M.R. Pasalker vs The Deputy Commissioner of Excise

A.N. Venugopal Gowda, J.—The petitioner-a CL-2 licencee, carrying on business in the premises bearing R.S. No. 62/2, Hirepadasalagi Village, Jamkhandi Taluk having been served with a show-cause notice dated 24.12.2014 by respondent No. 1, this writ petition was filed to quash the said notice, as at Annexure

The notice as at Annexure ''C'' makes a reference to a communication dated 13.05.2014 of respondent No. 3 and a report dated 19.12.2014 of respondent No. 2. The petitioner was called upon to show-cause within seven days as to why he should not be directed to shift the business, for which the CL-2 licence was issued and renewed, to another place, more particularly, on account of the representation dated 13.05.2014 of respondent No. 3, who being a Member of Legislative Assembly, is also the Chairman of Jamakhandi Sugars Limited.

Though the petitioner has raised several contentions in this writ petition, which was also urged by Sri. F.V. Patil, learned advocate appearing for the petitioner, in view of the objection raised by the Smt. K. Vidyavathi, leaned AGA, appearing for respondent No. 2, that the writ petition may not be entertained on account of the fact that the petitioner has efficacious remedy before respondent No. 1, without going to the merit of the contentions sought to be urged by Sri. F.V. Patil, on behalf of the petitioner, particularly, in view of the fact that the petitioner can urge all the contentions before respondent No. 1, I decline to entertain this writ petition, since the Apex Court in The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, , has taken exception for the High Court entertaining a writ petition against a show cause notice. In the said decision, the Apex Court has held as follows:--

"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection not granted." It is not the case of the petitioner that Annexure ''C'' is non est in the eye of law, for absolute want of jurisdiction of the authority to even investigate into the facts.

In view of the above, this writ petition is disposed of by permitting the petitioner to file his objection/reply to the show-cause notice as at Annexure ''C, on or before 19.01.2015.

If a reply is submitted by the petitioner, within the said date, respondent No. 1 shall consider the same in accordance with law, by giving reasonable opportunity of hearing to the petitioner to appear either in person or through an advocate and put forth his case. Thereafter, it is open to respondent No. 1, to consider the matter in accordance with law and pass a reasoned order.

Smt. K. Vidyavati, learned AGA, is permitted to file memo of appearance within four weeks.