Karnataka High Court
Smt Savitha K R vs The State Of Karnataka on 27 September, 2023
Bench: Chief Justice, M.G.S. Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR.PRASANNA B.VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
WRIT APPEAL No.1318 OF 2022 (EXCISE)
C/W
WRIT APPEAL No.26 OF 2023 (EXCISE)
IN WA No.1318/2022
BETWEEN:
SMT. SAVITHA K.R.,
W/O LATE MAHADEV
AGED ABOUT 60 YEARS
R/AT No.4/40, 4TH CROSS
NANDINI LAYOUT
BENGALURU - 560 096.
... APPELLANT
(BY SRI. D.R. RAVISHANKAR, SR. ADVOCATE A/W
SRI. RAVINDRA PRASAD B., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
FINANCE DEPARTMENT
VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE EXCISE COMMISSIONER IN KARNATAKA
2ND FLOOR, TTMC 'A' BLOCK
BMTC BUILDING
SHANTHI NAGAR
BENGALURU - 560 027.
2
3. THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
BENGALURU - 560 027.
4. THE DEPUTY COMMISSIONER OF EXCISE
BENGALURU URBAN DISTRICT, (EAST)
BENGALURU - 560 027.
5. SRI. K. MANJUNATH
S/O SRI. KRISHNAPPA
AGED ABOUT 40 YEARS
R/AT No.282, 2ND STAGE
3RD BLOCK, BASAVESHWARANAGAR
BENGALURU - 560 079.
6. SMT. J. RUKHMINI
W/O LATE JAYASHANKAR
AGED ABOUT 57 YEARS
OCCUPATION: HOUSE WIFE
7. SRI. J. NAGARJUN
S/O LATE JAYASHANKAR
AGED ABOUT 38 YEARS
8. SRI. RANJITH
S/O LATE JAYASHANKAR
AGED ABOUT 36 YEARS
9. SRI. J. NAGABHRAN
S/O LATE JAYASHANKAR
AGED ABOUT 29 YEARS
RESPONDENT Nos.6 TO 9 IS R/AT:
No.64, 3RD CROSS
1ST STAGE, OKALIPURAM
BENGALURU - 560 021.
... RESPONDENTS
(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1 TO R4
SRI. G.K. BHAT, SR. ADVOCATE A/W
SMT. SUDHA D. ADVOCATE FOR C/R6 TO R9)
---
3
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
SET-ASIDE THE ORDER DATED:07.09.2022 PASSED IN
WRIT PETITION No.50353/2019 AND CONSEQUENTLY
DISMISS THE WRIT PETITION.
IN WA No.26/2023
BETWEEN:
K. MANJUNATH
S/O KRISHNAPPA
AGED ABOUT 40 YEARS
CL-02, LICENSEE
R/O NO.232, 2ND BLOCK
III STAGE, WEST OF CHORD ROAD
BASAVESHWARANAGAR
BENGALURU-560 079.
... APPELLANT
(BY SRI. MOHAN MAHABALESHWAR BHAT, ADVOCATE)
AND:
1 . SMT. J. RUKHIMINI
W/O LATE JAYSHANKAR
AGED ABOUT 54 YEARS
OCCUPATION: HOUSE WIFE
2 . J. NAGARJUN
S/O LATE JAYSHANKAR
AGED ABOUT 35 YEARS
3 . RANJITH
S/O LATE JAYSHANKAR
AGED ABOUT 33 YEARS
4 . J. NAGBHARAN
S/O LATE JAYSHANKAR
AGED ABOUT 26 YEARS
RESPONDENTS 1 TO 4 ARE
R/OF No.64, 3RD CROSS
IST STAGE, OKALIPURAM
BENGALURU-560 021.
4
5 . STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
FINANCE DEPARTMENT
VIDHANA SOUDHA
BENGALURU-560 001.
6 . THE EXCISE COMMISSIONER
IN KARNATAKA, 2ND FLOOR
TTMC, 'A' BLOCK
BMTC BUILDING
SHANTINAGARA
BENGALURU-560 027.
7 . THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT (EAST)
NOW BENGALURU URBAN DISTRICT-2
BENGALURU-560 027.
8 . SMT. K R SAVITHA
W/O LATE MAHADEV
NO.207, 2ND STAGE
3RD BLOCK, BASAVESHWARANAGAR
BENGALURU-560 079.
... RESPONDENTS
(BY SRI. G.K. BHAT, SR. ADVOCATE A/W
SMT. SUDHA D. ADVOCATE FOR C/R1 TO R4;
SMT. SHWETA KRISHNAPPA, AGA FOR R5 TO R7)
---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO
CALL FOR RECORDS AND ALLOW THIS APPEAL AND SET
ASIDE THE IMPUGNED ORDER DATED 07.09.2022 PASSED
BY THE HON'BLE SINGLE JUDGE IN WP.No.50353/2019
(EXCISE).
THESE APPEALS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, M.G.S.KAMAL J., DELIVERED THE
FOLLOWING:
5
JUDGMENT
These writ appeals are filed against the order dated 07.09.2022 passed in W.P.No.50353/2019 (Excise) by which learned Single Judge while allowing the said writ petition in part had issued following directions;
"(i) the transfer of licence dated 30.06.1997 shall be subject to further enquiry by the Department of Excise based upon the report of the Assistant Commissioner of Police submitted before this Court;
(ii) the Commissioner of Excise shall conduct such inquiry based upon the aforesaid report and take all further action as a consequence thereof.
(iii) on conclusion of inquiry, the Commissioner of Excise shall pass such orders, in accordance with law. In the event, the first petitioner would be entitled to the benefit of any order as an outcome of the enquiry, the same shall be passed without any loss of time, failing which, status quo as on date, shall continue.
(iv) The said enquiry shall be completed within six months, if not earlier, from the date of receipt of a copy of this order.
Till such time, no prejudicial action shall be taken against any protogonists in the lis".
2. The aforesaid writ petition is filed by the petitioners (who are arrayed as respondent Nos. 6 to 9 in W.A.No.1318/2022 and respondent Nos. 1 to 4 in 6 W.A.No.26/2023) seeking relief in the nature of a writ of certiorari quashing the order dated 30.06.1997 (Annexure-E) made by the Deputy Commissioner of Excise, Bengaluru Urban District-respondent No.4 in the writ petition and for a writ of mandamus directing Deputy Commissioner, Bengaluru Urban District- respondent No.3 and respondent No.4 to transfer the licence in Form CL-2 that was standing in the name of one late Jayshankar.
3. It is the contention of the writ petitioners that deceased Jayshankar, who was their husband and father respectively was holding licence in Form CL-2 and that he had apparently executed a power of attorney in favour of one K.Shivarame Gowda to lookafter the business. That the said Jayshankar stated to have passed away on 09.02.1997 leaving behind the petitioners as his legal heirs. That on 30.06.1997 just a day before commencement of excise year 1997-98 respondent No.4 in excise of powers under Rule 17B of the Karnataka Excise Licences (General Conditions) Rules, 1997 (for short 'Rules, 1997') transferred the 7 said licence in favour of Smt.K.R.Savitha the respondent No.5 in the writ petition. That subsequently by another order dated 23.09.2007 the said licence was transferred in favour of one Sri.K.Manjunath, respondent No.6 in the writ petition.
4. That the petitioner No.1 not being worldly- wise and petitioners Nos.2 to 4 being minors and school going children did not have any knowledge of the liquor business being run by deceased Jayashankar. However, on learning about the same based on the documents available at home, the petitioners became alert the made representation to the respondent -authorities seeking restoration of licence in their name and also issued notice on 06.03.2019. Though, in response thereof a show cause notice dated 14.06.2019 was issued by respondent No.4 there is no further progress in the matter. That the transfer of licence was a result of fraud as the same was effected subsequent to the death of Jayashankar. Since there was no action on the 8 part of respondent-authorities, petitioners were constrained to approach this Court.
5. On behalf of the respondents it was contended that the petition was liable to be dismissed solely on the ground of delay and laches, inasmuch as the petition has been preferred after lapse of 22 years from the date of alleged cause of action. The claim of the petitioners that they were the legal representatives of deceased Jayashankar and that on the date of his death is also denied and disputed. It was contended that the documents produced and relied upon by the petitioners with regard to the identify of deceased Jayashankar suffered from gross discrepancies and that such disputed fact could not be gone into in a petition under Article 226 of the Constitution of India.
6. Considering the rival submissions of the parties, learned Single Judge framed the following issue for his consideration;
"Whether the writ petition should be shown its door on the ground that there has been gross delay in approaching the Court or become 9 entertainable on the submission of fraud being played by the respondents which would vitiate the entire issue?"
7. Thereafter, learned Single Judge referred to an order dated 26.02.2021 passed in the writ petition whereby an inquiry was directed to be conducted into the matter at the hands of a competent police officer and accordingly, Commissioner of Police, Bangalore City was requested to assign the inquiry to a Senior Police Officer in the City Crime Branch with further direction to such officer to go into the question raised in the order and also to secure relevant informations from the respondent No.4 apart from summoning petitioners and private respondents. In view of dispute with regard to the very identity of said Jayashankar it was also directed to ascertain as to who the actual licencee was. A report in this regard was directed to filed within two months.
8. It appears pursuant to the said order, the police submitted a report in the sealed cover, which was opened and perused in the open court. The report 10 is extracted in the impugned order. It is noted that in terms of the report it was opined that licencee S.Jayashankar died on 09.02.1997 and after four months of his death on 23.06.1997 an anonymous person impersonating himself as S.Jayashankar produced fabricated records and submitted the application to transfer the licence in favour of Smt.Savitha the respondent No.5. Apart from other observation, it was also opined that it was necessary to take opinion from Forensic Science Laboratory and for that purpose an FIR was required to be filed. Taking note of the content of the report learned Single Judge further observed that "this Court need not dwell deep into the matter as it now boils down for the issue to be placed before the department for a resolution of the dispute as under Article 226 of the Constitution of India seriously disputed question of fact cannot be gone into".
9. Having thus observed, learned Single Judge proceeded to address the contentions raised by the petitioners in the writ petition with regard to enormous 11 delay of 22 years in the petitioners approaching this Court. The learned Single Judge answered the said contention stating that since the report clearly mentions that the transfer of licence itself was result of fraud played by the transferee and that the fraud vitiates every solemn act that can be invoked at any point of time and that the delay in approaching the Court can hardly be said to be a circumstance that would militate against the petitioners.
10. With aforesaid broad reasonings and observations learned Single Judge proceeded to allow the petition in part with further directions as noted hereinabove.
11. Being aggrieved by the aforesaid order, Smt.K.R.Savitha, respondent No.5 is before this Court in W.A.No.1318/2022 and Sri. K.Manjunath respondent No.6 is before this Court in W.A.No.26/2022.
12. Sri. D.R.Ravishankar, learned Senior counsel appearing for the appellants submitted that; 12
12.1 Learned Single Judge initially by order dated 15.02.2021 had directed the petitioners to satisfy as to how the writ petition could be sustained after long lapse of time and explain the delay and laches. However when the matter was posted for the said purpose on 26.02.2021 that without considering the said question as originally framed by order dated 15.02.2021, learned Single Judge passed further order on 26.02.2021 directing inquiry to be conducted by the police with regard to transfer of licence and identity of persons involved. That the respondent No.5 having come to know about the factum of writ petition only upon the inquiry by the police, entered appearance in the writ petition and sought for recalling the order dated 26.02.2021. however, even before consideration of said application the report was filed and the application had become redundant. That the said report was filed in a sealed cover without even furnishing the copy to the respondent No.5. 13
12.2 He further submits that the Apex Court in the case of Joint Collector of Ranga Reddy District and anr Vs. D.Narsing Rao reported in (2015) 3 SCC 695 has clarified the position that when no limitation period is prescribed under statue the powers should be exercised within reasonable time, which is to be determined having regard to lapse of time between knowledge of alleged fraud or irregularity and that the person affected should make a statement as to when the alleged fraud or illegality came to be discovered. Thus, relying upon the said principles of law, learned Senior counsel further submitted that there is no pleading of any nature whatsoever in the entire writ petition as to the date on which the petitioner learnt about the alleged fraud and that this aspect of the matter not having been considered by the learned Single Judge has adversely effected the right of the third party which has been created over a period of time. In this regard, he refers to a judgment of the Apex Court in the case of State of Madhya Pradesh 14 and others Vs. Nandlal Jaiswal and others reported in (1986) 4 SCC 566.
12.3 He further submits that there is no provision under the Karnataka Excise Act, 1965 (hereinafter referred to as the `Act, 1965') or the rules framed thereunder providing any jurisdiction or authority thereunder to conduct an inquiry as being directed by the learned Single Judge in the impugned order. Referring to Judgment of the Apex Court in the case of A.R.Antulay Vs R.S.Nayak and anr reported in (1988) 2 SCC 602 learned Senior counsel submits that the authority which has no jurisdiction under the statue cannot be clothed with such authority by issuing direction in the nature of mandamus. Thus, he submits the impugned order passed by the learned Single Judge requires to be interfered with.
12.4 Sri. Mohan Mahabaleshwar Bhat, learned counsel appearing for appellant in W.A.No.26/2022 referring to Rule 17A of the Rules 1967 submitted that 15 the transfer of licence in the event of death of the licencee can take place only "during the currency of the licence". He also referred to Rule 5A of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 (hereinafter referred to as `Rules, 1968) providing for renewal of licence to contend that the said Rule was inserted by way of an amendment with effect from 24.06.2000 and prior to the insertion of said Rule the licence that was issued was only for a period of one year and any subsequent grant or extension thereof was always considered as a fresh licence. That in the instant case, the licence which was granted in favour of Jayashankar was only for a period of one year and that having expired by afflux of time, challenge to the said transfer for the same if any cannot be sustained that too after lapse of 22 years. He further submitted that the licence which was granted in favour of Jayashankar which had already lapsed due to efflux of time, the petitioners cannot have any vested rights to question the purported transfer of the same in favour of respondent No.5 and subsequently in favour of 16 respondent No.6 as the licence originally granted was not subsisting. Thus, he submitted that petitioners have no locus standi to question the order of transfers, that too after lapse of 22 years without any justifiable explanation.
13. Sri. G.K.Bhat, learned Senior counsel appearing for the writ petitioners at the outset submitted that;
13.1 On 26.02.2021 when the learned Single Judge directed the probe/inquiry by the competent police officer, the very same order shall be construed as an order condoning the delay in filing the writ petition though no specific order in this regard is passed. He refers to the order sheet and the orders dated 15.02.2021 and 26.02.2021 in justification of his submission regarding deemed condonation of delay in filing the writ petition.
13.2 He submitted that sufficient pleading is made in the writ petition with regard to the ignorance and economic conditions of the petitioners in not being 17 able to approach the Court in time and the same forms sufficient and justifiable explanation for the delay in approaching the Court.
13.3 He further submitted that the enquiry conducted by the police officer is pursuant to the order passed by the learned Single Judge in writ petition and no fault can be found with the same. He also submitted that consequent to the orders of this Court the licence which was subsisting in the name of respondent No.6 has been withdrawn by order dated 29.03.2023 and in that view of the matter nothing survives for consideration in the present appeals.
13.4 Referring Rule 17A of the Rules, 1967 he submitted that the licence was valid upto 30.06.1997 and that the order of transfer has been passed on 30.06.1997. He submitted that an order transferring the licence can be made under Rule 17B of the Rules, 1967 only upon an application by the licencee and in the instant case since the original licencee had expired 18 on 09.02.1997 there was no possibility of any such application being made by him. Thus, he submits that a clear fraud has been played on the authorities by the respondent No.5 in obtaining the transfer subsequent to the death of the original licencee.
13.5 As regards the enquiry he submitted that respondent No.5 fully participated and produced the documents in justification of her stand and as such it was not available for respondent No.5 to contend that no opportunity was given. He further submitted that the interest of the appellants have been safeguarded in the impugned order and an inquiry already having been conducted resulting in withdrawal of the licence, no interference is warranted in the impugned order. Hence, seeks for dismissal of the appeals.
14. Smt. Shwetha Krishnappa, learned Additional Government Advocate submitted that the fraud which has been played by the private respondents disentitles them from claiming any benefit after transfer of licence. She relied upon the judgment 19 of the Apex Court A.V.Papayya Sastry and others vs. Government of A.P. and others reported in (2007) 4 SCC 221 to submit that delay cannot be a ground to condone fraud. She further submitted that the licence under the Act, 1965 and the rules made thereunder is a mere privilege granted by the State and the private respondents/appellants have no legal right to claim impunity. That the legality of the transfer has been subjected to a thorough inquiry participated by the respondent No.5/appellant and the same cannot be disputed by the appellant. Thus, she submits that the order passed by the learned Single Judge does not warrant any interference.
15. Heard and perused the records.
16. At the outset it is necessary to note that the writ petition has given rise to serious disputed questions of fact in the nature of very identity of S.Jayashankar the original licencee whom the petitioners claim to be their husband and father respectively while respondent Nos.5 and 6 contend 20 that S.Jayashankar being claimed by petitioners is a different and distinct person. Date of death of said Jayashankar is also disputed. Issue of fraud and fabrication of records/documents is a complex aspect. Thus even as rightly taken note of by learned Single Judge such disputed questions of fact cannot be gone into in a petition under Article 226 of the Constitution of India.
17. The next issue that arise for consideration is whether the directions issued by learned Single Judge for conducting an inquiry into matter of this nature by a police officer and further directions to the Department of Excise/Commissioner of Excise to conduct enquiry based on the report submitted by the Assistant Commissioner of Police and to take all further actions as consequence thereof is sustainable? On our repeated queries to the learned Senior counsel Sri.G.K.Bhat appearing for the writ petitioners as well as to learned Additional Government Advocate no provisions under the Act or Rules are brought to our 21 notice justifying enquiry by the Commissioner of Excise/Department of Excise into the complex issues of the nature noted above. Though learned Senior counsel and learned Additional Government Advocate made attempts to refer to Sections 30, 35 and 55 of the Karnataka Excise Act, 1965 we are not inclined to accept the same as the said provisions do not cover the matter of this nature to be investigated by the authorities under the Act, 1965. The said provisions are extracted hereunder for immediate perusal:
Sections 30, 35 and 55 "30. Power to withdraw licence.- (1) Whenever the authority which granted any licence under this Act considers that such licence should be withdrawn for any cause other than those specified in section 29, it may withdraw the licence on the expiration of not less than thirty days' notice in writing of its intention to do so.
(2) When a licence is withdrawn under sub- section (1), a part of the licence fee proportionate to the unexpired portion of the term of the licence and the deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount due from him to the State Government.
35. Penalty for offence not otherwise provided for.- Whoever does any act in contravention of any of the provisions of this Act, or of any rule, notification or order made, issued or given thereunder, and not otherwise 22 provided for in this Act, shall, on conviction, be punished 1 [with fine which shall not be less than two hundred rupees and not more than one thousand rupees.]
55. Power of Excise Officers in matters of investigation.- (1) Any 1 [Inspector of Excise or a Sub- Inspector of Excise] 1 or any Excise Officer not below such rank and within such specified area as the State Government may, by notification, prescribe, may, as regard offences under section 32, section 33, section 34 2 [section 35, section 36, section 37, section 38 or section 38A] exercise powers conferred on an officer-in charge of a police station by the provisions of the 3 [Code of Criminal Procedure 1973] Provided that any such power shall be subject to such restrictions and modifications, if any, as the State Government may prescribe.
(2) For the purposes of section 156 of the Code, the area in regard to which an [Inspector of Excise or a Sub-Inspector of Excise or an Excise Officer] is empowered under sub-section (1), shall be deemed to be a police station and such officer shall be deemed to be the officer in charge of such station".
18. Thus a perusal of the aforesaid provisions make it clear that there are no other provisions which enables the authorities to undertake inquiry/investigation particularly with regard to the aspect of fraud and fabrication of documents and the identity of a person. The investigation and enquiry contemplated under Section 55 are in respect of offences under Sections 32, 33, 34, 35, 36, 37, 38 and 23 38A which are dealt with under Chapter VII of the Act. Learned Senior counsel Sri.G.K.Bhat fairly submit that inquiry/investigation into the nature of the matter involved in the present lis can be undertaken upon filing of a complaint before the jurisdictional police. Thus, there is no qualms about the fact that the Excise Act, 1965 or the Rules, 1967 do not contemplate any provisions to deal with the situation at hand.
19. The Apex Court in the case of A.R.Antulay (supra) at paragraph 91 has held as under:
"91. It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the legislature. For instance, Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of 'Words and 24 Phrases' Vol. 23-A at page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated:
Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court's territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision".
20. In view of the aforesaid position of law enunciated by the Apex Court and also in the absence of any specific provision in the Excise Act, 1965 we are of the considered view that the directions issued in the impugned order to the Commissioner Excise/Department of Excise to conduct the inquiry that too on the basis of a report submitted by the Assistant Commissioner, Police by virtue of order dated 26.02.2021 passed in the writ petition cannot be 25 sustained as such and inquiry would be one without jurisdiction.
21. Adverting to the issue of delay it is necessary to note that in paragraph 1 of the writ petition, the petitioners have pleaded that their husband and father respectively was holding a licence in form of CL-2 and was a running a retail liquor business at Premises No.203, Arabic College Road, Venkateshpura Main Road, Bengaluru during his life time. That he appears to have executed a General Power of Attorney in favour of one K.Shivaramegowda for the purpose of day to day management of the said business of CL-2 licence retail liquor shop in the name and style of "Quality Wines". The said Jayashankar died on 09.02.1997 in a road accident. At paragraph 2 of the writ petition it is stated that on 30.06.1997 the Deputy Commissioner Excise passed an order transferring the licence of the deceased Jayashankar in favour of respondent No.5 and thereafter on 23.09.2007 in favour of respondent No.6. At paragraph 3 of the writ petition it is averred that 26 petitioner No.1 is not worldly-wise and petitioner Nos.2 to 4 children of deceased licencee were small in age and school going and did not have complete knowledge of the liquor business that was run by deceased husband and father of the petitioners respectively. However, after knowing about the same based on the documents available at home, petitioners became alert and made representation to the respondents 2, 3 and 4 and sought restoring the licence in their name as they are legal heirs. It is also pleaded that apart from seeking information under Right to Information Act they had also issued legal notice on 06.03.2019. Thus, except these averments there is no whisper in the entire writ petition as to the date on which the petitioners learnt about the transfer of licence obtained allegedly by playing fraud by respondent No.5 or of the subsequent transfer of licence in favour of respondent No.6. Learned Senior counsel appearing for the petitioners strenuously contended that the ignorance and economic conditions of the petitioners cannot be lost sight of. Besides, he also contended that the order 27 dated 26.02.2021 passed by learned Single Judge directing an inquiry by the competent police officer into the matter has to be construed as condoning delay in filing the writ petition. In our considered view the said submissions cannot be accepted.
22. It is necessary to note that on a perusal of notice dated 28.02.2019 produced at Annexure-H to the writ petition issued by one of the petitioners it is seen that at paragraph 3 following is stated:
"My client instructs me to state that, my client and his mother and brothers have filed a accident case in MVC No.534/1998 for compensation before the Small Causes Court, Bengaluru, and in the said case the award is also passed on 02.04.2004."
23. On noticing the aforesaid statement in the notice at Annexure-H this Court had called upon the petitioners to furnish the details of the said MVC proceedings. In response thereof learned Senior counsel filed a memo dated 31.08.2023 along with a copy of claim petition in MVC No.534/98 dated 21.02.1998, Judgment dated 02.04.2004 passed in the 28 said MVC, a copy of CL-9 licence standing in the name of one Sri.S.Venkatesh who is stated to be younger brother of deceased Jayashankar.
24. On perusal of paragraph 11 of the Judgment passed in MVC No.534/98 it is seen that petitioners/claimants in the said proceedings have contended that deceased Jayashankar was a proprietor of a Transport Company earning Rs.5,000/- per month. Apart from that he was having 7 acres 12 guntas of land and was earning income from agricultural activities and apart from that he was running a Bar and Restaurant at Gangenahalli. Document No.3 produced along with the memo depicts that a licence in form No.CL-9 is standing in the name of one S.Venkatesh who is stated to be the owner of one "Kwality Bar and Restaurant", Vasantappa Block, Gangenahalli. Referring to the same learned Senior counsel sought to justify that though in the motor accident claims proceedings petitioners had contended that deceased Jayashankar was earning income from his business of 29 Bar and Restaurant, the said business was in relation to the aforesaid licence in CL-9 issued in favour of his brother Venkatesh and has nothing to do with the present licence involved in this lis. This submission of learned Senior counsel cannot be accepted as there is no material placed to correlate the liquor business referred to in the Judgment passed in motor vehicle accident proceedings with that of CL-9 licence purportedly issued in favour of brother of deceased Jayashankar. The name of the liquor business referred to in the writ petition at paragraph 1 namely "Quality Wines" and the name of the business referred to in CL- 9 appears to be one and the same. The fact remains the petitioners were aware of their husband and father respectively carrying on the business of liquor during his lifetime and pleading and submission regarding their ignorance of the same and economic condition preventing them from approaching the Court for 22 long years cannot at any stretch of imagination be accepted as a justifiable explanation or reason. 30
25. Nothing prevented the petitioners from pleading in the writ petition about their claim as made in the claim proceedings before the MVC Tribunal regarding deceased having had a liquor business. This would give rise to a doubt on the bonafides of the petitioners in not disclosing true and full facts while invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
26. The Apex Court in the case of Joint Collector Ranga Reddy District vs. D. Narsing Rao and others reported in (2015) 3 SCC 695 (Supra) at paragraph 27, 31 and 32 has held as under:
27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham V. K. Suresh Reddy and Ors. where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied only on the ground of delay. The Court said (SCC p.677, para 9) "9...In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
31
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant- State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed. 32
27. Learned Additional Government Advocate sought to distinguish the aforesaid Judgment of the Apex Court in the case of Ranga Reddy on the premise that same had been passed in respect of proprietary rights in immovable property as such the same was not applicable to the instant case. She relied upon the Judgment of the Apex Court in the case of A.V.Papayya Sastry (supra) wherein at paragraph 15 Apex Court on facts has observed as under:
"15. CBI made an enquiry and the report was submitted by the Police Inspector which revealed startling facts. From the report, it is clear that fraud was committed by the land owners in collusion with officers of the respondents. Criminal proceedings were also initiated and they are pending. It was, therefore, submitted that the High Court was right in recalling its earlier order".
Relying upon the said Judgment she submitted that even the instant case startling facts of fraud were revealed only upon the direction to conduct the enquiry that was passed by the learned Single Judge. As such it is submitted that the aspect of delay needs to be construed liberally.
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28. We are unable to accept this submission in view of the fact situation narrated above, more particularly knowledge of petitioners regarding liquor business being carried on by deceased Jayashankar as disclosed by them in the MVC proceedings and in view of the principles of law laid down by the Apex Court in the case of Joint Collector, Ranga Reddy District (Supra), we are also not inclined to accept the submission of learned Senior counsel Sri.G.K.Bhat that the order passed by the learned Single Judge on 26.02.2021 be construed as order condoning the delay in filing the writ petition. Thus, even on the count of delay and laches the writ petition could not have been entertained.
29. Having thus found it is clarified that the authorities under Act, 1965 and the Rules framed thereunder would be entitled to initiate any enquiry with regard to violation of provisions contained thereof in respect of transfer of licence. This order would also not foreclose legal remedy or options if any available to the petitioners before the competent courts of law, 34 forum or authority and the petitioners are at liberty to seek such remedy as may be permissible under law. The observations and reasonings made in this order is only with regard to sustainability of the impugned order passed in the writ petition and all contentions that may be available and raised by the petitioners are kept open.
For the aforesaid reasons and analysis and with the above observation writ appeals are allowed. Order dated 07.09.2022 passed in W.P.No.50353/2019 (Excise) is set aside. Any consequent orders passed by the excise authorities pursuant to the directions in the writ petition shall not have any effect and cannot be enforced.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE RU/SBN