C L KALAPPA Vs. DEPUTY COMMISSIONER EXCISE

JUDGEMENT

(1.) the petitioner is a licensee tovend Indian made foreign liquor. The licence is called c.l. 2 licence. The licence was obtained under the Provisions of the Karnataka excise (sale of Indian made foreign liquor) rules, 1968 (for short "the liquor rules"), originally, the licenced premises was situated near the bus stand and it belonged to the municipality. Since the municipality decided to demolish the building, the petitioner approached the licensing authority to claim permission to shift the shop to the premises which is situate near i. B. Road kushaianagar. Accordingly, the permission to shift shop to d. No. 4-8(2), !,b. Road, kushalanagar was granted on 15-10-1981. Subsequently, it seems certain objections were raised by the members of the public that the said shop was very close to ganapathy temple and sought the shifting of the shop from the said premises at No. 4-8 (2). Consequent on this, the deputy commissioner made an order on 31-10-1981 as per Annexure-B directing the petitioner to select an alternative p,ace to shift the c l. 2 premises within seven days from the date of receipt of the said notice. The petitioner filed the above writ petition and obtained an interim order against the enforcement of the said notice. Obviously by virtue of the interim order, the petitioner continued in the same premises.

(2.) Sri a. Jagannatha shetty, learned counsel for the petitioner contendedthat there is no power in the deputy commissioner to direct the shifting of the premises. According to the learned counsel, an elaborate enquiry is contemplated before the licence is issued and the suitability of the shop also has to be considered by the licensing authority at the time of issuing the licence ; and, having issued the licence after being satisfied about the suitability of the area in which the shop is to locate, it is not open to the authority to direct the shifting of the premises in the absence of any specific Provisions in the act and in the rule. According to the petitioner, when a licensee is granted the licence. He invests large sums on the shop licenced and if in the middle of the year if a licensee is to shifr the shop, he will have to undergo great hardship and has to suffer irreparable injury. In this regard tho learned counsel referred to certain Provisions of the Karnataka Excise Act ('the act' for short) and the two statutory rules. One is already referred to as the liquor rules and the other is Karnataka excise licences (general conditions) rules, 1967'("the general rules" for short). As per Section 15 of the Act, it is imperative that a licence should be obtained for vending the liquor, either wholesale or retail. Under Section 21, the power is vested in the district magistrate to direct the closure of a shop in which any intoxicant is sold and the shop shall be closed at such times and for such period as he may think necessary for the preservation of the public peace. Under sub-section (2) thereof a limited power is also given to the police officer concerned to direct the closure of a shop. Under Section 29 a power to cancel or suspend the licence etc, is given, subject to such restrictions as the state government may prescribe and this power is to be exercised for the reasons stated in the said section. It may not be relevant for the present purpose. Section 30 empowers the licensing authority to withdraw the licence, for any cause other than those specified in Section 29, subject to the condition that 30 days' notice in writing of the intention to direct the withdrawal is given, sub-section (2) provides for adjustment of payments in case, tho iicence is withdrawn. Under Section 31, a licensee may surrender the licence. Section 30 does not specifically enumerates the causes for the withdrawal of the iicence and therefore, it is clear that such a cause should be relevant one as contemplated by the Provisions of the act and it should be to further the intentions of the legislative measure.

(3.) the general rules contemplatesthat an application for the licence shall select a suitable site outside but adjacent to a village for locating his shop- the Rule itself says that this provision is applicable to the licensees other than those in town and other places where more than one shop is sanctioned. As per sub-rule (2) of Rule 5 of ths general rules, the deputy commissioner shall, after consulting the village panchayat and making such enquiry as he thinks fit, approve the sits so selected. As per Rule 23, the licenses shall not shift the licensed promises from one place to another without prior approval of the deputy commissioner. !T is also necessary to note that as per Rule 5(4), the= licensee shall sell liquor only in the approved shop and shall not sell any other article in the said promises.