Karnataka High Court
Sri Bhimappa S/O Mallappa Myakal vs The State Of Karnataka on 4 July, 2024
Author: S G Pandit
Bench: S G Pandit
-1- CCC NO.100058/2024
C/W WA NO.100163/2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
CIVIL CONTEMPT PETITION NO.100058 OF 2024
C/W
WRIT APPEAL NO.100163 OF 2024 (EXCISE)
IN CCC NO.100058/2024
BETWEEN:
SRI. BHIMAPPA S/O. MALLAPPA MYAKAL
AGE. 74 YEARS, OCC. AGRICULTURE,
R/O. MURAGOD VILLAGE, TAL. SAUNDATTI,
DIST. BELAGAVI-591126.
...COMPLAINANT
(BY SRIYUTHS. SRINAND A. PACHHAPURE, RAJENDRA R. PATIL &
SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRL. SECRETARY,
DEPARTMENT OF FINANCE (EXCISE)-560001
VIDHAN SOUDHA, BENGALURU.
JAGADISH ...PROFORMA RESPONDENT
TR
Digitally signed by
JAGADISH T R
Location: HIGH
2. SRI. DR.J. RAVISHANKAR
COURT OF
KARNATAKA
DHARWAD BENCH
THE EXCISE COMMISSIONER,
A BLOCK, 2ND FLOOR,
BMTC COMPLEX, SHANTI NAGAR,
BENGALURU 560001.
3. SRI. NITESH PATIL
THE DEPUTY COMMISSIONER,
BELAGAVI, DIST. BELAGAVI 590001.
4. SMT. M. VANAJAKSHI
THE DEPUTY COMMISSIONER OF EXCISE,
BELAGAVI SOUTH DISTRICT,
BELAGAVI 590001.
-2- CCC NO.100058/2024
C/W WA NO.100163/2024
5. SRI. SHANKARGOUDA MUDIGOUDAR
THE DEPUTY SUPERINTENDENT OF EXCISE,
RAMADURG SUB-DIVISION,
RAMADURG, DIST. BELAGAVI-591123.
6. SRI. SHRISHAIL S. AKKI
THE EXCISE INSPECTOR,
SAUNDATTI ZONE,
SAUNDATTI, DIST. BELAGAVI-591126.
7. SRI. MANOJKUMAR
MANAGING DIRECTOR,
THE MYSORE SALES INTERNATIONAL LTD.,
CUNNINGHAM ROAD,BENGALURU-560001.
...ACCUSED
(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE FOR R1;
SRI. MRUTYUNJAY S. HALLIKERI AND
SRI. B.S. GAUTHAM, ADVOCATE FOR A7;
NOTICE TO A2 TO A6 ARE SERVED)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION OF INDIA, 1950, PRAYING TO INITIATE THE
CONTEMPT PROCEEDINGS AGAINST ACCUSED FOR DISOBEDIENCE
OF THE ORDER DATED 26/09/2023 PASSED BY LEARNED SINGLE
JUDGE IN WP NO.105197/2023 MARKED AT ANNEXURE-A AND TAKE
ACTION IN ACCORDANCE WITH LAW, IN THE INTEREST OF JUSTICE.
IN WA NO.100163/2024
BETWEEN:
1. THE STATE OF KARNATAKA
R/BY. ITS PRINCIPAL SECRETARY,
DEPARTMENT OF FINANCE (EXCISE),
VIDHANA SOUDHA, BENGALURU-560001.
2. THE EXCISE COMMISSIONER
A BLOCK, 2ND FLOOR, BMTC COMPLEX,
SHANTI NAGAR, BENGALURE-560001.
3. THE DEPUTY COMMISSIONER
BELAGAVI DIST. BELAGAVI-590001.
4. THE DEPUTY COMMISSIONER OF EXCISE
BELAGAVI SOUTH DISTRICT,
BELAGAVI-590001.
-3- CCC NO.100058/2024
C/W WA NO.100163/2024
5. THE DEPUTY SUPERINTENDENT OF EXCISE
RAMADURG SUB DIVISION, RAMADURG,
DIST BELAGAVI-591123.
6. THE EXCISE INSPECTOR
SAUNDATTI ZONE, SANUNDATTI,
DIST. BELAGAVI-591126.
...APPELLANTS
(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)
AND:
1. SHRI BHIMAPPA S/O MALAPPA MYAKAL,
AGE. 75 YEARS, OCC. AGRICULTURE,
R/O. MURAGOD VILLAGE, TAL. SAUNDATTI,
DIST BELAGAVI-591126.
2. THE MYSORE SALES INTERNATIONAL LTD.,
R/BY. ITS MANAGING DIRECTOR,
CUNNINGHAM ROAD, BENGALURU-560001.
3. THE DISTRICT LIASON OFFICER
THE MYSORE SALES INTERNATIONAL LTD.,
1ST FLOOR, MUJAWAR ARCHADE,
NEHARU NAGAR, BELAGAVI-590010.
4. THE GRAM PANCHAYAT MURAGOD
TAL SAUNDATTI, DIST BELAGAVI-591126,
R/BY. ITS SECRETARY.
...RESPONDENTS
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE FOR R1;
SRI. MRUTYUNJAY S. HALLIKERI AND
SRI. B.S. GAUTHAM, ADVOCATES FOR R2 AND R3;
SRI. SHIVARAJ HIREMATH, ADVOCATE FOR R4)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO, SET ASIDE THE ORDER DATED.
26.09.2023 IN W.P.NO.105197/2023 PASSED BY THE LEARNED
SINGLE JUDGE BY THIS HON'BLE COURT AND CONSEQUENTLY
DISMISS THE WRIT PETITION WITH EXEMPLARY COST, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL CONTEMPT PETITION AND WRIT APPEAL HAVING
BEEN HEARD AND RESERVED ON 21.06.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, S.G.PANDIT J.,
DELIVERED THE FOLLOWING:
-4- CCC NO.100058/2024
C/W WA NO.100163/2024
JUDGMENT
The State Government and State Excise Authorities are in
intra-Court appeal questioning the correctness and legality of
learned Single Judge's order dated 26.09.2023 passed in WP
No.105197/2023, by which, writ petition filed by respondent
No.1 herein is allowed quashing the endorsements dated
15.07.2023 and 11.08.2023 at Annexures-Q and R respectively
issued by respondents No.3 and 5 returning the proposal of
respondent No.7-MSIL for grant of CL-11C license to open retail
liquor vending shop at the petitioner's premises in property
No.33/6 situated at Murugod village, Saundatti Taluk, Belagavi
District.
2. The parties to the present appeal would be referred
to as they stood before the learned Single Judge. Appellants
herein are respondents No.1 to 6, respondent No.1 herein was
the petitioner and respondent No.2 herein was the respondent
No.7 before the learned Single Judge.
3. Brief facts of the case are that, respondent No.7-
Mysore Sales International Limited1 made an application on
8.3.2023 to the respondent No.3/Deputy Commissioner and to
'MSIL' for short
respondent No.2/Excise Commissioner for grant of CL-11C
license to establish retail liquor vending shop at the petitioner's
premises bearing property No.33/6 situated at Murugod village,
Saundatti Taluk, Belagavi District. Under Annexure-E dated
8.3.2023, respondent No.7-MSIL addressed a letter to the
respondent No.3/Deputy Commissioner requesting to conduct
spot inspection and to submit report so as to enable them to
remit license fee to forward the proposal. It is stated that on
20.03.2023, Excise Circle Inspector conducted spot inspection
and submitted report, which is placed on record at Annexures-
G and H. On 24.03.2023, one more inspection was conducted
and report was submitted. Both inspection reports
recommended for grant of CL-11C license at the petitioner's
premises. On 30.03.2023, respondent No.7-MSIL submitted
one more application stating that they have complied all the
requirements and requested the respondent No.3/Deputy
Commissioner for grant of CL-11C license for the Excise year
2022-23. It is further stated that as there was delay in
considering the application of respondent No.7/MSIL, the
petitioner approached this Court in WP No.103721/2023
seeking a writ of mandamus to direct respondents No.3 to 6 for
issuance of necessary license to the petitioner to be operated
by MSIL Liquor outlet in respect of CL-11C license as per
recommendation dated 30.03.2023 made by respondent
No.3/District Liaison Officer. This Court by order dated
28.06.2023 allowed the writ petition and directed respondent
No.3/Competent Authority to consider Annexure-L dated
30.03.2023 and pass appropriate orders in accordance with
law. Under Annexure-Q dated 15.07.2023 and Annexure-R
dated 11.08.2023, respondent No.2/Deputy Commissioner of
Excise returned the proposal of respondent No.7/MSIL on the
ground that respondent No.9/Murugod Gram Panchayat has
passed a resolution not to open any retail liquor vending shop
within its jurisdiction. Challenging both endorsements dated
15.7.2023 and 11.08.2023 at Annexures-Q & R respectively,
the petitioner was before this Court in WP No.105197/2023.
4. The learned Single Judge by order dated
26.09.2023 allowed the writ petition quashing the impugned
endorsements and directed respondents No.3 to 6 to reconsider
the case of the petitioner for issuance of license by taking
cognizance of recommendations at Annexures-G, H, L and M.
Aggrieved by the same, the State as well as Excise Authorities
are in this intra-Court appeal.
5. Heard the learned Government Advocate
Sri.G.K.Hiregoudar for the appellants/State, learned counsel
Sri. Srinand A Pachhapure for the petitioner, learned counsel
Sri. Mrutyunjaya S Hallikeri for respondents No.2 and 3-MSIL,
learned counsel Sri. Shivaraj Hiremath for respondent
No.4/Murugod Gram Panchayat and perused writ appeal
papers.
6. Learned Government Advocate Sri.G.K.Hiregoudar
would vehemently contend that the petitioner had no locus
standi to file writ petition, as he is not entitled for grant of CL-
11C license under the Karnataka Excise (Sale of Indian and
Foreign Liquors) Rules, 19682. Learned Government Advocate
referring to Rule 11-C of Rules, 1968 would submit that only
companies owned or controlled by the State Government and
specified by the Government are entitled for CL-11C license.
Thus, learned Government Advocate would submit that the
petitioner being an individual could not have approached the
writ Court for issuance of direction to consider his application
for grant of CL-11C license under Rules 1968. Further, it is
submitted that the petitioner has never made any application
for grant of CL-11C license and it is only respondent
'Rules, 1968', for short
No.7/MSIL, who has submitted an application for grant of CL-
11C license to open retail liquor vending shop in the premises
of the petitioner. Learned Government Advocate would further
submit that respondent No.7/MSIL is entitled to open retail
liquor vending shop only on obtaining CL-11C license in the
premises of the petitioner. It is further submitted that as the
proposal of respondent No.7/MSIL for grant of CL-11C is
returned, it is for the petitioner to seek relief against
respondent No.7/MSIL, but he cannot seek any relief against
respondents No.1 to 6, appellants herein. Further learned
Government Advocate would submit that there is no brevity of
contract between respondents No.1 to 6 and the petitioner.
Learned Government Advocate contends that the learned Single
Judge committed a grave error in issuing mandamus to
respondents No.1 to 6 to consider the case of the petitioner for
issuance of license by taking cognizance of recommendations at
Annexures-G, H, L and M. Learned Government Advocate
submits that the petitioner has no manner of right and when
the petitioner has no manner of right, there is no corresponding
obligation on the part of the respondents to consider the case
of the petitioner for issuance of license, that too when there is
no application of the petitioner for grant of CL-11C license.
Thus, learned Government Advocate would pray for allowing
the appeal and to dismiss the writ petition.
7. On the contrary, learned counsel Sri. Srinand A
Pachhapure for the petitioner supports the impugned order
passed by the learned Single Judge and submits that in the
facts and circumstances of the case, when respondent
No.7/MSIL has held out the promise to establish retail liquor
vending shop in the premises of the petitioner, learned Single
Judge is right in directing to consider the case of the petitioner
for issuance of license. Learned counsel would submit that the
petitioner has made huge investment for construction of the
building and also altered the building in tune with the
requirements of respondent No.7/MSIL. Learned counsel would
invite attention of this Court to the recommendations of Excise
Circle Inspector and Deputy Superintendent of Excise for
opening retail liquor shop at the petitioner's premises and
submits that in the light of said recommendations, respondents
No.2 and 3 ought to have granted CL-11C license. Learned
counsel would submit that rejection of request of respondent
No.7/MSIL to establish retail liquor vending shop at the
petitioner's premises is solely on the letter of local MLA and not
for any other purpose. Placing reliance on decision of the
Hon'ble Apex Court in the case of Gadde Venkateswara Rao
Vs. Government of AP and others3, learned counsel would
contend that a person could approach the Court under Article
226 of the Constitution of India, even if it is a right relating to
interest of trustee, who has been prejudicially affected by an
act or omission of an authority. Thus, he prays for dismissal of
writ appeal.
8. Having heard the learned counsel for the parties
and on perusal of writ appeal papers, the only point that falls
for consideration in this intra-Court appeal is as to, whether
learned Single Judge, in the facts and circumstances of the
case, is justified in quashing the endorsements dated
15.07.2023 and 11.08.2023 at Annexures-Q and R respectively
and also in issuing mandamus to consider the case of the
petitioner for issuance of license by taking cognizance of
recommendations at Annexures-G, H, L and M?
9. Our answer to the above point would be in the
"negative" for the following reasons:
10. It is an admitted fact that in terms of Annexures-C
and E, dated 8.3.2023, respondent No.7/MSIL submitted an
AIR 1966 SC 828
application for grant of CL-11C license to open retail liquor
vending shop in the premises of the petitioner i.e., property
No.33/6, situated at Murugod village, Saundatti Taluk, Belagavi
District and requested respondent No.3/Deputy Commissioner
for spot inspection enclosing 'No Objection' of the petitioner
and to submit his report so as to enable it to remit license fee
and to process the proposal. It is also an admitted fact that the
petitioner has not made any application for grant of CL-11C
license under Rule 11-C of Rules 1968.
11. Rule 11-C of Rules, 1968 reads as under:
"(11-C) Retail shop license issued to
Government Companies:- (1) Notwithstanding
anything contained in Rule 12, a license under this
clause in Form CL(11-C) shall be granted by the
Deputy Commissioner, only to such companies
owned or controlled by the State Government and
specified by the Government, for possession and
sale of liquor in retail shop with a condition that
such shops shall be exclusively maintained by them
and shall not be transferred and sub-leased to
others. Consumption of liquor within the licenses
premises shall not be allowed under this category of
licenses."
In terms of above Rule, CL-11C license shall be granted
by the Deputy Commissioner only to such companies owned or
controlled by the State Government and specified by the
Government. Since respondent No.7/MSIL is a company owned
by the State Government, is entitled to apply for grant of CL-
11C license. The petitioner being an individual is not entitled to
apply for grant of CL-11C license.
12. Under Annexures-Q and R, endorsements dated
15.7.2023 and 11.08.2023 respectively issued by respondents
No.2 and 3, proposal of respondent No.7/MSIL requesting for
issuance of CL-11C license to open retail liquor shop in the
petitioner's premises is returned on the ground that respondent
No.9-Murugod Gram Panchayat has passed a resolution not to
permit the establishment of new liquor vending shop within its
jurisdiction. When the proposal of respondent No.7/MSIL
requesting CL-11C license is returned, the petitioner could not
have approached this Court challenging those endorsements
and seeking writ of mandamus to consider his case for issuance
of license for more than one reason. As stated earlier, the
petitioner has not submitted application for grant of CL-11C
license and moreover, the petitioner is not entitled for grant of
CL-11C license under Rule 11-C of Rules, 1968. If at all the
said endorsements affected the petitioner, it is for the
petitioner to proceed against the respondent No.7/MSIL and the
petitioner could not challenge the action of respondents No.1 to
6, appellants herein.
13. On perusal of impugned order under appeal, it
appears that the learned Single Judge has proceeded as if the
petitioner has made an application for grant of CL-11C license
and made investment. But in fact, the petitioner could not
have made application and rightly, has not made any
application for grant of CL-11C license. Consequently, the
learned Single Judge could not have issued any direction by
way of mandamus to consider the case of the petitioner for
issuance of license.
14. A mandamus could be issued to compel the
authorities to do its legal obligation, when it is shown that the
statute imposes a legal duty on the authorities and aggrieved
party has a legal right under the statute to enforce its
performance.
15. In the instant case, the petitioner has failed to
establish his right for grant of CL-11C license to open retail
liquor vending shop in his building at the hands of respondents
No.1 to 6. The petitioner has also failed to establish or show
any obligation on the part of respondents No.1 to 6 to consider
the case of the petitioner for grant of CL-11C license. If the
respondent No.7/MSIL has identified the petitioner's property
for retail liquor vending unit and if respondent No.7 has failed
to obtain CL-11C license for retail liquor vending shop at the
petitioner's property, it is for the petitioner to proceed against
the respondent No.7/MSIL, but not against respondents No.1 to
6.
16. The decision relied upon by the learned counsel for
the petitioner in Gadde Venkateswara Rao's case supra
would in no way assist the case of the petitioner. The decision
in Gadde Venkateswara Rao's case supra makes it
abundantly clear that the petitioner, who seeks to file
application under Article 226 of the Constitution of India,
should ordinarily be one, who has personal or individual right in
the subject matter of writ petition. Admittedly, in the instant
case, the petitioner has no personal or individual right or the
petitioner has no interest of a trustee and it would also not
involve any public interest. When the petitioner has no right
whatsoever in respect of CL-11C license, the petitioner has no
locus to challenge the rejection of request for CL-11C license of
respondent No.7/MSIL. We find force in the submissions and
contentions of the learned Government Advocate.
17. For the foregoing reasons, we proceed to pass the
following:
ORDER
a) Writ Appeal stands allowed.
b) The impugned order dated 26.09.2023
passed in WP No.105197/2023 by the
learned Single Judge is hereby set-aside.
Consequently, WP No.105197/2023 is
dismissed.
c) In view of disposal of Writ Appeal, CCC
No.100058/2024 would no more survive for
consideration and accordingly, it is disposed
off.
d) Pending interlocutory applications, if any, are
disposed off as not surviving for
consideration.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
