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2008 DIGILAW 634 (KAR)

RAJENDRA JYOTIBA DESAI v. STATE OF KARNATAKA

2008-10-24

D.V.SHYLENDRA KUMAR

body2008
ORDER This writ petition is by CL-2 licensees who have been permitted to carry on vending of Indian liquor in retail at their respective premises. 2. Petitioners have approached this Court on the premise that the Deputy Commissioner of the District has surprised them by issuing the notice dated 13-10-2008 calling upon the petitioners to shift the location of their business to some other place within three days from the date of receipt of the notice as otherwise the authorities will be constrained to close the shops forcibly from Carrying on business at the existing location. 3. It is aggrieved by such notice, the present writ petition. 4. Appearing on behalf of the petitioners Sri B.D. Hiremath, learned Counsel would vehemently urge that the notice in per se bad in law; that it is clearly violative of sub-rule (4) of Rule 5 of the Karnataka Excise Licences (General Conditions) Rules, 1967 (for short, the Rules); that the petitioners have been asked to shift their business place even without giving any opportunity; that a decision has been taken unilaterally even before the petitioners can have their say in the matter; that the rule contemplates opportunity of hearing being given to persons like the petitioners before the place of business is asked or permitted to be shifted and therefore the present action is clearly violative of the rule. 5. Further, in support of the submission, learned Counsel for the petitioners has relied upon a Single Bench decision of this Court in the case of C.L. Kalappa v Deputy Commissioner (Excise) 1. Submission is that the facts in the present case is almost identical with the facts in the decided case and therefore ratio of this decision should be applied; that the impugned action is clearly in violation of principles of natural justice, taking a decision without giving an opportunity, contravening the principles of administrative law and therefore the impugned notice is liable to be quashed. 6. Notice had been issued to the respondents and Smt. K. Vidyavati, learned Government Pleader has appeared on behalf of the respondents. 7. 6. Notice had been issued to the respondents and Smt. K. Vidyavati, learned Government Pleader has appeared on behalf of the respondents. 7. Smt. K. Vidyavati, learned Government Pleader, on the other hand, would draw attention to the provisions of Section 21 of the Karnataka Excise Act, 1965 (for short, the Act) and would submit that the Deputy Commissioner was compelled to issue notice of this nature, particularly in the wake of the developments in the village that not only all the women folk in the village had urged upon the representatives of the people of the area to ensure that the shops vending Indian Liquor are closed immediately to maintain peace and order in the area but also to ensure that protection is given to them and the Deputy Commissioner having examined the report/recommendation of the Excise Inspector of the area who had indicated that it is very necessary from the angle of maintaining public peace and order in the area to immediately shift the liquor shops from the present location has passed the impugned order; that the order is specifically passed in the exercise of the power under Section 21 of the Act though erroneously quoted at Rule 21 in the notice. 8. It is submitted that the authorities have power to close down a liquor shop if it is found its functioning in the particular area can result in breach of public peace and order; that it can be ordered to be closed down immediately and that it does not contemplate of any opportunity; that in fact the notice gives an option to the petitioners not only to shift but permitting them another three days to remain in the area and it is also submitted on instructions that the petitioners having not complied on the expiry of the third day the shops have now been sealed. 9. I have examined the rival contentions and the authority relied upon. 10. While it is true that sub-rule (4) of Rule 5 of the Rules contemplates opportunity of hearing to a person who has been asked to shift from the existing location to a new place, there cannot be any generalisation of this rule so as to either dilute the provisions of Section 21 of the Act or in any way interpret the rule working at cross purposes with the intention and object of Section 21 of the Act. While a section always prevails over a rule, in fact, Rule 5 is only in the context of shifting a premises where as Section 21 of the Act is mainly in the context of maintaining law and order, peace and it has been made in the larger public interest. 11. Section 21 of the Act reads as under: "21. Closing of shops for the preservation of public peace etc.-(1) The District Magistrate may, by notice in writing to the licensee require that any shops in which any intoxicant is sold shall be closed at such times and for such period as he may think necessary for the preservation of the public peace or the prevention of the spreading of any infectious diseases. (2) If any riot or any unlawful assembly is apprehended or occurs in the vicinity of any such shop, any Magistrate or any Police Officer not below the rank of a Sub-Inspector, who is present, may require such shop to be kept closed for such period as he may think necessary: Provided that where a riot or unlawful assembly so occurs, the licensee shall in the absence of such Magistrate or Officer, close the shop without any order and keep it closed during the continuance of such riot or unlawful Assembly". and Rule 5(4) of the Rules read as under: "5. Restriction in respect of location of shops.-....... (4) The Deputy Commissioner may, by order after giving the licensee an opportunity of being heard, direct such licensee to shift the location of any shop.- (a) with a view to secure the convenience, morality, tranquility, decency or safety ofthe public compliance of the provisions of these rules; or (b) where after the issue of a licence, any religious institution or educational institution is established or any office of the State Government or Central Government or Local Authorities or a hospital is opened within the limits specified in this rule; to any other suitable place, within such period, not exceeding three months as he may specify. 12. 12. Though it is submitted by Sri Hiremath, learned Counsel for the petitioners that the rights of the petitioners are violated by the action under the impugned notice; that even before an opportunity is given it has been enforced though it is couched in the form of a notice it is virtually an order pre-emptive of an opportunity to the petitioners and therefore it should be quashed, I am of the view that the notice under Annexure-C is more an enabling notice in favour of the petitioners rather than one for the purpose of shifting the premises. In fact, the main intention of the notice is to close down the shops immediately and the incidental purpose and option given to the petitioners is to shift to some other place and then to continue the business there. In fact, giving three days time to the petitioners to make alternative arrangements is more than sufficient opportunity when the situation is examined from the context of the provisions of Section 21 of the Act. 13. While it is true that in the decision of this Court relied upon by Sri Hiremath, learned Counsel for the petitioners duty and if the autborities have acted for such purpose, it cannot be said that the action is either arbitrary or illegal. 14. Insofar as the petitioners contention that their rights are violated is concerned, in the first instance, no person has a right to trade in liquor, it is a privilege of the State, parted by the State for a price. While it is true that the action of the authorities can be examined on the touchstone of the rules and statutory remedies, it is done more to ensure that the authorities exercising power under the Act and the Rules, act in a fair and statute conforming manner rather than to examine the rights of a licensee. 15. I find the action taken under Annexure-C notice is more than justified, bona fide action and not one warranting interference in the exercise of power of judicial review of administrative action. 16. 15. I find the action taken under Annexure-C notice is more than justified, bona fide action and not one warranting interference in the exercise of power of judicial review of administrative action. 16. Though Sri Hiremath, learned Counsel for the petitioners draws attention to sub-rule (4) of Rule 5 of the Rules and points out that for the purpose of shifting, a maximum period of three months can be allowed and on the other hand the petitioners in the given case had been given only three days time and it definitely affects business interest of the petitioners. I am not impressed by the submission for the simple reason that the notice is mainly for the purpose of Section 21 of the Act and incidentally mentioning Rule 5 of the Rules. Under Section 21 of the Act immediate closure can be effected. 17. While it is open to the petitioners to shift or not to shift upto three months time, shops can remain closed and that may not be to the advantage of the petitioners. It is also the law that in all situations there cannot be a predecisional hearing and post decisional hearing is as much in compliance with the principles of natural justice depending upon the situation and the contingency. (Liberty Oil Mills and Others v Union of India and Others). 18. If permitting the petitioners shops to remain open in the area can create law and order situation, the authorities can definitely close down the shops immediately and so far as the shifting is concerned, it is open to the petitioners to give a representation to the authorities and the authorities shall examine the representation and take a decision on the merits of the matter. 19. The respondents-authorities are definitely at liberty to keep the shops closed in the exercise of power under Section 21 of the Act till the decision is taken. 20. Writ petition is disposed of in the above terms. 21. Smt. Vidyavati learned Government Pleader to file memo of appearance in six weeks.