Karnataka High Court
Cotton County Club vs The Secretary on 21 June, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.102216/2022 (EXCISE)
BETWEEN:
COTTON COUNTY CLUB
OFF AIRPORT,
GOKUL ROAD,
HUBBALLI-580030
REP. BY ITS SECRETARY
...PETITIONER.
(BY SHRI BHANUPRAKASH B.G., ADVOCATE, FOR M/S G S
BHAT AND ASSOCIATES, ADVOCATES.)
AND:
1. THE SECRETARY
DEPARTMENT OF EXCISE,
VIKASA SOUDHA,
DR. AMBEDKAR VEEDHI,
BENGALURU-560001
2. THE DEPUTY COMMISSIONER OF EXCISE,
DHARWAD DISTRICT,
NAVANAGAR, DHARWAD-580025
3. THE PRINCIPAL ACCOUNT GENERAL (AU-I)
AMG-III, SECOND FLOOR,
B BLOCK, AUDIT BHAVAN,
DR. AMBEDKAR VEEDHI,
BENGALURU-560001
...RESPONDENTS.
(BY SHRI VINAYAK KULKARNI, ADDL. GOVERNMENT
ADVOCATE.)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO:
I) ISSUE A WRIT IN THE NATURE OF CERTIORARI
QUASHING THE DEMAND NOTICE BEARING
NO.EXE:IML:AUDIT:01:2014-15, DATED 23.05.2022 ISSUED BY
THE RESPONDENT NO.2 AND PRODUCED AS ANNEXURE-A;
II) ISSUE A DIRECTION TO THE RESPONDENT NO.2
TO RENEW THE EXCISE LICENSE OF THE PETITIONER WHICH
IS UNDER FORM NO CL-4, ETC.,.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
Learned Addl. Government Advocate Shri Vinayak Kulkarni, accepts notice for respondents No.1 to 3.
2. Heard the learned counsel Shri Bhanuprakash B.G., for the petitioner
3. Petitioner is stated to be a club registered under the Karnataka Societies Registration Act 1960 under the name and style of Cotton County Club, located in the heart of city of North Karnataka, a prestigious private members club with a sports block, health block, restaurant with bar and few luxurious AC rooms. Petitioner, along with a club, runs Cotton County 3 Resorts and Estates Private Limited, which is entirely different and independent legal entity. The petitioner club is exclusively used for its members, whereas Cotton County Resorts ad Estates Private Limited is a registered company engaged in variety of business activities most of which are realty related.
4. The club with an intention to operate bar in its premises, applied for a licence for procurement and distribution of liquor exclusively to its members and its guests. After complying the necessary requirements as contemplated under section 3(4) of the Karnataka Excise (Sale of IMFL) Rules 1968 and after paying the statutory fees prescribed under law, on 24.9.2005 2nd respondent issued a liquor licence in favour of the petitioner in Form No.CL-4, pursuant to which the petitioner club is functioning and serving liquor to its members in strict adherence to the conditions of the licence granted.
5. As required under the mandate of law, petitioner got renewed licence every year and at the 4 time of seeking renewal for the year 2013, employee of the club by oversight submitted memorandum of articles of Cotton County Resorts and Estates Private Limited along with the renewal application. In response to the said renewal application, respondent no.2 issued a demand notice on 30.6.2015 bearing No.Excise: HBL:
IMLICL - 4:125:2015-16 for an amount of Rs.12,42,000/- and Rs.19,32,000/- for the incorrect classification of hotel licence as club liquor licence, to which the petitioner placed on record its reply by contending that the memorandum of articles of Cotton County Resorts and Private Limited was supplied to the 2nd respondent authority by inadvertence which has nothing to do with the petitioner club. He further contends that the petitioner club has satisfied the requirement as provided under Rule 3(4) of the Karnataka Excise (Sale of IMFL) Rules 1968 and accordingly he claims that the notice issued by respondent No.2 is misconceived.
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6. It is the contention of the learned counsel that even the 2nd respondent renewed CL-4 licence for the year 2013-14. In view of inadvertence and wrong submission and filing of the memorandum of articles of Cotton County Resorts and Estates Private Limited, as against Cotton County Club by the petitioner, respondent No.2 has got issued Annexure-A which is a demand notice demanding payment of Rs.12,42,000/- and Rs.19,32,000/-, which is put in challenge by the petitioner in this writ petition.
7. Heard the learned Addl. Government Advocate for respondents, who submits that the present petition filed by the petitioner would not be maintainable in view of the alternative remedy available under in the Karnataka Excise Act 1965, wherein section 61(2) provides for an appeal remedy against any order passed by the Deputy Commissioner under the Act within a period of 90 days from the date of communication to the Excise Commissioner. This point of law and the statute is not disputed by the learned 6 counsel for the petitioner. On the basis of the material facts and submissions of the learned counsel and the material placed on record by the petitioner as well as the registration certificate issued to the petitioner society and the issuance of licence at CL-4 and renewal till 30.6.2022, it is not in dispute that petitioner is a club and the licence has been issued under section 4, which is renewed till 30.6.2022. The issuance of Annexure-A by the respondent No.2 is due to the wrong submission of memorandum of articles by the petitioner itself wherein they have submitted the memorandum of articles of association of Cotton County Resorts and Estates Private Limited instead of submitting the bye-law memorandum of association of the Cotton County Club which has forced the respondent No.2 to issue a demand notice as per Annexure-A.
8. Be that as it may, the grievance of the petitioner cannot be entertained by this Court in view of alternative remedy being available as contemplated under section 61(2) of the Act. Admittedly Annexure-A 7 is issued on 23.5.2022 and 61(2) contemplates 90 days time limit for filing the appeal. Therefore present petition cannot be entertained on the ground that alternative and efficacious remedy is available by way of appeal provision under section 61(2). Hence, this writ petition would not survive for consideration and the same deserves to be dismissed as not maintainable. However, in view of the fact that the petitioner is running the club from 2005 and the licence having been renewed till 30.6.2022, it appears that due to the inadvertence of the petitioner in filing the memorandum of articles of association of the Resorts and Estates instead of petitioner club, has led to issuance of Annexure-A. Keeping this in mind, a limited conditional relief requires to be granted to the petitioner. Respondent No.2 is directed not to initiate action pursuant to Annexure-A with regard to petitioner club. Accordingly, I pass the following:
ORDER
i) Writ petition is disposed of.8
ii) Liberty is reserved to the petitioner to approach the appellate authority as contemplated under section 61(2) of the Karnataka Excise Act, 1965.
iii) It is made clear that respondent No.2 shall not precipitate the matter till filing of the appeal by the petitioner within the time stipulated under the statute and if any application is moved therein for any interim order the same shall be considered expeditiously. Till such time the interim benefit granted by this Court will operate in favour of petitioner.
Sd/-
JUDGE Mrk/-