- 1 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA WRIT PETITION NO.27781 OF 2025 (EXCISE) BETWEEN: 1. SMT. S.N. PUSHPALATHA W/O S.N. NATARAJA SHETTY, AGED ABOUT 65 YEARS, R/AT NO.500, KANTHAPPA STREET, SARJAPUR, BANGALORE-562125. 2. SHRI. S.N. NAVEEN KUMAR S/O S.N. NATARAJA SHETTY, AGED ABOUT 43 YEARS, R/AT NO.9, 23RD MAIN ROAD, 17TH CROSS, J.P. NAGAR 5 PHASE, BANGALORE-560078. …PETITIONERS (BY SRI VIVEK REDDY, SENIOR ADVOCATE FOR SRI SUBBA REDDY K.N., ADVOCATE) AND: 1. THE CHIEF SECRETARY VIDHANA SOUDHA, GOVERNMENT OF KARNATAKA, BANGALORE-560001. 2. THE PRINCIPAL SECRETARY, EXCISE DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560001. EXCISE@KARNATAKA.GOV.IN, ECEXCISE@GMAIL.COM 3. THE EXCISE COMMISSIONER 2ND FLOOR, TTMC ‘A’ BLOCK, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 BMTC BUILDING, SHANTINAGAR, BANGALORE-560 027. 4. THE EXCISE ASSISTANT COMMISSIONER, BANGALORE URBAN DISTRICT, KANDAYA BHAVAN, BANGALORE-560009. 5. TASHILDAR ANEKAL TALUK, ANEKAL-562106. 6. M S SURAPANA BOARDING AND LODGING ATTIBELE, ANEKAL TALUK, ANEKAL-562106. REP. BY HANUMANTHAPPA YELLAPPA, RESIDING AT DOOR NO.4/967, KOTHUR PERANDAPPALLI POST, MORANAPALLI, HOSUR, KRISHNAGIRI, TAMIL NADU-635109. A REGISTERED PARTNERSHIP FIRM. 7. CHIEF EXECUTIVE OFFICER MUNICIPAL OFFICE, ATTIBELE ANEKAL TALUK, ANEKAL-562106. …RESPONDENTS (BY SRI RAJ KUMAR M., AGA, FOR R-1 TO R-5; SRI G.K. BHAT, SENIOR ADVOCATE FOR SMT. SUDHA, D., ADVOCATE, FOR R-6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER BEARING NO.EXE/BUD-8/VA-50/COMPLAINT/11/2023-24 DATED 18.08.2025 PASSED BY THE RESPONDENT NO.4 VIDE ANNEXURE-A. THIS PETITION COMING ON FOR ORDER, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL ORDER This Writ Petition is filed calling in question the order dated 18.08.2025 passed by the Deputy Commissioner of Excise, Bangalore Urban District (respondent No. 4) whereby approval was accorded for the grant of a Form CL-7 licence in favour of respondent No. 6, M/s Surapana Boarding and Lodging, under the provisions of Karnataka Excise Act, 1965 (‘Act’ for short) and the Karnataka Excise Licences (General Conditions) Rules, 1967 (‘the Rules, 1967’ for short). 2. The petitioners seek to quash the said order as being contrary to Rule 5 of the Rules, 1967 and in violation of the direction issued by this Court in W.P No. 6336 of 2025 and W.P No. 8978 of 2025. During the pendency of this Writ Petition, the petitioners have filed an application under Order VI Rule XVII of CPC seeking to amend the Writ Petition to additionally challenge the final - 4 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 licence order dated 06.09.2025 which was issued pursuant to the impugned approval. 3. Heard Sri Vivek Subba Reddy, learned Senior Counsel for the petitioners and Sri G.K. Bhat, learned Senior Counsel for respondent No. 6 and learned AGA for the State. Facts in brief: 4. The petitioners are residents of Attibelle, Anekal Taluk, Bangalore Urban District. They contend that the approval granted for grant of Form CL7 licence in favour of M/s. Surapana Boarding and Lodging (respondent No. 6) is located within 100 meters of Jayabharathi School and College, the Seri Culture Office, Indira Canteen and the Attibelle bus stand and therefore falls within the “objectionable zone”, prohibited under Rule 5 (1) of the Rules, 1967. 5. Learned Senior Counsel appearing for the petitioners contends that the Deputy Commissioner of - 5 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 Excise has acted in violation of Rule 5, sub-clause (2) and contrary to the direction of this Court issued in WP No. 6336 of 2025 and WP No. 8978 of 2025, which mandated that the Excise Commissioner alone must verify the distance requirement and accord prior approval before any licence could be granted. It is contended that the authorities earlier issued an endorsement dated 30.07.2024 declaring the site objectionable, but later reversed the same without any change in circumstance. It is contended that respondent No. 6 in collusion with the officials, erected metal barricades and ornamental railings from a private establishment along the roadside to artificially increase the measurable distance from nearby government offices and educational institutions. It is contended that the measurement of distance was taken, “over the divider”, rather than along the ground, contrary to the statutory method and hence the entire process stands vitiated by mala files and manipulation. It is contended that the Deputy Commissioner of Excise acted - 6 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 in violation of the directions of this Court in the earlier proceedings. As those orders required the competent authority to act in accordance with Rule 5 sub-clause (2) and after considering the petitioners objections, the impugned order dated 18.08.2025 was passed mechanically without examining their detailed objections dated 07.05.2025 and 14.05.2025. It is submitted that a final licence order dated 06.09.2025 has been issued, and the petitioners have filed an application under Order VI Rule 17 of CPC to include a challenge to that order also, contending that the same is without jurisdiction and contrary to Rule 5 and the earlier judicial direction. 6. Per contra, learned Senior Counsel appearing for respondent No. 6 contends that the impugned order has been passed strictly in strict compliance with the earlier direction of this Court and that the Deputy Commissioner of Excise had obtained prior approval from Excise Commissioner under Rule 5 sub clause (2) before issuing the order dated 18.08.2025, which is clearly evident from - 7 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 the said order. Reliance is placed on the Government Notification dated 17.08.2024, amending Rule 5 to reiterate that the Excise Commissioner is the final authority for granting prior approval for any site within 100 meters and the prior approval of the Excise Commissioner as per Rule 5 has been obtained and the order dated 18.08.2025 indicates the approval accorded by the Excise Commissioner. The learned Senior Counsel submits that the allegation of manipulation of deviation is totally frivolous and contends that the distance measurement was carried out by the competent officials in accordance with the report and on consideration of the same the Excise Commissioner has issued the prior approvals. In regard to the amendment application, it is contended that if the petitioner is also aggrieved by the final licence dated 06.09.2025, the proper remedy is an appeal under Section 61 (2) of the Act by way of an appeal to the Excise Commissioner, and hence in light of the alternative efficacious remedy provided under Section - 8 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 61 (2) of the Act, the present Writ Petition is not maintainable. 7. Having heard the learned Senior Counsel for the parties and having perused the material on record, the points that arise for consideration are, 1. Whether the impugned order dated 18.08.2025 passed by the Deputy Commissioner of Excise, granting prior approval for CL7 licence in favour of respondent No. 6 is in violation of Rule 5 of the Rules, 1967 and contrary to the directions issued by this Court in WP 6336 of 2025 and WP No. 8978 of 2025? 2. Whether the proposed amendment seeking to challenge the final licence dated 06.09.2025 issued by the Deputy Commissioner of Excise deserves to be allowed under Order VI Rule 17 of CPC or whether such amendment - 9 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 would be a futile exercise in view of the availability of statutory appellate remedy? 3. Whether the present writ petition is maintainable in view of the alternative efficacious remedy available under Section 61 (2) of the Act, providing for an appeal to the Excise Commissioner against the orders of the Deputy Commissioner or licensing authority? 8. At the outset, it is necessary to clarify that Order dated 18.08.2025, passed by the Deputy Commissioner of Excise (respondent No. 4) is not an order granting or issuing CL7 licence itself. The said order constitutes only a prior approval, administrative sanction granted by the Deputy Commissioner after obtaining the requisite approval of the Excise Commissioner under Rule 5(2) of the Rules, 1967. It merely authorize the issue of the licence in favour of the respondent No. 6 upon satisfaction of the prescribed condition. The actual licence in Form CL7 was subsequently issued on 06.09.2025 valid up to - 10 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 30.06.2030. Therefore, while the present Writ Petition originally challenges the order of prior approval dated 18.08.2025, the amendment application seeks to bring on record the subsequent final order of licence dated 06.09.2025 passed pursuant thereto. Rule 5 of the Rules, 1967 reads as under : “5. Restriction in respect of location of shops.-(1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 metres from any religious or educational institution or Hospital or any Office of the State Government or Central Government or Local Authorities or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 metres from the middle of the State Highways or National Highways: Provided that where a shop is sanctioned to a village the population of which is less than two thousand five hundred, such shop shall be located outside the residential locality of the village. Explanation.- xxx xxxx xxx (2) The Deputy Commissioner of Excise shall after making such enquiry as he deems fit approve - 11 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 the premises of liquor shop so selected and thereafter the description of the premises of liquor shop shall be entered in the Licence to be issued: Provided that the Deputy Commissioner of Excise may, with the prior approval of the Excise Commissioner and for reasons to be recorded in writing, permit the location of any shop within a distance of 100 metres, but not less than 50 metres from the institutions, hospital, office or locality specified in sub-rule (1) within the City Municipality or City Corporation limits. Provided further that the Deputy Commissioner of Excise may grant licence to locate any liquor shop in a premises situated within a distance of 220 metres from the middle of a State Highway or a National Highway if such premises is located in a predominantly inhabited area, or extension of a town, village, or area the population of which is more than two thousand five hundred and where a licence to locate shop in such premises was granted or was existing during the period commencing from 1st July, 1992 and ending on [30th June, 1994:]] Provided also that, nothing in sub-rule (1), shall be applicable to the licensed premises located within a distance of 100 meters from any religious - 12 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 or educational institution or hospital or any office of the State Government or Central Government or Local Authorities, renewed or existed as on 1st July, 2016. (2-A) Notwithstanding anything, contained in sub-rules (1) and (2) the Deputy Commissioner of Excise may with a view to secure, convenience, morality, tranquility, decency or safety of the public or for any other reason, reject the application for licence to a liquor shop or premises after recording the reasons therefor. (3) For the purpose of this rule while measuring the distance specified in this rule, the distance shall be measured along the nearest path by which the pedestrian ordinarily reaches, adopting the mid-point of the entrance of the shop and the mid-point of the nearest gate of the institution, hospital or office if there is a compound wall and if there is no compound wall, the mid-point of the nearest entrance of the institution of the office. (4) The Deputy Commissioner may, by order after giving the licence an opportunity of being heard, direct such licence to shift the location of any shop,- - 13 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 (a) With a view to secure the convenience, morality, tranquility, decency or safety of the public or compliance of the provisions of these rules; or (b) where after the issue of a licence, any religious institution or educational institution is established or any office of the State Government or Central Government or Local Authorities or a Hospital is opened within the limits specified in this rule; to any other suitable place, within such period, not exceeding three months as he may specify. (5) The Excise Commissioner may at his discretion and for reasons to be recorded in writing exempt from the application of these rules in the case of distributor licences referred to in clause (11) of Rule 3 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968.” (emphasis supplied) 9. Rule 5 (1) of Rules, 1967 prohibits the grant of any liquor licence for premises situated within specified distance ordinarily 100 meters of educational institutions, places of worship, hospitals, government offices or other - 14 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 notified public institutions. Proviso to Rule 5, sub-clause (2) mandates that where the proposed premises falls within such restricted distance, the licensing authority shall not grant the licence without the prior approval of the Excise Commissioner. The 2024 amendment to Rule 5 by notification dated 16.08.2024 reaffirms this mandatory requirement and clarifies the Excise Commissioner's supervisory role. In W.P No. 6336 of 2025, preferred by respondent No. 6, this Court by order dated 17.04.2025, directed the Deputy Commissioner of Excise to consider respondent No. 6's application in accordance with Rule 5(2) and after securing the opinion or prior approval of the Excise Commissioner. Similarly, in W.P No. 8978 of 2025 by order dated 02.05.2025, this Court directed the authorities to consider the petitioners objections before taking any decision. On perusal of the impugned order dated 18.08.2025 it refers to the Excise Commissioner's prior approval, and the licence in Form CL7 was issued subsequently on 06.09.2025. The petitioners have filed an - 15 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 application under Order VI Rule 17 of CPC seeking to amend the writ petition to include the challenge to the final licence order dated 06.09.2025. Section 61(2) of the Act reads as under: “61. Appeals.- (1) x x x (2) Any person aggrieved by an order passed by the Deputy Commissioner under this Act, may, within ninety days from the date of communication of such order, appeal to the Excise Commissioner.” 10. The above provision specifically provides a statutory remedy of appeal to any person aggrieved by an order passed by the Deputy Commissioner or the licensing authority to the Excise Commissioner, within a prescribed period. The said provision constitutes an effective and adequate remedy, enabling a full consideration of the issues raised. The law is well settled that though the rule of alternative remedy is not an absolute power to exercise the writ jurisdiction, it is a rule of self-restraint and discretion. Interference under Article 226 is warranted only in exceptional three contingencies (1) where the writ - 16 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 petition seeks enforcement of any fundamental rights, (2) where there is a violation of principles of natural justice or (3) where the order or proceedings are wholly without jurisdiction or vires of the Act is challenged. 11. The Apex Court in the case of Whirlpool Corporation vs Registrar of Trademarks1 has held at para No.s 14 to 20 as under: “14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”. 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is 1 (1998) 8 SCC 1 - 17 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 16. Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless - 18 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. 17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as under: “But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC 1506 : (1962) 1 SCR 753] and was affirmed and followed in the following words: “The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative - 19 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.” 19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I [AIR 1961 SC 372 : (1961) 41 ITR 191] laid down: “Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction - 20 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act.” 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.” 12. Reiterating the similar proposition, the Apex Court in the case of Harbanslal Sahnia and Another vs Indian Oil Corporation Ltd. and Others2 has held that the alternative remedy is a rule of discretion and not one 2 (2003) 2 SCC 107 - 21 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 of compulsion and the High Court, in spite of availability of alternative remedy, may exercise its writ jurisdiction in at least three contingencies, as stated supra reiterating the observation as held in Whirlpool Corporation. 13. In the instant case, none of the exceptional circumstances are made out. The petitioners alleged that the authority ought not to have accepted the revised distance computation and should have rejected the proposal of respondent No.6 for Form CL7 licence as earlier done. These contentions relate to factual findings which the writ court ordinarily does not re-appreciate, particularly when a statutory appeal is available. The petitioners, without availing such statutory remedy, have approached this Court under Article 226 of the Constitution, challenging the correctness of the order passed by the licensing authority. The grievance pertains essentially to factual appreciation of defence of distance, compliance verification and administrative discretion, all of - 22 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 which are appropriately examinable by the Appellate Authority under Section 61 (2) of the Act. 14. In the instant case none of the exceptional circumstances are made out. The petitioners allege that the authority ought not to have accepted the revised distance computation and should have rejected the proposal of respondent No. 6 for CL7 licence as earlier done. The petitioners have a complete, efficacious statutory remedy before the Excise Commissioner, who is competent to consider all factual and procedural issues including alleged violation of Rule 5, the question of prior approval and the manner of measurement of distance. When such an appellate mechanism is available, permitting amendment to continue a writ challenge would amount to circumventing the statutory procedure and engaging in a futile exercise under Article 226. It is well settled that the Writ Court would not entertain or enlarge a petitioner where the statute provides a specific forum of appeal. Accordingly, the amendment application filed - 23 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 under Order VI Rule 17 of CPC is rejected holding that the proposed amendment would be an exercise in futility and that the petitioners are at liberty to challenge the granting of licence in the appropriate statutory forum. 15. This Court has carefully examined the material on record and finds that the Deputy Commissioner of Excise acted pursuant to the prior approval of the Excise Commissioner as required under Rule 5 (2). Allegation regarding the manipulation of distance, erection of barricades or non-consideration of objections, are all factual issues requiring examination of records and measurements, which cannot conveniently be undertaken in a writ jurisdiction. Under Section 61 sub clause 2 of the Act, an aggrieved person may file an appeal before the Excise Commissioner, who has full jurisdiction to verify compliance with statutory provision and to rectify any irregularity. Therefore, this Court finds that the existence of an alternate efficacious remedy renders the present Writ Petition not maintainable. - 24 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 16. For the foregoing reasons, the points framed for consideration are answered against the petitioners and this Court pass the following : ORDER (i) The Writ Petition is rejected as not maintainable, having regard to the alternative efficacious remedy of appeal provided under Section 61 (2) of the Act. The petitioners are at liberty to avail the said statutory remedy and if an appeal has been filed by the petitioners in accordance with law, the competent authority, the Excise Commissioner, would pass order independently without being influenced by any of the observations made in this order. (ii) The application filed under Order VI Rule 17 of CPC for amendment of the Writ Petition is rejected. - 25 - HC-KAR NC: 2025:KHC:42777 WP No. 27781 of 2025 (iii) The Writ Petition itself is rejected reserving liberty to the petitioners to raise the ground to challenge the same before the competent authority under Section 61(2) of the Act. All the contentions are kept open. Sd/- ______________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 13