IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25?" DAY or AUGUST 2010
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. H1NcH1G.E:iI'_,jiA _
BETWEEN:
M. Prakash,
S/o Muraiyappa,
Age 35 years,
R/at 060.1660,
Behind Vani Talkies, ;
Chickbaliapur Town,
Chickballapur Taluk and._DiStrict._.._ _ '
6 * Petitioner
(By Advocate for
:_Sri 'M Jaiti-rakas'h__R'ed'dy, Advocate)
AND:
1. _ The ..S--?;ate~of Kaim-ataka,,.
'By its Se'c.rei.'-ary, H
De'p--a_rtment«.of'~~Excise,
Viaharra,:Soudha,_j..
Ban'g--aiore .--?--56_O O01.
-- The Com~rniSs"iioner for Excise,
»- «.__"-Vokkaligara Bhavan,
' ;'~NEXt,_t0 Corporation,
T '~F§a.f3ga.iore -- 560 002.
h The Deputy Commissioner,
Chickbailapur District,
Chickbailapur - 562 101.
WRIT PETITIQN Ng.117-45 gf2oM_1,o (Exc-2ge)v Q"
4. Ameer Mohd. Sadiq,
S/o Late K. Ameerjan,
Aged about 50 years,
R/at Prashanth Nagar,
Chikkabaiiapur,
Chikkabailapur -- 562 101.
(Impieaded as per Court's order, dated 25.8.2_i)'iif:):.) V H
(By Sri R. Devdas, AGA, for R41 to. R-3, . ' " '
Sri SP. Shankar, Sr}A'dyocate for. 3 _
M/s. Lex Justicia for irrrpieadiirrig»appiicant*R+=4)",
This writ petition is fiied' u.nderdArticl4es"2._26 and"2'27 of the
Constitution of India praying to«quashithe"'orde't'--.,dated 6.4.2010
vide Annexure--U passed by the R3; and etc~.._
This writ petitio:1"co1minL3i on day, the Court
made the following: 44 ~ * «--
The' petitioner" had' challenge to the order, dated
0Ei_...Q4.2010§g 'v(Annexur=e$:t.i_) 'passed by the respondent No.3
Deputy :Co{nmVis$ion’er._
2.3′ jihe Vp.et:i’t_io}ner is a CL-9 licensee. By the impugned
the respondent No.3 held that the petitioner’s Bar and
‘:..l§e«staurant”‘”i«s not within the prescribed radius of 5 kms. from the
‘spot of Muddenahalli. Therefore the respondent No.3
‘iirV4:_”ca_ric.eiled the C{.–9 licence granted to the petitioner earlier. He
also heid out an assurance that if the petitioner shifts the said
O
3
Bar and Restaurant to some place which is within 5 kms. radius
of Muddenahalli, his application could be considered.
3. Sri Padmanabha V. Mahale, the learned Senior’Ct0u”n–se»i,,
appearing for Sri M. Jaiprakash Reddy for the ”
that the piace where the petitioner iswrunninsj 1′
Restaurant in question is within the ra.diu«sll’of15_,’,’l<ms.
Muddenahaili tourist spot. He sub'rr:i'i'ts, that.__Rulei".S('3.)"""0f"jthe " 1
Karnataka Excise Licences (Generai&,.Con€;iitio~ns) Ruies, 15367 (for
shortjthe Rules') has no applicat'ioni..for:i arising under
Tourism Promotion Sch'eme.;:"wFle my notice the
provisions colnltlaineidvf, 11'._"o'i"'the Karnataka General
Ciauses Act, wl1–icl*r.'v'reojuiVre..tttat the distance be measured
in a straight line 0.. horizontal mane.
‘V:,_.'”4.VThVe fife-arii.ed Senior Counsel further submits that the
impleadirigVAl’a.p:pii’caiit?s presence is not necessary for the
2’vfilavdjudicati-o_n of the issues invoived in this petition. He brings to
thefeariier order, dated. 12.11.2009 passed in Writ
“~.. ‘ir$e’t:tiorrr.N:’r5.3114s/2009. Similar appiication filed by the
“i.rn:pl.e,adting appiicant in the said writ petition came to be
V’3″‘~…:li’~«.Td’isrriissed by this Court, by its order, dated 12.11.2009. The
4
the Bar and Restaurant in the tourism development quota has to
be either Nandi Hills or Muddenahalli and certainly.-=.__not
Chickballapur. On this short ground alone, he prays
remariding of the matter for fresh consideratioii he
respondent No.3.
6. The learned A.G.A. further_submits”that thispetgiitionllhas .
virtually become infructuous becauseylylthle d_irecti’o.n:s ‘eontained in
the impugned order are only:i”oi_r the 2009A-10. He
further submits that even wh_eri ..tlie__’Viice=nce'”~:i_’n..’~Vfavour of the
petitioner is not rene’we’d.i,ii’ he “coritiriueS v.h..i.s business activity
by virtue of theliinteiiim jofistay ‘gra’nlted by this Court.
7. Sri $«.P,4Shani<-aVr;..:the""—-ilea.rned Senior Counsel for the
impleading;app.licant'"3ubmits' that the very same engineer, who
the distance between the two piaces is
4.6 a report that the distance actually
V'vV3.rnea_sures"~S.S..i'itrris. He further submits that the Tourism
W4'l_3evelVop.ment "V–'15epartment has not put up any positive
'u"~é.f«.recornrn_ei'sdations. It has not even given the N.O.C. to the
of the Ci,-9 licence in favour of the petitioner by the
la"'~w.!%l"~re'sp'ondent No.3.
REM.
6
8. I have given my anxious thought to the submissions
made at the bar.
9. Subsequent to the filing of this petition, the Deputy
Commissioner has renewed the petitioner’s Cl.-9 licence vidleélllhlys
order, dated 13.7.2010 till 31.7.2010 subject to
identifying some place within 5 kms. radius and sh«iftihgVth:ereto,:”
within 25.7.2010. The petitioner flied
inclusion of the additional prayer forr’challen’giv_’ng the,»0V’rd.e:rV,é’ dated
13.7.2010. This Court, by its interim o*rder,.,V%daréd ,2i3.i17..?.o10 has
stayed the said order. The inte’r«im extended from
time to timeglv
10. As ”*the_ o’i’der._. dated 13.7.2010 (Annexure-W)
reiterates rzonditiondmposed on the petitioner in the third
res’pondVe«ntV’Vs order, dated 6.4.2010 (Annexure-U), as
‘.”».,>Annexure%W’ ‘Q.niy a continuation of Annexure-U,
isvlrequired to be allowed and accordingly it is
.: a,lVl’0we,d: : ,_
impugned order (Anneécérg-U) may have been
_ ,s’n£~e.n£’rom
passed’ with the best Of+F¥%Ofi061I but then the same has to meet
REH.
7
the scrutiny of law. The 5 kms. radius cannot be calculated
based on the actual length of the road or path frorn”‘~~.tyhe
petitioner’s present place of business to Muddenahalliyy
spot. If the Government wanted the distance to be l
a particular manner depending on the acl.’uaVl l’engt~=h of .ro’a.d/pa:th,l””.
it would have provided for the same.
12. As the learned A.G.A. fai’r’tl.yi”subrnitte_d;rrliEui«ei_V5(3l of V
the Rules is in the context of.r”1ot_ gra’n’t’ind”jjthVet’ .l.icence”for” the sale
of liquor to the shop or premises: seiected.._MA§I’\ibln§’..a distance of
100 mts. from any reli’gy_Eo’us or edu.catio’nal.institutions, hospital,
etc. Furtheryvlltlhve”executive Engineer has
vide his report; dated. _:1¢”E.5′.l.A._l24V3._»2’l3V€.l;_:9’i4iannexure-P) accompanied by
topography_.r_napl”ofV_:Vthe..’-\lii!ad’eV has certified that the radial
distarice ..Mudde’n’ahaili to Chickballapur M.G.Road –
Dinnehosahailiifiiirciiei.:(l§f.rashanth Nagar), is about 4.6 kms.
13.Th.is also finds considerabie force in the
“–s’u’Vbrni’ssion u’rg_.e’d on behalf of the petitioner that as per Section
flriarnataka General Clauses Act, 1899 the distance
‘sh’aE.i.,_M_unless different intention appears, be measured in a
‘lV.i’str–aight line on horizontal plane. In the absence of any Rule for
9.314.
3
measuring the distance in any other way, the distance has to be
measured drawing the straight iine from the centre of a circle to
its periphery. The Law Lexicon gives the meaning of tt:veV_,i;elrm_
‘radius’ as “right line drawn or extended from the
circle to its periphery.”
14. The third respondent’s view, tin,’at’i’tHe
cannot come by air and that a pedestriyan has to yii§3i’it:”dow’n a
distance of 5 kms. is no doubt true–,Vi,”biit”-~on that..groi}nd the
Detitioner cannot be unsuited.”
3.5. For all thef;afores::aVid_,f¢€zis.o’ns’,.._thewtnpugned order,
dated 6.4.2GtiO isAVl’ija’hi.g_fi’to>”be-‘.,qu.ashed and accordingiy it is
quashed. The fu:rther}’cointin4u”at’i’on/consequentiaI order, dated
13._v?.2010__;is” aisoéaii’ab_le’1to.’v:be quashed and accordingly it is
. ‘V …..
l’i6.”l…£fxt’fiie”_y_ery”o.rder renewing the licence in favour of the
VVigpetitionerdwere.to””‘be challenged before this Court, this Court
_’r~.av__e examined the issue of renewal of the licence in a
‘V’:a_’-.:nonj~to’Lifi’st’jspot/tourist circuits. This Court, therefore, is not
ll””‘=__expres*silng any opinion on the correctness or otherwise of
it”‘~.,l>_4′”gi;anting the renewal in Chickbaliapur and not in Muddenahaili.
fiBH.
17. If the licence is renewed without noticing certain facts,
circuiars, etc. or without foiiowing the Ruies and normjs,–»:’i’t_V’i’s_
aiways open to the respondent No.3 to re-examine th,e”–issuTe:.i:’a’nd””:A ‘
pass appropriate orders in accordance withwthe p’ower’c,onfe.r_red’i’, it
upon him by sub–Ruie 4 of Ruie 5 of tn_e”‘lVRuli’es_,vi,’
extracted hereinbeiow:
“5. Restriction in, . respect”-o’i’-.._Iocatian
shops.-
(1 ) xxxxx
(2) xxxxx _ __ . _
(3) xxxx)/ii
(4) The _ ‘may, by order
V after: ‘giving: ” — the’, ‘licence opportunity of
such licence to shift the
location’ of ‘any
(a)_. _, With” vievr”‘.to”‘”secure the convenience,
1 rnoraiity,.. tranquility, decency or safety of
3-jthe”–public ofcompliance of the provisions of
_V thesvevrules; or
~.(i3)r ‘W_he_re, after the issue of a licence, any
‘ religious institution or educational
“–institution is established or any office of the
” ,5?-tage Government or Central Government
or Local Authorities or a Hospital is opened
within the limits specified in this rule;
rto any other suitable place, within such period,
not exceeding three months as he may specify.”
‘ I
18. The impieading applicant is the one who has filed the
complaint with the Deputy Commissioner. The impugned order
directing the petitioner to shift the Bar and Restaurant
other place so as to be brought within the radius of ~
the tourist spot in question is passed at_t.h.e__i4nst_ance’ a’nd’_’_ion=-,_ ii”
the basis of the compiaint filed by the impzleadiiig a’ip.pl’i’c:ar’.t,V:”_i*hi’s?.:
Court, by its order, dated 21.4.201b_v:’d.e’ferre’dtithe cohsidveratiioh
of the petitioner’s appiication tiii of
the petition. As the impleadi’h.g_a proper and
necessary party, his imp–leadirig However,
it is made ciear to rescind the
renewal order condition, it should not be
construed that ther.irnpieadihgapplicant has to be heard in the
maii¢”-
is aliowed accordingly with the aforesaid
obseryatioh;-3 a’nd’_~vi.iba.rti’es. l\io order as to costs.
_ 20. “At vth’is~f}uncture, Sri Jaiprakash Reddy submits that
tWythe.”‘p.eti.tionerV”h’as already paid the renewal fee for the entire
“‘~,1VVe’ari”A201O–11. However, the renewing of licence is tili
?iG’.:i?;’20*i0. He prays for a direction to the respondent No.3 to
QBH.
ii
extend the renewal period tiil the closure of the current excise
yeah
21. The learned A.G.A. submits that the responde_nt.o:N«ol;3vv
would consider the petitioner’s case for the exten__sion
renewal period till the closure of this exc_i.se_year’in'”a~ccorda’nce~r._ ”
with law and by imposing such conditions as’_”areAperniiissibis.Ai’n1i_i
law. The respondent No.3 is directe’d__’t–o.. consider.the::’petiti.o.ner’sh
case as expeditiously as possible and_._i5%3ss the necessaryi orders
within one week from today.”=ilsieejdiefss, to-Vfoilzjserve that if the
respondent No.3 passesthe fresh Irene.wa_l’ extends the
period till thezvvcllosureifof y’ear,Wit is always open to him
to impose suchiconditions’ uas.blarej’p«ewi*missibie in law.
22. , Further, theivlexpiry of the renewal period
the ‘”pe_titionVe’r”‘has been running his business by
virtues-oi thle’ i.nte%rirn”r-oirders granted and extended from time to ‘
by The petitioner is permitted to run his
for”aV__AAi”urther period of one week from today. The
‘”‘-,34’continu,a’tion’.-‘or otherwise of the petitioner running the business
wouid depend on the outcome of the order to be
:Vtpa’s–sed by the respondent No.3 within one week.
HEM.
23. Now that the main matter itself is disposed of, nothing
survives for the consideration of Misc.W.6898/10 for
stay. It is therefore dismissed as having become unneces’sar§}V;
24. This petition is ailowed accord1.}ngEy,.4déAi$io”.ord.er.:
COStS.
bvr/ MD