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2001 DIGILAW 280 (KAR)

S. N. CHINAPPA v. STATE OF KARNATAKA

2001-03-23

K.L.MANJUNATH

body2001
K. L. MANJUNATH, J. ( 1 ) THE petitioners have questioned the endorsements dated 9-10-2000 and 19-10-2000 respectively issued by the deputy commissioner, kolar, wherein he has rejected the prayer of the petitioners to allow them to continue their business carried on by them by virtue of cl-9 licence. ( 2 ) THE petitioners after obtaining licence under cl-9 have been running the bar and restaurants at the respective places. It appears, a show-cause notice was issued calling upon the petitioners to shift their business premises to any other non-objectionable place. According to the authorities, the business of the petitioners are situated at a distance of 71 metres from gnana deepika school which is under construction. ( 3 ) THE petitioners also filed applications for renewal of their licence for the excise year 2000-2001 which applications were allowed by the authorities, permitting the petitioners to carry on the business for a period of three months commencing from 1-7-2000. However, they collected the licence fee for the whole year. Before the expiry of three months the petitioners filed their applications seeking extention to do the business in the same premises. The said applications were rejected. The rejection of the said applications are called in question before this court in the present writ petitions. ( 4 ) THE learned counsels for the petitioners have raised two points before this court. According to him the licence was granted on 30-6-2000 as per Annexure-A in W. P. No. 38486 of 2000 and Annexure-C on 28-8-2000 in W. P. No. 35825 of 2000. The said licences were granted only for a period of three months. By virtue of amendment to the Karnataka excise (sale of Indian and foreign liquors) (2nd amendment) rules, 2000 the authorities can grant the licence for a period of one year and that they have no right to issue licence for a break up period. The other point that has been canvassed by the learned counsels for the petitioners is that no opportunity has been given to them before asking the petitioners to shift their business as required under Rule 5 (4) of the Karnataka excise licences (general conditions) rules, 1967. The other point that has been canvassed by the learned counsels for the petitioners is that no opportunity has been given to them before asking the petitioners to shift their business as required under Rule 5 (4) of the Karnataka excise licences (general conditions) rules, 1967. ( 5 ) THOUGH the learned government pleader sought to support the contention of the authorities and the action of the respondents hi not extending the period beyond 30th September, 2000 the learned government pleader is unable to convince this court in regard to non-affording of an opportunity for the petitioners as required under sub-rule (4) of Rule 5 of the Karnataka excise licences (general condition) rules, 1967. ( 6 ) SIMILARLY, the learned government pleader is also unable to convince the court in regard to the power of the respondents in granting the licence as per annexures-a and c only for a period of three months when the act provides for the renewal of the licence for a whole excise year. ( 7 ) IT was contended by the learned government pleader that the authorities have granted permission for the petitioners to make use of the old premises with an intention to see that the business of the petitioners is not closed and also to enable the petitioners to search for a suitable and unobjectionable premises to continue their business. According to her, the goodness of the respondents is being challenged by the petitioners by taking shelter under the Provisions of the amended rules. ( 8 ) FROM the points urged by both the advocates, what is to be considered by this court is: (1) whether the respondents can grant licence for a break up period even though they have collected licence fee for the whole of the year? (2) whether the authorities can ask the licensee to shift his business premises to any other unobjectionable premises in anticipation of the opening of a school in the near future? ( 9 ) IT is not in dispute that the authorities have no power to renew the licence for a break up period. When the Rule provides that the licence has to be renewed from one excise year to another excise year the respondents have granted licence only for a period of three months after collecting the licence fee for the whole year. When the Rule provides that the licence has to be renewed from one excise year to another excise year the respondents have granted licence only for a period of three months after collecting the licence fee for the whole year. The respondents-authorities have no right to collect the licence fee for a break up period under the act. When they have no right to collect the licence fee for a break up period, they have no right to grant licence for a break up period. In other words, there is no justification on the part of the respondents to collect the licence fee for the whole year and grant the licence for a period of three months only. ( 10 ) IT is not for the respondents to show any concession in favour of the petitioners to grant licence for a period of three months to enable them to shift the premises to any other premises. If the authorities have no right to grant the licence under the law for a break up period, the respondents could not have ventured to grant the licence for a period of three months. ( 11 ) IT is held by this court that the authorities have no right to grant the licence for a break up period that too when the authorities have collected the licence fee for the whole year. In other words, the authorities have to grant licence for the whole year or to have rejected the application of the petitioner. Coming to the next point, whether in anticipation of opening of school within a prohibited distance, whether the authorities can ask the licensee to shift to the premises to any other unobjectionable place. It is not in dispute the applications filed by the petitioners have to be considered by the authorities based on the location of the premises as on the date of considering renewal or granting licence afresh. Just because a person is going to construct a school building or a school will be inaugurated in the near future that cannot be a ground for the authorities to reject in anticipation of opening of a school. Either the Excise Act or the rules do not provide for rejection of the renewal application on the ground that in the near future a school will be opened. Either the Excise Act or the rules do not provide for rejection of the renewal application on the ground that in the near future a school will be opened. In the instant case, the authorities have held that the gnana deepika school building is under progress and therefore the renewal application of the petitioner has been rejected. If the theory of the respondent is adopted, it will be difficult in the future to grant any licence in favour of any person. A rival businessman may object on the ground that either a school or a temple will be established within the prohibited distance from the shop in question by applying the above principle all such applications have to be rejected. Under the circumstances, the reasonings given by the authorities to reject the renewal of the petitioners are also bad in law. Therefore, in anticipation that a school building will be opened in the future cannot be a ground for the authorities to reject the renewal applications of the petitioners. ( 12 ) IT is also not in dispute that the respondents have not provided reasonable opportunity to the petitioners as required under sub-rule (. 4) of Rule 5 of the Karnataka excise licence (general conditions) rules, 1967. So, under these circumstances, before calling upon the petitioners to shift their business premises to any other premises, the respondents have to give an opportunity for the petitioners and only after hearing the petitioners the respondents can pass such an order. Under these circumstances, the matter has to be reconsidered by the licensing authority after affording an opportunity to the petitioners and till such time the respondents shall have no right to interfere with the business of the petitioners as the respondents have collected licence fee for the whole of the year. Though licence has been granted for a period of three months, in view of the amendment of the rules, the authorities have to consider the issue. ( 13 ) ACCORDINGLY, the writ petitions are allowed. Rule is made absolute. Though licence has been granted for a period of three months, in view of the amendment of the rules, the authorities have to consider the issue. ( 13 ) ACCORDINGLY, the writ petitions are allowed. Rule is made absolute. The matter is remanded to the deputy commissioner of excise, kolar to consider the question of renewal for the whole year (excise year 2000-01) in the light of the amendment brought under Section 7 of the act and also to provide an opportunity to the petitioners and hear them before passing any others to shift their business premises to any other premises as required under sub-rule (4) of Rule 5 of the karnataka excise licences (general conditions) rules, 1967. --- *** --- .