Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1715 (KAR)

Goruru Traders v. State of Karnataka

2019-07-17

S.SUJATHA

body2019
JUDGMENT : S. Sujatha, J. The petitioner has sought for a direction to the respondent - Authorities to renew the licence in Form CL - 9 considering the application dated 05.08.2018 and to quash the letter dated 31.08.2018 issued by the respondent No.1 as per Annexure F to the writ petition, inter alia, challenging the endorsement dated 13.11.2018 issued by the respondent No.4 as per Annexure K to the writ petition. 2. The petitioner is claiming to be a registered Partnership Firm carrying on the business in liquor. It is submitted that the petitioner was peacefully running the business in the present place. On the decision of the Hon'ble Apex Court dated 19.07.1994 in the matter of location of liquor shops alongside the Highways, the State Governments were directed to shift/remove such liquor vends working within 500 meters through Highways. It is contended that the petitioner's licence was also one among them. The Hon'ble Apex Court modified its earlier directions and finally passed an order, leaving to the discretion of the States to allow continuation of such shops even in rural area if the area is considered to be "Sufficiently Developed Area". Accordingly, respondent No.1 after examining the matter from all angles took a decision that "Sufficiently Developed Areas" means area having the population of 5000 or above in the Grama Panchayath limits as per the census of the year 2011. In view of the said decision, respondent No.1 communicated the same to respondent No.2 - Excise Commissioner, Bengaluru. 3. The endorsement issued by respondent No.4 in pursuant to the decision of the State Government declaring the "Sufficiently Developed Area" is the cause for the petitioner to file this writ petition challenging the decision of the State Government. 4. It is the contention of the petitioner that the licence of the petitioner comes within the limits of the Goruru Grama Panchayath which is also sufficiently developed area having all the facilities and amenities despite having the population of less than 5000. 5. Learned counsel Sri. G. K. Bhat appearing for the petitioner submitted that the decision of respondent No.1 - State to renew the licence in the rural area alongside the Highways based on the population of 5000 and above is impermissible. 5. Learned counsel Sri. G. K. Bhat appearing for the petitioner submitted that the decision of respondent No.1 - State to renew the licence in the rural area alongside the Highways based on the population of 5000 and above is impermissible. Learned counsel submitted that in terms of Section 4 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('Act 1993' for short), the village Goruru which comes under the Hassan District having the population of not less than 2500 is considered to be a Panchayat area. Second proviso to Rule 5 of the Karnataka Excise Licences (General Conditions) Rules, 1967 ('Rules' for short) provides that the Deputy Commissioner of Excise may grant licence to locate any liquor shop in a premises situated within a distance of 220 metres from the middle of a State Highway or a National Highway if such premises is located in a predominantly inhabited area, or extension of a town, village, or area the population of which is more than two thousand five hundred and where a licence to locate shop in such premises was granted or was existing during the period commencing from 1st July, 1992 and ending on 30th June, 1994. In view of the said Rule, the State Government if determined to consider the "Sufficiently Developed Area" on the basis of the population, the same requires to be in conformity with the second proviso to Rule 5 of the Rules and Section 4 of the Act 1993. 6. Learned Additional Government Advocate Smt. M. Jyothi, appearing for the respondents submitted that the State Government has taken a decision after verifying the various notifications issued by the other States as well as Section 4 of the Act 1993 and has arrived at a decision to declare the "Sufficiently Developed Area" based on the population of more than 5000 as per 2011 census. Indisputably, the population of the Gorur Grama Panchayath is less than 5000 as per the 2011 census. Hence, the endorsement impugned has been issued by respondent No.4 which cannot be found fault with. 7. I have carefully considered the rival submissions made by the learned counsel appearing for the parties and perused the material on record. 8. Indisputably, the population of the Gorur Grama Panchayath is less than 5000 as per the 2011 census. Hence, the endorsement impugned has been issued by respondent No.4 which cannot be found fault with. 7. I have carefully considered the rival submissions made by the learned counsel appearing for the parties and perused the material on record. 8. The challenge made to Annexure F, the communication of respondent No.1 to the Excise Commissioner, Bengaluru, inasmuch as declaring "Sufficiently Developed Area" based on the population of more than 5000 as per the census of 2011 vis- -vis renewal of licences in the rural areas coming on the National Highways and State Highways is the decision of the Government of Karnataka taken pursuant to the directions of the Hon'ble Apex Court in the case of The State of Tamilnadu vs. K. Balu and another in Civil Appeal Nos.12164-12166/2016 (D.D. 15.12.2016). The said policy decision of the Government is said to have been taken based on discussions, experience, ground realities vis- -vis the provisions of Act and Rules. If the discretionary power conferred on the State Government by the Hon'ble Apex Court is exercised fixing the yardstick of population of 5000 and above, the same cannot be held to be arbitrary or in violation of the Rules and the Act, 1993. If the intention of the Hon'ble Apex Court was to bring the "Sufficiently Developed Area" in conformity with the Rules as contended by the petitioner, there was no necessity for the Hon'ble Apex Court to confer jurisdiction on the State Government to decide the "Sufficiently Developed Area". Such decision may be taken considering the various factors. One such factor would be the population. While fixing the population, it is obvious that few villages may be adversely affected but that would not be a ground to set aside the decision of the State Government. 9. At this juncture, it is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of Ugar Sugar Works Limited Vs. Delhi Administration and others, (2001) 3 SCC 635 wherein it is held at para.18 thus: "Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State." 10. In the light of the aforesaid decision, it is clear that no Courts in exercise of their power of judicial review would ordinarily interfere with the policy decisions of the executive unless arbitrariness, irrationality, perversity and mala fide are ex facie apparent. No such infirmities are found calling for judicial review. On the other hand, there are good reasons for the judicial restraint to judge the decision taken by the Government inasmuch as prescribing the yardstick of population of 5000 and above relating to the census of 2011 for determining the "Sufficiently Developed Area" in terms of the judgment passed by the Hon'ble Apex Court in the case of The State of Tamilnadu & others, supra. Hence, the consequential remedies sought in the writ petition questioning the endorsement dated 13.11.2018 issued by the 4th respondent as per Annexure-K to the writ petition would not survive for consideration at this stage. Hence, the writ petition stands disposed of without interfering with the decision taken by the Government in terms of Annexure-F. However, liberty is reserved to the petitioner to make a representation before the respondent No.1 seeking for re-consideration of the determination of "Sufficiently Developed Area" based on the decisions taken by the other State Governments and the prevailing Excise Rules. If such representation is made by the petitioner, the same shall be considered by the respondent No.1 in accordance with law in an expedite manner.