THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION Nos. 22531 and 23228 of 2011 Dated: 07-12-2011 Between M/s. Park Restaurant and Bar, Rep., by its Managing Partner, Guntur District and another. … Petitioners And The Government of Andhra Pradesh, Rep., by its Secretary and Hyderabad and 3 others … Respondents W.P.No.23228 of 2011 Ch. Venkata Rao …Petitioner And The Government of Andhra Pradesh, Hyderabad and 4 others. …Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION Nos. 22531 and 23228 of 2011 COMMON ORDER: The petitioner No.2 in W.P.No.22531 of 2011 is the respondent No.4 in W.P.No.23228 of 2011, whereas the petitioner in W.P.No.23228 of 2011 is the respondent No.5 in W.P.No.22531 of 2011. The other parties are also common to both the writ petitions and common questions of fact and law arise for consideration. Hence they are heard together and decided by this common order. For the sake of convenience, the parties shall hereinafter be referred to as they are arrayed in W.P.No.22531 of 2011. The facts borne out of the record are as under: The respondent No.5 (Ch. Venkata Rao) was granted Licence No.14/2006-07 in Form-2B under the provisions of A.P. Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005 (for short ‘the Rules’) for sale of Indian made Foreign liquor at Door No.9-1-18, Naaz Centre, Guntur under the name and style of M/s. Park Restaurant and Bar. The said licence was renewed from time to time for the subsequent years 2007-08, 2008-09, 2009-10 and 2010-2011. On 02.11.2010, the petitioner No.2 (N. Shankara Srinivasa Rao), the respondent No.5 and another person by name P. Venkata Subbaiah made separate representations requesting the 4th respondent – Prohibition & Excise Superintendent, Guntur – to include the names of the petitioner No.2 and the other person P. Venkata Subbaiah also in the Form 2-B licence which stands in the name of the respondent No.5. A sum of Rs.2,80,000/- was also paid vide Challan, dated 2.11.2010 towards 10% of fee as required under Rule 17 (2) of the Rules. Having considered the same, the 4th respondent by proceedings dated 4.11.2010 included the petitioner No.2 and another person P. Venkata Subbaiah as partners in M/s. Park Restaurant and Bar along with the respondent No.5 (Ch. Venkata Rao). An endorsement to that eﬀect was also made on the original Form-2B licence under the caption ‘inclusion of partners’. On 30.06.2011 the petitioner No.2 styling himself as the Managing Partner of M/s. Park Restaurant and Bar submitted an application for renewal of Form-2B licence for the year 2011-2012 on payment of the requisite licence fee. By that time, the respondent No.5 (Ch. Venkata Rao) made a complaint dated 28.05.2011 before the respondent No.4 alleging that his signatures were forged on the Deed of Partnership, dated 11.08.2010, and on the basis of the said document the names of the petitioner No.2 and another person P. Venkata Subbaiah were incorporated in his Form-2B licence illegally. Thus he made a request to delete the names of the petitioner No.2 and P. Venkata Subbaiah in Form-2B licence. He also made another application dated 30.05.2011 requesting the 4th respondent to grant permission for shifting the business premises of M/s. Park Restaurant and Bar from Dr.No.9-1-18, Naaz Centre, to another premises bearing Dr.No.26-47-414, Housing Board Colony, Nallapadu Road, Guntur and on the basis of the same the 4th respondent by proceedings dated 16.06.2011 instructed the Station House Oﬃcer, Prohibition and Excise Station, Guntur-II to submit the proposals for shifting, after inspecting the proposed building. The respondent No.5 submitted further applications dated 28.06.2011 and 30.06.2011 requesting the respondent No.4 to accept the licence fee and renew the Form-2B licence at the new premises since the shifting proposals are under consideration. He also undertook to commence the business at the new premises only after orders are issued for shifting. The said request was rejected by the 4th respondent by proceedings dated 30.06.2011 stating that since the bar premises had not yet been shifted to the new premises, the licence cannot be renewed at the proposed premises. Aggrieved by the said action of the respondent No.4, the 5th respondent ﬁled W.P.No.18536 of 2011. Similarly the petitioner No.2 herein filed W.P.No.17591 of 2011 seeking a declaration that the action of the 4th respondent in calling for a report from the Station House Oﬃcer, Prohibition & Excise Station, with regard to the proposals submitted by the 5th respondent for shifting the licensed premises from Dr.No.9-1-18, Naaz Centre to Dr.No. 26-47-414, Housing Board Colony, Guntur is arbitrary and illegal. The above said two writ petitions i.e., W.P.Nos.17591 of 2011 and 18536 of 2011 were disposed of by this Court by a common order dated 18.07.2011 with a direction to the Prohibition and Excise Superintendent to give an opportunity of hearing to the 5th respondent (Ch. Venkata Rao) and consider the objections raised by him before passing the order on the application ﬁled by the petitioner No.2 for renewal of Form 2B licence for the year 2011-2012. In pursuance thereof, after hearing both the parties the 4th respondent by proceedings dated 03.08.2011 rejected the application made by the petitioner No.2 along with the other partner P. Venkata Subbaiah for renewal of the Bar licence at the existing premises bearing Dr.No.9-1-18, Naaz Centre on the ground that the renewal application did not contain the signatures of all the three licensees. Challenging the said proceedings, dated 03.08.2011, W.P.No.22531 of 2011 is ﬁled seeking a Certiorari to call for the records relating to the proceedings of the 4th respondent dated 3.8.2011 and to quash the same being arbitrary and illegal. The other writ petition i.e., W.P.No.23228 of 2011 is ﬁled by Ch. Venkata Rao (respondent No.5 in W.P.No.22531 of 2011) seeking a declaration that the action of the Prohibition & Excise Superintendent in not considering his application, dated 28.05.2011 for deletion of the names of the petitioner No.2 and the other person P.Venkata Subbaiah in Form-2B Licence No.14/2006-07 as well as his failure to consider the application dated 30.05.2011 for shifting the licensed premises from premises from Dr.No.9-1-18, Naaz Centre to Dr.No.26-47-414, Housing Board Colony, Guntur is arbitrary and illegal. In the aﬃdavit ﬁled in support of W.P.No.22531 of 2011, it is pleaded that the petitioner No.2 along with the respondent No.5 (Ch. Venkata Rao) and another person P.Venkata Subbaiah formed a Partnership Firm under Partnership Deed, dated 11.08.2010 to carry on the business jointly as partners under the name and style of Park Restaurant and Bar. In the partnership deed itself, it was mentioned that the 5th respondent (Ch.Venkata Rao) was carrying on the business as Proprietor concern under the name and style of Park Restaurant and Bar under Licence No.14/2006-07 at Door No.9-1-18, Naaz Centre at Guntur and that he had accepted to admit the petitioner No.2 and P. Venkata Subbaiah as partners to carry on the business of M/s. Park Restaurant and Bar jointly from 11.08.2010. It is also pleaded that in terms of the above said partnership deed, the petitioner No.2, the 5th respondent and P. Venkata Subbaiah became the joint licence holders and that the petitioner No.2 being the managing partner of the partnership ﬁrm has been carrying on the business of M/s. Park Restaurant and accordingly he submitted the application dated 30.06.2011 for renewal of the Form-2B licence for the next excise year 2011-2012 on payment of the requisite licence fee. It is further pleaded by the petitioner No.2 that when he went to the oﬃce of the 4th respondent for payment of renewal fee, he came to know that the 5th respondent (Ch. Venkata Rao) submitted a representation dated 30.05.2011 in his individual capacity for shifting of the business premises and on the basis of the same the 4th respondent directed inspection of the proposed building without any notice to the other partners. It is also contended that the impugned order dated 3.8.2011 passed by the 4th respondent rejecting his application for renewal of Form-2B licence on the sole ground that the application did not contain the signatures of all the three licensees is illegal and unsustainable since the license has already been transferred in favour of the Partnership Firm namely M/s. Park Restaurant and Bar. On the other hand, the case of the 5th respondent (Petitioner in W.P.No.23228 of 2011) is that his signatures were forged on the Deed of Partnership, dated 11.08.2010 and that the names of the petitioner No.2 and the other person P. Venkata Subbaiah were incorporated in the Form-2B licence illegally on the basis of the above said Partnership Deed. It is pleaded by him that due to some domestic problems he had entrusted the management of the Park Restaurant and Bar to the petitioner No.2 and P.Venata Subbaiah and they had created a forged partnership deed showing them as partners holding share of 60% and 30% respectively and got their names incorporated in the Form 2B licence. It is also stated that he came to know about the inclusion of their names in the Form-2B licence when he approached the 4th respondent for ﬁling an application seeking permission for shifting the licensed premises form H.No.9-1-18, Naaz Centre to H.No.26-47- 414, Housing Board Colony, Guntur. It is alleged that though he made a representation on 28.5.2011 itself for deletion of the said two names, the 4th respondent failed to take any action and moreover no orders are passed even on his application for shifting the licensed premises in spite of the fact that a favourable report was submitted by the Station House Oﬃcer, Prohibition & Excise, Guntur-II, on inspection of the proposed new premises. It is also contended that the action of the respondent No.4 in not considering the above said request while passing the order dated 3.8.2011 is arbitrary and illegal. Hence W.P.No.23228 of 2011. The Superintendent of Prohibition and Excise filed separate counter-aﬃdavits in both the writ petitions stating that as per Rule 9-A (4) of the Rules all the persons are required to execute counterpart agreement with an undertaking that all of them shall be severally / jointly responsible to abide by the terms and conditions of the licence and also the provisions of the A.P. Excise Act, and shall be bound to pay the licence fee, excise duty and security deposit from time to time and since the renewal application submitted by the petitioner No.2 in W.P.No.22531 of 2011 contained signatures of only two partners, the same was rightly rejected under the impugned proceedings. It is also stated since the names of the petitioner No.2 and another person P. Venkata Subbaiah were included in Form-2B licence in accordance with Rule 17 of the Rules by receiving 10% of the licence fee, the same cannot be deleted unless fresh representations are ﬁled by paying 10% of the licence fee. So far as the permission sought for shifting the licensed premises is concerned, it is stated that the application of the petitioner in W.P.No.23228 of 2011 has been examined and rejected by proceedings dated 3.9.2011 since the bar licence has not been renewed for the year 2011-2012. Sri T. Lakshminarayana, the learned counsel appearing for the petitioners in W.P.No.22531 of 2011 vehemently contended that since the Form-2B licence is held by the partnership ﬁrm, the respondent No.4 was not justiﬁed in rejecting the application for renewal on the ground that it was not signed by all the partners. On the other hand, Sri A. Sanjeev Kumar, the learned counsel appearing for the 5th respondent/petitioner in W.P.No.23228 of 2011 vehemently contended that the 4th respondent ought to have deleted the names of the petitioner No.2 and the other person Venkata Subbaiah in Form-2B licence granted in favour of the 5th respondent since the inclusion of their names itself was contrary to law. I have also heard the learned Government Pleader for Prohibition & Excise and perused the material available on record. At the outset, it is to be noticed that the application dated 30.05.2011 made by the 5th respondent (petitioner in W.P.No.23228 of 2011) for shifting the Bar premises from Dr.No. 9-1-18, Naaz Centre to Dr.No.26-47- 414, Housing Board Colony, Guntur, was rejected by the 4th respondent during the pendency of these writ petitions by proceedings dated 3.9.2011. In view of the said order, it is represented by the learned counsel for the petitioner in W.P.No.23228 of 2011 that the writ petition to the extent of declaring the inaction on the part of the 4th respondent to consider the petitioner’s request for shifting of Bar premises is not pressed. So far as the other relief in the said writ petition i.e., to declare the inaction of the respondent No.4 in considering the petitioner’s application dated 28.05.2011 for deletion of two names in the Licence No.14/2006-07 as arbitrary and illegal is concerned, the record placed before this Court by the learned Government Pleader reveals that the names of the petitioner No.2 and the other person P. Venkata Subbaiah were included in Licence No.14/2006-07 on an application made by the respondent No.5 himself, apart from the applications of the other two persons, stating that they intend to carry on the business jointly and requesting to include the names of the petitioner No.2 and P. Venkata Subbaiah as partners in the licence. Along with the said applications the original licence bearing No.14/2006-07, a copy of the Partnership Deed, counterpart agreement in Form-4B signed by all the three persons as well as the aﬃdavits of the petitioner No.2 and P. Venkata Subbaiah stating that they have satisﬁed the eligibility for grant of licence as provided under Rule 7 of the Rules were enclosed. It is also relevant to note that the statements of all the three persons requesting to permit them to carry on business jointly were recorded by the Prohibition & Excise Inspector, Guntur-I on 25.08.2010. On the basis of the said material, the 4th respondent – Prohibition & Excise Superintendent - by proceedings dated 31.08.2010 recommended inclusion of the names of the petitioner No.2 and P. Venkata Subbaiah as partners in M/s. Park Restaurant and Bar, Guntur. Having considered the same, the Commissioner of Prohibition & Excise by proceedings dated 18.09.2010 accorded permission for inclusion. As noticed above, a sum of Rs.2,80,000/- was paid by way of Challan towards 10% transfer fee payable under Rule 17 (2) of the Rules. In pursuance thereof, the 4th respondent by proceedings dated 4.11.2010 included the petitioner No.2 and P. Venkata Subbaiah as partners in M/s. Park Restaurant and Bar and the endorsement to that effect was made on the original licence. Under the A.P. Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2005, Form-2B licence can be granted to an individual or jointly in the names of more than one person or in the name of the Proprietor concern or partnership ﬁrm. Rule 17 of the Rules provides that the transfer of licence can be allowed by the Commissioner of Prohibition on payment of prescribed fee. Rule 17(4) further provides that when there are only two partners in a ﬁrm holding a licence and one of them withdraws or expires the entity of firm is changed from partnership to propriety and it amounts to transfer of licence. Similarly, Rule 17(5) provides that conversion of proprietary concern into a ﬁrm or a company or a ﬁrm into a company and vice versa shall amount to transfer of licence. As noticed above, the record reveals that before inclusion of the petitioner No.2 and P. Venkata Subbaiah in the existing Form-2B licence, the procedure prescribed under Rule 17 was followed and their names were included after obtaining the sanction of the Commissioner of Prohibition & Excise. Admittedly it is on the basis of the Partnership Deed, dated 11.08.2010, as well as the statements of all the three partners recorded by the Prohibition & Excise Inspector, Guntur- I. The respondent No.5 (Ch. Venkata Rao) now contends that the inclusion of the said two names is illegal since the Partnership Deed itself is a forged document. The petitioner No.2 denied the allegation that the signatures of the 5th respondent were forged and to establish the same he had produced before the 4th respondent the opinion given by an expert namely Truth Labs Scientiﬁc Detectives, Hyderabad. The other partner P. Venkata Subbaiah who appeared before the 4th respondent had also denied the allegation that the signatures of the 5th respondent were forged on the Partnership Deed. In the circumstances, the 4th respondent cannot be said to have committed any error in considering the application for renewal submitted by the petitioner No.2. It is also relevant to note that the dispute raised by the 5th respondent with regard to the genuineness and validity of the Partnership Deed cannot be decided by a statutory authority and if aggrieved it is for the respondent No.5 to seek the appropriate relief in a properly constituted civil proceeding. Therefore no Mandamus can be issued as sought in W.P.No.23228 of 2011 compelling the 4th respondent – Prohibition & Excise Superintendent - to delete the two names inserted in the Form-2B licence vide proceedings dated 4.11.2010. Coming to W.P.No.22531 of 2011, it is relevant to note that under Rule 9-A of the Rules which provides for renewal of Form-2B licence, one of the pre-requirements is execution of a counterpart agreement in Form-4B on the Stamp paper of requisite value as per provisions of the Indian Stamp Act, 1899. It is apparent that the execution of a counterpart agreement is in conformity with Section 29 of the A.P. Excise Act, 1968 and it is aimed at strict compliance with all the conditions subject to which the licence is granted. The contents of Form-4B make it clear that even if the licence is granted in favour of a partnership ﬁrm, all the partners are severally / jointly responsible to abide by the terms and conditions of the licence. Therefore the 4th respondent cannot be said to have committed any error in insisting that all the partners shall execute the counterpart agreement. In fact, the endorsement dated 4.11.2010 made on the original licence pursuant to the sanction granted by the Commissioner under Rule 17 of the Rules itself shows that the transfer was not in the partnership ﬁrm as sought to be contended by the petitioners in W.P.No.22531 of 2011. Even in the application for renewal submitted by the petitioner No.2, the names of all the three persons were shown as applicants. Therefore, the rejection of the request of the petitioner No.2 for renewal of the Form-2B licence on the ground that it was not signed by all the three applicants cannot be held to be illegal or arbitrary on any ground whatsoever. Hence the interference by this Court is not warranted. In the result, both W.P.Nos.22531 & 23228 of 2011 are hereby dismissed. No costs. ______________ G. ROHINI, J Date: 07.12.2011 Note:- CC in 3 days. (B/O) KLP/gbs