Karnataka High Court

Sri A S Mahesha vs The State Of Karnataka on 11 November, 2025

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                                                              WP No. 30789 of 2024


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                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 11TH DAY OF NOVEMBER, 2025

                                                 BEFORE

                                 THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

                                 WRIT PETITION NO.30789 OF 2024 (EXCISE)

                      BETWEEN:

                      SRI A.S. MAHESHA
                      S/O LATE M.B. SONNEGOWDA,
                      AGED ABOUT 66 YEARS,
                      MBS RESIDENCY,
                      PROPOSED CL-7 APPLICANT,
                      KHAT NO.491, SOMANAHALLI VILLAGE,
                      AKKIHEBBALU HOBLI,
                      K.R. PET TALUK-571 605
                      MANDYA DISTRICT.
                                                                       ...PETITIONER

                      (BY SRI G.K. BHAT, SENIOR COUNSEL FOR
                          SMT. SUDHA D., ADVOCATE)

                      AND:

Digitally signed by   1.   THE STATE OF KARNATAKA,
MAHALAKSHMI B M            REPRESENTED BY ITS PRINCIPAL SECRETARY,
Location: HIGH             DEPARTMENT OF FINANCE & EXCISE,
COURT OF                   VIDHANA SOUDHA,
KARNATAKA
                           DR. AMBEDKAR VEEDHI,
                           BENGALURU-560 001.

                      2.   THE COMMISSIONER OF EXCISE
                           IN KARNATAKA,
                           NO.27, 2ND FLOOR, TTMC,
                           SHANTHINAGAR BUS TERMINAL,
                           SHANTHI NAGAR, BENGALURU-560 027.

                      3.   THE DEPUTY COMMISSIONER,
                           MANDYA DISTRICT, MANDYA-571 401.
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                                          NC: 2025:KHC:45825
                                       WP No. 30789 of 2024


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4.   THE DEPUTY COMMISSIONER OF EXCISE,
     MANDYA DISTRICT,
     ABHAKARI BHAVAN,
     BEHIND OFFICE OF THE
     DEPUTY COMMISSIONER,
     MANDYA-571 401.
                                              ...RESPONDENTS

(BY SMT. PRATHIMA HONNAPURA, AAG A/W
    SRI RAJ KUMAR M., AGA)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 29/10/2024 PASSED BY 3RD RESPONDENT
IN NO.EXE/MDY/IML/195/2024-25 MARKED AT ANNEXURE-V;
DIRECT THE RESPONDENTS TO GRANT CL-7 LICENSE IN FAVOUR OF
THE PETITIONER IN RESPECT OF THE PREMISES BEARING NO.491,
SOMANAHALLI VILLAGE, AKKIHEBBALU HOBLI, K.R. PETE TALUK,
MANDYA DISTRICT FOR THE EXCISE YEAR 2024-25.

     THIS PETITION COMING ON FOR 'ORDER', THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA


                      ORAL ORDER

The petitioner has questioned the endorsement dated

29.10.2024 issued by the Deputy Commissioner, Mandya

District, rejecting his application for grant of a fresh CL7

licence for the Excise Year 2004-2025 in respect of his

premises at Somanahalli Village, K. R Pet Taluk, Mandya

District.

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2. This Writ Petition had earlier been disposed of by

this Court by order dated 10.01.2025 granting liberty to

the petitioner to approach the Deputy Commissioner of

Excise for consideration of his application. The said order

was challenged by the State in Writ Appeal No. 585 of

2025.

3. The Division Bench by the judgment in Writ

Appeal No. 585 of 2025 noted that both learned counsel

submit that under the Karnataka Excise Act, 1965 ('Act'

for short) and the Rules, both the Deputy Commissioner

and the Deputy Commissioner of Excise are empowered to

consider the application for grant of CL7 licence. The

Division Bench set aside the order dated 10.01.2025 and

restored the writ petition to the file of this Court for

consideration on merits, thereby settling the question of

jurisdiction.

4. In view of the said pronouncement, the issue as

to "whether the Deputy Commissioner or Deputy

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Commissioner of Excise is a competent authority" no

longer survives. The only question that arises is,

whether the petitioner can maintain this

Writ Petition directly, or must first avail the

statutory appellate remedy provided under the

Act?

5. The endorsement dated 29.10.2024 is an order

passed by the Deputy Commissioner of Excise under the

provisions of Section 61 (1) of the Act, which states that,

any person aggrieved by an order passed by the Deputy

Commissioner of Excise is entitled to prefer an appeal to

the Excise Commissioner.

6. Such remedy is both efficacious and statutory. It

is well settled that when a statute provides an appellate

mechanism, this Court ordinarily will not exercise

jurisdiction under Article 226 unless exceptional

circumstances are shown. The Apex Court in the case of

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Whirlpool Corporation vs Registrar of Trademarks1

(Whirlpool Corporation) has held at para Nos 14 to 20 as

under:

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights

(1998) 8 SCC 1

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or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.

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17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as under:

"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."

18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC 1506 : (1962) 1 SCR 753] and was affirmed and followed in the following words:

"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general

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principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I [AIR 1961 SC 372 : (1961) 41 ITR 191] laid down:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting

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without jurisdiction under Section 34, Income Tax Act."

20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

7. Reiterating the similar proposition, the Apex

Court in the case of Harbanslal Sahnia and Another vs

Indian Oil Corporation Ltd. and Others2(Harbanslal

Sahnia) has held that the alternative remedy is a rule of

discretion and not one of compulsion and the High Court,

in spite of availability of alternative remedy, may exercise

its writ jurisdiction in at least three contingencies, as

stated supra reiterating the observation as held in

Whirlpool Corporation (supra).

(2003) 2 SCC 107

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8. The petitioner has not established any such

ground of lack of jurisdiction or breach of natural justice

warranting bypass of the alternative efficacious remedy.

Accordingly, this Court pass the following :

ORDER

(i) The Writ Petition is disposed of, holding

that the petitioner has an alternative and

efficacious statutory remedy of appeal

under Section 61 (1) of the Karnataka

Excise Act, 1965 before the Excise

Commissioner.

(ii) The petitioner is at liberty to prefer an

appeal within four weeks from the date of

the receipt of the certified copy of this

order. If such an appeal is filed within the

said period, the Appellate Authority (Excise

Commissioner) shall consider the same on

merits within four weeks from the date of

filing of the appeal, without reference to