Karnataka High Court
V.S. Hosalli And Co vs The State Of Karnataka on 7 June, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7th DAY OF JUNE 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
Writ Petition No.103500 of 2018 (EXCISE)
BETWEEN
V.S. HOSALLI & CO
BLOCK NO.1, PROPERTY NO.155/A,
R/O: MURGOD, TQ: SOUNDATTI,
DIST: BELAGAVI,
REPRESENTED BY ITS MANAGING PARTNER,
PRASHANT S/O SUBANNA SHETTY,
AGE: 47 YEARS.
... PETITIONER
(By Sri. SHIVARAJ P MUDHOL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF FINANCE (EXCISE),
BENGALURU.
2. THE EXCISE COMMISSIONER
OFFICE OF THE EXCISE COMMISSIONER,
B.M.T.C. BUILDING, T.T.M.C. "A" BLOCK,
SHANTINAGAR, BENGALURU.
3. THE DEPUTY COMMISSIONER
BELAGAVI, DIST: BELAGAVI.
4. THE DEPUTY COMMISSIONER (EXCISE)
2
OLD P.B. ROAD, BELAGAVI.
5. THE EXCISE INSPECTOR
SOUNDATTI, TQ: SOUNDATTI,
DIST: BELAGAVI.
... RESPONDENTS
(By Sri. RAVI V. HOSAMANI, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED NOTICE/ORDER DATED
29.05.2018 IN NO.D.C.POL.CR:469/2017-18 ISSUED BY
3RD RESPONDENT VIDE ANNEXURE-A SO FAR AS IT
RELATES TO THE PETITIONER IS CONCERNED AND
DIRECT THE RESPONDENT Nos.3 TO 5 TO OPEN THE
PETITIONER SHOP AND HANDOVER KEY TO THE
PETITIONER BY EXTENDING SIMILAR BENEFIT AS PER
ORDER DATED 02.06.2018 IN NO.D.C.POL. CR:469/2017-
18 ISSUED BY 3RD RESPONDENT VIDE ANNEXURE-C SO
FAR AS IT RELATES TO THE PETITIONER IS CONCERNED.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has assailed Notice dated 29.05.2008 bearing No.DC.POL.CR:469/2017-18 issued by third respondent vide Annexure-A. By that Notice, third respondent-Deputy Commissioner, Belagavi district, Belagavi, has invoked Section 21(1) of Karnataka Excise 3 Act, 1965 (hereinafter referred to as the 'Act' for the sake of brevity) to state that during the period of elections to be held to the Gram Panchayat notified in the said Notice and for the purpose of preservation of public peace, excise licence holders who are running their shops shall close the shops and that there shall be no sale of intoxicants. Being aggrieved by the said Notice at Annexure-A, petitioner has filed this writ petition.
2. Yesterday, when the matter came up for preliminary hearing, notice was ordered to the respondents and learned Additional Government Advocate was requested to ascertain whether the State Election Commission had issued any Notification under Section 308-AC of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the 'Panchayat Raj Act' for the sake of brevity) or under any other law. Today, learned Additional Government Advocate submits that impugned Notice at Annexure-A has been issued by 3rd respondent on the basis of notification issued under 4 Section 308-AC of the Panchayat Raj Act by the Karnataka State Election Commission on 23.05.2018 wherein the calendar of events for holding bye-elections to the vacancies for the post of members of various Gram Panchayats have been notified and Section 308-AC of the Panchayat Raj Act has been invoked.
3. However, learned counsel for petitioner submits that while invoking Section 21(1) of the Act, third respondent has not complied with the requirements of notice stipulated therein. He further submits that Rule 10- B of the Karnataka Excise(General Conditions of licences) Rules 1967, also envisages issuance of notice to the licencee before ordering for closure of shops during the period of election. In the circumstances, it is submitted that the impugned order may be quashed.
4. Per contra, learned Additional Government Advocate appearing for the respondents submits that there is no merit in the contentions of learned counsel for the petitioner, as the impugned notice is issued by the Deputy 5 Commissioner as a precautionary measure following the Notification issued by the Karnataka State Election Commission under Section 308-AC of the Panchayat Raj Act. He submitted that, the petitioner would have to comply with the requirement of Section 308-AC of the Panchayat Raj Act and that there is no merit in the writ petition.
5. Having heard learned counsel for the respective parties and on a perusal of Notice dated 29.05.2018-Annexure-A impugned in this writ petition, it is noted that the special notice is issued under Section 21(1) of the Karnataka Excise Act 1965. The said Section 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.6
The object and purpose of the said section is to ensure closure of liquor shops for a specific period/time as may be necessary for preservation of public peace or prevention of spreading of any infectious diseases. Obviously, in the instant case, Annexure-A-notice has been issued for preservation of public peace, having regard to the fact that the Karnataka State Election Commission had issued Notification dated 23.05.2018 notifying elections to vacant posts of members of the Gram Panchayat in several Gram Panchayats.
6. It is noticed that while invoking Section 21 of the Act, notice to the licensee would have to be given in writing. Learned counsel for the petitioner submits that although Annexure-A states that the licencees are also to be notified, there is no specific notice which has been served on the petitioner herein.
7. He further draws my attention to Rule 10-B of the Karnataka Excise (General Conditions of Licences) 7 Rules, 1967, (hereinafter referred to as the 'Rules' for the sake of brevity) which reads as under:
" 10-B. Prohibition of sale of liquor during election ad counting days etc.- In order to comply with the directions of the Election Commission of India for banning sale or supply of liquor and intoxicants during election to the House of the people or State Legislative Assembly the District Magistrate may by notice in writing to the licensee require that any shop in which any liquor is sold or supplied shall be closed at such times and for such period as the Election Commission may consider necessary for conduct of peaceful, fair and free elections. The licensee shall not be entitled to any compensation for such closure."
He submits that even Rule 10-B of the Rules states that before closure of any liquor vend, notice must be issued even if it is for the purpose of ensuring conduct of peaceful, fair and free election. That in the instant case, no notice in writing has been issued to the petitioner, who is a licencee, requiring that his shop be closed during the aforesaid period. In the circumstances, it is contended that there is infraction of Rule 10-B of the Rules also. 8
8. Before considering the aforesaid contentions of respective counsel, it is necessary to also refer to Section 308-AC of Panchayat Raj Act which is a provision inserted for the sake of prevention of corrupt practices during elections. Sub-section (1) of Section 308-AC reads as under:
" 308-AC. Prevention of corrupt practices during elections.- (1) The State Election Commission shall with a view to prevent corrupt practices like bribe and undue influence during elections, take the following steps, namely-
(a) xxxxx
(b) xxxxx
(c) all liquor shops and liquor manufacturing units within the Panchayat area where the code of conduct is in force shall be completely closed over the entire period during which code of conduct of election is in force. The owners, occupiers and the managers, as the case may be, of the liquor shops and liquor manufacturing units shall seal their units during the period of code of conduct is in force and deposit the seal and the keys with the Deputy Commissioner or the Jurisdictional Executive Magistrate. Anybody found in 9 possession of liquor or creating public nuisance after consuming liquor during the closer period of liquor shops shall be kept in preventive custody till completion of the polling date.
Violations of the code of conduct during the period shall be a cognizable and non-bailable offence and be punishable with fine and imprisonment under relevant law for the time being in force.
On a reading of the aforesaid provision, it becomes clear that the Karnataka State Election Commission is empowered to seek closure of all liquor shops and the liquor manufacturing units within the Panchayat area where the code of conduct of election is in force over the entire period wherein code is in force. Further, the owners, occupiers and managers as the case may be, of the liquor shops and liquor manufacturing units shall seal their units during the period the code of conduct is in force and deposit the seal and the keys with the Deputy Commissioner or the jurisdictional Executive Magistrate. Further, anybody found in possession of liquor or by creating public nuisance after consuming liquor during the 10 closure period of liquor shops shall be kept in preventive custody till completion of the polling date and that if there is any violation of the code of conduct during the period shall be a cognizable and non-bailable offence and be punishable with fine and imprisonment under the relevant law for the time being in force.
9. It is noted from the aforesaid provision that the State Election Commission with a view to hold free and fair election in a Panchayat Area, is empowered to ensure closure of liquor shops and liquor manufacturing units. Once notification under Section 308-AC is issued, there are certain requirements to be complied with by the licencee of liquor shops and liquor manufacturing units failing which, they would be visited with penal consequences. It is common knowledge that the political parties apart from distributing freebies/free gifts in the form of electrical appliances such as televisions, mixer-grinders, computer, laptops, fans etc may also indulge in distribution of liquor, particularly close to the date of the poll, obviously the 11 object and purpose of distribution of liquor is for securing votes, which is an act of bribery. It is, in order to maintain purity of the electoral process that Section 308-AC has been introduced to the Act. In that, the said Section ensures closure of liquor shops and liquor manufacturing units. I find that the same as reasonable restriction of the right to carry on trade and business in liquor as it is res extra commercial to engage in trade and business of liquor. Therefore, it is with the avowed object of upholding purity of electoral process that Section 308-AC has been introduced to the Act and the State Election Commission is empowered to issue a notification in respect of any constituency or area where election is declared to any local body. The said provision is salutary in nature and would be effective during the period Model Code of Conduct once a notification is issued for holding election or poll in respect of any local body.
10. In the instant case, there is no challenge to Notification dated 23.5.2018 issued by the State Election 12 Commission invoking Section 308-AC of the Act. But the grievance of the petitioner is that Rule 10-B of the Rules has not been complied with and the said rule is also for the purpose of having peaceful, fair and free election. Banning of sale or supply of liquor and intoxicants would have to be ensured after issuing a notice to the licencee in writing. While Rule 10-B of the Rules only deals with banning of sale of liquor and intoxicants, Section 308-AC of the Panchayat Raj Act, concerns closure of the liquor shops and liquor manufacturing units, sealing their units and depositing the seal and the keys with the Deputy Commissioner or with the jurisdictional Executive Magistrate. Therefore, what is envisaged under Section 308-AC of the Panchayat Raj Act is a wider control or regulation on the liquor shops and liquor manufacturing units so as to prevent corrupt practices during elections. In Rule 10-B of the Rules what is prohibited is only sale of liquor during election and counting days. But under Section 308-AC of the Panchayat Raj Act, liquor shops or liquor manufacturing units have to be closed by the 13 licensee, owner, occupier and manufacturer, as the case may be, and the seal and the keys have to be deposited, obviously there shall be no sale of liquor in the said shops since the ban under Section 308-AC is very extensive and comprehensive.
11. The contention of the learned counsel for the petitioner that there was no compliance with the requirement of notice under Section 21(1) of the Karnataka Panchayat Raj Act read with Rule 10-B of the Rules pales into insignificance, as the petitioner has to comply with the requirements of Section 308-AC of the Panchayat Raj Act which requires him to close the liquor shop, to seal it and deposit the key with the Deputy Commissioner. Section 308-AC of the Panchayat Raj Act, does not envisage issuance of notice to the licencee or to the owner, occupier or the manufacturer of a liquor shop of liquor manufacturing unit, as the case may be. When once notification is issued under Section 308-AC of the Panchayat Raj Act, owner, occupier or Manager of the 14 manufacturing unit, as the case may be, is duty bound to comply with the requirements of the said section. Therefore, the requirement of issuance of notice in the instant case of invoking Section 21(1) of the Karnataka Excise Act, 1965 read with Rules is an academic contention which is noticed only to be rejected. It is observed that even if for a moment it is to be held that Annexure-A has been issued without issuance of notice to the petitioner, the same would not have any effect on the issuance of notification dated 23.05.2018 under Section 308-AC of the Panchayat Raj Act.
12. There is another aspect of the matter which would call for consideration. The contention of learned counsel for the petitioner is that insofar as Hindalga Gram Panchayat is concerned, pursuant to the filing of Writ Petition No.101328 of 2018 before this court, an amended notification has been issued on 01.06.2018 stating that insofar as Hindalaga Gram Panchayat is concerned, Notification dated 23.05.2018 is withdrawn and therefore 15 would not apply. The same is discriminatory vis-à-vis the petitioner. Therefore, parity is sought by the petitioner by seeking a direction to third respondent to issue a similar notification amending the earlier notification in the case of the petitioner.
13. Learned Additional Government Advocate has produced a copy of order dated 01.06.2018 along with the amended Notification issued by the 3rd respondent-Deputy Commissioner- Belagavi. On perusal of the same, it becomes clear that insofar Hindalaga Gram Panchayat is concerned, election is postponed until further notification is issued. In the circumstances, third respondent has issued an amendment to the earlier notification placing reliance on special conditions mentioned in Notification dated 23.5.2018. But such a circumstance would not arise insofar as the petitioner's case is concerned as in respect of Murgod village there is no such writ petition filed by any party either with regard to assailing Notification dated 23.05.2018 by the petitioner and the elections are to be 16 conducted in accordance with the Notification dated 23.05.2018. Hence, there is no substance in the contention of the learned counsel for the petitioner seeking parity on the basis of the aforesaid facts.
14. In the circumstances, it must be held that Annexure-A notice is only a reiteration of what has been stated under Section 308-AC of the Panchyat Raj Act and in that view of the matter, I do not find that this is a fit case where this Court has to interfere and quash Annexure-A. There is no merit in the writ petition. Writ Petition is dismissed.
Sd/-
JUDGE Kmv