The State of Karnataka and ors Vs. Do Venkatesh S/O Sobaiaha and ors - Court Judgment

Excerpt:
[manjula chellur; k.govindarajulu jj.] this writ appeal filed u/s 4 of the karnataka high court act praying to set aside the order passed kf the writ petition no. 13728/ 2006 dated 14-11-2008.1. the. appellant herein is revenue - state who is before vs.2. the learned single judge in w.p. no. 13728/2008 has disposed of the petition by following the decision rendered in w.p. no.9397/2008 dated 23.9.2008.3. it is not in dispute that respondent herein was the holder of cl-2 license for sale of indian made foreign liquors and license was in operation till the end of the year 1996-97 i.e up to 30.6.1997. it is also not in dispute that till 15.10.2008 respondent had not renewed the license for running his bar and restaurant as required under the excise act and rules.4. the respondent has come up with an application on 15.10.^003 for renewal of the said license including the lapsed period up to 2008-09 by accepting 50% of the license fee. the concerned authority directed the respondent to pay license fee of 100%, in view of mandamus to rule 5-a of the karnataka excise (sale of indian made foreign liquors) rules, 1968 (hereinafter referred to as the rules).5. according to the appellants, even before considering the application of respondent, he had approached this court by filing the writ petition seeking a writ of mandamus to renew the license by accepting 50% of license fee claiming that, rule 5-a of the said rules is applicable to his case.6. learned single judge disposed of the writ petition on 14.11.2008 placing reliance on order in w.p. no.9397/2008 dated 23.9 2008 holding that for the lapsed period 50% of the license fee alone has to be collected by the authorities and not 100% as contended by the department.7. aggrieved by the same, appeal filed by government contending that the decision relied by learned singes judge in w.p. no.9397/2008 was set aside in an appeal filed by state in w.a. no. 1834/2008 on 18.5,2009, therefore, the present appeal has to be decided in terms of w.a. no. 1834/2008.8. on perusal of unreported decision of division bench of this court referred to above the facts are some what similar to the present case. in the said case, the license had lapsed on 30.6.1999 and the licensee did not get the license renewed for the period between 30.6.1999 to 2006-07. in the said decision, by placing reliance on earlier unreported decision of division bench of this court held that subsequent to 17.1999, the benefit of sub-rule 3 of rule 5-a for payment of 50% license fee for getting license renewed is not permissible in law.9. having regard to two division bench judgments of this court as stated above, interpreting sub-rule 3 of rule 5-a of the rules, we are of the opinion that learned single judge was not justified in holding that 50% of license fee alone has to be paid though license lapsed on 30.6.1997. renewal of license was sought on 15.10.2008.almost 11 years later placing reliance on the mandamus to sub-rule 3 of rule 5-a. the present appeal m disposed of in terms of w.a. no. 1834/2008 by setting aside the order of the learned single judge in w.p. no. 13728/ 2008 dated 14.11.2008.the state is at liberty to collect 10(5% license fee after deducting the payment if any paid by respondent.ordered accordingly.