: 1 : IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 606 OF 2003 1. Shri Shyamsundar R. Palyekar, residing at Vancio, Guirim, Bardez Goa. 2. Shri Suresh R. Palyekar, residing at Vancio, Guirim, Bardez Goa. 3. Miss. Sujata R. Palyekar, residing at Vancio, Guirim, Bardez Goa. ... Petitioners V e r s u s 1. State of Goa, through its Chief Secretary having office at Secretariat, Panaji Goa. 2. The Chief Secretary, Government of Goa, having office at Secretariat, Panaji Goa. 3. The Commissioner of Excise, Government of Goa, having office at Panaji Goa. 4. The Superintendent of Excise, Office of Commissioner of Excise, Government of Goa, Panaji Goa. 5. Smt. Neha R. Palyekar, residing at House No.61/2, Guirim, Bardez Goa. ... Respondents : 2 : Mr. Y. V. Nadkarni, Advocate for the Petitioners. Mr. P. Talaulikar, Additional Government Advocate for the Respondent Nos. 1 to 4. Mr. V. R. Tamba with Mr. D.D. Zaveri, and Mr. Y. S. Naik, Advocates for the Respondent No.5. CORAM:- S. J. VAZIFDAR, J Dated:- 15th April, 2010. ORAL JUDGMENT 1. The Petitioners have sought a Writ of Certiorari to quash and set aside an order dated 19.8.2003 passed by Respondent No.2, Chief Secretary in an appeal filed by them and consequently to quash and set aside an order of the Commissioner of Excise - Respondent No.3, communicated in a letter dated 26.9.2002 transferring a liquor licence in the name of the Respondent No.5. 2. The liquor licence which is the subject matter of the dispute originally stood in the name of Rajaram S. Palyekar who expired on 15.8.1997. He died living behind him five sons and three daughters as his only heirs and legal representatives. His wife had pre-deceased him. : 3 : 3. Petitioner Nos. 1 and 2 are the sons of the deceased. Petitioner No.3 is a daughter of the deceased. Respondent No.5 is the wife of one Naresh Palyekar who was another son of the deceased. Respondent Nos.2, 3 and 4 are the Chief Secretary, Commissioner of Excise and Superintendent of Excise respectively. 4. A family settlement was executed between Petitioner Nos. 1 and 2 , their wives, the said Naresh Palyekar and his wife i.e. Respondent No.5 and two other sons of the deceased in respect of various properties of the deceased. Petitioner No.3 though not a party to the family arrangement was a witness thereto. Clauses 5, 6, 8 and 9 of the family arrangement read as under :- “5. That the Third Party is allotted a store room existing in the said property to occupy and possess the same as exclusive owner and he is free to purchase the property at the back of the store room from its Bhatkar. That all the parties to this Agreement shall have no objection for the Third Party to purchase the said property except septic tank portion as also the parties have no objection for the executant no.1 of the Third Party to get transferred the Bar and Restaurant which is presently running in his name, and further he agrees to pay a sum of Rs.75,000/- ( Rupees Seventy Five Thousand Only ) to MR. DEVIDAS R. PALYEKAR, the Fifth Party herein for construction of his part of first floor. : 4 : 6. That the Fourth Party hereby also agrees to pay a sum of Rs.50,000/- ( Rupees Fifty Thousand Only ) to their sister/sister-in-law SUJATA RAJARAM PALYEKAR. That all the parties to this Agreement shall have no objection for the executant no.1 of the Fourth Party to get transferred the General Store which he is presently running in his name. 8. That the term, the First Party, Second Party, Third Party, Fourth Party, and the Fifth Party shall include all their heirs, administrators, successors, and legal assigns. 9. All the parties to this Agreement of Family Settlement, bind themselves for specific performance of contract.” 5. Pursuant to the family arrangement the said Naresh Palyekar applied in the year 2002 for the transfer of the licence in his name. However, the said Naresh expired on 11.8.2002 during the pendency of the application. Respondent No.5 therefore made an application on 24.9.2002 to the Commissioner of Excise to transfer the licence in her name. It is contended that being the only heir of said Naresh and in view of the said family arrangement she was entitled to do so. : 5 : The Petitioners contend that by clause 5 of the said family arrangement the brothers had agreed to the transfer of the licence in the name of said Naresh only for convenience and they did not thereby give up their rights in respect of the said licence. It is further contended they agreed to the transfer of the licence only in the name of the said Naresh and not anybody else including Respondent No.5 as his widow. As I will presently indicate, I am not concerned with the dispute of the parties on merits. 6. It is pertinent to note however that in the application made by Respondent No.5, there is no mention about the existence of the heirs of the deceased namely her father-in-law. She merely mentions the fact of his death and of her deceased husband having applied for the transfer of the licence in his name. It is also admitted that Respondent No.5 had not informed the other members of the family about the application. I do not for a moment suggest that this was mala-fide. She may have done so bona-fide believing that there was no need for her to inform the others in view of the family arrangement. : 6 : 7. The 5th Respondent's application dated 24.9.2002 for transfer of the licence in her name was allowed on 26.9.2002. 8. Being unaware of the application by Respondent No.5 for the transfer of the licence to her name and of the order dated 26.9.2002 transferring the licence in her name, Petitioner No.1 on 1.10.2002 also applied to the Excise Inspector for the transfer of the licence in his name. Petitioner No.1 was informed by a letter dated 3.10.2002 addressed by the Excise Inspector the fact that the licence had been transferred in the name of the Respondent No.5. 9. On behalf of Respondent No.5 it is contended that the submission regarding the effect of Clause 5 of the family agreement is only across the bar and does not find place in the Writ Petition. The submission is not well founded. In the rejoinder the Petitioners have expressly stated that they had agreed to the transfer of the licence in the name of the 5th Respondent's husband as they were confident that although “the licence would be formally transferred in his name, the business would continue to be operated as a common business”. The Petitioners have also : 7 : challenged the 5th Respondent's entitlement to run the business to the exclusion of the others. 10. On 23.10.2002 the Petitioners and the other brothers and sisters made an application to the Excise Commissioner to revoke the transfer of the licence in the name of Respondent No.5. The Counsel for the Petitioners and Respondent No.5 state that they are not aware whether any orders have been passed by the Excise Commissioner on this application. Thus without waiting for any decision on the application the Petitioners preferred an appeal under Section 40 of the Excise Duty Act, 1964 to the Chief Secretary against the order dated 26.9.2002 of the Commissioner of Excise - Respondent No.3. By the impugned order dated 19.8.2003 Respondent No.2 dismissed the appeal. 11. Respondent No.2 dismissed the appeal on the ground of non-joinder of necessary parties including Respondent No.5. There is no doubt that Respondent No.5 ought to have been impleaded in the appeal before Respondent No.2. The orders sought, undoubtedly affected the rights of Respondent No.5. Respondent No.2 however also observed that it was not for the Commissioner : 8 : of Excise to decide as to who is the owner of the properties or who are the heirs of the deceased licensee. There is however no dispute between the parties as to who are the heirs of the deceased licensee. The only dispute is as to which of them is entitled to have the licence transferred in his name/their names. The impugned order further upholds the order dated 26.9.2002 on the ground that it was based upon the information submitted by Respondent No.5. This with respect is incorrect. Based on the information furnished by Respondent No.1 no fault may be found with the order transferring the licence. That however begs the question. The matter does not end there. If the other interested parties produce oral or documentary evidence in support of their case, the authorities are bound to consider the same as well. They are not precluded or absolved from doing so merely because they had decided the application on the basis of the documents/evidence furnished by the other party on an earlier occasion. The order of the Commissioner of Excise cannot attain finality merely because it was based on the documents produced by one party. : 9 : 12. It is pertinent to note that Respondent No.2 has left it open to the Petitioners to approach the appropriate forum to decide as to who are the legal representatives of the deceased licensee and who should be entitled to hold the licence. In these circumstances, the Petitioners' case has in fact not been considered at all by either Respondent No.2 or Respondent No.3 i.e. the Commissioner of Excise. In fact it appears that the Petitioners' application before the Commissioner of Excise has not even been decided. It is necessary that the same is decided. 13. No purpose would be served by remanding the matter to Respondent No.2 as his decision is that of an appellate authority. Respondent No.3 ought to decide the Petitioners' application in the first instance. 14. In the circumstances, Rule is made absolute and the Writ Petition is disposed of in the following terms :- (1) The impugned order of Respondent No.2 dated 19.8.2003 is quashed and set aside. (2) Respondent No.3 - Commissioner of Excise shall consider and decide the application dated 23.10.2002 after : 10 : affording all the parties thereto including Respondent No.5 an opportunity of being heard. The parties shall be at liberty to file fresh or further documents or affidavits. (3) All the rights and contentions of the parties are kept open. (4) Pending the decision of Respondent No.3 and for a period of 12 weeks thereafter Respondent No.5 shall be permitted to operate the licence only herself and shall not transfer, alienate or encumber the same or create any third party interest therein. (5) Respondent No.3 is requested to decide the matter as expeditiously as possible. S. J. VAZIFDAR, J at*