upon the
judgment of the Coordinate Bench of this Court passed in the
case of M/s Motekar Brothers in Writ Petition No.19893-
95/2013 disposed of on 30.04.2013 wherein in identical
circumstances the Coordinate Bench of this court has held
that the applicable rule would be Rule 17-A and not Rule 17-
B of the Rules. Therefore, he prays to allow the writ petition.
8. Per contra, learned High Court Government
Pleader appearing on behalf of respondents strenuously
opposed the prayer made in the writ petition contending that
after the death of the two existing partners, the partnership
had come to an end and therefore the applications made
thereafterwads by the legal heirs of the original partners is
required to be considered under Rule 17-B and not 17-A. He
submits that the Rule 17-A would be applicable only in the
case of death of individual licensee and not in case of death
of partners of a firm and accordingly he prays to dismiss the
writ petition.
9. I have given my anxious consideration to the
arguments addressed by both the parties and I have also
perused the material on record.
10. It is not in dispute that the partnership was
originally granted CL- licence which was renewed periodically
on receipt of a prescribed fees. It is also not in dispute that
the original partners of the petitioner partnership firm were
the two brothers namely G.Venkoba and S.Sadappa who
allegedly died on 14.04.2021 and 27.04.2021 respectively.
Immediately after the death of G.Venkoba on 14.04.2021 his
legal representatives have filed an application on 19.04.2021
itself to include the name of the legal heirs of deceased
G.Venkoba in the CL-7 licence. Even after the death of
S.Sadappa similar application was made on the basis of the
reconstituted register partnership which has been produced
by the petitioners vide Annexure-B. However, the
respondents-authorities erroneously have invoked Rule 17-B
of the Rules to the case on hand had demanded `23.00 lakhs
towards transfer fee which was paid by the petitioners under
protest.
11. The judgment of the this Court in the M/s
Motekar Brothers has been rendered in identical
circumstances and this court having appreciated Rule 17-A
and 17-B of the Rules has held that in the case of partnership
firm where the legal representative of the deceased partners
make a licence to permit them to be treated as partners of
the firm which holds the CL-7 licence, the applicable rule
would be 17-A and not 17-B. The said order passed by the
Coordinate Bench of this Court in the case of M/s Motekar
Brothers would be squarely applicable to the facts of this
case.
12. Under the circumstances, I am of the view that
the order impugned at Annexures 'A' and 'A1' are not
sustainable in law and the petitioners are entitled for the
refund of the amount of `23.00 lakhs paid by them as per
the demand made by the respondents-authority. Accordingly,
following :
ORDER
The writ petition is allowed.
The impugned order dated 27.08.2021 and 26.08.2021
vide Annexures 'A' and 'A1' passed by respondents No. and 2
are quashed.
Consequently writ of mandamus is issued directing the
respondents to transfer the amount of `23.00 lakhs collected
by them towards transfer fee from the legal heirs of the
deceased partners of the petitioners firm forthwith.
Sd/-
JUDGE
sn
