CWP No. 16755 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 16755 of 2008 Date of Decision: March 27, 2009 Mahender Singh .......... Petitioner versus The State of Haryana and others ........... Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Rishi Pal Rana, Advocate for the petitioner. Mr. Randhir Singh, Additional Advocate General, Haryana Mr. Mohan Jain, Senior Advocate with Mr. J.B. Sharma, Advocate for respondent No. 6 ***** HEMANT GUPTA, J. The present petition, in public interest, is to seek a writ in the nature of certiorari to cancel L-13 licence granted to respondent No. 6 on account of the said respondent being in arrears of the State dues. The petitioner asserts that respondent No. 6 was granted L-14A CWP No. 16755 of 2008 [2] ( licence of retail liquor outlet of country liquor) and L-2 ( licence of retail outlet of Indian Made Foreign Liquor ) licence in the year 2001-02 under the Punjab Excise Act, 1914, as applicable to Haryana State (for short “the Act”). The said respondent is in arrears amounting to Rs.44,80,490/- on account of additional licence fee for short lifting of Indian Made Foreign Liquor and Country Liquor. L-1 licence is granted for wholesale outlet of Indian Made Foreign Liquor and L-13 is granted for wholesale outlet of country liquor. As per Rule 36-A(19) of the Haryana Liquor License Rules, 1970 (for short “the Rules”), the condition precedent for issuance of these licences is that the successful tenderer has to file an affidavit before the opening of the vend to the effect that he is not a defaulter and has paid all past dues of excise revenue in Haryana. The grievance of the petitioner is that respondent No.6 has been granted L-13 licence for the year 2008-09 in the month of April, 2008 with effective period April 15, 2008 to April 14, 2009 for a wholesale vend at Karnal without realizing the earlier arrears from the said respondent. It is pointed out that respondent No. 6 has submitted an affidavit dated 3.4.2008 to the effect that he is not defaulter under Sale Tax / VAT / Central Sales Tax / Local Area Development Tax payable to the Excise and Taxation Department or that he has not been convicted or reasonably suspected of committing or conniving in commission of any offence under the Act but the officials of the Excise Department intentionally and deliberately accepted the said incomplete affidavit though the petitioner has not specifically mentioned in his affidavit that he is defaulter of the Excise Department. It is pointed out that the Collector-cum-Deputy Excise & Taxation Commissioner, Jind, respondent No.5, communicated to the CWP No. 16755 of 2008 [3] Deputy Excise and Taxation Commissioner, Karnal, respondent No.4, if respondent No.6 being in arrears and that recovery certificate stands issued to recover an amount of Rs.44,80,490/-. But since no positive action was taken by respondent No.4, therefore, the present petition has been filed. In written statement filed on behalf of respondents No.1 to 5, it is pointed out that respondent No. 6 was allotted the vend by draw of lots held on 8.4.2008 and that respondent No. 6 did not disclose at the time of allotment that he was defaulter of excise revenue relating to Jind District for the year 2001-02. The factum of respondent No.6 being a defaulter came to notice when recovery certificate dated 20.06.2008 was received by respondent No.4 on 24.06.2008 and thereafter notice was served upon respondent No.6. It is further averred that respondent No. 6 was one of the three partners of the firm M/s Jind Wine & Company and 6.5% share in the said firm. The said respondent was permitted to deposit his share as partner of the defaulter firm i.e. 6.5% of total arrears amounting to Rs.5,74,000/-. It is also mentioned that the other two partners of the said firm have also deposited some amount leaving balance amount of Rs.16,26,000/-. It is also mentioned that Rule 36A(19) of the Rules lays down the procedure of allotment of L-2 and L-14A vends by tender and not L-13 which is governed by condition No. 4.13 of the Haryana Excise Policy appended as Annexure R-2. It is also pointed out that a writ petition filed by M/s Jind Wine & Company in which respondent No.6 was a partner is pending adjudication before this Court regarding additional licence fee on account of short lifting of quota of liquor. In written statement dated 3.3.2009 filed by respondent No.6, the bona fide of the petitioner in filing writ petition was doubted. It was also CWP No. 16755 of 2008 [4] pointed out that L-14A and L-2 vends were granted in the name of M/s Jind Wine Company in the year 2001-02 and that he was associated with the same as an employee thereof. Respondent No.6 has filed another affidavit dated 3.3.2009 disclosing that M/s Jind Wine & Company has total 15 partners and the said respondent is one of the partners in the said firm. It is also pointed out that for recovery of balance amount of Rs.16 lacs, land measuring 62 Kanals 16 Marlas belonging to Randhir Singh s/o Diwan Singh, another partner, has been attached for sale by auction and that the said land is sufficient to recover the remaining amount of Rs.16 lacs. He has further stated that if there is any shortfall, he shall pay the same without any delay. We have heard learned counsel for the parties at some length. Mr. Jain, learned counsel representing respondent No.6, has raised a solitary argument that respondent No.6 has paid his share of dues payable to the State Government, therefore, he cannot be treated as a defaulter of payment of excise dues of the State Government. The said argument raised by learned counsel for the respondent is not tenable. Admittedly, respondent No.6 is one of the partners of the firm which is defaulter of the excise dues of the State Government. The liability of the partners is joint and several against the third person such as State Government. Therefore, even if the State Government has demanded proportionate share of the dues from respondent No.6, but he shall not cease to be defaulter as partner of the firm owing excise dues to the State Government. In Sahu Rajeshwar Nath vs. Income Tax Officer, AIR 1969 SC 667, Supreme Court held that the liability of the partners of a firm is joint and several. In Ashutosh vs. State of Rajasthan, AIR 2005 3434, it was held that each partners of the firm is CWP No. 16755 of 2008 [5] liable as if the debt of the firm has been incurred on his personal liability. In view of the above fact, respondent No.6 is deemed to be a defaulter of the State Government in respect of payment of excise dues and consequently he could not be granted L-13 licence. No other point has been raised. Consequently, present writ petition is allowed. The licence for L-13 is quashed. ( T.S. THAKUR ) ( HEMANT GUPTA ) CHIEF JUSTICE JUDGE March 27, 2009 khushbir