Karnataka High Court

Smt Savitha K R vs The State Of Karnataka on 27 September, 2023

Bench: Chief Justice, M.G.S. Kamal

                          1
                                                        R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                       PRESENT

THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE

                         AND

        THE HON'BLE MR.JUSTICE M.G.S. KAMAL

       WRIT APPEAL No.1318 OF 2022 (EXCISE)
                       C/W
        WRIT APPEAL No.26 OF 2023 (EXCISE)

IN WA No.1318/2022
BETWEEN:

       SMT. SAVITHA K.R.,
       W/O LATE MAHADEV
       AGED ABOUT 60 YEARS
       R/AT No.4/40, 4TH CROSS
       NANDINI LAYOUT
       BENGALURU - 560 096.

                                        ... APPELLANT
(BY SRI. D.R. RAVISHANKAR, SR. ADVOCATE A/W
    SRI. RAVINDRA PRASAD B., ADVOCATE)


AND:

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

2.     THE EXCISE COMMISSIONER IN KARNATAKA
       2ND FLOOR, TTMC 'A' BLOCK
       BMTC BUILDING
       SHANTHI NAGAR
       BENGALURU - 560 027.
                          2




3.   THE DEPUTY COMMISSIONER
     BENGALURU URBAN DISTRICT
     BENGALURU - 560 027.

4.   THE DEPUTY COMMISSIONER OF EXCISE
     BENGALURU URBAN DISTRICT, (EAST)
     BENGALURU - 560 027.

5.   SRI. K. MANJUNATH
     S/O SRI. KRISHNAPPA
     AGED ABOUT 40 YEARS
     R/AT No.282, 2ND STAGE
     3RD BLOCK, BASAVESHWARANAGAR
     BENGALURU - 560 079.

6.   SMT. J. RUKHMINI
     W/O LATE JAYASHANKAR
     AGED ABOUT 57 YEARS
     OCCUPATION: HOUSE WIFE

7.   SRI. J. NAGARJUN
     S/O LATE JAYASHANKAR
     AGED ABOUT 38 YEARS

8.   SRI. RANJITH
     S/O LATE JAYASHANKAR
     AGED ABOUT 36 YEARS

9.   SRI. J. NAGABHRAN
     S/O LATE JAYASHANKAR
     AGED ABOUT 29 YEARS

     RESPONDENT Nos.6 TO 9 IS R/AT:
     No.64, 3RD CROSS
     1ST STAGE, OKALIPURAM
     BENGALURU - 560 021.

                                      ... RESPONDENTS
(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1 TO R4
     SRI. G.K. BHAT, SR. ADVOCATE A/W
    SMT. SUDHA D. ADVOCATE FOR C/R6 TO R9)
                           ---
                           3


     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET-ASIDE THE ORDER DATED:07.09.2022 PASSED IN
WRIT PETITION No.50353/2019 AND CONSEQUENTLY
DISMISS THE WRIT PETITION.

IN WA No.26/2023

BETWEEN:
       K. MANJUNATH
       S/O KRISHNAPPA
       AGED ABOUT 40 YEARS
       CL-02, LICENSEE
       R/O NO.232, 2ND BLOCK
       III STAGE, WEST OF CHORD ROAD
       BASAVESHWARANAGAR
       BENGALURU-560 079.
                                       ... APPELLANT

(BY SRI. MOHAN MAHABALESHWAR BHAT, ADVOCATE)


AND:

1 . SMT. J. 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

   RESPONDENTS 1 TO 4 ARE
   R/OF No.64, 3RD CROSS
   IST STAGE, OKALIPURAM
   BENGALURU-560 021.
                        4



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

6 . THE EXCISE COMMISSIONER
    IN KARNATAKA, 2ND FLOOR
    TTMC, 'A' BLOCK
    BMTC BUILDING
    SHANTINAGARA
    BENGALURU-560 027.

7 . THE DEPUTY COMMISSIONER
    BENGALURU URBAN DISTRICT (EAST)
    NOW BENGALURU URBAN DISTRICT-2
    BENGALURU-560 027.

8 . SMT. K R SAVITHA
    W/O LATE MAHADEV
    NO.207, 2ND STAGE
    3RD BLOCK, BASAVESHWARANAGAR
    BENGALURU-560 079.


                                   ... RESPONDENTS

(BY SRI. G.K. BHAT, SR. ADVOCATE A/W
    SMT. SUDHA D. ADVOCATE FOR C/R1 TO R4;
    SMT. SHWETA KRISHNAPPA, AGA FOR R5 TO R7)
                           ---

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
CALL FOR RECORDS AND ALLOW THIS APPEAL AND SET
ASIDE THE IMPUGNED ORDER DATED 07.09.2022 PASSED
BY THE HON'BLE SINGLE JUDGE IN WP.No.50353/2019
(EXCISE).


     THESE APPEALS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, M.G.S.KAMAL J., DELIVERED THE
FOLLOWING:
                             5


                        JUDGMENT

These writ appeals are filed against the order

dated 07.09.2022 passed in W.P.No.50353/2019

(Excise) by which learned Single Judge while allowing

the said writ petition in part had issued following

directions;

"(i) the transfer of licence dated 30.06.1997 shall be subject to further enquiry by the Department of Excise based upon the report of the Assistant Commissioner of Police submitted before this Court;

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

(iii) on conclusion of inquiry, the Commissioner of Excise shall pass such orders, in accordance with law. In the event, the first petitioner would be 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.

(iv) 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".

2. The aforesaid writ petition is filed by the

petitioners (who are arrayed as respondent Nos. 6 to 9

in W.A.No.1318/2022 and respondent Nos. 1 to 4 in

W.A.No.26/2023) seeking relief in the nature of a writ

of certiorari quashing the order dated 30.06.1997

(Annexure-E) made by the Deputy Commissioner of

Excise, Bengaluru Urban District-respondent No.4 in

the writ petition and for a writ of mandamus directing

Deputy Commissioner, Bengaluru Urban District-

respondent No.3 and respondent No.4 to transfer the

licence in Form CL-2 that was standing in the name of

one late Jayshankar.

3. It is the contention of the writ petitioners

that deceased Jayshankar, who was their husband and

father respectively was holding licence in Form CL-2

and that he had apparently executed a power of

attorney in favour of one K.Shivarame Gowda to

lookafter the business. That the said Jayshankar stated

to have passed away on 09.02.1997 leaving behind the

petitioners as his legal heirs. That on 30.06.1997 just

a day before commencement of excise year 1997-98

respondent No.4 in excise of powers under Rule 17B of

the Karnataka Excise Licences (General Conditions)

Rules, 1997 (for short 'Rules, 1997') transferred the

said licence in favour of Smt.K.R.Savitha the

respondent No.5 in the writ petition. That

subsequently by another order dated 23.09.2007 the

said licence was transferred in favour of one

Sri.K.Manjunath, respondent No.6 in the writ petition.

4. That the petitioner No.1 not being worldly-

wise and petitioners Nos.2 to 4 being minors and

school going children did not have any knowledge of

the liquor business being run by deceased

Jayashankar. However, on learning about the same

based on the documents available at home, the

petitioners became alert the made representation to

the respondent -authorities seeking restoration of

licence in their name and also issued notice on

06.03.2019. Though, in response thereof a show

cause notice dated 14.06.2019 was issued by

respondent No.4 there is no further progress in the

matter. That the transfer of licence was a result of

fraud as the same was effected subsequent to the

death of Jayashankar. Since there was no action on the

part of respondent-authorities, petitioners were

constrained to approach this Court.

5. On behalf of the respondents it was

contended that the petition was liable to be dismissed

solely on the ground of delay and laches, inasmuch as

the petition has been preferred after lapse of 22 years

from the date of alleged cause of action. The claim of

the petitioners that they were the legal representatives

of deceased Jayashankar and that on the date of his

death is also denied and disputed. It was contended

that the documents produced and relied upon by the

petitioners with regard to the identify of deceased

Jayashankar suffered from gross discrepancies and

that such disputed fact could not be gone into in a

petition under Article 226 of the Constitution of India.

6. Considering the rival submissions of the

parties, learned Single Judge framed the following

issue for his consideration;

"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?"

7. Thereafter, learned Single Judge referred to

an order dated 26.02.2021 passed in the writ petition

whereby an inquiry was directed to be conducted into

the matter at the hands of a competent police officer

and accordingly, Commissioner of Police, Bangalore

City was requested to assign the inquiry to a Senior

Police Officer in the City Crime Branch with further

direction to such officer to go into the question raised

in the order and also to secure relevant informations

from the respondent No.4 apart from summoning

petitioners and private respondents. In view of dispute

with regard to the very identity of said Jayashankar it

was also directed to ascertain as to who the actual

licencee was. A report in this regard was directed to

filed within two months.

8. It appears pursuant to the said order, the

police submitted a report in the sealed cover, which

was opened and perused in the open court. The report

is extracted in the impugned order. It is noted that in

terms of the report it was opined that licencee

S.Jayashankar died on 09.02.1997 and after four

months of his death on 23.06.1997 an anonymous

person impersonating himself as S.Jayashankar

produced fabricated records and submitted the

application to transfer the licence in favour of

Smt.Savitha the respondent No.5. Apart from other

observation, it was also opined that it was necessary to

take opinion from Forensic Science Laboratory and for

that purpose an FIR was required to be filed. Taking

note of the content of the report learned Single Judge

further observed that "this Court need not dwell 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 Article 226 of the Constitution of

India seriously disputed question of fact cannot be

gone into".

9. Having thus observed, learned Single Judge

proceeded to address the contentions raised by the

petitioners in the writ petition with regard to enormous

delay of 22 years in the petitioners approaching this

Court. The learned Single Judge answered the said

contention stating that since the report clearly

mentions that the transfer of licence itself was result of

fraud played by the transferee and that the fraud

vitiates every solemn act that can be invoked at any

point of time and that the delay in approaching the

Court can hardly be said to be a circumstance that

would militate against the petitioners.

10. With aforesaid broad reasonings and

observations learned Single Judge proceeded to allow

the petition in part with further directions as noted

hereinabove.

11. Being aggrieved by the aforesaid order,

Smt.K.R.Savitha, respondent No.5 is before this Court

in W.A.No.1318/2022 and Sri. K.Manjunath respondent

No.6 is before this Court in W.A.No.26/2022.

12. Sri. D.R.Ravishankar, learned Senior

counsel appearing for the appellants submitted that;

12.1 Learned Single Judge initially by order

dated 15.02.2021 had directed the petitioners to

satisfy as to how the writ petition could be sustained

after long lapse of time and explain the delay and

laches. However when the matter was posted for the

said purpose on 26.02.2021 that without considering

the said question as originally framed by order dated

15.02.2021, learned Single Judge passed further order

on 26.02.2021 directing inquiry to be conducted by the

police with regard to transfer of licence and identity of

persons involved. That the respondent No.5 having

come to know about the factum of writ petition only

upon the inquiry by the police, entered appearance in

the writ petition and sought for recalling the order

dated 26.02.2021. however, even before consideration

of said application the report was filed and the

application had become redundant. That the said

report was filed in a sealed cover without even

furnishing the copy to the respondent No.5.

12.2 He further submits that the Apex Court in

the case of Joint Collector of Ranga Reddy District

and anr Vs. D.Narsing Rao reported in (2015) 3

SCC 695 has clarified the position that when no

limitation period is prescribed under statue the powers

should be exercised within reasonable time, which is to

be determined having regard to lapse of time between

knowledge of alleged fraud or irregularity and that the

person affected should make a statement as to when

the alleged fraud or illegality came to be discovered.

Thus, relying upon the said principles of law, learned

Senior counsel further submitted that there is no

pleading of any nature whatsoever in the entire writ

petition as to the date on which the petitioner learnt

about the alleged fraud and that this aspect of the

matter not having been considered by the learned

Single Judge has adversely effected the right of the

third party which has been created over a period of

time. In this regard, he refers to a judgment of the

Apex Court in the case of State of Madhya Pradesh

and others Vs. Nandlal Jaiswal and others

reported in (1986) 4 SCC 566.

12.3 He further submits that there is no

provision under the Karnataka Excise Act, 1965

(hereinafter referred to as the `Act, 1965') or the rules

framed thereunder providing any jurisdiction or

authority thereunder to conduct an inquiry as being

directed by the learned Single Judge in the impugned

order. Referring to Judgment of the Apex Court in the

case of A.R.Antulay Vs R.S.Nayak and anr

reported in (1988) 2 SCC 602 learned Senior

counsel submits that the authority which has no

jurisdiction under the statue cannot be clothed with

such authority by issuing direction in the nature of

mandamus. Thus, he submits the impugned order

passed by the learned Single Judge requires to be

interfered with.

12.4 Sri. Mohan Mahabaleshwar Bhat, learned

counsel appearing for appellant in W.A.No.26/2022

referring to Rule 17A of the Rules 1967 submitted that

the transfer of licence in the event of death of the

licencee can take place only "during the currency of the

licence". He also referred to Rule 5A of the Karnataka

Excise (Sale of Indian and Foreign Liquors) Rules, 1968

(hereinafter referred to as `Rules, 1968) providing for

renewal of licence to contend that the said Rule was

inserted by way of an amendment with effect from

24.06.2000 and prior to the insertion of said Rule the

licence that was issued was only for a period of one

year and any subsequent grant or extension thereof

was always considered as a fresh licence. That in the

instant case, the licence which was granted in favour of

Jayashankar was only for a period of one year and that

having expired by afflux of time, challenge to the said

transfer for the same if any cannot be sustained that

too after lapse of 22 years. He further submitted that

the licence which was granted in favour of Jayashankar

which had already lapsed due to efflux of time, the

petitioners cannot have any vested rights to question

the purported transfer of the same in favour of

respondent No.5 and subsequently in favour of

respondent No.6 as the licence originally granted was

not subsisting. Thus, he submitted that petitioners

have no locus standi to question the order of transfers,

that too after lapse of 22 years without any justifiable

explanation.

13. Sri. G.K.Bhat, learned Senior counsel

appearing for the writ petitioners at the outset

submitted that;

13.1 On 26.02.2021 when the learned Single

Judge directed the probe/inquiry by the competent

police officer, the very same order shall be construed

as an order condoning the delay in filing the writ

petition though no specific order in this regard is

passed. He refers to the order sheet and the orders

dated 15.02.2021 and 26.02.2021 in justification of his

submission regarding deemed condonation of delay in

filing the writ petition.

13.2 He submitted that sufficient pleading is

made in the writ petition with regard to the ignorance

and economic conditions of the petitioners in not being

able to approach the Court in time and the same forms

sufficient and justifiable explanation for the delay in

approaching the Court.

13.3 He further submitted that the enquiry

conducted by the police officer is pursuant to the order

passed by the learned Single Judge in writ petition and

no fault can be found with the same. He also

submitted that consequent to the orders of this Court

the licence which was subsisting in the name of

respondent No.6 has been withdrawn by order dated

29.03.2023 and in that view of the matter nothing

survives for consideration in the present appeals.

13.4 Referring Rule 17A of the Rules, 1967 he

submitted that the licence was valid upto 30.06.1997

and that the order of transfer has been passed on

30.06.1997. He submitted that an order transferring

the licence can be made under Rule 17B of the Rules,

1967 only upon an application by the licencee and in

the instant case since the original licencee had expired

on 09.02.1997 there was no possibility of any such

application being made by him. Thus, he submits that

a clear fraud has been played on the authorities by the

respondent No.5 in obtaining the transfer subsequent

to the death of the original licencee.

13.5 As regards the enquiry he submitted that

respondent No.5 fully participated and produced the

documents in justification of her stand and as such it

was not available for respondent No.5 to contend that

no opportunity was given. He further submitted that

the interest of the appellants have been safeguarded in

the impugned order and an inquiry already having

been conducted resulting in withdrawal of the licence,

no interference is warranted in the impugned order.

Hence, seeks for dismissal of the appeals.

        14.    Smt.         Shwetha     Krishnappa,        learned

Additional Government Advocate                 submitted that the

fraud     which       has    been     played    by   the   private

respondents disentitles them from claiming any benefit

after transfer of licence. She relied upon the judgment

of the Apex Court A.V.Papayya Sastry and others

vs. Government of A.P. and others reported in

(2007) 4 SCC 221 to submit that delay cannot be a

ground to condone fraud. She further submitted that

the licence under the Act, 1965 and the rules made

thereunder is a mere privilege granted by the State

and the private respondents/appellants have no legal

right to claim impunity. That the legality of the transfer

has been subjected to a thorough inquiry participated

by the respondent No.5/appellant and the same

cannot be disputed by the appellant. Thus, she

submits that the order passed by the learned Single

Judge does not warrant any interference.

15. Heard and perused the records.

16. At the outset it is necessary to note that the

writ petition has given rise to serious disputed

questions of fact in the nature of very identity of

S.Jayashankar the original licencee whom the

petitioners claim to be their husband and father

respectively while respondent Nos.5 and 6 contend

that S.Jayashankar being claimed by petitioners is a

different and distinct person. Date of death of said

Jayashankar is also disputed. Issue of fraud and

fabrication of records/documents is a complex aspect.

Thus even as rightly taken note of by learned Single

Judge such disputed questions of fact cannot be gone

into in a petition under Article 226 of the Constitution

of India.

17. The next issue that arise for consideration is

whether the directions issued by learned Single Judge

for conducting an inquiry into matter of this nature by

a police officer and further directions to the

Department of Excise/Commissioner of Excise to

conduct enquiry based on the report submitted by the

Assistant Commissioner of Police and to take all further

actions as consequence thereof is sustainable? On our

repeated queries to the learned Senior counsel

Sri.G.K.Bhat appearing for the writ petitioners as well

as to learned Additional Government Advocate no

provisions under the Act or Rules are brought to our

notice justifying enquiry by the Commissioner of

Excise/Department of Excise into the complex issues of

the nature noted above. Though learned Senior

counsel and learned Additional Government Advocate

made attempts to refer to Sections 30, 35 and 55 of

the Karnataka Excise Act, 1965 we are not inclined to

accept the same as the said provisions do not cover

the matter of this nature to be investigated by the

authorities under the Act, 1965. The said provisions

are extracted hereunder for immediate perusal:

Sections 30, 35 and 55

"30. Power to withdraw licence.- (1) Whenever the authority which granted any licence under this Act considers that such licence should be withdrawn for any cause other than those specified in section 29, it may withdraw the licence on the expiration of not less than thirty days' notice in writing of its intention to do so.

(2) When a licence is withdrawn under sub- section (1), a part of the licence fee proportionate to the unexpired portion of the term of the licence and the deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount due from him to the State Government.

35. Penalty for offence not otherwise provided for.- Whoever does any act in contravention of any of the provisions of this Act, or of any rule, notification or order made, issued or given thereunder, and not otherwise

provided for in this Act, shall, on conviction, be punished 1 [with fine which shall not be less than two hundred rupees and not more than one thousand rupees.]

55. Power of Excise Officers in matters of investigation.- (1) Any 1 [Inspector of Excise or a Sub- Inspector of Excise] 1 or any Excise Officer not below such rank and within such specified area as the State Government may, by notification, prescribe, may, as regard offences under section 32, section 33, section 34 2 [section 35, section 36, section 37, section 38 or section 38A] exercise powers conferred on an officer-in charge of a police station by the provisions of the 3 [Code of Criminal Procedure 1973] Provided that any such power shall be subject to such restrictions and modifications, if any, as the State Government may prescribe.

(2) For the purposes of section 156 of the Code, the area in regard to which an [Inspector of Excise or a Sub-Inspector of Excise or an Excise Officer] is empowered under sub-section (1), shall be deemed to be a police station and such officer shall be deemed to be the officer in charge of such station".

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, 36, 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 complaint before the jurisdictional police.

Thus, there is no qualms about the fact that the Excise

Act, 1965 or the Rules, 1967 do not contemplate any

provisions to deal with the situation at hand.

19. The Apex Court in the case of A.R.Antulay

(supra) at paragraph 91 has held as under:

"91. It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the legislature. For instance, Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of 'Words and

Phrases' Vol. 23-A at page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated:

Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court's territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision".

20. In view of the aforesaid position of law

enunciated by the Apex Court and also in the absence

of any specific provision in the Excise Act, 1965 we are

of the considered view that the directions issued in the

impugned order to the Commissioner

Excise/Department of Excise to conduct the inquiry

that too on the basis of a report submitted by the

Assistant Commissioner, Police by virtue of order dated

26.02.2021 passed in the writ petition cannot be

sustained as such and inquiry would be one without

jurisdiction.

21. Adverting to the issue of delay it is

necessary to note that in paragraph 1 of the writ

petition, the petitioners have pleaded that their

husband and father respectively was holding a licence

in form of CL-2 and was a running a retail liquor

business at Premises No.203, Arabic College Road,

Venkateshpura Main Road, Bengaluru during his life

time. That he appears to have executed a General

Power of Attorney in favour of one K.Shivaramegowda

for the purpose of day to day management of the said

business of CL-2 licence retail liquor shop in the name

and style of "Quality Wines". The said Jayashankar

died on 09.02.1997 in a road accident. At paragraph 2

of the writ petition it is stated that on 30.06.1997 the

Deputy Commissioner Excise passed an order

transferring the licence of the deceased Jayashankar in

favour of respondent No.5 and thereafter on

23.09.2007 in favour of respondent No.6. At

paragraph 3 of the writ petition it is averred that

petitioner No.1 is not worldly-wise and petitioner Nos.2

to 4 children of deceased licencee were small in age

and school going and did not have complete knowledge

of the liquor business that was run by deceased

husband and father of the petitioners respectively.

However, after knowing about the same based on the

documents available at home, petitioners became alert

and made representation to the respondents 2, 3 and 4

and sought restoring the licence in their name as they

are legal heirs. It is also pleaded that apart from

seeking information under Right to Information Act

they had also issued legal notice on 06.03.2019. Thus,

except these averments there is no whisper in the

entire writ petition as to the date on which the

petitioners learnt about the transfer of licence obtained

allegedly by playing fraud by respondent No.5 or of the

subsequent transfer of licence in favour of respondent

No.6. Learned Senior counsel appearing for the

petitioners strenuously contended that the ignorance

and economic conditions of the petitioners cannot be

lost sight of. Besides, he also contended that the order

dated 26.02.2021 passed by learned Single Judge

directing an inquiry by the competent police officer into

the matter has to be construed as condoning delay in

filing the writ petition. In our considered view the said

submissions cannot be accepted.

22. It is necessary to note that on a perusal of

notice dated 28.02.2019 produced at Annexure-H to

the writ petition issued by one of the petitioners it is

seen that at paragraph 3 following is stated:

"My client instructs me to state that, my client and his mother and brothers have filed a accident case in MVC No.534/1998 for compensation before the Small Causes Court, Bengaluru, and in the said case the award is also passed on 02.04.2004."

23. On noticing the aforesaid statement in the

notice at Annexure-H this Court had called upon the

petitioners to furnish the details of the said MVC

proceedings. In response thereof learned Senior

counsel filed a memo dated 31.08.2023 along with a

copy of claim petition in MVC No.534/98 dated

21.02.1998, Judgment dated 02.04.2004 passed in the

said MVC, a copy of CL-9 licence standing in the name

of one Sri.S.Venkatesh who is stated to be younger

brother of deceased Jayashankar.

24. On perusal of paragraph 11 of the Judgment

passed in MVC No.534/98 it is seen that

petitioners/claimants in the said proceedings have

contended that deceased Jayashankar was a proprietor

of a Transport Company earning Rs.5,000/- per month.

Apart from that he was having 7 acres 12 guntas of

land and was earning income from agricultural

activities and apart from that he was running a Bar and

Restaurant at Gangenahalli. Document No.3 produced

along with the memo depicts that a licence in form

No.CL-9 is standing in the name of one S.Venkatesh

who is stated to be the owner of one "Kwality Bar and

Restaurant", Vasantappa Block, Gangenahalli.

Referring to the same learned Senior counsel sought to

justify that though in the motor accident claims

proceedings petitioners had contended that deceased

Jayashankar was earning income from his business of

Bar and Restaurant, the said business was in relation

to the aforesaid licence in CL-9 issued in favour of his

brother Venkatesh and has nothing to do with the

present licence involved in this lis. This submission of

learned Senior counsel cannot be accepted as there is

no material placed to correlate the liquor business

referred to in the Judgment passed in motor vehicle

accident proceedings with that of CL-9 licence

purportedly issued in favour of brother of deceased

Jayashankar. The name of the liquor business referred

to in the writ petition at paragraph 1 namely "Quality

Wines" and the name of the business referred to in CL-

9 appears to be one and the same. The fact remains

the petitioners were aware of their husband and father

respectively carrying on the business of liquor during

his lifetime and pleading and submission regarding

their 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.

25. Nothing prevented the petitioners from

pleading in the writ petition about their claim as made

in the claim proceedings before the MVC Tribunal

regarding deceased having had a liquor business. This

would give rise to a doubt on the bonafides of the

petitioners in not disclosing true and full facts while

invoking the extraordinary jurisdiction of this Court

under Article 226 of the Constitution of India.

26. The Apex Court in the case of Joint

Collector Ranga Reddy District vs. D. Narsing Rao

and others reported in (2015) 3 SCC 695 (Supra)

at paragraph 27, 31 and 32 has held as under:

27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham V. K. Suresh Reddy and Ors. where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied only on the ground of delay. The Court said (SCC p.677, para 9)

"9...In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."

31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.

32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant- State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed.

27. Learned Additional Government Advocate

sought to distinguish the aforesaid Judgment of the

Apex Court in the case of Ranga Reddy on the

premise that same had been passed in respect of

proprietary rights in immovable property as such the

same was not applicable to the instant case. She

relied upon the Judgment of the Apex Court in the case

of A.V.Papayya Sastry (supra) wherein at paragraph

15 Apex Court on facts has observed as under:

"15. CBI made an enquiry and the report was submitted by the Police Inspector which revealed startling facts. From the report, it is clear that fraud was committed by the land owners in collusion with officers of the respondents. Criminal proceedings were also initiated and they are pending. It was, therefore, submitted that the High Court was right in recalling its earlier order".

Relying upon the said Judgment she submitted

that even the instant case startling facts of fraud were

revealed only upon the direction to conduct the enquiry

that was passed by the learned Single Judge. As such

it is submitted that the aspect of delay needs to be

construed liberally.

28. We are unable to accept this submission in

view of the fact situation narrated above, more

particularly knowledge of petitioners regarding liquor

business being carried on by deceased Jayashankar as

disclosed by them in the MVC proceedings and in view

of the principles of law laid down by the Apex Court in