IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WA.No. 1067 of 2007(B) AGAINST THE JUDGEMENT IN WPC.8577/2007 Dated 29/03/2007 APPELLANTS: PETITIONERS ------------------------- 1. S.MURUGAR SELVI, W/O.LATE E.SATHEESH KUMAR, 144-145, DPF STREET, PAPPANAICKENPALAYAM, COIMBATORE-37, TAMIL NADU. 2. S.DHINA ESWAR, AGED 5 YEARS, S/O.S.MURUGAR SELVI, (MINOR), REP.BY GUARDIAN MOTHER, THE 1ST APPELLANT RESIDING -DO-. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.P.K.ANIL RESPONDENTS: RESPONDENTS -------------------------- 1. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 2. STATE OF KERALA REP.BY SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. ASSISTANT COMMISSIONER OF EXCISE, TRICHUR. 4. NITHISH SIDHAN, S/O.V.K.SIDDAN, "SRINIDHI, LAKSHMI NAGAR, WEST FORT, TRICHUR DISTRICT. W.A. 1067/2007 2 5. T.K.SAJEEVAN, S/O.LATE KRISHNAN, THASHNATH HOUSE, CHENTRAPPINNI, THRISSUR. 6. OMANA ASHOKAN, W/O.V.K.ASHOKAN, "SREELAKSHMI, BEENNET ROAD, CHEMBUKKAVU, THRISSUR. 7. V.A.DANY, S/O.V.K.ASHOKAN, RESIDING -DO-. 8. DEENI DIPIN, W/O DIPIN, "REVATHY", KURUMBUR HOUSE, BANK ROAD, KOZHIKODE. 9. RUKMINI, W/O.LATE ESWARA MOORTHY, 95-B SREENIVASA PURAM, AVINASHI MAIN ROAD, AVINASHI, COIMBATORE DISTRICT, TAMIL NADU. R4, R6 & R8 BY ADV. SRI. C.C. THOMAS (SR.) ADV. SRI.N.K.UNNIKRISHNAN FOR R5 R5 BY ADV. SRI. G. SREEKUMAR GOVT. PLEADER SRI. R. LAKSHMINARAYAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = = = = = = = = = W.A. 1067 OF 2007 = = = = = = = = = = = = = = DATED THIS, THE 8TH DAY OF SEPTEMBER, 2009. J U D G M E N T Raman, J. Appellants are the petitioners in W.P.(C) 8577/2007 who challenged the order of the Commissioner of Excise, Ext.P6 produced in the case. The learned Single Judge, by a brief order, after considering the contention raised, found no merit and dismissed the writ petition. Aggrieved thereby, this writ appeal is preferred. 2. Briefly stated the facts are as follows: An FL-3 licence was issued to a firm by name M/s. Aramana Bar and Restaurant of which there were three partners including one Satheesh Kumar. Satheesh Kumar died on 25.6.2004. Petitioners and 9th respondent are the legal heirs of late Satheesh Kumar. After the death of Satheesh Kumar, the firm was re-constituted based on the declaration made by the legal heirs of the deceased that they have no claim of any manner to the trade name and business of M/s. Aramana Bar and Restaurant, and that they voluntarily relinquish their title and claim in the partnership business. An application was filed before the Commissioner of Excise WA. 1067/2007 2 for sanction of the re-constitution in terms of rule 19(ii) of the Foreign Liquor Rules. The Circle Inspector of Excise made an enquiry, took the statement of the petitioners and after being satisfied, submitted a report to the Assistant Excise Commissioner, who again submitted a report to the Deputy Commissioner and ultimately, sanction was accorded for re-constitution of the firm as per Ext.R6(c). There was no dispute raised thereon. Subsequently, again it was re-constituted after obtaining sanction as per Ext.P6. What was challenged in the writ petition was Ext.P6. Evidently, the petitioners would have aggrieved if at all by the re-constitution made as per Ext.R6(c) and no relief as such is claimed in the writ petition seeking to quash Ext.R6 (c). Ext.P6 is not in any way affected by the earlier re-constitution. Ext.P6 itself will not give rise to any fresh cause of action as far as the petitioners are concerned. therefore, the non challenge of Ext.R6(c) is fatal. as already stated, the same having been not challenged, there arises no occasion for this Court to consider the correctness or otherwise of the said order. What is challenged being Ext.P6, which has nothing to do with the right of the petitioners, this writ petition is liable to be dismissed on that core alone. However, the learned single WA. 1067/2007 3 Judge considered the matter and found that if at all the right of the petitioners is affected by the order impugned, they would have raised their grievance before appropriate authority. 3. We have heard the parties. We find that there is a specific averment in the counter affidavit by the 6th respondent that a declaration was made by the petitioners relinquishing their right in the partnership firm and that a statement was also taken by the Circle Inspector of Excise and it is thereafter that the report was made and ultimately sanction was accorded for re-constitution of the firm as per Ext.R6(c). No reply affidavit is filed controverting those facts. At any rate, it is brought to our notice that a civil suit is pending between the parties as O.S. 782/2008 before the District Court, Coimbatore. Since a formal sanction is required under the rules, the Commissioner, after following the procedure, has accorded sanction. Prima facie we do not find any reason to quash Ext.P6 as sought for. Now that the parties have already approached the civil court, we make it clear that whatever order passed by the Commissioner of Excise under the Abkari Act and Rules therein will always be subject to the outcome of the suit as referred to above. WA. 1067/2007 4 Subject to the above, the writ appeal stands dismissed. The observation we have made is only for the limited purpose of disposing of this appeal and this will not prejudicially affect the right of either parties and the civil court will try the issues arising in the suit untrammelled by any such observations. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE)