Bombay High Court
Shamlal Jaglal Jaiswal vs The State Of Maharashtra And Others on 6 May, 1997
Equivalent citations: 1998(1)BOMCR13
Author: R.G. Deshpande
Bench: R.G. Deshpande
ORDER R.G. Deshpande, J.
1. By the present petition, the petitioner is challenging the order dated 29th September 1992, passed by the respondent No. 1 - Secretary to the Government, Home Department, Bombay, arising out of the order dated 14-5-1992 passed by the Commissioner of State Excise, M.S. Bombay, in Appeal No : 56/1992 whereby the respondent No. 1 set aside the order passed by the Commissioner of Prohibition and ordered that the foreign liquor licence should be restored in the name of legal heirs of deceased - Shivnarayan Jaiswal, the respondent No. 2.
2. The facts of the case, in nutshell, are as under :---
On 26th of June 1973, the present petitioner Shamlal Jaglal Jaiswal was issued a licence in Form FL. II (foreign liquor Licence II) for sale of foreign liquor. The licence was issued by the Collector, Aurangabad. After obtaining the licence, the petitioner-Shamlal started his liquor shop in the name and style "Jaiswal Wines" at Gulmandi, Aurangabad. It appears that in the passage of time, the said Shamlal, the petitioner, with a view to have a financial assistance as also the assistance in work, took the respondent No. 2-Shivnarayan as a partner and, accordingly, necessary partnership-deed was drawn on 21st November 1979. However, it further appears that the said Shivnarayan was required to wait to get his name inserted in the licence till 6th of February 1982 when an application was made by the present petitioner, impressing upon the authorities concerned to enter the name of said Shivnarayan, the respondent No. 2 in the licence. It would be necessary at this stage to mention that during the pendency of the proceedings before the authorities below the said Shivnarayan expired and the names of his legal representatives are brought on record (who are hereinafter referred to as "respondent No. 2" jointly).
3. The application which was made for introducing the name of the respondent No. 2 in the said licence was first refused by the Collector, Aurangabad. An appeal before the Commissioner of Prohibition and State Excise against the above-said order of refusal was allowed by order dated 12th March 1985 and their names were permitted to be introduced in the said licence. However, it was subject to certain conditions. The said conditions were; that the petitioner who is the original licensee was to remain a major beneficiary and that the incoming partner, i.e. respondent No. 2 was to have no claim to the licence in the event of death or retirement of original licensee. I feel it proper to refer to the exact wordings of the said order :---
"However in order to safeguard the interest of the original licensee, this grant will be subject to the conditions that;
(i) the original licensee remains the major beneficiary;
(ii) the incoming partner will not have any claim to the license in the event of death or retirement of the original licensee;
(iii) the incoming partner does not hold any other scheduled excise licence."
4. As it happens in many cases of partnership, in the present case also, after certain time, the relations between the petitioner and the respondent became strained, may be for various reasons and the petitioner since was well armed with an additional condition in the partnership in the nature of "partnership at will", issued a notice dated 28th March 1988 under the provisions of the Partnership Act, thereby dissolving the partnership as it was a partnership at will Naturally, the partnership stood dissolved on receipt of the notice by the respondent No. 2 and there could not be any traces of existence of partnership business thereafter. It is this action on the part of the petitioner which gave rise to the present litigation.
5. In Writ Petition No. 472/1988 which was initiated at the instance of the respondent No. 2 in this Court, this Court had directed the authorities to renew the licence provisionally without prejudice to the rights of the parties for the year 1988-89.
6. On 25th March 1991, the present petitioner moved an application before the Superintendent of Prohibition & Excise, Aurangabad for deleting the name of the respondent No. 2- Shivnarayan, because of the dissolution of the partnership in pursuance of the notice referred to above. Again on 12th July 1991, he moved an application to the Collector, Aurangabad for deletion of the name of respondent No. 2. However, in the meantime, as it appears from the record, the present respondent No. 2 approached the High Court, again, through Writ Petition No. 857/1990 for renewal of the licence in the joint names i.e. of the petitioner and the respondent No. 2 for the years 1990-91 and also for subsequent years. Simultaneously, on 3rd March 1992 the present petitioner also initiated Writ Petition No. 353/1992 thereby seeking a direction to the Collector regarding deletion of the name of the respondent No. 2- Shivnarayan and this Court directed the Collector to decide the application of the petitioner by 31st March 1992. In pursuance of the direction of this Court in the above-said Writ Petition No. 353/1992, the Collector allowed the application of the petitioner and directed that the name of the respondent No. 2- Shivnarayan be deleted from the original licence on 1-4-1992. In pursuance of this, from 1-4-1992, the licence came to be entered solely in the name of the petitioner and, for the year 1992-93 naturally the licence was only in the name of the petitioner. Attempts by Shivnarayan to obtain stay to the order of the Collector by Civil Application No. 1334/ 1992 in Writ Petition No. 857/1990 came to be rejected and Writ Petition No. 857/1990 also was rejected. Attempts at the instance of the respondent No. 2- Shivnarayan to get reviewed the order of the Collector also failed which ultimately led him to initiate an appeal under section 137 of the Bombay Prohibition Act before the Commissioner of State Excise (appellate authority) which was decided by him on 14th May 1992 rejecting the same. In the meantime, the business premises also were shifted at the instance of the petitioner from Gulmandi to Samartha Nagar. However, he was, again, required to change the same from Samartha Nagar to Jalna Road, of course, with due permission from the authorities concerned.
7. Against the order of the Commissioner of State Excise, appellate authority, the respondent No. 2- Shivnarayan preferred revision under section 139 of the Bombay Prohibition Act (which is hereinafter referred to as "the Act" for the purposes of brevity). However, during the pendency of the above-said revision, Shivnarayan expired on 5-8-1992. The revision which was preferred by Shivnarayan was allowed by the respondent No. 1 by his order dated 29th September 1992 directing to restore the name of the legal representatives of Shivnarayan in the licence in view of the death of Shivnarayan. It is in this background, the present writ petition has come up, challenging the order dated 29-9-1992 passed by the respondent No. 1.
8. Initially, this petition was rejected by the learned Single Judge at the stage of admission itself. However, the said order was set aside by the Division Bench of this Court in Letters Patent Appeal No. 14/92 and the matter was admitted by the Court with a direction that the matter shall proceed further. This order of the Division Bench in L.P.A. is passed on 2/5th April 1993.
9. Along with this petition another Writ Petition No. 291/1994 pertaining the country liquor licence; having the same set of facts is also heard with the consent of the parties and both these writ petitions are being decided simultaneously. Needless to mention the arguments advanced for both these cases were also common on all the points.
10. The main challenges in the present petition as raised by the petitioner, are the same as are raised by him in Writ Petition No. 291/1994. However, in short, I will refer to the same. It is the main contention of the petitioner in the present petition that Shivnarayan, the respondent No. 2 expired on 5th August 1992 and, in fact, no steps were taken to bring the names of his legal representatives on the record before the Revisional Authority any time. However, it further appears, that is his challenge that the names were substituted behind the back of the petitioner of the so called heirs in spite of the fact that some of the names which are introduced as legal heirs could not be said to be the legal representatives of Shivnarayan. If the petitioner would have been issued a notice in this respect, he could have contested the same, but for want of notice of the said application, the petitioner could not oppose the same. The petitioner further makes a grievance in this petition that it was for the first time when he received the caveat from the respondents he came to know about the names of the legal representatives being substituted and that too after going to Bombay he found that somebody else had already collected the copy of the order on his behalf. However, the petitioner now has presented this petition wherein he specifically alleged that the total approach of the revisional authority below was misdirected and the matter has been dealt with in total misconception of law. It is his challenge that the licence in spite of having been issued on certain conditions in pursuance of the order of the Commissioner of Prohibition which was passed on 12th March 1985, the revisional authority did not give due importance to the same.
11. It is also the challenge that inspite of there being a legal notice in pursuance of the provisions of Partnership Act, of dissolution of the partnership-firm, the same was totally ignored by the revisional authority and virtually the revisional authority has tried to decide the civil rights of the parties which, in fact, was not permissible for him. According to the petitioner the revisional authority did definitely exceed the jurisdiction vested in him.
12. It is also the contention of the petitioner that the Circular dated 6th July 1989 which was issued by the Home Department of the Government of Maharashtra to all the Commissioners/Collectors and Superintendents in the Department of Prohibition & Excise also has been totally overlooked by the revisional authority himself whereby, in fact, it was directed that the Collector of the District was empowered to delete the name of the added partners in the case of retirement or death of original licencee and consequently dissolution of the firm etc. It is also made clear in the said Circular that the name of the legal representatives of the deceased partner can be brought on record only with the consent of the original licencee else not However, forgetting all these aspects, the revisional authority, according to the petitioner, appear to have shown unnecessary favour to the present respondent No. 2 and committed a patent mistake in law by directing to introduce the names of the legal representatives of deceased- Shivnarayan in the foreign liquor licence, originally held in the name of the petitioner, forgetting the fact that the partnership, in fact, stood dissolved in pursuance of the notice referred to above.
13. As against this argument, Shri Gursahani, the learned Counsel appearing on behalf of the respondent No. 2, argued that the order passed by the revisional authority on 29th September 1992 was just, legal and proper and well within the competence of the authority concerned. He argued that, in fact, all the administrative powers in accordance with the relevant Rules are vested in the Collector as regards transfer of licence from one name to another or of adding or deleting the names of any partner after the licence is granted. According to Shri Gursahani, it was not open for the Government to give suggestion or impose certain additional conditions as regards this matter as is done in the present case. He, therefore, stated that it was the exclusive jurisdiction of the authorities created under the Act to deal with the matter and issuance of Circular dated 6th July 1989 by the Government in that matter was unnecessary interference in the working of the authority and the duties cast upon the Officer under the Act and the Rules. I am afraid, this argument of Shri Gursahani cannot be accepted at all. It would suffice to say that if the powers are vested in the Collector and if the higher authorities give certain directions which are in accordance with their administrative powers and administrative jurisdiction including the State, it cannot be said that those directions can be challenged if they are strictly with an intention of effective implementation of the provisions of law. Shri Gursahani for this proposition relied on certain decisions which I have dealt with in the decision given today in Writ Petition No. 291/1994, which will govern the present petition also.
14. The next contention of Shri Gursahani, the learned Counsel for the respondent No. 2 is that the administrative instructions or Circulars cannot run counter to the main object of the statutory provisions and the Rules framed thereunder. No doubt, this proposition cannot be disputed. However, if the administrative instructions and Circulars are to promote the aims and objects of the Act and the Rules and they are by way of compliance thereof and if not in any way contrary to any of the provisions of the Act or the Rules, then such Circular and administrative instructions could be issued by the Government and, therefore, in the present case, this challenge raised by Mr. Gursahani also has no merits and deserves no consideration. Another dangerous part of this argument of Shri Gursahani is that if this argument is accepted then in no case it would be competent for the Government or any higher authorities in the Department to issue necessary administrative instructions for the effective implementation of the provisions of law; this can never be the intention of the law and, therefore, this argument of Shri Gursahani failed to impress this Court on this count also.
15. Shri Gursahani, further, tried to suggest that if at all the petitioner was not satisfied with the decision of the revisional authority, it was open for the petitioner to get his rights settled through Civil Court or it was also open for him to have referred the matter to the Arbitrator for arbitration. However, in fact, if at all there was any one, it was the respondent No. 2 who was aggrieved by the decision of the deletion of his name and hence it was for him i.e. the respondent No. 2 to have referred the matter to the Arbitrator which he failed to do. The learned revisional authority i.e. the respondent No. 1 who dealt with the matter, virtually has tried to take upon himself the job of deciding the civil rights of the parties, as is clear from his order In fact, on this very solitary ground, the order passed by the revisional authority the respondent No. 1, deserves to be quashed and let aside. Even otherwise, I do find that the learned revisional authority while passing the impugned order dated 29-9-1992 committed a patent illegality when he observes, "a licencee should not trade in his licence, having obtained the licence to sell foreign liquor, cannot be at will bring in and remove the particulars to suit his own convenience". This observation of the learned revisional authority is absolutely unwarranted. The revisional, authority totally lost sight of the fact that the very Rules and regulations permit issuance of licence in the name of joint licencees or, even in the name of partnership firm if it is made in accordance with the provisions of law and if the said partnership is to be governed by the provisions of the Partnership Act and if the law permits dissolution or deletion then, in that case, any action taken in pursuance thereof or the legal provisions cannot be said to be the simple wish or desire of the original licencee. Even if the original licencee may wish or desire to delete somebody's name, he has to follow the legal procedure and relevant provisions of the law and if he has done so, then it cannot be said that the same act or action taken by the person concerned is arbitrary or capricious. It was for him only to find out as to whether the licence which was given on certain conditions, and if name was being deleted, whether it was strictly in pursuance of those conditions and the provisions of law, and it was not open for him to unnecessarily harp upon irrelevant points, which were totally unconnected with the point in question.
16. The learned revisional authority has unnecessarily dealt with the points as regards investment by the respondent; whether he made any substantial investment or not, was not the matter to be considered by him. The only thing with which he was concerned was to find out as to whether the partnership stood validly dissolved, in pursuance of the notice and if so, then were the authorities below justified in permitting the deletion of the name of the respondent No. 2 from FL II licence. The learned revisional authority also has exceeded its jurisdiction in unnecessarily referring to the position as regards business of sale of liquor shops in Aurangabad township. It appears that the learned revisional authority just fished out certain reasons unnecessarily to disturb the finding given by the appellate authority, i.e., the Commissioner of Prohibition & Excise. I do not find that the learned revisional authority has given any justifiable reason to disturb the findings arrived at by the learned appellate authority i.e. Commissioner of Prohibition and Excise, Aurangabad.
17. Mr. Gursahani, the learned Advocate for the respondent No. 2 further argued that, in fact, the partnership business in FL. II - 18 licence stood dissolved long back i.e. about 15 years back, some time in the year 1980 and since then though the name of the petitioner is continued in the licence, it was only the respondent No. 2 who was doing the business alone. In support of this contention, the respondent No. 2 produced a document at page 106 of this Writ Petition No 2643/1992 After going through the said document, it is noticed that it does not bear the date except the date of purchase of the stamp paper. At many places blanks are left to be filled in and the signature thereon of Shamlal, the petitioner is denied by Shamlal. Since there were doubts about the genuineness of this document in the mind of the petitioner and also of this Court, this Court specifically directed the respondent No. 2 to produce the original thereof which was produced on 18-10-1996. In original document also does not have any date of alleged execution of that document. The blank places are also there in the original. That document, as such, does not inspire confidence and cannot be relied upon for any purpose. Since the document, prima facie, was found to be doubtful, the original was directed to be placed in sealed cover in the custody of the Registry of this Court. This document was not anytime before produced before any of the excise authorities below, but the same is pressed into operation for the first time in this Court, by the respondent No. 2, may be with an intention to misguide the Court. (The said document I had opened at the time of dictation of this judgment and is, now, again, ordered to be kept in a sealed cover in the safe custody of Registry of this Court.) In the above-said circumstances, I do not find it sate and proper to rely on the said document for any purpose. Any argument based thereon by Shri Gursahani, therefore, cannot be accepted, much less, because the said plea is being raised for the first time in this Court.
18. The parties had consented at the time of hearing of this matter that the arguments are common for both the petitions i.e. Writ Petition No. 291/94 and the present Writ Petition No. 2643/1992 and common judgment could be passed in the same. In view of this, the judgment of Writ Petition No. 291/94 shall govern the present writ petition as mentioned by me earlier.
19. In the circumstances, the order dated 29th September 1993 passed by the respondent No. 1 in Revision Application No. FLR/1292/292/13 of 1992 is quashed and set aside and the orders passed by the Excise Authorities below are hereby confirmed. No need to mention that the respondent No. 2 (now the names of his legal representatives) shall stand deleted from FL. II license.
20. In the result, the petition is allowed with costs. Rule is made absolute.
21. The document which is kept in sealed cover to which a reference is made in the judgment, shall be returned to the respondent No. 2 after the appeal period is over.
After pronouncement of the judgment, Shri Gursahani, the learned Counsel for respondent No. 2 has requested to keep the effect and operation of this judgment suspended till 20th June, 1997. I do not wish to stay the effect and operation of the judgment suspended till 20th June, 1977. I do not wish to stay the effect and operation of the judgment. Request, therefore, cannot be granted. Copy of the judgment, if desired, be given out of turn.