H Thippanna S/O Dodda Basappa vs The Deputy Commissioner (Rev) on 8 October, 2012

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Karnataka High Court

H Thippanna S/O Dodda Basappa vs The Deputy Commissioner (Rev) on 8 October, 2012

Bench: Ram Mohan Reddy

                             1




          IN THE HIGH COURT OF KARNATAKA
             CIRCUIT BENCH AT DHARWAD

      DATED THIS THE 8th DAY OF OCTOBER, 2012

                        BEFORE

     THE HON'BLE MR.JUSTICE RAM MOHAN REDDY

       WRIT PETITION NO. 70380/2012 (EXCISE)

BETWEEN

H THIPPANNA S/O DODDA BASAPPA
AGED ABOUT 22 YEARS,
R/O.S.C.COLONY, BESIDE MAYURA HOTEL
BELLARY                                     ... PETITIONER

(BY SRI. S M KALWAD, ADVOCATE)


AND

1.    THE DEPUTY COMMISSIONER (REV)
      BELLARY

2.    THE DEPUTY COMMISSIONER OF EXCISE
      BELLARY

3.    THE COMMISSIONER OF EXCISE
      BANGALORE

4.    M/S SAIKRUPA ENTERPRISES
      HOTEL MAYURA, DOOR NO.117/A
      WARD NO.17, BELLARY TOWN
      BELLARY, REP.BY ITS MANAGING PARTNER
      M RAMDAS REDDY                   ... RESPONDENTS

(BY SMT. K VIDYAVATI, AGA FOR R.1 TO R.3)
                             2




     THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER     DATED:11/09/2012    MADE     IN    APPEAL
NO.ECS.65APP.2012 PASSED BY RESPONDENT NO.3 (VIDE
ANNEXURE-D).

      THIS WRIT PETITION COMING ON FOR PRL.HEARING
THIS DAY THE COURT MADE THE FOLLOWING:

                        ORDER

Petitioner's objection to the application filed by the 4th respondent's for grant of CL-7 licence under the Karnataka Excise Act, 1965 r/w Karnataka Licence (General Conditions) Rules, 1967, when upheld and the application rejected led to the 4th respondent filing appeal No.ECS 65 APP 2012 invoking Section 61(2) of the Karnataka Excise Act, 1965 before the Excise Commissioner. The appellate authority having noticed that Rule 5 of the Karnataka Excise Licence (General Conditions) Rules, 1967 provides for relaxation by the Excise Commissioner if the proposed premises is situated within the CMC limits i.e. if the proposed premises is within a distance of 71 mtrs of the Deputy Director of Co-operative Societies (Audit), accordingly 3 partly allowed the appeal by order dt. 11.9.2012 Annexure-D and remitted the proceedings for consideration afresh and to pass appropriate orders after affording opportunity of hearing to both the appellant as well as the petitioner-objector. Hence this petition.

2. Although the learned counsel for the petitioner submits that the Appellate Authority has directed the 2nd respondent to consider the 4th respondent's application by applying the relaxation provided under Rule 5, I am afraid is unacceptable. An examination of the order impugned discloses that the Appellate Authority has noticed the contention advanced by the learned counsel for the 4th respondent stating that Rule 5 providing for relaxation is a power exercisable by the Excise Commissioner. In that view of the matter, there being no specific direction of the Appellate Authority to exercise power under Rule 5 to grant a 4 CL-7 licence, coupled with the operative portion of the order which states that the 2nd respondent should afford an opportunity of hearing to the petitioner-objector, too, before passing a final order, in the circumstances, cannot be said that the petitioner would have no opportunity to put-forth his objections over the relaxation under Rule 5.

Petition is accordingly rejected. It is needless to state that 2nd respondent shall issue fresh notice to the petitioner, extend an opportunity of hearing and thereafter pass orders on 4th respondent's application, in accordance with law.

SD/-

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