Rukhimini vs State Of Karnataka
2022 Latest Caselaw 11629 Kant

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                                                          WP No. 50353 of 2019




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 7TH DAY OF SEPTEMBER, 2022

                                                BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                             WRIT PETITION NO. 50353 OF 2019 (EXCISE)


                      BETWEEN:

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

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

                      3.    RANJITH
                            S/O LATE JAYSHANKAR
                            AGED ABOUT 33 YEARS

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

                            ALL ARE RESIDENT OF
Digitally signed by         NO.64, 3RD CROSS, 1ST STAGE
PADMAVATHI B K
Location: HIGH
                            OKALIPURAM
COURT OF
KARNATAKA
                            BENGALURU - 560021.
                                                                ...PETITIONERS
                      (BY SRI G.K.BHAT, SR.ADV. A/W
                       SMT. SUDHA D., ADV.)

                      AND:

                      1.    STATE OF KARNATAKA
                            BY ITS ADDITIONAL CHIEF SECRETARY
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                                    WP No. 50353 of 2019




     FINANCE DEPARTMENT
     VIDHANA SOUDHA
     BENGALURU - 560001.

2.   THE EXCISE COMMISSIONER IN KARNATAKA
     2ND FLOOR, TTMC 'A' BLOCK
     BMTC BUILDING
     SHANTHINAGAR
     BENGALURU - 560027.

3.   THE DEPUTY COMMISSIONER
     BENGALURU URBAN DISTRICT
     BENGALURU-560027.

4.   THE DEPUTY COMMISSIONER OF EXCISE
     BENGALURU URBAN DISTRICT, (EAST)
     BENGALURU-560027.

5.   K R SAVITHA
     MAJOR IN AGE
     NO.207, 2ND STAGE, 3RD BLOCK
     BASAVESHWARANAGAR
     BENGALURU - 560079.

6.   K MANJUNATH
     S/O KRISHNAPPA
     MAJOR IN AGE
     NO.282, 2ND STAGE, 3RD BLOCK
     BASAVESHWARANAGAR
     BENGALURU - 560079.
                                          ...RESPONDENTS
(BY SMT. JYOTHI BHAT, HCGP FOR R1 TO R4
 SRI D.R. RAVISHANKAR, SR.ADV. FOR
 SRI B RAVINDRA PRASAD &
 SRI MANJUNATHA M.H., ADVS. FOR R5
 SRI MOHAN BHAT, ADV. FOR R6)

    THIS WRIT PETITION IS FILED UNDER SECTIONS 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED 30.06.1997 MADE BY THE R.4 AS PER
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                                              WP No. 50353 of 2019




ANNEXURE-E AND DIRECT THE R-3 AND 4 TO TRANSFER THE
LICENSE IN FORM CL-2 THAT WAS STANDING IN THE NAME OF
THE DECEASED HUSBAND OF THE 1ST PETITIONER AND
FATHER OF THE OTHER PETITIONERS WHICH WAS THE
SUBJECT MATTER OF THE ORDER AS PER ANNEXURE-E DATED
30.06.1997

     THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

The petitioners are before this Court calling in question

order dated 30-06-1997 passed by the 4th respondent

transferring CL-2 licence in favour of the 6th respondent that

stood in the name of one S. Jayashankar and sought for a

consequent direction by issuance of a writ in the nature of

mandamus directing respondents 3 and 4 to transfer the

licence that was standing in the name of the deceased husband

of the 1st petitioner and father of other petitioners to the names

of the petitioners.

2. Heard Sri G.K.Bhat, learned senior counsel appearing

for the petitioners, Smt Jyothi Bhat, learned High Court

Government Pleader appearing for respondents 1 to 4,

Sri D.R.Ravishankar, learned senior counsel appearing for

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respondent No.5 and Sri Mohan Bhat, learned counsel

appearing for respondent No.6.

3. Sans details, brief facts are as follows:-

The husband of the 1st petitioner and father of other

petitioners one S. Jayashankar was holding a licence in Form

CL-2 at No.203, Arabic College Post, Venkateshapura Main

Road, Bengaluru. He appears to have executed a power of

attorney in favour of one K.Shivarame Gowda to look after day-

to-day management of an establishment set up on the CL-2

licence. The said S.Jayashankar who claims to be holding

licence dies on 9-02-1997 leaving behind the petitioners as sole

surviving legal heirs. It appears that after the death of the

licensee, on 30-06-1997, a day before commencement of the

excise year 1997-98, the 4th respondent/Deputy Commissioner

of Excise makes an order under Rule 17-B of the Karnataka

Excise Licenses (General Conditions) Rules, 1997 ('the Rules'

for short) transferring the licence of the deceased

S.Jayashankar in favour of the 5th respondent. Thereafter,

another order was passed on 23-09-2007 transferring the

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licence which depicts transfer fee being remitted as on 7-06-

2006 for transfer of such licence.

4. The petitioners claim to be ignorant of the licence held

by S.Jayashankar as they were not worldly-wise or urbane and

did not have complete knowledge of liquor business. They

claim to have come to know of it at some point in time and

becoming aware, gave representations to respondents 2, 3 and

4 and sought for restoring the licence in their names as they

are the legal heirs of the original licensee. They also sought

certain information under the Right to Information Act which

did not merit any consideration. Thereafter, a legal notice was

caused upon the respondents. After all these representations

and causing of legal notice, the Deputy Commissioner of

Excise/respondent No.4 herein issued a show cause notice to

the present incumbent of the said licence. The issue in the

show cause notice was not taken to its logical end, as no

enquiry was conducted or no reply was forced upon the

incumbent of the licence. It is at that juncture, the petitioners

knocked the doors of this Court in the subject petition calling in

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question the transfer initially made in favour of the 5th

respondent on 30-06-1997 and seek a consequential direction.

5. The learned senior counsel Sri G.K.Bhat representing

the petitioners would contend that there was no scope for

entertaining any application for transfer of licence in favour of

5th or 6th respondents or even applying Rule 17B of the Rules.

The only option available was to transfer the licence in favour

of the petitioners in terms of Rule 17A of the Rules, as they are

the only surviving legal heirs of the deceased licensee and in

terms of the Rules if the licensee dies during the subsistence of

the licence, the legal heirs of the licensee would become

entitled to the licence so held by the deceased. He would

further contend that the transfer of licence itself is a fraud

played by the then 4th respondent/Deputy Commissioner of

Excise, as tampering of the record is apparent to the bare eyes,

on the very look at it. Therefore, he would submit that

genuineness of the transfer itself which was made in the year

1997 was doubtful as could be seen from the correction made

in the licence and the licence is transferred without holding any

WP No. 50353 of 2019

enquiry. The learned senior counsel would seek to justify in

approaching the Court by contending that the family of the

deceased licensee was ignorant of law or the Rules with regard

to the licence and there has been a delay of 22 years in

representing very event to the Department.

6. On the other hand, the 6th respondent, the present

licensee and the person from whom the present licence was

transferred i.e., respondent No.5 have filed their respective

statement of objections and in unison contend that the petition

is hopelessly barred by limitation. Merely because there is no

limitation prescribed for filing a writ petition, it cannot be said

that the petition can be referred at any point in time. Delay of

22 years in approaching the Court would itself defeat the rights

of the petitioners.

7. The learned senior counsel representing the 5th

respondent would contend on the merit of the matter as well

without prejudice to his submission that the petition is to be

dismissed on account of delay and laches, he would contend

that the petitioners have specifically admitted that

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Sri S.Jayashankar had executed the power of attorney in favour

of Sri K.Shivarame Gowda which is appended as Annexure-A to

the petition and S.Jayashankar is shown to be son of Sri Rama.

The petitioners have produced the death certificate as

Annexure-C which reflects S.Jayashankar to be the son of

Sri D.Shivaram and the address given is Obalapuram,

Bengaluru. The address mentioned in the transfer application

as also in the ration card shows the license holder

S.Jayashankar to be a resident of Ambedkarnagar and later has

shifted his residence to Channakrishna Street, Guttahalli. The

contention is that no document is produced to show the identity

of the person or death certificate produced as Annexure-A,

power of attorney which the petitioners claim as that of

S.Jayashankar is the son of Sri Rama and the death certificate

produced reflects that S.Jayashankar is the son of D.Shivaram.

Even the family tree is prepared only for the purpose of writ

petition in the year 2019.

8. The learned counsel appearing for the 6th respondent

Sri Mohan Bhat has also filed his statement of objections and

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would vehemently oppose the petition. He would seek to

demonstrate that the ration card produced belongs to one

Jayashankar who is the transferee of the licensee in favour of

the 5th respondent and there are gross discrepancies in the

documents produced by the petitioners. It is his contention that

the identity of persons cannot be gone into in a petition under

Article 226 of the Constitution of India, more so, in the light of

the fact that the petition is preferred after 22 years. He would

submit that the petition be dismissed on account of seriously

disputed questions of fact and gross delay and laches.

9. In reply to the submissions made, the petitioners rely

on the rejoinder filed justifying their stand and have produced

transfer of licence fee for the year 1997-98. The State

Government has also preferred its detailed statement of

objections in support of its stand and has explained as to what

has happened after the death of S.Jayashankar who was a

licensee then. The State Government explains that as per the

records available it is revealed that on 24-06-1997 both

S.Jayashankar and Smt. K.R.Savitha appeared before the

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Deputy Commissioner of Excise and filed an application along

with their photographs and both of them have put their

signatures before the authority i.e., the Deputy Commissioner

of Excise. Thereafter steps were taken to transfer the licence in

favour one K.R.Savitha. The State would contend that both of

them appeared before the Deputy Commissioner of Excise on

24-06-1997, but the contention now is that S.Jayashankar had

died on 9.02.1997. Therefore, S.Jayashankar is not the one

whom the petitioners claim to be their husband and father but

a different person and have ultimately contended that there is

absolute mismatch with regard to the identity of the person

i.e., S.Jayashankar.

10. I have given my anxious consideration to the

submissions made by the respective learned counsel and in

furtherance whereof, the only issue that falls for consideration

is:

"Whether the writ petition should be shown its door on the ground that there has been gross delay in approaching the Court or become entertainable on the submission of fraud being played by the respondents which would vitiate the entire issue?"

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11. The afore-narrated facts, link in the chain of events or

the dates of incidents that have happened are not in dispute.

This Court, by an order dated 26-02-2021, had passed the

following order:

"It has been found during the course of the arguments that one S.Jayashankar, the husband of the 1st petitioner herein and father of petitioners No.2 to 4 was holding CL-2 licence. It is admitted that he had executed a Power of Attorney in favour of one Sri K.Shivarame Gowda, on 07.04.1988 as found at Annexure-A. It is contended that Sri S.Jayashankar passed away on 09.02.1997. In order to substantiate that contention, a death certificate at Annexure-C has been produced. It appears that a few months after the death of Sri S.Jayshankar, a fraudulent document was created showing that on 24.06.1997 Sri S.Jayashankar made an application agreeing to transfer the licence in favour of 5th respondent Smt. K.R.Savitha. There are several other contentions put forth by the learned counsel for the petitioners to buttress his argument that all the subsequent documents are fraudulent documents. One such submission is in the statement of objections filed by the respondent State, it is contended that additional licence fee was also collected along with fee for transfer.

The learned counsel has pointed out from Rule 8A of the Karnataka Excise (Sale of Indian and Foreign Liquor) Rules, 1968 to submit that in the year 1997 there was no provisions for collection of additional licnece fee. On the other hand a notification was issued on 23.02.2004 bringing in Rule 8A w.e.f. 1/2/2004 for collection of additional licence fee. It is further contended that a consent letter is said to have been given by Sri S.Jayashankar consenting for transfer of lincence in favour of 5th respondent Smt. K.R.Savitha. It is pointed out that the non judicial stamp paper on which the consent letter is said to have been given by Sri S.Jayashankar to the Deputy Commissioner of Excise was issued on 15.07.1997, while the transfer application is said to have been filed on 24.06.1997

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and the order of transfer has been passed on 30.06.1997 as seen at Annexure-E.

Learned counsel for the petitioners would therefore submit that the petitioners have been defrauded at the hands of the 5th respondent, who has thereafter transferred licence in favour of 6th respondent.

On hearing the learned counsels, this Court is of the prima-facie opinion that an enquiry is required to be conducted at the hands of a competent Police Officer to bring out the truth of the facts. Therefore, this Court requests the Commissioner of Police, Bangalore City to assign this enquiry to the hands of a Senior Police Officer in the City Crime Branch, who shall go into the question raised in this order. On appointment of the Police Officer, he shall secure all relevant information from the office of the Deputy Commissioner of Excise, Bangalore Urban District (East). The Officer is permitted to summon the petitioners and respondents No.5 and 6 along with all the officers of the department of Excise, who were involved in the process of transfer. Even if the Officers have retired, the Police Officer shall collect the whereabouts of such officers and if they are available, they may be summoned and enquired.

Further since it was contended at the hands of respondent No.6 that the licensee Sri S.Jayaprakash is not the person as claimed by the petitioners herein, the Police Officer shall also find out as to who the actual licensee was? If it is found that the actual licensee is different person, he shall also be summoned and enquiry shall be conducted.

A report in this regard shall be filed by the Police Officer nominated by the Commissioner of Police, as expeditiously as possible and at any rate within a period of two months from today.

The Registrar (J) is requested to forward a copy of this order to the Commissioner of Police, Bangalore for further action."

(Emphasis supplied)

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In terms of the said order, the Police have submitted their

report in a sealed cover. I have opened the sealed cover and

perused the report. References made in the report becomes

absolutely necessary for a resolution of the issue in the lis. The

elaborate report, after collecting entire documents from the

Department of Excise, as investigated by the Police, Central

Crime Branch, reads as follows:-

"AFTER VERIFYING THE RECORDS COLLECTED FROM EXCISE DEPARTMENT AND THE DOCUMENTS PRODUCED BY THE PETITIONER, FOLLOWING ARE THE POINTS NOTED:-

1. Prior to the transfer of the license from the name of S.Jayashankar to Smt. Savitha, ever since 1984 (License No.Exe/iml/Bng/C12/41/84-85 dated 27-06-1984) the license was standing in his name and as per records it is confirmed that the liquor business was run by late S.Jayashankar.

2. On verification of the records available it is evident that ever since 1984 upto 1995-96 the said CL-2 license standings in the name of late S.Jayashankar only.

3. In the year 1984 the signature which Mr. Jayashankar had put on the License Register of Excise Department, and the signature that appears on GPA dated 7-04-1988 executed in favour of Shivarame Gowda stands similar. But these signatures are not resembling with the signatures done by anonymous person who came in the guise of Jayashankar on the license transfer papers. As such, it is necessary to take specimen of signatures done by Jayashankar in his other property documents, sale deeds etc. and it is necessary to tally and verify the same through handwriting experts and report has to be taken.

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4. On 7-04-1988 S. Jayashankar had executed GPA to Shivarame Gowda for one year to run and maintain Savitha Wines and it is evident through verification of papers. In that document S. Jayashankar's address is noted as No.20 (new No.64) Okalipura, 1st Phase, Bangalore, and this is his permanent address. Even now family members of late Jayashankar reside in this house.

5. In the year 1995-96 as per records, it is seen that in S.

Jayashankar's name license is renewed and at that time for the requisite papers of renewal Shivarame Gowda has signed. As per Excise rules a person who has taken GPA has no authority to sign on renewal application and this has been confirmed in writing by Inspector of Excise Mr. Mahesh, Banasawadi Range.

6. It is confirmed from the Death Certificate that S.

Jayashankar died on 9-02-1997. In this regard case is registered at Tumkur Rural Police Station under Crime No.28/1997 u/s 279, 304(a) of IPC.

7. S Jayashankar demised on 9-02-1997, and impersonating the deceased person, in his guise some anonymous person along with Smt. Savitha has appeared before the Deputy Commissioner of Excise on 23-06-1997 and has submitted application for transfer of license. That means, 4 months after the death of Jayashankar the application is submitted in his name.

8. There is lot of difference in the photograph of person who impersonated deceased Jayashankar which appears in the application for transfer along with Smt. Savitha on 23-06-1997 before the Deputy Commissioner of Excise and the photograph taken with family members before his demise, and to the photograph that has been taken along with his family and brother. To confirm the genuineness this has to be examined by FSL experts and report has to be taken.

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9. On 23-06-1997 the said anonymous person who was posing himself as Jayashankar, when he appeared with Smt. Savitha for transfer of license before the Deputy Commissioner of Excise Mr. Papanna, the said application was forwarded to Mr. Laxman, the then Inspector of Excise, Frazer Town Range for verification and report. At that time Mr. Laxman inquired the licensee and the transferee orally and has put his remark as enquired. But in the place of deceased Jayashankar some other fake person is fixed who had come to the picture, and this is quite evident. And this transaction occurred after the death of licensee Jayashankar. It seems that Mr. Lakshman has either due to dereliction of duty or with ulterior motive has caused license transfer.

10. On 30-06-1997 Mr. Papanna, the then Deputy Commissioner of Excise, Bangalore in expectation of the approval from Excise Commissioner has transferred the license from Jayashankar to Smt. Savitha in the yar 1996-97 under order No.EXE/IML/ FIR/01/32/1996-97 dated 30-06-1997. In the office memo it is denoted that Smt. K.R. Savitha has applied for transfer of license. At the time of passing order in the license document of 1995-96 he has mentioned it that license is transferred for the year 1996-97 from Jayashankar to Smt. Savitha. In expectation of approval from ṭhe Excise Commissioner's office he has is said to have done it, but on verification of the documents, there was no approval as such. And this is revealed by the present Inspector of Excise, Banasawadi range, Mr. Mahesh.

11. It has been a practice from long time that through GPA by taking monetary advances wines and bars were run by others by taking such authorities from licensees. Accordingly, Shivarame Gowda had run the wine shop by taking GPA and it is necessary to investigate as to further who had taken such authority. Further it is necessary to identify the nexus between Shivarame Gowda and Krishnappa. Because, well prior to getting transfer of license, license was obtained in the name of Savitha

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Wines, and it is evidence from the records, and this leads to suspicion.

12. On 23-06-1997 the anonymous person who had impersonated Jayashankar had produced ration card of his family at the time of transfer of license. In that there is photograph of Jayashankar and that does not resemble with the photograph of Jayashankar produced by Smt. Rukmini. And also it does not resemble with the photograph taken at the time of Pooja at Quality Wines wherein Jayashankar his brother and father were together. And in the ration card family details of Jayashankar are noted as Jayalaxmi as wife, Sri Rama, father and Arjun and Kiran as children. These details do not match with the family details of Jayashankar. In the said ration card date is mentioned as 21-06-1997 and it seems for the specific reason of getting excise license this fake and false ration card is fabricated.

13. When Mr. Venkatesh, younger brother of late Jayashankar was inquired, he had stated that he had taken license with his brother in the name of Quality bar and restaurant and they were running business in the same premises. And also that during 1987 his brother shifted Quality Wines to some other place. He had further stated that after death of his brother he was not aware of the quality wines license. This person having experience in bar and restaurant business and knowing the formalities very well, he did not enter into the matter of his brother's license after death and this leads to suspicion.

On the basis of all the points noted above, as regard W.P.No.50353 of 2019 before the Hon'ble Court, after enquiry, my findings and clear opinion about this issue is submitted hereunder:-

As per records Mr. Jayashankar being CL-2 licensee ever since 1984 and well prior to that (vide license No.Exe/iml/Bng/C12/41/84-85 dated 27-06- 1984) has been running wine store business.

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On 9-02-1999 he met with a road accident and died within the limits of Tumkur Rural Police Station and case is registered under Crime No.28/1997 u/s 279, 304(a) of IPC. Thereafter, Charge sheet was filed before the Hon'ble jurisdiction Court.

After 4 months of his death i.e., on 23-06-1007 in the name of Jayashankar, some anonymous person posing himself as Jayashankar and by producing fabricated records has submitted application to Deputy Commissioner Excise, Bangalore and has been a cause for transfer of license to Smt. Savitha. This is quite evident from the records furnished by the Excise Department.

On verification of the it is found that records done by Excise Department officials, knowing it well that the person who came in guise of S. Jayashankar is not the real one, licence transfer formalities has completed. In this case written approval of the Excise Commissioner was must and mandatory. Overlooking that fact by violating the Rules transfer has taken place and it is clear that there was criminal intention behind this transfer.

Until the year 2000 there was no practice of affixing photographs of license holders on the license documents at the time of issue or at the time of renewal of license, and after the death of Jayashankar, taking undue advantage of this fact and to make unlawful gain Smt. Savitha, her husband Mahadev (deceased), officers Mr. Papanna and Laxman with ulterior motive have colluded to make criminal conspiracy by creating forged and fabricated documents and by creating a false person in the name of Jayashankar they all have deceived. This is evident from ṭhe enquiry made.

But, still, in order to find out the footprints of GPA holder Shivarame Gowda and license holder K.Manjunath and his father Krishna in this case, and in order to trace out the faces behind the fake documents created, it is necessary to take opinion of FSL experts, and for that purpose FIR is to be made against all the respondents. On the basis of investigation and findings I hereby submit this

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investigation report before the Hon'ble Court and I have attached all the records and documents as per appendix noted hereunder."

(Emphasis added) In terms of the report what is opined is that the licensee

S.Jayashankar died on 9-02-1997 and after four months of his

death, on 23-06-1997 in the name of S.Jayashankar

anonymous person posing himself as S.Jayashankar produced

fabricated records and submitted application to transfer the

licence in favour of one Smt. Savitha. Until the year 2000

there was no practice of affixing photographs of licence holders

on the licence document at the time of issue or at the time of

renewal of licence. After the death of S.Jayashankar the

photographs are affixed contrary to the policy of the

Department itself. Therefore, the opinion is that it was

necessary to take the opinion from Forensic Science Laboratory

and for that purpose FIR is to be registered against all the

respondents. With the report of the Police what laid latent has

become patent. Therefore, this Court need not delve deep into

the matter as it now boils down for the issue to be placed

before the Department for a resolution of the dispute, as under

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Article 226 of the Constitution of India seriously disputed

questions of fact cannot be gone into.

12. Insofar as the contention of the respondents that

there has been enormous delay of 22 years in the petitioners

approaching this Court would have been a circumstance to be

taken note of and considered, if this Court had not directed an

investigation to be conducted and a report being placed

thereafter. Since the report clearly mentions that the transfer

of licence itself is a fraud played by such transferee by

production of fabricated records and impersonation, the same

would go to the root of the matter. It is trite law that fraud

vitiates every solemn act performed and can be invoked at any

point in time. If fraud, impersonation and fabrication of records

are the contents of the allegation for transfer of licence, delay

in approaching the Court can hardly be said to be a

circumstance that would militate against the petitioners. The

preliminary investigation report of the Police shows that there

has been fraud. Therefore, it is for the Department to, now,

consider the report that is submitted and initiate such steps to

steer clear the controversy, as there are seriously disputed

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questions of fact which have to be thrashed out after further

verification of records and after affording opportunity to

everyone who would become affected by any order that would

be passed.

13. Insofar as the judgments relied on by the learned

counsel appearing for the 6th respondent in the case of STATE

OF M.P. V. NANDALAL JAISWAL reported in (1986)4 SCC

566, the learned counsel would place reliance upon paragraphs

23 to 26 of the said judgment wherein the Apex Court has held

that the High Court could not have sustained one part of the

policy and strike down the other. Either the policy as a whole

could be sustained or as a whole should have been declared as

invalid but certainly one part could not be sustained. That is

not the issue in the case at hand. This Court has only noticed

the report of the investigation which is conducted pursuant to a

direction in which fraud and impersonation are the preliminary

findings and has accepted the petition only to the extent of a

direction to the Commissioner of Excise for further enquiry

making the report a foundation. Therefore, the said judgment

is inapplicable to the facts of the case. The judgment in the

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case of A R ANTULAY v. R.S.NAYAK reported in (1988)2

SCC 602 is also inapplicable insofar as the paragraphs that the

learned counsel seeks to place reliance upon, as the question of

jurisdiction is not the one that has arisen in the case at hand.

14. Insofar as the judgment in the case of ASSISTANT

COMMISSIONER (CT) LTU, KAKINADA V. GLAXO SMITH

KLINE CONSUMER HEALTH CARE LIMITED reported in

2020 SCC Online SC 440 is concerned, the said judgment is

distinguishable on the facts obtaining in the case at hand

without much ado, as the Apex Court has considered

entertainment of a petition under Article 226 of the Constitution

of India, after an inordinate delay. There can be no qualm

about the principle so laid by the Apex Court, but the question

is of its applicability to the case at hand. In terms of what is

quoted hereinabove, the preliminary inference of the report is

that a fraud had been played or an impersonation of a man who

was already dead. If these factors are considered, delay will

have to be placed to the background, as fraud or impersonation

or any illegality would vitiate the entire proceedings, as it is a

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settled principle of law "fraud vitiates everything". If fraud

would vitiate every solemn act, prima facie, the report indicates

that it was a fraud or impersonation that was played, which led

to the act of transfer on 30-06-1997. Therefore, the said act of

transfer on 30-06-1997 would get exhumed and await its

obliteration or vindication.

15. For the aforesaid reasons, I pass the following:

ORDER

(i) Writ Petition is allowed in part.

(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.

(iii) The Commissioner of Excise shall conduct such

inquiry based upon the aforesaid report and take all

further action as a consequence thereof.

(iv) On conclusion of the enquiry, the Commissioner of

Excise shall pass such orders, in accordance with

law. In the event, the 1st petitioner would be

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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.

(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, no prejudicial

action shall be taken against any protogonists in the

lis.

Pending applications if any, stand disposed, as a

consequence.

Sd/-

JUDGE

bkp