Karnataka High Court
The Commissioner Of Excise 2Nd Floor ... vs Shri Manjunath Bar And Restaurants Ptrn ... on 30 July, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
R
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO.100328 OF 2023 (EXCISE)
C/W. WRIT APPEAL NO.100095 OF 2022 (GM-RES)
WRIT APPEAL NO.100321 OF 2023 (GM-EXCISE)
WRIT APPEAL NO.100324 OF 2023 (EXCISE)
WRIT APPEAL NO.100336 OF 2023 (GM-EXCISE)
WRIT APPEAL NO.100351 OF 2023 (GM-EXCISE)
IN WA NO.100328/2023:
BETWEEN:
Digitally
signed by
1. THE STATE OF KARNATAKA
JAGADISH T R
Location: High
R/BY. ITS SECRETARY,
Court of
Karnataka TO EXCISE DEPARTMENT,
Dharwad
Bench BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
OF EXCISE, DHARWAD, DIST. DHARWAD-580001.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
M/S. PALLAVI BAR AND RESTAURANTS,
CTS NO.126, GOULI GALLI, HUBBALLI,
R/BY. ITS PARTNER,
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
SHRI MANJUNATH S/O. PARASHURAM PAWAR,
AGE. 33 YEARS, OCC. BUSINESS,
R/O. NO.191, ARAVIND NAGAR, HUBBLLI,
TQ. HUBBALLI, DIST DHARWAD-580001.
... RESPONDENT
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND QUASH THE ORDER DATED 25TH MARCH 2021
IN W.P.NO.101180/2021, PASSED BY THE LEARNED SINGLE
JUDGE IN THE INTEREST OF JUSTICE AND EQUITY.
IN WA NO.100095/2022:
BETWEEN:
1. THE COMMISSIONER OF EXCISE,
2ND FLOOR, BMTC SATELLITE BUILDING,
SHANTI NAGAR, BANGALORE-560027.
2. THE DEPUTY COMMISSIONER,
HAVERI, TQ & DIST. HAVERI-581110.
3. THE DEPUTY COMMISSIONER OF EXCISE,
HAVERI, TQ & DIST. HAVERI-581110.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
SHRI. MANJUNATH BAR AND RESTAURANTS,
PARTNERSHIP FIRM,
R/BY. ITS MANAGING PARTNER,
SHRI R. NAGARAJ,
AGE. 48 YEARS, OCC. BUSINESS,
NP NO.1967, GUTTAL TOWN,
TQ & DIST. HAVERI-581110.
... RESPONDENT
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND SET ASIDE THE ORDER DATED 2ND MARCH
2021 IN WP.NO.100054/2021 PASSED BY THE LEARNED SINGLE
JUDGE, IN THE INTEREST OF JUSTICE AND EQUITY.
IN WA NO.100321/2023:
BETWEEN:
1. THE STATE OF KARNATAKA,
R/BY. ITS SECRETARY,
TO EXCISE DEPARTMENT,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
OF EXCISE, DHARWAD,
DIST. DHARWAD-580001.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
M/S. KAVERI PEG BAR,
TRADE AS MINERVA BAR AND RESTAURANT,
CTS. NO.4803/B, OPP. NEW BUS STAND,
GOKUL ROAD, HUBBALLI,
R/BY. ITS PARTNER, SHRI. SHRIKANT KATWE,
S/O SHANKARSA KATWE,
AGE. 51 YEARS, OCC. BUSINESS,
R/O. HUBBALLI, TQ. HUBBALLI,
DIST. DHARWAD-580001.
... RESPONDENT
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND QUASH THE ORDER DATED 31ST MARCH 2021
IN W.P.NO.148012/2020, PASSED BY THE LEARNED SINGLE
JUDGE IN THE INTEREST OF JUSTICE AND EQUITY.
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
IN WA NO.100324/2023:
BETWEEN:
1. THE STATE OF KARNATAKA,
R/BY. ITS SECRETARY,
TO EXCISE DEPARTMENT, BENGALURU-560001.
2. THE COMMISSIONER OF EXCISE,
BENGALURU DISTRICT, BENGALURU-560001.
3. THE DEPUTY COMMISSIONER OF EXCISE,
DHARWAD DISTRICT, DHARWAD-580001.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
M/S. PRABATH BAR,
CTS. NO.4890+4891/B,
GOKUL ROAD, HUBBALLI-580030.
A PARTNERSHIP FIRM,
R/BY. ITS PARTNERS.
1. SRI. DEEPAK S/O PANDURANGSA MAGAJIKONDI
AGE. 56 YEARS, OCC. BUSINESS,
R/O SARASWATIPURAM, KESHAVAPUR,
HUBBALLI, TQ. HUBBALLI, DIST. DHARWAD-580030.
2. SRI. JAGADISH S/O PANDURANGSA MAGAJIKONDI
AGE. 46 YEARS, OCC. BUSINESS,
R/O SAI GARDEN, BHAVANI NAGAR, HUBBALLI,
TQ. HUBBALLI-580020, DIST. DHARWAD.
3. SRI VISHAL S/O DEEPAK MAGAJIKONDI
AGE. 27 YEARS, OCC. BUSINESS,
SARASWATIPURAM KESHAVAPUR, HUBBALLI,
TQ. HUBBALLI-580020, DIST. DHARWAD.
... RESPONDENTS
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND QUASH THE ORDER DATED 23.07.2021 IN
W.P.NO.102413/2021, PASSED BY THE LEARNED SINGLE JUDGE
IN THE INTEREST OF JUSTICE AND EQUITY.
IN WA NO.100336/2023:
BETWEEN:
1. THE STATE OF KARNATAKA
R/BY. ITS SECRETARY
TO EXCISE DEPARTMENT,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
OF EXCISE, DHARWAD,
DIST. DHARWAD-580001.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
M/S. VINAYAK HOTELS,
CTS NO.4880/11, AIR PORT ROAD,
NEAR HOSUR BRIDGE, HUBBALLI,
R/BY. ITS PARTNER,
SRI. ASHOK S/O GIRIMALLAPPA KOTI,
AGE. 64 YEARS, OCC. BUSINESS,
R/O. LINGARAJ NAGAR (SOUTH),
29TH CROSS, VIDYA NAGAR, HUBBALLI,
TQ. HUBBALLI, DIST. DHARWAD-580001.
... RESPONDENT
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND QUASH THE ORDER DATED 25TH MARCH 2021
IN W.P.NO.101168/2021, PASSED BY THE LEARNED SINGLE
JUDGE IN THE INTEREST OF JUSTICE AND EQUITY.
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
IN WA NO.100351/2023:
BETWEEN:
1. THE STATE OF KARNATAKA,
R/BY. ITS SECRETARY,
TO EXCISE DEPARTMENT,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER,
OF EXCISE, DHARWAD,
DIST. DHARWAD-580001.
... APPELLANTS
(BY SRI. G.K. HIREGOUDAR, AGA)
AND:
M/S. KISHORE MEHERWADE AND CO.
MADHUBAN BAR AND RESTAURANT,
CTS NO.1928/1, PLOT NO.2, WARD NO.3,
OPP. APMC YARD, AMARAGOL, HUBBALLI,
R/BY. ITS PARTNER SRI. TULAJARAM,
S/O. MAHADUSA MEHERWADE,
AGE. 75 YEARS, OCC. BUSINESS,
R/O. VISHWESHWARNAGAR, HUBBALLI,
HUBBALLI, DIST. DHARWAD-580001.
... RESPONDENT
(BY SRI. G.I. GACHCHINAMATH, ADVOCATE)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THE
WRIT APPEAL AND SET ASIDE THE ORDER DATED 25.03.2021 IN
W.P.NO.101184/2021, PASSED BY THE LEARNED SINGLE JUDGE
IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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WA No.100328 of 2023
C/W WA No.100095 of 2022
WA No.100321 of 2023
AND 3 OTHERS
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT)
1. All these Intra Court Appeals involving substantially
similar facts and legal matrix are presented by the State & its
officials to call in question a set of six judgments rendered by
two learned Single Judges of this Court whereby W.P. Nos.
101180/2021, 100054/2021, 148012/2020, 102413/2021,
101168/2021 & 101184/2021 filed by the respondents Wine
Shop Licensees having been favoured, the impugned punitive
action taken against them has been invalidated.
2. Learned AGA appearing for the appellant-State
vehemently argues that the reconstitution of licencesee
partnership firms by induction of others results into the original
entities loosing their identity and therefore there is transfer of
the lincenses in violation of Rule 17-B of the Karnataka Excise
(General Condition of License) Rules, 1967 especially when such
reconstitution was not notified to the authorities. He further
submits that the learned Single Judges have selectively applied
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AND 3 OTHERS
the decision of another learned Single Judge in M/s. Shankar
Wines Vs. The Commissioner of Excise.1 He draws attention
of the Court about the requirement of licencees taking prior
permission of the Commissioner for such reconstitution and
informing him the factum of reconstitution of the firm. All these
aspects, according to the AGA, having been lost sight of, the
impugned judgments suffer form the vice of infirmities and
therefore are liable to be voided. Learned advocates appearing
for the private respondents who happened to be the writ
petitioners resist the appeals by making submission in
justification of the reasoning on which the impugned judgments
are constructed.
3. Having heard the learned counsel for the parties and
having perused the appeal papers we decline indulgence in the
matters for the following reasons with some observations as
under:
(i) Ordinarily liquor is res extra commerciam since trade in it
is inherently harmful to the Society. No person can claim the
right to trade in liquor as a matter of right, let alone a
fundamental right vide M/s. Khoday Distilleries Ltd. Vs.
(2017) 6 KLJ 507
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AND 3 OTHERS
State of Karnataka2. However, when the statute regulates
business in the liquors, the authorities have to act in accordance
with the provisions of such a statute; otherwise the actions are
liable to be faltered, hardly needs to be stated. Rules 17-A of the
1967 Rules has the following text:
"17-A. Transfer in the event of death.- In the
event of death of the licensee or the lessee, the Deputy
Commissioner may on an application by the legal heirs of
the deceased with the previous sanction of the Excise
Commissioner, transfer the licence or the lease as the
case may be, in their favour."
This Rule apparently provides for induction of legal heirs of the
deceased person to whom the licence / lease was granted under
the extant Rules. However, where the partnership comprises of
members of a Joint Hindu Family and if one or two of them
would pass away, the estate of the deceased would ordinarily
pass on to his L.Rs. such a partnership would not come to an
end by way of dissolution or otherwise, unlike other partnership
firms.
(ii) The above view gains support from Mulla's Hindu Law3
which reads as under:
"232. Ancestral business and its incidents.-
(1) In Hindu Law, a business is a distinct heritable asset.
Where a Hindu dies leaving a business, it descends like
other heritable property to his heirs. If he dies leaving a
male issue, it descends to him. In the hands of the male
issue, it becomes joint family business, and the firm
which consists of the male becomes a joint family firm.
The joint ownership so created between the male issue is
not an ordinary partnership arising out of a contract but a
(1995) 1 SCC 574
3 nd
22 Edition, page 353
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AND 3 OTHERS
family firm created by the operation of law. Therefore,
the rights and liabilities of the coparceners constituting
the family firm are not to be determined by exclusive
reference to the provisions of the Indian Partnership Act,
1932, but must be considered also with regard to the
general rules of Hindu Law which regulate the
transactions of joint families."
In cases of partnership business in liquor run by the members of
a Joint Hindu Family, if some of them die or retire from the firm,
the business would be run as usual by others. In such a case,
the provisions of Rule 17-A stricto sensu are not applicable.
However, the requirement of informing death/retirement and of
induction of L.Rs. of the deceased to the firm in the stead of
deceased has to be conveyed to the authorities concerned,
within a reasonable time, so that records are updated. In such
cases, the requirement of sanction from the Excise
Commissioner shall be only facilitative of the same. An argument
to the contrary would offend the long standing customary rules
of Hindu Law. We hasten to add that all this is applicable only to
the partnership firms that specifically mentions about the
business of Joint Hindu Family, and not to others. This does not
immune the licencee from making the payment of the
fees/charges if any, prescribed for the same.
(iii) Learned AGA appearing for the appellants vehemently
invoked the provisions of Rule 17-B of the 1967 Rules to contend
that whenever there is a reconstitution of the partnership firm,
there is a case of transfer of licence and therefore the
prescriptions of the said provisions have to be complied with. For
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AND 3 OTHERS
ease of reference relevant part of the said Rule is produced
herewith:
The Deputy Commissioner may on an application by
the licensee and [subject to payment of transfer fee
equivalent to twice the annual licence fee] specified in
Rule 8 of the Karnataka Excise (Sale of Indian and
Foreign Liquors) Rules, 1968 or Rule 5 of the Karnataka
Excise (Lease of Right of Retain Vend of Beer, Rules,
1976, as the case may be and with the prior approval of
the Excise Commissioner, transfer such licence in favour
any person named by such licence, if such person is
eligible for grant of licence under the Karnataka Excise
Act, 1965 or the rules made thereunder.
Under the extant Rules licence or lease can be granted to any
person natural or juristic or to other entities such as partnership
firms, is not in dispute. Where the firm comprises of
non members of the joint family, and some of them die or quit
and in their stead others are inducted, indisputably it is a case of
transfer within the meaning of Rule 17-B is also not disputed. In
five of the six appeals, the licences have been granted to the
firms that have the family members as partners, and on the
death of some of them their heirs have been inducted, may be in
varying shares; we are told at the Bar that there is none other
than the family members. Such cases as already observed
above, do not attract the provisions of Rule 17-B stricto sensu.
What is required in such reconstitution is that the information
about the reconstitution has to be conveyed for the purpose of
updation of the records and for the payment of fees prescribed
for such a special case of "transfer" and nothing beyond. Even
the previous approval of the Commissioner is also for that
purpose only. There is abundant evidentiary material to vouch
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AND 3 OTHERS
the contention that in the renewal application, a copy of the
reconstitution deed has been submitted as requirement of the
protocol. Therefore, the case of the respondents that Rule 17-B
has breached cannot be sustained. This aspect although has not
been satisfactorily dealt with by the learned Single Judge, the
impugned judgment having brought about the correct result,
qua these five cases, our interference is not called for.
(iv) The above being said the case in W.A. No.100095/2022
stands on a different footing. Admittedly, the licencee is a
partnership firm and the partners are not the members of Joint
Hindu Family, but the strangers in that sense. That being the
position, the presumption that every Hindu Family is a Joint
Hindu Family does not apply as rightly contended by the learned
AGA. To that extent this case is miles away from the set of other
five appeals and therefore what is applicable to that set is not
applicable to this singular case. We agree with the submission of
the learned AGA that when a firm is reconstituted with 50% or
more of the new partners, the original entity to which the licence
is granted would loose its identity and therefore, the
reconstitution in such circumstance amounts to "transfer" as
contemplated under Rule 17-B. Learned AGA is justified in
placing reliance on Shankar Wines supra wherein a learned
Single Judge has rightly observed at para 20 as under:
"In case, the partnership firm who holds the licence
does not inform the fact of change in the constitution of
partnership firm within a reasonable period, say within a
period of one month from the change in constitution of
partnership firm, the concerned Excise Authorities may
even proceed to initiate action against the Licencee of the
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AND 3 OTHERS
partnership firm to impose suitable penalty and even take
action for cancellation of the License itself."
(v) In Shankar Wines supra, the learned Single Judge has
rightly observed at para 13 to 16 as under:
"13. The said rule of 50% or more of change in
composition would operate in the following in the
manner:-
Suppose, the Excise Licencee is in the partnership
firm ie., M/s. ABCD, Bangalore with four partners
namely A, B, C, D each having 25% of shares in
the partnership firm and the Excise Licence is held
during the current year July 2017 to June 2018. On
31.12.2017, partner with 25% share retires and a
new partner 'X" is introduced in the partnership
firm giving 'X' 25% of share. In the said illustrative
case, the partnership firm of M/s.ABCD does not
lose 50% or more of its effective control and 'X' is
introduced in the firm with only 25% of share, this
will not attract the transfer fee and the new
partnership firm M/s.ABCX can be given the same
Licence upon a transfer being recorded under Rule
17-B of Rules, 1967, without payment of transfer
fees.
14. In the next change in the constitution of
partnership firm, if partner "C" also retires with 25%
share and a new partner say 'Y' is introduced and he is
also given 25% share in place of "C", the new firm
M/s.ABXY will be a new firm, where the original
partnership firm M/s.ABCD loses 50% of its stake in the
new partnership firm M/s.ABXY. At this stage, a new firm
M/s.ABXY can get Licence transferred in their name only
upon paying the transfer fee in terms of Rules 17-B of
Rules, 1967.
15. Taking another example, if two partners at the
same time like A and B retire out of the firm M/s.ABCD
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AND 3 OTHERS
and 50% is given to the new partners entering at the
same time DATE OF JUDGMENT :22/08/2017 in W.P.
No.30590/2014 AND CONNECTED MATTER M/S.SHANKAR
WINES vs. THE COMMISSIONER OF EXCISE AND ANR.
namely, X and Y with 25% share to each, even then upon
such change of licence from M/s.ABCD to M/s.CDXY, it will
attract the transfer fee under Rule 17-B. In terms of the
aforesaid thumb rule of 50% or more of the effective
control of existing Licencee partnership firm is divested
and given to the newly entering partners.
16. If it is a case of more than 50% of share
(effective control) is divested by the existing Licencee
firm and such share of 50% or more of the profits of the
partnership firm of the existing partners is given to the
newly entering partners, there is no question of any
confusion and such a change in the partnership firm will
definitely attract the transfer fee under the Rule 17-B of
Rules, 1967."
(vi) There is one finer aspect to the matter of reconstitution of
the firm successively that may in the first instance not lose
identity but may lose it subsequently. For example let us take a
firm comprising of five partners namely A, B, C, D & E, each
having 20% share. When A & B quit the firm and in their place
F & G are introduced, there is no loss of identity since more than
50% of existing partners remain as they were and therefore
there is no case of "transfer" attracting the provisions of Rule
17-B. Now let us assume that the original partners D & E quit
and in their stead new persons H & I gain entry; in such an
eventuality one cannot say that more than 50% of the existing
partners still remain the same. Therefore, while adjudging as to
whether reconstitution has resulted into loss of identity of the
entity namely the firm, what the authorities have to bear in
mind is the original partners and their share holding, and not
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just the partners and their shares in the immediately preceding
reconstitution of the firm. What we have said is only by way of
illustration and that given the ingenuity of human mind, it is not
exhaustive. In adjudging the loss of identity, one cannot keep
the common sense in cold storage. Now a day's running a
business be it of liquor or liquid, is not a child's play. It involves
huge investment of capital, labour & exertion; any business in
general and liquor business in particular run the difficulty posed
by a host of factors including competition and regulation. Even
this aspect cannot be lost sight of by the authorities.
(vii) Applying the aforesaid parameters, we do not find any
transfer in the case of licencee involved in Writ Appeal
No.100095/2022 inasmuch as despite reconstitution of the firm
there is no loss of identity, as rightly submitted learned Advocate
Sri. Nandish Patil appearing for the appellant. CL-9 license was
granted to the firm on 30.06.2002; renewal of license was
periodically granted under Rule 5A of the Rules, is not in dispute.
The latest reconstitution of this firm was effected on 05.03.2020.
Excise year normatively starts from 1st of July and thus the time
for applying renewal was just a few weeks away. The licencee
firm informed the Commissioner, about its reconstitution, vide
letter dated 14.07.2020, a copy whereof avails at Annexure-B.
There were totally five partners, each having 20%; after
reconstitution, there remained only 4 of them, one namely
Shankar Basavaraj Makanur having quit. However, share
holding was not in equal proportion inasmuch as one of the
partners had 40% and remaining three had only 20% each.
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Thus, it cannot be a case of loss of identity, though there was
reconstitution, eventually one partner quitting and his share
being taken over by one of the remaining. Therefore, there is
absolutely, no case for invoking the 2nd part of Rule 17-B or the
ratio in Shankar Wines supra.
With the above observations, these appeals are disposed
off, costs having been made easy.
We appreciate the learned AGA Mr. G.K. Hiregoudar
appearing for the State and learned Advocates Mr. G.I.
Gachchinamath & Mr. Nandish Patil, appearing for the private
respondents for their meticulous presentation of the case with
appropriate rulings & law books.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
VNP & JTR / CT:VP
