T.K. Kumaraswamy vs The State Of Karnataka
2024 Latest Caselaw 27321 Kant

Karnataka High Court

T.K. Kumaraswamy vs The State Of Karnataka on 14 November, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

                                              -1-
                                                          NC: 2024:KHC:46367
                                                       WP No. 20113 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 14TH DAY OF NOVEMBER, 2024

                                            BEFORE
                          THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                          WRIT PETITION NO. 20113 OF 2023 (EXCISE)
                   BETWEEN:

                   T.K.KUMARASWAMY,
                   S/O KRISHNAPPA,
                   AGED ABOUT 62 YEARS,
                   No.53, ARALALUSANDRA VILLAGE,
                   VIRUPAKSHIPURA HOBLI,
                   CHANNAPATNA TALUK-562 160
                   RAMANAGAR DISTRICT.
                                                               ...PETITIONER
                   (BY SRI.MITHUN KUMAR.R.B., ADVOCATE)

                   AND:

                   1.     THE STATE OF KARNATAKA,
                          BY ITS ADDITIONAL CHIEF SECRETARY,
                          FINANCE DEPARTMENT,
                          VIDHANA SOUDHA,
Digitally signed
by KIRAN
                          BENGALURU-560 001.
KUMAR R
Location: High
Court of           2.     THE EXCISE COMMISSIONER IN KARNATAKA
Karnataka                 2ND FLOOR, TTMC, 'A' BLOCK,
                          BMTC BUILDING,
                          SHANTINAGAR, BENGALURU-560 027.

                   3.     THE DEPUTY COMMISSIONER,
                          RAMANAGAR DISTRICT,
                          RAMANAGAR-562 1259.

                   4.     THE DEPUTY COMMISSIONER OF EXCISE
                          RAMANAGAR DISTRICT,
                          RAMANAGAR - 562 159.
                             -2-
                                         NC: 2024:KHC:46367
                                      WP No. 20113 of 2023




5.    V.K.PURUSHOTHAMA,
      S/O LATE KRISHNAPPA,
      AGED ABOUT 47 YEARS,
      CL-2 LICENSEE, ARALALUSANDRA VILLAGE,
      VIRUPAKSHIPURA HOBLI,
      CHANNAPATNA TALUK,
      RAMANAGAR DISTRICT-562 159.
                                         ...RESPONDENTS

(BY SMT. HEMALATHA.V., AGA FOR R-1 TO R-4;

SRI. MOHAN BHAT., ADVOCATE FOR R-5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE ENDORSEMENT DATED:29.06.2023 (03.07.2023) IN No.EXE/RNR/DOORU/17/2023-24 ISSUED BY THE R-4 AS PER ANNEXURE-F, ETC.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.10.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA

CAV ORDER

1. From the pleadings of the petitioners and the

respondents as well as from the original records furnished

by the department, the following facts are ascertained.

2. On 30.06.1999, a CL-2 license (i.e., retail of shop

licences for vend of Indian or Foreign liquor or both not to

be drunk in the premises) was granted to Krishnappa.

NC: 2024:KHC:46367

3. On 29.11.1999, Krishnappa passed away leaving

behind his wife--Yashodamma, three sons (i.e., T. K.

Revanna, T. K. Kumaraswamy--the petitioner, and V. K.

Purushottam--the 5th respondent) and two daughters (i.e.,

Savithramma and Rathnamma).

4. On the death of Krishnappa, the Excise Inspector

informed the Excise Deputy Commissioner on 02.12.1999

about the death of Krishnappa. The Deputy Commissioner,

in turn, directed the Excise Inspector to examine the

matter and to submit a report on the action taken. The

Tahsildar thereafter addressed the letter dated 02.02.2000

to the Excise Inspector informing him that Krishnappa left

behind him his wife--Yashodamma.

5. On 07.02.2000, Yashodamma filed an application to

the Excise Deputy Commissioner formally informing him

about the death of her husband and also requesting for

transfer of the licence in her favour.

NC: 2024:KHC:46367

6. The Excise Deputy Commissioner thereafter called

upon the Excise Inspector to give a detailed report on the

claim of Yashodamma for transfer. The Excise Inspector

gave the report dated 10.03.2000 to the Excise Deputy

Commissioner recommending the transfer of CL-2 licence

in favour of Yashodamma.

7. The original record also contains the affidavit of

Yashodamma dated 21.03.2000 to the effect that she had

borne five children during her wedlock with Krishnappa

and the affidavit was being filed in support of her

application for the transfer of the CL-2 licence.

8. On 23.03.2000, the Excise Deputy Commissioner

addressed a communication to the Excise Commissioner

recommending the transfer of licence in favour of

Yashodamma. The Excise Commissioner in turn addressed

the communication dated 07.04.2000 to the Excise Deputy

Commissioner informing him that the consent letter of all

the legal representatives of Krishnappa was not

NC: 2024:KHC:46367

forthcoming and that was required to be secured and

submitted to the office of the Commissioner.

9. The original file contains an affidavit dated

13.04.2000 -- said to have been executed by the three

sons of Yashodamma i.e., Revanna, Kumaraswamy and

Purushotham -- which reads as follows:

"¥ÀæªÀiÁt ¥ÀvÀæ

¨ÉAUÀ¼ÀÆgÀÄ UÁæªÀiÁAvÀgÀ f¯Éè, ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ, «gÀÆ¥ÁQ¥ÀÄgÀ

ºÉÆç½, CgÀ¼ÀĸÀAzÀæ UÁæªÀÄzÀ°è ªÁ¸ÀªÁVgÀĪÀ ¯ÉÃmï PÀȵÀÚ¥Àà EªÀgÀ

ªÀÄPÀ̼ÁzÀ 1£Éà gÉêÀtÚ, ¸ÀĪÀiÁgÀÄ ªÀAiÀĸÀÄì 38 ªÀµÀð, 2£ÉÃ

PÀĪÀiÁgÀ¸Áé«Ä, ¸ÀĪÀiÁgÀÄ ªÀAiÀĸÀÄì 36 ªÀµÀð ªÀÄvÀÄÛ 3£Éà ¥ÀÄgÀĵÉÆÃvÀÛªÀÄ

ªÀAiÀĸÀÄì 32 ªÀµÀð DzÀ £ÁªÀÅUÀ¼ÀÄ F ªÀÄÆ®PÀ ¥ÀæªÀiÁt ªÀiÁr ¸ÀvÀåªÁV

ºÉüÀĪÀÅzÉãÉAzÀgÉ.

£ÁªÀÅ ªÉÄîÌAqÀ «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÀÄÝ, £ÁªÀÅ £ÀªÀÄä

vÀAzÉAiÀĪÀgÀ ºÉ¸Àj£À°è ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ, «gÀÆ¥ÁQ¥ÀÄgÀ ºÉÆç½,

PÉÆÃqÀA§½î UÁæªÀÄzÀ°è CAUÀr ¸ÀASÉå:45 gÀ°è ¹J¯ï-2 gÀ°è ¸À£ÀßzÀÄÝ

ºÉÆÃA¢zÀÄÝ (¯Éʸɸïì) FUÀ £ÀªÀÄä vÀAzÉAiÀĪÀgÁzÀ ²æà PÀȵÀÚ¥Àà EªÀgÀÄ

¢£ÁAPÀ:29-11-99 gÀAzÀÄ ªÀÄvÀt ºÉÆA¢gÀĪÀÅzÀjAzÀ ¸ÀzÀj ¸À£ÀßzÀÝ£ÀÄß

NC: 2024:KHC:46367

£ÀªÀÄä vÁ¬ÄAiÀĪÀgÁzÀ ²æêÀÄw AiÀıÉÆÃzÀªÀÄä EªÀgÀ ºÉ¸ÀjUÉ §zÀ¯ÁªÀtÂ

ªÀiÁrPÉÆqÀ®Ä £ÀªÀÄäUÀ¼À vÀAmÉ vÀPÀgÁgÀÄ K£ÀÆ EgÀĪÀÅ¢®è.

F ¥ÀæªÀiÁt ¥ÀvÀæzÀ ªÀÄÆ®PÀ ¹J¯ï-2, ¸À£ÀßzÀÄÝ, PÉÆÃqÀA§½î

UÁæªÀÄ EzÀgÀ ¯Éʸɣïì£ÀÄß £ÀªÀÄä vÁ¬ÄAiÀĪÀgÀ ºÉ¸jUÉ

§zÀ¯Á¬Ä¹PÉÆqÀ§ºÀÄzÉAzÀÄ EzÀgÀ°è £ÀªÀÄäUÀ¼À AiÀiÁªÀÅzÉà vÀAmÉ vÀPÀgÁgÀÄ

EgÀĪÀÅ¢®èªÉAzÀÄ F ¥ÀæªÀiÁt ¥ÀvÀæzÀ ªÀÄÆ®PÀ zÀÈrüÃPÀj¸ÀÄvÉÛêÉ.

F ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ¸ÀA§AzsÀ¥ÀlÖ JPÉìöÊeï PÀ«ÄõÀ£Àgï

EªÀgÀ°è ºÁdgÀÄ¥Àr¹ £ÀªÀÄä vÀAzÉAiÀĪÀgÀ ºÉ¸Àj£À°ègÀĪÀ ¯Éʸɣïì£ÀÄß £ÀªÀÄä

vÁ¬ÄAiÀĪÀgÀ ªÀUÁðªÀuÉ ªÀiÁr¸À¨ÉÃPÁVgÀÄvÀÛzÉ.

CzÀPÉÆÌøÀÌgÀ F ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ¸À°è¸ÀÄvÀÛzÉÝãÉ.

F ªÉÄÃ¯É ºÉýgÀĪÀ J¯Áè «µÀAiÀÄUÀ¼ÀÄ£À£ÀUÉ w½¢zÉAiÉÄAzÀÄ

ªÀÄvÀÄÛ PÀ¼ÀUÉ gÀÄdÄ ªÀiÁrgÀĪÀÅzÀÄ £À£ÀßzÉà JAzÀÄ zÉêÀgÀ ºÉ¸Àj£À°è

¥ÀæªÀiÁt ªÀiÁr ¸ÀvÀåªÁV ºÉüÀÄvÉÛãÉ.

£Á£ÀÄ UÀÄgÀÄw¸ÀÄvÉÛãÉ.

¸À»/-

ªÀQîgÀÄ

1) ¸À»/-

2) ¸À»/-

3) ¸À»/-

¥ÀæªÀiÁt ªÀiÁqÀĪÀªÀgÄÀ .

ZÀ£ÀߥÀlÖt ¢£ÁAPÀ:13-4-2000."

NC: 2024:KHC:46367

10. As could be seen from this affidavit, it was stated by

all three sons that they were residing at Aralalasandra

Village of Channapattana Taluk and their father was a CL-

2 licence holder who passed away on 29.11.1999, and that

they had no objection for transfer of this licence in favour

of their mother--Yashodamma. It was also stated in the

affidavit that the sworn affidavit should be placed before

the Excise Commissioner and an order of transfer was to

be obtained.

11. It may be pertinent to state here that the original

record does not indicate as to who submitted the affidavit

or whether any notice was issued to Yashodamma or to

the legal representatives for furnishing the consent letter.

The office note in this regard reads as follows:

"31. C§PÁj DAiÀÄÄPÀÛgÀÄ PÀbÉÃjAiÀÄ ¥À.£ÀA. ECI 31. IML. G. (R) 99.2000 ¢.7.4.2000 zÀAiÀÄ«lÄÖ ¥Àj²Ã°¹. ²æà PÀȵÀÚ¥Àà

¯ÉÃmï ¸À£ÀßzÀÄzÁgÀgÀÄ ¤zsÀ£À ºÉÆA¢zÀÄÝ, ¸ÀzÀj ¸À£ÀßzÀ£ÀÄß EªÀgÀ zsÀªÀÄð ¥ÀwßAiÀĪÀjUÉ ªÀUÁð¬Ä¸ÀĪÀ §UÉÎ, ¸ÀzÀjAiÀĪÀgÀ PÀÄlÄA§zÀ

NC: 2024:KHC:46367

ªÁgÀ¸ÀÄzÁgÀjAzÀ M¦àUÉ ¥ÀvÀæªÀ£ÀÄß ¤ÃrgÀĪÀÅ¢®è JAzÀÄ w½¸ÀÄvÀÛ, ªÁgÀ¸ÀÄzÁjjAzÀ M¦àUÉ vÀæªÀ£ÀÄß ¥ÀqÉzÀÄ ¸À°è¸À®Ä PÉÆÃjgÀÄvÉÛêÉ.

33. C§PÁj ¤jÃPÀëPÀgÀÄ ZÀ£ÀߥÀlÖt ªÀ®AiÀÄ EªÀgÀ ¥À.£ÀA. EXE.IML. CPT. 98/99-2000 ¢.20.04.2000 zÀAiÀÄ«lÄÖ ¥Àj²Ã°¹ C. ¤gÀÄ, vÀªÀÄä ªÀgÀ¢AiÀÄ°è ¢ªÀAUÀvÀ ²æÃ. PÀȵÀÚ¥Àà, EªÀgÀ PÀÄlÄA§zÀ ªÁgÀ¸ÀÄzÁgÀjAzÀ ¸À£ÀßzÀ£ÀÄß ¢ªÀAUÀvÀgÀ ¥ÀwßAiÀĪÀjUÉ ªÀUÁð¬Ä¸À®Ä M¦UÉ ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀÄ F PÀbÉÃjUÉ ¸À°è¹gÀÄvÁÛgÉ.

34. C§PÁj DAiÀÄÄPÀÛgÀÄ, PÀ£ÁðlPÀ gÁdå, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀ DzÉñÀ ¸ÀASÉå: ECI, IML.31/99-2000 ¢.19.05.2000 zÀAiÀÄ«lÄÖ ¥Àj²Ã°¹ C§PÁj DAiÀÄÄPÀÛgÀÄ, ²æà PÀȵÀÚ¥Àà, ¹ J¯ï 2 ¸À£ÀßzÀÄzÁgÀgÀÄ PÀ.£ÀA.45, PÉÆÃqÀA§½î, ZÀ£ÀߥÀlÖt vÁ®ÆPï F ¸ÀܼÀzÀ°è ºÉÆÃA¢zÀÝ ¸À£ÀßzÀ£ÀÄß EªÀgÀÄ wÃjPÉÆÃArgÀĪÀ PÁgÀt, EªÀgÀ zsÀªÀÄð ¥ÀwßAiÀĪÀjUÉ ªÀUÀð¬Ä¸À®Ä ¥ÀÆtð£ÀĪÀÄwUÉ ¤ÃrgÀÄvÁÛgÉ."

12. The Deputy Commissioner, in turn, submitted the

consent letter to the Excise Commissioner and the Excise

commissioner granted his prior approval on 19.05.2000 for

transfer of licence and, accordingly, the licence was

transferred in favour of Yashodamma. The licence issued

NC: 2024:KHC:46367

in favour of Yashodamma was thereafter renewed

regularly every year till 2010.

13. On 21.09.2010 i.e., 10 years after licence was

transferred in favour of Yashodamma, an application was

submitted by Yashodamma requesting that the licence

which was standing in her name be transferred in the

name of her son V. K. Purushotham (i.e., respondent

No.5), since she had certain financial problems. The

necessary transfer fee was also remitted. She also

furnished 12 documents along with her application, one of

which, was a Muchhalike Patra, which reads as follows:

"ªÀÄÄZÀѽPÉ ¥ÀvÀæ:

gÁªÀÄ£ÀUÀgÀ f¯Éè ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ «ÃgÀÄ¥ÁQë¥ÀÄgÀ ºÉÆç½

CgÀ¼Á¼ÀÄ ¸ÀAzÀæ UÁæªÀÄzÀ ¯ÉÃmï PÀȵÀÚ¥Àà gÀªÀgÀ zsÀªÀÄð ¥Àwß AiÀiÁzÀ ²æêÀÄw

AiÀıÉÆÃzÀªÀÄä CªÀgÀ ªÀÄPÀ̼ÀÄUÀ¼ÀÄ F PɼÀUÉ §gÉzÀÄ PÉÆlÖ ªÀÄÄZÀѽPÉAiÀÄ

¥ÀvÀæzÀ PÀæªÀÄ ªÉ£ÉAzÀgÉ.

£ÀªÀÄä vÁ¬ÄgÀªÀgÁzÀ ²æêÀÄw AiÀıÉÆÃzÀªÀÄä PÉÆÃA ¯ÉÃmï PÀȵÀÚ¥Àà

CgÀ¼Á¼ÀĸÀAzÀæ UÁæªÀÄ ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ EªÀgÀ ºÉ¸Àj£À°è PÀlÖqÀ

- 10 -

NC: 2024:KHC:46367

¸ÀASÉå:45 PÉÆÃqÀA§½î UÁæªÀÄ ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ gÁªÀÄ£ÀUÀgÀ f¯ÉèAiÀÄ

dAiÀÄZÀAzÀæ ªÉÊ£ï ¸ÉÆÖÃgï ¹ J¯ï 2 ¸À£ÀßzÀÄ£ÀÄß EªÀgÀ ªÀÄUÀ £ÁzÀ

²æÃ.«.PÉ.¥ÀÄgÀıÉÆÃvÀÛªÀÄ ©Ã£ï ¯ÉÃmï PÀȵÀÚ¥Àà CgÀ¼Á¼ÀĸÀAzÀæ UÁæªÀÄ

«ÃgÀÄ¥ÁQë¥ÀÄgÀ ºÉÆç½ ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ gÁªÀÄ£ÀUÀgÀ f¯Éè JA§ÄªÀgÀ

ºÉ¸ÀjUÉ ¹ J¯ï lÄ ¸À£ÀßzÀ£ÀÄß ªÀUÀðªÀuÉ ªÀiÁqÀ®Ä £ÁªÀÅUÀ¼ÀÄ M¦àgÀĪÀÅzÀÄ

¸ÀjAiÀĵÉÖ ¸ÀzÀj ¸À£Àߢü£À ªÀUÀðªÀuÉ «ZÁgÀzÀ°è £ÀªÀÄäUÀ¼À AiÀiÁªÀ C¨ÁåAvÀgÀ

ªÀUÉÊgÉ EgÀĪÀÅ¢®è ªÉA§ÄzÁV gÁªÀÄ£ÀUÀgÀ f¯ÉèAiÀÄ C¨sÀPÁj G¥À

DAiÀÄÄPÀÛgÀªÀjUÉ §gÉzÀÄ PÉÆlÖ ªÀÄÄZÀѽPÉ ¥ÀvÀæzÀAvÉ £ÁªÀÅUÀ¼ÀÄ M¦à F PɼÀUÉ

£ÀªÀÄäUÀ¼À ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀÄvÉÛêÉ.

1) ¸À»/- («.PÉ.gÉêÀtÚ) ©£ï ¯ÉÃmï PÀȵÀÚ¥Àà.

2) - (n.PÉ.PÀĪÀiÁgÀ¸Áé«Ä) PÀȵÀÚ¥Àà ¯ÉÃmï

3) ¸À»/- (¸ÀÄ«ÄvÀæ) PÉÆÃA n.¥ÀÄlÖ¸Áé«ÄUËqÀ ©£ï ¯ÉÃmï PÀȵÀÚ¥Àà

4) ¸À»/- (gÀvÀߪÀÄä) PÉÆÃA °Ãmï, ²ªÀgÁªÀÄÄ, ºÉZï.¹.«£ï ¯ÉÃmï PÀȵÀÚ¥Àà.

¸ÀܼÀ: gÁªÀÄ£ÀUÀgÀ ¢£ÁAPÀ:21-9-2010"

14. The said letter though contains the name of all the 4

children, in the space earmarked for the signature of the

petitioner, the same is left blank.

- 11 -

NC: 2024:KHC:46367

15. Yashodamma had also submitted an affidavit along

with her application which reads as follows:

":¥ÀæªÀiÁt ¥ÀvÀæ:

gÁªÀÄ£ÀUÀgÀ f¯Éè ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ «ÃgÀÄ¥ÁQë¥ÀÄgÀ ºÉÆç½ CgÀ¼Á¼ÀĸÀAzÀæ UÁæªÀÄzÀ, ¯ÉÃmï PÀȵÀÚ¥Àà EªÀgÀ zsÀªÀÄð ¥Àwß AiÀiÁzÀ AiÀıÉÆÃzÀªÀÄä ªÀAiÀĸÀÄì ¸ÀĪÀiÁgÀÄ 70 ªÀµÀð DzÀ £Á£ÀÄ F ªÀÄÆ®PÀ ¥ÀæªÀiÁtÂPÀjøÀĪÀÅzÉ£ÉAzÀgÉ.

£À£Àß ºÉ¸Àj£À°ègÀĪÀ ¹ E¯ï 2 CAUÀr AiÀÄÄ ZÀ£ÀߥÀlÖt vÁ®ÆèPÀÄ PÉÆÃqÀA§½î UÁæªÀÄzÀ°è dAiÀĸÀAzÀæ ªÀÈ£ïì ¸ÉÆÖÃgï EzÀÄÝ EzÀgÀ ¸À£ÀßzÀÄ ¸ÀASÉå E JPïì E L JA J¯ï: ¹ ¦ n, 17 ¹ E¯ï 2:2010-11 ¢£ÁtPÀ 30-6-2010 CVgÀÄvÀÛzÉ.

£À£Àß ºÉ¸Àj£À°ègÀĪÀ ªÉÄîÌAqÀ ¹ E¯ï 2 CAUÀrAiÀÄ£ÀÄß £À£Àß PÉÆãÉAiÀÄ ªÀÄUÀ £ÁzÀ ²æÃ. «.PÉ.¥ÀÄgÀıÉÆÃvÀÛªÀÄ ©£ï. ¯ÉÃmï PÀȵÀÚ¥Àà CgÀ¼Á¼ÀĸÀAzÀæ UÁæªÀÄ EvÀ¤UÉ ºÉ¸ÀgÀÄ §zÀ¯ÁªÀt ªÀÄÄSÁAvÀgÀ ¸ÀPÁðgÀPÉÌ MlÄÖ ¸À£ÀßzÀÄ ±ÀÄ®Ì gÀÆ.3,45,000-00 C£ÀÄß RÄzÁÝV «.PÉ.¥ÀÄgÀıÉÆÃvÀÛªÀÄ£É ¥ÁªÀj¹zÀÄÝ, vÀzÀ £ÀAvÀgÀ £À£Àß F ªÀĦà£À PÁ®zÀ°è £ÀªÀÄä AiÀÄdªÀiÁ£ÀgÀÄ wÃj PÉÆAqÁV ¤AzÀ®Ä £À£Àß CgÉÆÃUÀå ºÁUÀÆ ªÀÄvÀÄÛ AiÉÆÃUÀ PÉëêÀĪÀ£ÀÄß £À£Àß PÉÆ£ÉAiÀÄ ªÀÄUÀ ºÁUÀÆ DvÀ£À ºÉAqÀw ªÀÄPÀ̼ÀÄ ¸ÀPÁ®PÉÌ ¸ÀjAiÀiÁV £ÉÆÃr PÉÆAqÀÄ ºÉÆÃUÀÄwÛgÀÄvÁÛgÉ.

CzÀÄzÀjAzÀ £À£ÀUÉ MlÄÖ 2 UÀAqÀÄ ªÀÄPÀ̼ÀÄ ºÁUÀÆ ºÉtÄÚ ªÀÄPÀ̼ÀÄ EzÀÄÝ CªÀgÀÄUÀ¼À°è F ¸À£ÀßzÀ£ÀÄß £À£Àß aPÀÌ ªÀÄUÀ£À ºÉ¸ÀjUÉ ªÀUÀðªÀtÂUÉ M§â ªÀÄUÀ£ÁzÀ «.PÀ.gÉêÀtÚ, ºÁUÀÆ ªÀÄUÀ¼ÁzÀ 1. ¸ÀÄ«ÄvÀæ 2) gÀvÀߪÀÄä. EªÀgÀÄUÀ¼ÀÄ M¦à PÀgÁgÀÄ ¥ÀvÀæPÉÌ ¸À» ºÁQgÀÄvÁÛgÉ. DzÀgÉ, E£ÉÆߧ⠪ÀÄUÀ £ÁzÀ «.PÉ.PÀĪÀiÁgÀ¸Áé«Ä EªÀgÀÄ PÀgÁjUÉ ¸À» ºÁPÀ®Ä ¤gÁPÀj¹gÀÄvÁÛ£É. DzÀgÉ F C§PÁj ¸À£ÀßzÀÄ ªÀµÀð MAzÀPÌÉ £À«ÃPÀgÀt ªÀiÁqÀ¨ÉÃPÁUÀÄvÀÛzÉ,

- 12 -

NC: 2024:KHC:46367

ªÀÄvÀÄÛ EzÀÄ ¹ÜgÀ C¹ÛAiÀÄ®è EzÀÄ ZÀgÀ D¹ÛAiÀiÁVgÀÄvÀÛzÉ. CzÀÄzÀ jAzÀ ªÉÄÃ¯É PÁt¹zÀ n.PÉ.PÀĪÀiÁgÀ¸Áé«ÄUÉ EzÀgÀ ªÀåªÀºÁgÀzÀ°è CºÀðvÉ EgÀĪÀÅ¢®è.

CzÀÄzÀ jAzÀ ªÉÄîÌAqÀ ¹ J¯ï 2 ¸À£ÀßzÀ£ÀÄß £À£Àß ªÀÄUÀ £ÁzÀ «.PÉ. ¥ÀÄgÀıÉÆÃvÀÛªÀÄ JA§ÄªÀgÀ ºÉ¸ÀjUÉ, ªÀUÀðªÀuÉ ªÀiÁr PÉÆqÀ¨ÉÃPÁV «£ÀAw¸ÀÄvÉÛãÉ. F ªÀUÀðªÀtÂUÉ ¥ÁªÀw¹zÀ ¸À£ÀßzÀÄ ±ÀÄ®Ì ¥ÀÆvÀð EvÀ£ÀzÉ DVgÀÄvÀÛzÉ ¨ÉÃgÉ AiÀiÁªÀ ªÀÄPÀ̼ÀÄ ¸ÀºÀ EzÀPÉÌ ¸ÀA§A¢¹zÀAvÉ ºÀtªÀ£ÀÄß ¤ÃrgÀĪÀÅzÀ®è, JAzÀÄ F ªÀÄÆ®PÀ ¥ÀæªÀiÁtÂPÀjøÀÄvÉÛãÉ. UÀÄwð¹zÉÝãÉ.

¸À»/-

£À£Àß ¸ÀªÀÄÄäRzÀ°è ¥ÀæªÀiÁt PÀjøÀĪÀªÀgÀÄ.

ªÀQîgÀÄ, ¸ÀܼÀ:gÁªÀÄ£ÀUÀgÀ, ¢£ÁAPÀ:27.09.2010"

16. As could be seen from said affidavit, Yashodamma

acknowledged that one of her sons i.e., V. K. Revanna and

two daughters--Sumitra and Rathnamma had given their

consent, but the petitioner herein had refused to sign the

consent letter. She also stated that the licence was not an

immovable property and was only a movable property

and, therefore, the petitioner had no authority to object

and she ultimately requested that the licence be

transferred in favour of the respondent No.5.

- 13 -

NC: 2024:KHC:46367

17. This application was processed and ultimately the

Excise Commissioner granted his prior approval on

30.10.2000 and the licence was transferred in favour of

respondent No.5. It may be pertinent to state here that

the prior approval granted to transfer of licence by the

Excise Commissioner was for a transfer under Rule 17-B of

the Karnataka Excise Licences (General Conditions) the

Rules, 1967 (for brevity, "the KEL Rules").

PLEA OF THE PETITIONER:

18. The petitioner has filed this petition contending that

he was a former Assistant Sub-Inspector of Police and had

retired in the year 2020. He has stated that during his

service he had been posted into different places and there

was no occasion for him to take part in the family business

and to enjoy the coparcenary property. He has stated that

his father was a CL-2 licence holder and, on his death,

since his mother Yashodamma was eldest member of the

family the licence had been transferred in her name. He

has further stated that during the life time of his mother,

- 14 -

NC: 2024:KHC:46367

his younger brother had managed to get an application

under Rule 17-B of the KEL Rules signed by his mother for

transfer of the licence in his name and he was unaware of

this application. He has stated that when he submitted his

objection for renewal of the licence for the current year

i.e., 2023, he was issued an endorsement dated

29.06.2023 informing him that the licence had been

transferred in terms of the Rules and there was no scope

for considering his objections.

19. In this endorsement, it is forthcoming that the Excise

Authorities informed the petitioner that the licence had

been transferred from Yashodamma to respondent No.5 in

the year 2010-11 and it is also stated that Yashodamma

had informed the Authorities that the petitioner had

refused to give his consent. It appears that the

endorsement dated 29.06/03.07.2023 has been issued in

response to the application represented by the petitioner

dated 14.06.2023 and 15.06.2023 wherein the petitioner

- 15 -

NC: 2024:KHC:46367

had requested the Authorities not to renew the licence in

favour of respondent No.5.

20. The endorsement contains averments to the effect

that the licence was transferred from Yashodamma in

favour of respondent No.5 and at the time of the transfer

Yashodamma had informed them that the petitioner had

refused to give his consent and also to the effect that she

had informed the Department that he had no eligibility for

grant of the licence. The endorsement also goes on to

state that the petitioner being a Government Servant was

also disqualified from holding the licence by virtue of 4B

(3) of Karnataka Excise (Sale of Indian and Foreign liquor)

Rules, 1968 .

21. The petitioner being aggrieved with this endorsement

is before this Court.

PLEAS OF THE STATE & THE 5TH RESPONDENT:

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NC: 2024:KHC:46367

22. The State as well as respondent No.5 have contested

the petition by filing detailed statement of objections. The

State admits that the licence was held by Krishnappa and

on his death, it was transferred in the name of his wife--

Yashodamma and was being renewed every year. It is also

admitted that in the year 2010, Yashodamma had

requested that the licence be transferred in favour of

respondent No.5 and he had also remitted the transfer fee

of Rs.3,45,000/-, and one son of Yashodamma along with

two daughters had also agreed for the transfer of the

licence in favour of the 5th respondent. It is also admitted

that the petitioner had not signed the agreement to

transfer the licence. The Authorities admit that the licence

was indeed transferred under Rule 17-B of the KEL Rules

and has been renewed every year thereafter in the name

of respondent No.5.

23. It is sought to be contended that the petitioner had

the right to object to the transfer of licence in the year

2010-2011 but he, being a Government servant, had not

- 17 -

NC: 2024:KHC:46367

filed objections, basically, because he was ineligible for the

grant of the licence and it was only recently after his

retirement that he had raised objections, which were

untenable. The Authorities, on these grounds, seek

dismissal of the writ petition.

24. Respondent No.5 has also filed objections contending

that the petitioner along with his two brothers had given

their 'no-objection' on 13.04.2000 for transfer of the

licence in the name of Yashodamma and on that basis, the

licence had been transferred in favour of Yashodamma. It

is also stated that Yashodamma had, in turn, requested

the licence to be transferred in favour of the respondent

No.5 and after the transfer fee had been paid and a

Muchhallike Patra was submitted by the remaining children

of Yashodamma, the Authorities had transferred the

licence in his name and there was no illegality in the entire

transaction.

25. It may be pertinent to state here that the petitioner

in paragraph No.10 of his writ petition has stated that a

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NC: 2024:KHC:46367

suit had been filed in O.S.No.52/2011 before the learned

Senior Civil Judge, Channapatna by his sister seeking

partition and this would establish that the succession

rights pertaining to Krishnappa's estate is yet to be

decided by the Civil Court.

26. Mr. Mohan Kumar--Learned Counsel appearing for

the 5th respondent placed reliance on the following

citations to contend as summarised below:

i) Joint Collector Ranga Reddy District & Ors. v.

D. Narasing Rao & Ors., (2015) 2 SCC 695: on

the contention of delay -- i.e., this Court ought not

to entertain the petition relating to a transfer of a

licence made in the year 2000

ii) Anitha D. M. v. The Excise Commissioner in

Karnataka & Ors., W.P. No. 4469/2017: to

contend that a legal heir goes out of the ambit of

legal heirs if he does not claim his right under Rule

17-A.

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NC: 2024:KHC:46367

iii) Sri. E. Veeranna v. The State of Karnataka &

Ors., W.P. No. 16805/2015: claim of forgery is

a matter of inquiry, especially when said matter is

pending before the Trial Court.

iv) Smt. Savitha K. R. & Anr. v. The State of

Karnataka & Ors., W.A. No. 1318/2022 c/w

W.A. No. 26/2023: the Act and Rules pertaining

to matters concerning Excise do not provide for an

inquiry into allegations of fraud and fabrication of

documents -- by a police officer and further inquiry

by the Commissioner of Excise basis the report of

such police officer. Section 55 investigation are

only in respect of offences under Sections 32-38

and 38-A.

v) Smt. K. S. Sharadamma v. The State of

Karnataka & Ors., W.P. No. 27947/2013:

delay and laches -- it was held in under the

circumstances of that case that 14 years was too

long to realize if fraud was committed, and no

- 20 -

NC: 2024:KHC:46367

material is produced to reasonably infer that fraud

was indeed committed.

SUBMISSIONS OF THE PETITIONER:

27. Learned counsel appearing for the petitioner submits

that when it was the admitted case of all the parties that

the licence was granted in favour of Krishnappa, on his

death, the licence was statutorily required to be

transferred in favour of all the legal representatives and

the Authorities had committed a serious illegality in

transferring it only in the name of Yashodamma. It is

further contended that even if this transfer in favour of

Yashodamma is accepted, in law, Yashodamma was

holding the licence on behalf of all the legal heirs of

Krishnappa and the mere transfer of licence to one of the

legal heirs i.e., the 5th respondent would not tantamount

to the transfer being made absolutely in favour of that

legal heir.

28. Learned counsel contends that the entire

transactions relating to transfer were conducted behind his

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NC: 2024:KHC:46367

back and without his knowledge, and, therefore, the

Authorities were wrong in refusing to entertain his

representation not to renew the licence.

29. It is also contended that the signature found on the

consent letter, which was produced for the first time in

this petition, was not the petitioner's signature and since

there was a clear forgery which was apparent to the naked

eye, cognizance of said consent letter could not be taken.

SUBMISSIONS OF THE GOVERNMENT PLEADER:

30. Learned Additional Government Advocate, on the

other hand, contends that right of the petitioner to oppose

the renewal in the year 2023 could not be entertained,

having regard to the fact that the licence was transferred

in the name of Yashodamma in the year 2000 and

thereafter, in the name of respondent No.5 in the year

2010 and was being renewed regularly ever since. It is

sought to be contended that an objection to transfer the

licence made in the years 2000 and 2010 cannot be

impugned indirectly by submitting a representation and

- 22 -

NC: 2024:KHC:46367

thereafter filing the writ petition. It is also submitted that

the transfer of licence in favour of Yashodamma and

thereafter in the name of Yashodamma's son was in

accordance with the rules and no irregularity can be

attached to the same.

31. Learned counsel for respondent No.5 reiterates the

arguments of the Government and also seeks to contend

that the claim of the petitioner for transfer of licence was

not legally tenable, since he was a Government servant

when Krishnappa passed away and by virtue of Rule 4-

B(3), he would be disqualified to hold the licence, as a

consequence of which he cannot seek to be one among the

licence holders. It is contended that on the basis of the

renewals granted by the Government every year, which, in

law, is a licence granted every year, the claim made by

the petitioner over said licence and his objections to

renewal were rightly not entertained by the Authorities.

32. Learned counsel also submits that the transfer of

licence in favour of Yashodamma was never challenged

- 23 -

NC: 2024:KHC:46367

and was, in fact, made with the consent of the petitioner.

He submitted the transfer of licence in favour of the

respondent No.5 was not also challenged. In the absence

of any challenge to the transfer the present writ petition

filed only challenging the endorsement of the Authorities

refusing to entertain the objections regarding renewal was

untenable.

33. It is also sought to be contended that neither the

authorities nor this Court could entertain a plea regarding

the allegation that the petitioner's signature found in the

consent letter was forged and the petitioner would have to

establish this assertion before a competent court of law.

QUESTIONS WHICH ARISE FOR CONSIDERATION IN THIS

PETITION:

34. In light of the above, the questions that arise for

consideration in this writ petition are as follows:

i) Whether the petitioner can contend that he had also succeeded to the licence on the death

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NC: 2024:KHC:46367

of his father--Krishnappa (the original licence holder);

ii) Whether the petitioner has a right to object the renewal of the licence in favour of respondent No.5; and

iii) Whether the entitlement of the petitioner to succeed to the licence is a matter to be agitated before the Civil Court in the pending suit O.S. No.52/2011 before the Civil Court.

35. In order to answer these questions, a brief

examination of the relevant rules would be necessary.

36. In excise of the powers conferred under Section 71

of the Karnataka Excise Act, the State Government has

framed the Karnataka Excise Licences (General

Conditions) Rules, 1967 ("the 1967 Rules"). According to

Rule 2, these rules would apply to all licences issued under

the Excise Act for the sale of liquor and every such licence

shall be deemed to include the conditions prescribed by

these rules as general conditions.

- 25 -

NC: 2024:KHC:46367

37. Rules 17-A1 of the KEL Rules deals with transfer of

the licence in the event of death of licence holder. This

Rule was inserted for the first time on 12.05.1977.

38. As could be seen from the above, the Rule states

that in the event of death of the licencee during the

currency of the licence, the Deputy Commissioner can --

on an application of the legal heirs of the deceased and

with the previous sanction of the Excise Commissioner --

transfer the licence in their favour. The use of the term

"on an application by the legal heirs" would indicate that

the application for transfer of the licence would have to be

made by all the legal heirs.

39. A literal and strict interpretation of the Rule would

imply that the Deputy Commissioner cannot entertain an

application by just one of the legal heirs. However, it is to

be stated here that since the Rule ultimately states that on

17-A. Transfer in the event of death.- In the event of death of licensee or the lessee during the currency of the licence or lease, 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.

- 26 -

NC: 2024:KHC:46367

the application of the legal heirs of the deceased the

Deputy Commissioner can transfer the licence (with the

previous sanction of the Excise Commissioner) in favour of

the applicants i.e., the legal heirs, it would thereby

indicate that even if an application is made by one legal

heir it would, in essence, be an application made by all the

legal heirs.

40. This is simply because the Rule enables the licence to

be transferred to all the legal heirs and it does not permit

the transfer of the licence to only one of the legal heirs.

Thus, on a proper interpretation of Rule 17-B of the KEL

Rules, the only inference that can be drawn is that even if

one of the legal heirs has made an application, the same

would have to be construed as an application being made

on behalf of all the legal heirs and the transfer made

thereafter would also necessarily be in favour of all the

legal heirs and not just in favour of only that legal heir

who had made the application for transfer.

- 27 -

NC: 2024:KHC:46367

41. In light of this legal position, in the instant case, it is

clear that on the death of Krishnappa, when the licence

was transferred under Rule 17-A of the KEL Rules in favour

of Yashodamma, it was, in essence, a transfer in favour of

all the legal heirs of Krishnappa and, consequently, the

petitioner (being the son of Krishnappa) would also have

to be construed as a joint licence holder.

42. At this stage, it may be necessary to deal with the

strong objections raised by respondent No.5 as well as

with the State regarding the eligibility of the petitioner to

hold a licence by virtue of Rule 4-B of the 1968 Rules.

43. It may be pertinent to state here that in exercise of

the powers conferred under Section 71, the State

Government has framed the aforementioned Rules, and

Rule 2 indicates that the Rules would apply to the sale of

Indian liquor and foreign liquor. Thus, there are a separate

set of Rules which govern the sale of Indian liquor and

foreign liquor but by virtue of the 1967 Rules, all the

provisions of the 1967 Rules would apply to all licences.

- 28 -

NC: 2024:KHC:46367

44. The 1967 Rules does not contain any Rule which

prescribes a disqualification, and it is the only the 1968

Rules which provide for disqualification. In the 1968 Rules,

the Rule relating to disqualification i.e., Rule 4-B did not

exist in the original Rules of the year 1968 and it came to

be inserted only with effect from 24.06.2002. In other

words, for the first time, Rule 4-B created a

disqualification.

45. It may be pertinent to state here that Rule 17-A of

the KEL Rules provided for transfer was inserted in the

year 1977 and at that point of time, as already observed

above, the 1967 Rules did not indicate any disqualification

and at the same time, the 1968 Rules also did not contain

a Rule relating to disqualification. Thus, when Krishnappa

passed away in the year 1999, there was no rule which

prescribed the disqualifications for an applicant i.e., a legal

heir to apply for or seek renewal of a licence.

- 29 -

NC: 2024:KHC:46367

46. There is yet another factor that is to be noticed here

that Rule 4-B of the 1967 Rules which enumerates the

disqualification read as follows:

"4-B. Disqualification. - (1) A person shall be disqualified from submitting an application for obtaining or renewal of licence under these rules if he.-

(i) has not paid the arrears of any excise dues in respect of liquor sold by him;

(ii) has not produced a valid income-tax clearance certificate or has not produced any document in proof of filing the latest income-tax return before the Income-tax Department in respect of his income;

(iii) is holding an office of profit under the State Government or Central Government.

(iv) Is a minor or an undischarged insolvent or is of unsound mind;

(v) Has been convicted of any cognizable and non-bailable offence under any Act, or any offence under Narcotic Drugs and Psychotropic Substances Act, 1985 and Medicinal and Toilets Preparation (excise Duties) Act, 1955, or an offence under Section 481, 482, 483, 484,485, 486,

- 30 -

NC: 2024:KHC:46367

487 or 489 of the Indian Penal Code, 1860.

Explanation.- For the purposes of this rule, a company, firm or other body corporate shall be deemed to have incurred the disqualification if the person in charge of and responsible for the conduct of the business of such company, firm or other body corporate has incurred the disqualification. Provided that the authority which grants or renews the licence may in the interest of revenue and for any other reason to be recorded in writing relax the provisions of clause (i) and grant or renew the licence.

(2) A person shall not be disqualified under clause (i) of sub-rule (1) if the produces a certificate from a competent Revenue or Excise Officer to the effect that the arrears have been paid."

47. As could be seen from Rule 4-B, the disqualification

would apply to person who is submitting an application for

obtaining or for renewal of a licence. Thus, only if a person

seeks a licence for the first time or seeks renewal of an

existing licence would Rule 4-B come into operation. The

Rule making authority was conscious of the fact that 17-A

of the KEL Rules dealt only with transfer in the event of

- 31 -

NC: 2024:KHC:46367

death, and this Rule was in existence right from 1977.

When, consciously, the rule making Authority did not use

the term "transfer" in Rule 4-B and prescribed the

disqualification only for application for a fresh licence or

for renewal of a licence, it is obvious that for a legal heir --

who is seeking transfer of a licence on the death of the

licence holder -- no disqualification has been prescribed.

48. It will therefore have to be held that Rule 4-B

pertains to disqualification for obtaining a fresh licence or

for seeking renewal of an existing licence and it would not

apply in case an application is made for transfer by a legal

heir in the event of death of an existing licence holder as

contemplated under Rule 17-A of the KEL Rules.

49. As a consequence, the argument of the State and the

5th respondent that the petitioner suffered a

disqualification for obtaining a transfer of licence -- by

virtue of him being a Police Officer i.e., a Government

Servant -- cannot be accepted.

- 32 -

NC: 2024:KHC:46367

50. The other argument that the transfer of licence in

favour of Yashodamma created was an exclusive licence in

favour of Yashodamma also cannot be accepted for the

following reasons.

51. As already stated above, Yashodamma was only one

of the legal heirs who was entitled to seek transfer of the

licence, and she had no exclusive right to seek transfer of

the licence. The transfer was effected in the name of

Yashodamma only because she produced a consent letter

of three of her sons.

52. At this stage, it is to be stated here that the original

file produced indicates that Yashodamma had sought a

transfer and a recommendation had been made for the

transfer, but the Excise Commissioner had raised an

objection that the consent of all the legal heirs was to be

obtained. Thus, the Excise Commissioner was clearly

conscious of the fact that all the legal heirs of Krishnappa

had a right to seek transfer and in order to effect the

- 33 -

NC: 2024:KHC:46367

transfer in favour of Yashodamma, consent of all her

children were required.

53. However, despite this specific objection of the

Commissioner, the consent letter of just three of her sons

was produced and the consent of the two daughters had

not been furnished, which, by itself, renders the transfer

improper or at least reserves the right of the daughters to

be considered as joint licence holders.

54. At this stage, the contention advanced by the

petitioner's counsel that the petitioner had not given his

consent to the transfer of licence in favour of his mother

would also have to be considered.

55. In light of the arguments advanced, it was

considered necessary to secure the original records and

the department produced the original records relating to

transfer in favour of Yashodamma and also in favour of 5th

respondent.

- 34 -

NC: 2024:KHC:46367

56. On perusing the affidavit which was relied upon by

the State to contend that the petitioner had given his

consent for the transfer in favour of his mother, learned

counsel for the petitioner contended that the signature of

the petitioner found in the affidavit executed by three

children of Krishnappa was a blatant forgery which was

apparent and visible to the naked eye. Learned counsel

sought to place reliance on the signatures of the petitioner

in the vakalathnama and also in the service records

pertaining to the petitioner which was much prior to the

affidavit.

57. Though, at first glance, the aforementioned

signatures appear to differ, the question as to whether the

signature is forged or not as well as the effect of the same

will be considered later in this judgment.

58. As already stated above, the consent that was

allegedly given can, in law, only entitle the relevant

Department to transfer the licence in favour of a person

- 35 -

NC: 2024:KHC:46367

who has secured the consent of all the other legal heirs,

but that does not tantamount to the person in whose

name the licence is transferred to contend that it has

become his/her exclusive licence.

59. The judgments cited by the counsel for the 5th

respondent have also been perused and considered by this

Court. The judgment of the Apex Court in D. Narasing

Rao (supra) cannot be applied to the instant case since

the facts and circumstances under which said finding was

given were completely different, and the Apex Court

therein was dealing with a matter pertaining to the

exercise of revisional jurisdiction or suo moto jurisdiction

within reasonable period.

60. Furthermore, the judgment rendered by a co-

ordinate bench of this Court in Anitha D. M. (supra)

would be of no avail since, in that case, the claim for being

added as a legal heir was belatedly made after her brother

had secured a transfer of the licence on the death of her

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father and got the same renewed whereas in this case it is

contended that the licence was transferred without the

consent of the petitioner.

61. E. Veeranna's case (supra) would also be of avail

since in that case, the allegation of forgery and

proceedings therein were pending before the Trial Court

and hence, this Court refused to examine the same.

62. The ruling of a division bench of this Court in the

case of Savitha K. R. (supra) also cannot be considered

since the Division Bench has merely held that there were

no provisions under the Act to enable the officers to

undertake an enquiry with regard to the aspect of fraud

and fabrication of documents.

63. The case of K. S. Sharadamma (supra) deals with

illegal transfer of a CL-2 licence wherein the GPA holder

therein had gotten the licence transferred to his name by

creating false documents. The issue of a legal heir's claim

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to his/her share in the licence did not arise in that matter,

and the ratio in said matter is thus inapplicable to the case

at hand.

64. In this case, Yashodamma, as already discussed

above, requested for transfer of licence that had been

transferred in her favour under Rule 17-B of the KEL Rules

in favour of her son. The Department has proceeded to

treat said request as a transfer under Rule 17-B of the KEL

Rules i.e., a transfer from an existing licencee to another

person who is eligible for grant of licence. The Department

appears to have taken the view that the consent granted

to transfer licence to Yashodamma resulted in

Yashodamma being exclusive licencee, who is entitled to

transfer the licence. This stand of the Department, as

already stated above, is incorrect and the transfer in

favour of Yashodamma was on behalf of all the legal heirs

and she did not acquire any exclusive licence.

65. It is also to be noticed here that notwithstanding the

fact that the Department has taken an improper stand that

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Yashodamma has sought transfer under Rule 17-B of the

KEL Rules in favour of her son, Yashodamma had herself

submitted an affidavit of her two daughters and her son

while requesting transfer of the licence in favour of the 5th

respondent. In this affidavit, she has also stated that the

petitioner had refused to give his consent. This act of

Yashodamma in filing an affidavit signifying the consent of

her two daughters and a son for transfer of the licence in

favour of 5th respondent, by itself, indicates that

Yashodamma also construed the licence that had been

transferred to her to be a licence which had been granted

to her as a consequence of the death of her husband--

Krishnappa and the transfer was, in effect, a transfer to all

the legal heirs of Krishnappa. Unfortunately, the

department has ignored the effect of Rule 17-A of the KEL

Rules and also the fact that Yashodamma had herself

considered the licence to have been a transfer in favour of

all the legal heirs and has proceeded to transfer the

licence only in favour of the 5th respondent.

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66. It is to be stated here that though, under normal

circumstances, the transfer of licence in favour of the 5th

respondent would have been struck down since the

transfer in favour of Yashodamma was essentially a

transfer of licence in favour of all the legal heirs, and she

only represented the interest of the legal heirs, but since

the two daughters and the other son of Krishnappa have

given their consent for transfer of licence from the name

of Yashodamma to the 5th respondent, the transfer of

licence in favour of 5th respondent to that extent cannot be

found fault with.

67. But, the transfer of the petitioner's right in respect of

the licence and his consent cannot be assumed, more so

when Yashodamma herself stated that he had refused to

give his consent for the transfer in favour of the 5th

respondent.

68. As already observed above, it is the admitted case of

the petitioner that one of his sisters had instituted a suit in

O.S.No.52/2011 seeking partition and thus, the right to

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succeed to the estate of Krishnappa is yet to be

adjudicated upon.

69. It is also to be noticed here that the licence was

transferred in favour of petitioner's mother--Yashodamma

way back in the year 2000 and thereafter, the licence was

standing in her name for a period of 10 years i.e., till

2010, and, subsequently, on an application given by her, it

has been transferred in favour of 5th respondent i.e., the

petitioner's brother in the year 2010. The 5th respondent

has thereafter paid the licence fee every year and has

sought renewal of the same every year by paying

necessary licence fee and has been considered as a licence

holder by the Department. In other words, the 5th

respondent has been running the business on the basis of

licence transferred in his name nearly for the past 14

years, and to strike down the transfer of licence in his

favour at this stage would be improper. The Department

would therefore be justified in continuing the licence in

favour of the 5th respondent.

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70. However, it will also have to be noticed that the

petitioner (being one of the sons of the original licence

holder--Krishnappa) was also entitled to succeed to the

licence held by Krishnappa and since the right of the legal

heirs of Krishnappa to succeed to his estate is pending

adjudication in O.S.No.52/2011, it would be appropriate to

permit the petitioner to stake a claim in respect of the

business that was being run by Krishnappa on the basis of

the CL-2 licence which is now standing in the name of the

5th respondent. The petitioner shall also be entitled to seek

his share of profits, if any, in the business that is being run

by the 5th respondent in said suit.

71. It would also be open to the petitioner to put forth

the plea that the signature found on the affidavit dated

13.04.2000, which is found in the original file, is forged

and that he had not given his consent to the transfer of

licence in favour of his mother.

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72. The Civil Court -- in the event the petitioner stakes a

claim in the pending suit regarding the business run by the

5th respondent -- shall also examine whether the signature

found in the affidavit dated 13.04.2000 is forged. It is

needless to state that if the signature is indeed found to

be a forged one, it will have to be held that the petitioner

has not granted his consent to the transfer of licence in

favour of his mother thereby retaining the right of one of

the beneficiaries of the licence by virtue of him being the

legal heir of Krishnappa under Rule 17-A of the KEL Rules.

73. It is hereby clarified that nothing stated in this order

should be construed as this Court rendering an opinion

regarding the genuineness or otherwise of the signature of

the petitioner and the Civil Court shall address this issue

independently.

74. This writ petition is disposed of holding that the

department would be entitled to continue the transfer of

licence in favour of the 5th respondent and also renew the

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same in accordance with law, subject to the right of the

petitioner to stake a claim in respect of his share in

pending O.S.No.52/2011. The questions framed above are

accordingly answered.

Sd/-

(N S SANJAY GOWDA) JUDGE

PKS,GSR