Karnataka High Court

Sri Madanaiaka vs The Auction Superintendent on 11 January, 2023

Bench: M.Nagaprasanna

                                            -1-
                                                      WP No. 11544 of 2021




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 11TH DAY OF JANUARY, 2023

                                          BEFORE
                        THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                        WRIT PETITION NO. 11544 OF 2021 (GM-RES)
                BETWEEN:

                SRI MADANAIAKA
                S/O LATE BASAVANAIKA
                AGED ABOUT 71 YEARS
                R/A: KANAGAL VILLAGE AND POST
                HANAGUDO HOBLI,
                HUNSUR TALUK
                MYSURU DISTRICT - 571 106.

                                                             ...PETITIONER

                (BY SRI.SUNIL S.NARAYAN., ADVOCATE)

                AND:

                1.     THE AUCTION SUPERINTENDENT
                       TOBACCO BOARD APF. NO.61
                       KAMPALAPURA
Digitally signed
by PADMAVATHI          PERIYAPATNA TALUK
BK                     MYSURU DISTRICT - 571 107.
Location: HIGH
COURT OF         2.    DIRECTOR (AUCTIONS)
KARNATAKA
                       TOBACCO BOARD
                       NO.1/9, 3RD CROSS, CCI COMPOUND
                       4TH FLOOR, UNITY BUILDING ANNEX
                       BENGLAURU - 560 027.

                                                           ...RESPONDENTS

                (BY SRI.B.M.KUSHALAPPA, ADVOCATE)
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                                         WP No. 11544 of 2021




     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENTS     BOARD    TO   TRANSFER   THE  GROWER
REGISTRATION     OF   THE   BARON    LICENSE  BEARING
NO.T.B.NO.61/049     AND    TBGR    LICENSE   BEARING
NO.61/057/078 IN THE NAME OF THE PETITIONER. OR IN THE
ALTERNATIVE.     DIRECT THE RESPONDENT BOARD TO
CONSIDER THE APPLICATION FILED BY THE PETITIONER FOR
TRANSFER     OF     THE   BARON     LICENSE   BEARING
NO.T.B.NO.61/049     AND    TBGR    LICENSE   BEARING
NO.61/057/078 INTO HIS NAME WITHOUT INSISTING FOR THE
PRODUCTION OF NOC/NDC FROM THE BANKER OF THE
VENDOR AS DEMANDED IN THE REPLY NOTICE/LETTER VIDE
ANNX-D.


     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
                             ORDER

The petitioner is before this Court seeking a direction by

issuance of a writ in the nature of mandamus directing the

respondents to accord barn licence to the petitioner.

2. Heard Sri.Sunil.S.Narayan, learned counsel appearing

for petitioner and Sri.B.M.Kushalappa, learned counsel

appearing for respondents.

WP No. 11544 of 2021

3. Brief facts that leads the petitioner to this Court in the

subject petition as borne out from the pleadings are as follows:

The issue in the lis lies in a narrow compass. On

19.06.2018 the petitioner purchases a barn licence that was

accorded in favour of one Sri.G.Ramakrishna by the Tobacco

Board for a sale consideration of Rs.50,000/-. After the

purchase of the said licence petitioner submits a representation

for transfer of licence and when the representation went

unheeded, causes a legal notice upon the 1st respondent for

transfer of such licence. The notice was replied to by the 1st

respondent holding that it would be permissible for issuance of

a licence, only if a no objection/no due certificate comes from

the Bank of the vendor of the petitioner. On this score, the

licence of the petitioner has not been renewed despite it being

pending before the Board for the last four years.

4. Learned counsel for petitioner would submit that the

vendor's no due certificate or no objection certificate from his

Bank cannot be secured by the petitioner as it is an

impossibility. He would submit that the petitioner would

WP No. 11544 of 2021

indemnify the respondents/Board of any consequences or any

dues of the vendor of the petitioner and therefore, seeks a

direction for transfer and renewal of licence.

5. Learned counsel appearing for the respondents/Board

would though seek to refute the submissions to contend that

there is a circular issued by the Board that in all cases where

transfer of licence would happen, the no due certificate from

the vendor's Bank is to be furnished. He would submit that

unless a no due certificate comes about, the Board would put to

prejudice in future in the event of any claim made by the Bank

against the original licence holder, the vendor of the petitioner.

He would seek dismissal of the petition.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and have perused the material on record.

7. The afore-narrated facts are not in dispute. The

petitioner purchased the licence on 19.06.2018 and seeks

transfer of licence from the Tobacco Board. The Tobacco Board

declines on the ground that no objection/no due certificate from

WP No. 11544 of 2021

the Bank of the petitioner's vendor is not placed on record.

Reliance is placed on a circular issued by the Tobacco Board

that in all cases of transfer, the transferee should produce the

no due certificate from the Bank. The sale takes place on

19.06.2018. Today, the petition is taken up for its

consideration in the year 2023. Close to five years have

passed by. In the light of passage of this length of time it

would be unjust to direct the petitioner to go in search of the

vendor and seek no due certificate from the bank of the

vendor.

8. Therefore, owing to the peculiarity of the facts in the

case at hand, I deem it appropriate to direct transfer of

registration in favour of the petitioner by issuance of a writ in

the nature of mandamus to the respondents/Board, as a one of

case and a one of situation, subject to the petitioner

indemnifying the Board of any dues that would ensue which

would be the dues of the vendor of the petitioner in future.

WP No. 11544 of 2021

9. The view of mine, in this regard, is fortified by the

judgment of the co-ordinate Bench of this Court in

W.P.No.46153 of 2013 disposed on 29.06.2015, which was

rendered in somewhat similar circumstances and it reads as

follows:

".... .... ....

5. In the instant facts, it is noticed that the vendor of the petitioner after having executed the sale deed had not co-operated in the registration of the document and therefore the procedure contemplated in law was availed and the document has been registered. Sufficient time has elapsed from the date of execution of the document and the registration of the same. Even subsequently, after the request was made by the petitioner and it had been turned out by the respondents, further time has elapsed. During the interregnum, no claim whatsoever has been received by the respondent-Board on behalf of the vendor of the petitioner towards the amount due to any Bank.

6. If these aspects are kept in view, in the present context, if the petitioner is directed to obtain such 'no objection certificate' from the vendor, the very purpose for which the vendor has purchased the Tobacco Barn would be defeated and the hardship she has undergone will not get redressed. Further in the instant case the very hardship she has already undergone would be further perpetuated, if such requirement is also asked to be complied at this stage.

7. Therefore since at present the respondents do not have any details with regard to the loan being given to the vendor of the petitioner, such endorsement in a blanket manner to obtain 'no objection certificate' from the Bank without specification in that regard would not be sustainable.

WP No. 11544 of 2021

8. Accordingly, the impugned communication/ endorsement dated 20.12.2012 as at Annexure-D stands quashed. In the present facts, the respondents shall obtain an undertaking affidavit from the petitioner that to her knowledge there is no loan outstanding in respect of the property regarding which the transfer of licence is sought. Thereafter request of the petitioner to transfer the licence shall be considered and such transfer shall be made within four weeks from the date on which an undertaking is submitted by the petitioner."

In the light of all the aforesaid facts and the judgment

rendered by the co-ordinate Bench, I deem it appropriate to

pass the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) A mandamus is issued to the respondents/Board

directing transfer of the barn licence in favour of

the petitioner, subject to petitioner furnishing an

indemnity bond, undertaking that the petitioner

would be responsible for any of the dues of the

vendor of the petitioner.