Anand Wines vs State of Karnataka and Others

N. Kumar, J.—These appeals are preferred challenging the order passed by the learned Single Judge who after quashing the order dated 8-5-2014 Bharathkumar Vs. State of Karnataka, - Annexure-E, permitting the shifting of the location under CL-2 licence, by reserving liberty to the appellant to seek shifting of CL-2 licence to another premises built for commercial use elsewhere after obtaining orders of the Deputy Commissioner (Excise). For the purpose of convenience, parties are referred to as they are referred in the writ petition.

Petitioners are the residents of B. Krishnappa Layout, Vijayanagar, Bangalore-560 040. Their case is, the said residential area in which they are living is surrounded by Schools, Colleges, Central Government Office, a Co-operative Bank and some of the departmental stores. When they came to know about a likelihood of opening of a liquor shop adjacent to their house, they filed objections before the respondents 4 and 5 on 7-5-2014, not to grant any such licence. They also came to know that a spot inspection was made by respondents 4 and 5 on 7-5-2014. However, the petitioners were not notified of such spot inspection. Their grievance is that, without considering their objections, Annexure-E - permission was granted to the respondent 7 to shift his CL-2 shop from Basaveshwarnagar to Vijayanagar. Therefore, they preferred writ petitions before this Court seeking a writ of mandamus to respondents 2 to 4 to consider the representations given by them and to hold an enquiry before granting the renewal of the licence to respondent 7. They also sought a mandamus to respondents 2 to 4 not to renew the licence and they sought for interim order to that effect. After service of notice, the respondents entered appearance, respondent 7 contested the matter and after hearing the parties, the learned Single Judge after taking note of the statutory provisions in particular Rule 5(4)(a) of the Karnataka Excise Licences (General Conditions) Rules, 1967 and the judgment of the Division Bench of this Court held that the order - Annexure-E passed by the authorities permitting to shift from the location of the shop under CL-2 licence from Basaveshwarnagar to Vijayanagar is a colourable exercise of power and therefore, he quashed the same. Further, he also reserved liberty to respondent 7 to seek shifting of CL-2 licence to another premises built for commercial purpose elsewhere after obtaining orders of the Deputy Commissioner (Excise). Aggrieved by the said order, respondent 7 has preferred these appeals.

Learned Senior Counsel appearing for the appellant assailing the impugned order contends that, under the law, no enquiry is contemplated before an order for shifting is passed by the authorities. Even if it is to be held, such an enquiry is necessary and objectors are to be heard, it is for the Deputy Commissioner (Excise) to decide whether the place to which it has to be shifted is suitable and proper for running the said liquor shop and is in accordance with law. When there being no material on record, virtually the learned Single Judge without assigning any reason has held that the place at Vijayanagar where the shop was shifted is not suitable and further a direction is given to the respondent 7 for shifting to another premises built for commercial purpose. Therefore, that portion of the order, where the writ petitioners have never sought for such reliefs, is beyond the purview of the writ petitions.

Per contra, learned Counsel for the respondents submits that the order passed by the learned Single Judge is in accordance with law and no case for interference is made out.

From the above, it is clear that respondent 7 was granted CL-2 licence to run a liquor shop at a premises in Basaveshwarnagar. On a hospital coming up near the shop within a distance of 100 meters, authorities directed him to shift the said shop to another place. Thereafter, he identified the shop premises in Vijayanagar and started the business therein. That is called in question by the residents of that place. Admittedly, the authorities have not conducted any enquiry, regarding the objections filed for opening of a liquor shop in that place. Before granting the licence a spot inspection has been done on 7/8-5-2010. The residents have no notice of the spot inspection and the persons who filed objections were not present at the time of inspection. The learned Single Judge after considering the rival contentions and statutory provisions, was of the view that when objections are filed, it is obligatory on the part of the authorities to consider the objections and pass appropriate orders. When the same is not done, he has set aside Annexure-E - the permission granted to shift the liquor shop from Basaveshwarnagar to Vijayanagar. In the facts of this case, we do not see any justification to interfere with that portion of the order passed by the learned Single Judge. However, the question of shifting the liquor shop, the place where it is suitable to locate the same and consideration of the objections of the residents in and around at the place, if any, is a matter to be considered by the Deputy Commissioner (Excise) after hearing all the parties concerned. The learned Judge has not done that exercise, rightly, due to want of evidence. At the same time, he has virtually come to the conclusion that the area at Vijayanagar, where the shop was relocated was not suitable. It gives an impression that it is a residential area and therefore, respondent 7 should see for an commercial building in some other locality built for commercial purpose. The said finding is not supported by any material on record. That is not the relief sought by the writ petitioners. Therefore, that portion of the order requires to be interfered. Accordingly, we pass the following order:

ORDER

The writ appeals are partly allowed.

The portion of the order of the learned Single Judge as under:

"Reserving liberty to the 7th respondent to seek shifting of the CL-2 licence to another premises built for commercial use elsewhere after obtaining orders from the Deputy Commissioner (Excise)" is hereby set aside.

The authorities are directed to consider the objections filed by these petitioners and others and make a spot inspection in their presence, after due notice to them and then after hearing both the parties, shall decide whether the shifting of the premises to the place at Vijayanagar is permissible in law or not and accordingly, pass appropriate orders.

All the parties to the proceedings are directed to appear before the Deputy Commissioner (Excise) (West)-respondent 4 on 22-9-2014 at 11 a.m. If the Deputy Commissioner (Excise) (West) has received any other objections from others, the same shall be considered, after duly intimating them and securing their presence. Thereafter, he shall proceed in accordance with law by giving ample opportunity to all the parties to put forth their grievances.