H.R. Kousalyarama vs State of Karnataka and Others

Ashok B. Hinchigeri, J.—The petitioner has called into question the second respondent''s letter, dated 15-6-2006 (Annexure-B), according the prior permission for the transfer of CL-2 licence to the respondent 6. He has also challenged the third respondent''s order dated 17-6-2006 (Annexure-C), transferring the CL-2 licence to the respondent 6. He has also sought a direction for the retransfer of CL-2 licence to the petitioner. Sri S.V. Angadi, the learned Counsel for the petitioner submits that the petitioner''s signatures were obtained on some papers by way of manipulation. The petitioner never intended to transfer CL-2 licence to the respondent 6. He submits that he had obtained copies of certain documents under the Right to Information Act, 2005 and in that process there is some delay in filing the appeal before the Excise Commissioner. He submits that the order dated 6-1-2011 passed in W.P. No. 14014 of 2010 reserves the liberty to the petitioner to avail of the remedy of filing the appeal before the Excise Commissioner.

Sri K.A. Ariga, the learned Additional Government Advocate appearing for the respondents 1 to 5 submits that there is full compliance with the requirement of Rule 17-B of the Karnataka Excise Licences (General Conditions) Rules, 1967 and that therefore the transfer of the CL-2 licence is upheld by the Appellate Authority, namely, the Excise Commissioner. He also takes exception to the conduct of the petitioner in filing one after the other petitions. He submits that this is the third writ petition in the series.

Sri B.N. Shetty, the learned Counsel for the respondents 6, 7 and 8 submits that earlier the petitioner had filed W.P. No. 21131 of 2009 for challenging the order dated 17-6-2006. The said writ petition was dismissed by this Court by its order dated 18-2-2010. Thereafter, the petitioner filed W.P. No. 14014 of 2010 seeking direction to the Deputy Commissioner of Excise to reconsider the order dated 17-6-2006. By its order dated 6-1-2011, this Court dismissed the said writ petition. While dismissing the said petition this Court held that the second petition is not maintainable, as the petitioner has failed to challenge the order dated 18-2-2010 passed in W.P. No. 21131 of 2009 by filing the writ appeal. He submits that all the requirements of law are complied with before effecting the transfer of CL-2 licence.

The submissions of the learned Counsel have received my thoughtful consideration. I am not persuaded to accept the submission urged on behalf of the petitioner that this Court, while disposing of W.P. No. 14014 of 2010, had reserved the liberty to file the appeal before the Excise Commissioner. The plain reading of the order dated 6-1-2011 reveals that the observation was that the petitioner could have challenged the order dated 18-2-2010 passed in W.P. No. 21131 of 2009 before the appellate forum. The reference was obviously to the Division Bench before which the petitioner could have filed the writ appeal. Para 3 of the order dated 6-1-2011 in W.P. No. 14014 of 2010 is extracted herein below:

...In fact, the writ petition itself is not maintainable as the petitioner could have challenged the order dated 18-2-2010 passed in W.P. No. 21131 of 2009 before the appellate forum instead of seeking a reconsideration of the order dated 17-6-2006. In this writ petition, an order seeking a mandamus to consider the representation dated 9-7-2009, which is again a representation to reconsider the order dated 17-6-2006 also cannot be granted. Hence, the writ petition is dismissed.

(emphasis supplied)

Section 61(3) of the Karnataka Excise Act, 1965 prescribes a period of 90 days for preferring the appeal before the Tribunal, Admittedly, in the instant case, there is a delay of 5 years in filing the appeal. No provision in the Karnataka Excise Act, 1965 or in the rules framed thereunder is pointed out to me to show that there is provision for the condonation of delay. Even assuming that the delay can be condoned, the same can only be done, if the delay is cogently and satisfactorily explained. No extenuating factors explaining the delay of 5 1/2 ears are made out.

For the reasons best known to the petitioner, the petitioner had not filed the appeal immediately after the dismissal of W.P. No. 21131 of 2009. He filed the second writ petition in W.P. No. 14014 of 2010 and on its dismissal, filed the appeal before the Excise Commissioner. Further, in this petition, the petitioner had not challenged the Appellate Authority''s order as such. The contentions raised in this petition are only for assailing the original authority''s order dated 17-6-2006. The challenge to the said order is negatived in the earlier round of litigation.

The prayer to quash the letter, dated 15-6-2006 (Annexure-B) is hit by Order 2, Rule 2 of the Civil Procedure Code, 1908. Having not chosen to challenge the letter dated 15-6-2006 in the earlier writ petitions, the petitioner cannot challenge the same in the subsequent proceedings. The provisions contained in Order 2, Rule 2(2) of C.P.C. read as follows.--

Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

For all the aforesaid reasons, I dismiss this petition. No order as to cost.