IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 WP(C).No. 247 of 2011(E) ----------------------------------- PETITIONER(S): ----------------------- DONNIE J.M.PHILIP, AGED 31 YEARS, S/O. LATE. M.P. PHILIP, NATIONAL BUNGLOW, PANAVILA JUNCTION, THYCAUD,THIRUVANANTHAPURAM. BY SRI.C.C.THOMAS, SENIOR ADVOCATE, ADV. SRI.M.G.KARTHIKEYAN, SRI.NIREESH MATHEW, SRI.NIJU MATHEW, SRI.SAJI SANKARAN NAIR. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001. 3. THE DEPUTY COMMISSIONER OF EXCISE THIRUVANANTHAPURAM-695 001. 4. THE CIRCLE INSPECTOR OF EXCISE, THIRUVANANTHAPURAM-695 001. 5. P. VENUGOPAL, S/O. SRI. PADMANABHA PILLAI C.V. BHAVAN, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501. 6. V. JAYARAJAN, S/O. VELAYUDHAN, AGED 44 YEARS, HILL WARD, KUZHITHURA, KANYAKUMARI DISTRICT, TAMILNADU-629 163. R1 TO R4 BY GOVT. PLEADER SMT.K.R. DEEPA. R5 & R6 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, ADV.SRI.T.RAMPRASAD UNNI. SRI.RAHUL VENUGOPAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 247 of 2011(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FL-3 LICENSE ISSUED TO NATIONAL TOURIST HOME AND RENEWED TILL 31/03/2011. EXT.P2: COPY OF THE ORDER NO.XC7-17073/05 DATED 04/06/2005 PASSED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE JUDGMENT DATED 27/03/2008 IN WP(C) NO. 9872/2008 PASSED BY THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER DATED 01/04/2008 IN RP NO.423/2008 IN WP(C) NO. 9872/2008 PASSED BY THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER DATED 03/04/2008 IN RP NO.423/2008 IN WP(C) NO. 9872/2008 PASSED BY THIS HONOURABLE COURT. EXT.P6: COPY OF THE ORDER NO.T3-2911/08 DATED 05/04/2008 PASSED BY THE ASST. EXCISE COMMISSIONER, THIRUVANANTHAPURAM. EXT.P7: COPY OF THE ORDER NO.XC7/11923/08 DATED 30/03/2009 PASSED BY THE 2ND RESPONDENT. EXT.P8: COPY OF THE JUDGMENT DATED 12/03/2010 IN O.S. NO.491/2004 PASSED BY THE I ADDL. SUB JUDGE, THIRUVANANTHAPURAM. EXT.P9: COPY OF THE LAWYER'S NOTICE DATED 13/05/1988 SENT TO LATE M.P. PHILIP. EXT.P10: COPY OF THE PETITION DATED 21/10/2010 SUBMITTED BEFORE THE 2ND RESPONDENT BY RESPONDENTS 5 AND 6. EXT.P11: COPY OF THE ARGUMENT NOTES FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 03/12/2010. EXT.P12: COPY OF THE ORDER NO.XC7-11923/08 DATED 31/12/2010 PASSED BY THE 2ND RESPONDENT. EXT.P13: COPY OF THE PARTNERSHIP DEED DATED 25/06/1986. EXT.P14: COPY OF THE LETTER ISSUED ON 18/12/2008 WITH ALL COPIES INCLUDING APPLICATION FORM, THE RECOMMENDATION AND THE ENTIRE FILE, WHICH LEAD TO THE SANCTION OF EXT.P1 LICENSE BY THE STATE PUBLIC INFORMATION OFFICER, O/O. THE EXCISE COMMISSIONERATE, THIRUVANANTHAPURAM. EXT.P15: COPY OF THE RENT AGREEMENT DATED 16/06/1986 GIVEN BY THE FATHER OF LATE SRI.M.P.PHILIP TO SRI.M.P. PHILIP. EXT.P16: COPY OF THE JUDGMENT DATED 07/02/1994 IN OS(ARB) NO.307/1988 PASSED BY THE PRL. SUB JUDGE, THIRUVANANTHAPURAM. EXT.P17: COPY OF THE MEMORANDUM OF R.F.A. NO.38/2011 FILED BEFORE THE HONOURABLE COURT BY RESPONDENTS 5 AND 6. EXT.P18: COPY OF THE I.A. NO.203/2011 IN RFA NO.38/2011 FILED BEFORE THIS HONOURABLE COURT BY RESPONDENTS 5 AND 6. (P.T.O.) WP(C).No. 247 of 2011(E) EXT.P19: COPY OF THE ORDER DATED 01/02/2011 IN I.A.NO.203/2011 IN RFA NO.38/2011 PASSED BY THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS: EXT.R5(a): COPY OF THE LICENCE ISSUED TO THE NATIONAL TOURIST HOME, THIRUVANANTHAPURAM. EXT.R5(b): COPY OF THE ORDER OF INJUNCTION DATED 17/12/1991 PASSED BY THE CIVIL COURT. EXT.R5(c): COPY OF THE ORDER DATED 18/10/1986 ISSUED BY THE BOARD OF REVENUE, EXCISE. EXT.R5(d): COPY OF THE PROFIT AND LOSS STATEMENT AND BALANCE SHEET IN RESPECT OF THE NATIONAL TOURIST HOME FOR THE YEAR ENDING 31ST MARCH, 1987. EXT.R2(a): COPY OF THE PARTNERSHIP DEED PRODUCED BY THE RESPONDENTS 5 AND 6 ALONG WITH THEIR APPLICATION. EXT.R2(b): COPY OF THE DOCUMENT EVIDENCING REGISTRATION OF THE DEED. //TRUE COPY// P.S. TO JUDGE rs C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.247 of 2011 ---------------------------- Dated 31st March, 2011 JUDGMENT The challenge in this writ petition is against Ext.P12 order of the second respondent whereby Ext.P1 licence has been suspended till the disputes between the partners are settled and reported. The further prayers are for a declaration that the petitioner is entitled to conduct FL- 3 No.19/Tvpm on the strength of Ext.P1 licence as his own licence and to issue a writ of mandamus commanding respondents 1 to 4 to pay the damages sustaining to the petitioner due to the closure of the bar in pursuance to Ext.P12 from 1.1.2011. 2. According to the petitioner, Ext.P1 licence was issued in the name of his father late Sri.M.P.Philip. Obviously, it was issued in terms of Rule 13(3) of the Foreign Liquor Rules to Sri.M.P.Philip, Manager, National Tourist Home. It is the contention of the petitioner that Ext.P1 was issued to his father late Sri.M.P.Philip in his personal capacity and it is not a licence granted and issued to a partnership firm. After the death of Sri.M.P.Philip the licence was transferred provisionally to his wife and sons and then as per Ext.P2 it stood transferred in the name of the petitioner. Admittedly, it was renewed up to 31.3.2011. In the year 2008-2009 respondents 5 and 6 raised objections against its WP(C).No.247/2011 2 renewal contending that they are partners of `Deepa Bar' and they entered into a partnership agreement with the said M.P.Philip to constitute the said partnership firm namely, `Deepa Bar'. Their further contention was that it was functioning in TC-29/993, National Tourist Home and the bar licence was issued to Sri.M.P.Philip for and on behalf of the registered partnership firm namely, `Deepa Bar'. The said objections raised by respondents 5 and 6 were rejected by the Assistant Excise Commissioner as per Ext.P6 order dated 5.4.2008. They had also requested for an enquiry in the matter and cancellation of Ext.P1 licence or to freeze its renewal or suspend the same till the completion of such enquiry and final adjudication in the matter. Later, they approached this Court by filing W.P.(C)No.9872 of 2008. The said writ petition was disposed of as per Ext.P3 judgment. As per Ext.P3, the second respondent Excise Commissioner was directed to consider the representation filed by respondents 5 and 6 at the time of consideration of the question of renewal of the licence. The contention of the petitioner is that, despite the death his deceased father was made the first respondent in the said writ petition. Subsequently, the petitioner herein filed R.P.No.423 of 2008 in W.P.(C)No.9872 of 2008. Ext.P4 is the order passed in the said review petition and later, as per WP(C).No.247/2011 3 Ext.P5, Ext.P3 judgment was recalled and W.P.(C)No.9872 of 2008 was dismissed. On 5.4.2008 Ext.P6 order was passed pursuant to the direction in W.P.(C)No.11545 of 2008. It was held therein that the partnership between Sri.M.P.Philip and respondents 5 and 6 was dissolved on or before 31.3.1991 and found that the petitioner was eligible to get renewal of his FL-3 licence. Against Ext.P6 order, respondents 5 and 6 filed appeal before the Excise Commissioner and the same was dismissed as per Ext.P7. The contention of the petitioner is that Ext.P7 order was passed by the Excise Commissioner relying on the Full Bench decision of this Court in Narayanan & Company v. Commissioner of Income Tax (1996 (1) KLT 546 (FB)). Later, respondents 5 and 6 herein filed O.S.No.491 of 2004 before the Additional Sub Court, Thiruvananthapuram for dissolution of partnership firm, settlement of accounts and also for injunction. The petitioner and other legal heirs were arrayed as additional respondents 3 to 5 therein. As per Ext.P8 judgment dated 12.3.2010., the said original suit was dismissed with cost. The contention of the petitioner is that as per Ext.P8 it was found that no firm by name `Deepa Bar' was dissolved as per the lawyer's notice dated 13.5.1988 which was marked as Ext.C1 therein. While so, the petitioner received Ext.P10 show cause notice. WP(C).No.247/2011 4 and he has responded to the same and submitted Ext.P11 argument notes. Later, Ext.P12 order was passed whereby Ext.P1 licence which was issued in the name of the petitioner was suspended till the disputes between the partners viz. the petitioner and respondents 5 and 6 are settled and reported. It is mainly challenging Ext.P12 order that this writ petition has been filed. 3. The petitioner assails Ext.P12 on various grounds. According to the petitioner, the power to suspend or cancel a licence is available only under Section 26 of the Abkari Act read with Rule 34 of the Foreign Liquor Rules. At any rate, according to the petitioner, the reason assigned in Ext.P12 cannot be the basis for invocation of the power to suspend or to cancel Ext.P1 licence by invoking the power under Section 26 of the Abkari Act read with Rule 34 of the Foreign Liquor Rules. In short, according to the petitioner, Ext.P12 is actuated by malafides and it is an order passed without jurisdiction. Since the dispute was decided in favour of the petitioner as per Ext.P8 judgment by the competent Civil Court, the second respondent was not justified in requiring the parties to settle the dispute and report and to order for cancellation of Ext.P1 till such time. When a competent Civil Court decides a dispute, it will be binding on all parties including those who may have to deal with the said WP(C).No.247/2011 5 subject matter for deciding another related issue and in that view of the matter Ext.P12 cannot be sustained inasmuch as Ext.P8 judgment was ignored. That apart, it is contended that, evidently, in the light of Exts.P6 and P7 orders and in the absence of any specific power to review the second respondent should not have reopened and reviewed the issue as per Ext.P12 and at any rate, there is absolutely no reason or justification for suspending the licence and calling upon the parties to settle the dispute and report. Such action on the part of the Excise Commissioner cannot be construed as an action within the jurisdiction. During the course of argument, it was brought to my notice that as against the judgment and decree in O.S.No.491 of 2004 dated 12.3.2010 a Regular First Appeal was filed before this Court as R.F.A.No.38 of 2011. In fact, copies of R.F.A.No.38 of 2011, I.A.No.203 of 2011 in R.F.A.No.38 of 2011and the order passed thereon by this Court on 1.2.2011 are produced in this writ petition as Exts.P17, P18 and P19 respectively. Ext.P18 would reveal that respondents 5 and 6 herein are the petitioners/appellants and the petitioner herein is also a party to the said Regular First Appeal. The prayer in the said Interlocutory Application is to pass an order of injunction directing the respondents/defendants from appropriating the entire income earned from the National Tourist Home, WP(C).No.247/2011 6 Thiruvananthapuram, the subject matter of the suit, by themselves, pending disposal of the appeal. As per Ext.P19 it was ordered as follows:- “We have heard learned counsel for the parties on the basis of facts and materials. Perused the plaint and the findings of the court below. We are not persuaded to accede to the prayer in the petition which is for an order of injunction directing respondents/defendants from appropriating the entire income earned from the National Tourist Home. We are satisfied that ends of justice require only that the defendants shall place before the court the auditors certificate regarding the accounts for all the relevant years if and when the plaintiffs succeed in the suit. the I.A. is ordered accordingly.” The learned counsel for the petitioner in the said circumstances, submitted that in view of Exts.P6 to P8 and also in the light of the above mentioned order of the Division bench Ext.P12 cannot be sustained at all. 4. Respondents 5 and 6 have jointly filed a counter affidavit. A counter affidavit has been filed on behalf of respondents 2 and 3 as well. A conjoint reading of paragraphs 3 and 4 of the counter affidavit filed on behalf of respondents 2 and 3 would reveal that, according to them, Ext.P1 licence was issued in the personal capacity of Sri.M.P.Philip. However, according to them, the said Sri.M.P.Philip had not disclosed the registration of partnership firm along with respondents 5 and 6, as per WP(C).No.247/2011 7 Ext.R2(b) and, thereafter, the licence was transferred to the legal heirs on his death. In paragraph 5 of the counter affidavit it is further stated that the transfer of licence to the legal heirs was done as per the directions of this Court in W.P.(C)No.7509 of 2005 filed by the legal heirs of Sri.M.P.Philip and it is further stated that the factum of registration of partnership was not disclosed by the legal heirs before this Court and also before the Department. It is further stated thereunder:- “On scrutiny of the records, it is evident that the petitioner is not with clean hands which resulted in the present dispute between the petitioner and the 5th and 6th respondents. It is true that the licence was obtained in the name of Sri.M.P.Philip as the Manager and not in the name of a partnership firm. But the records disclose that the behind scene of the entire exercise discloses non-disclosure of a material fact at the hands of the licence.” The statements in the counter affidavit would thus reveal that upon arriving at a conclusion that the dissolution of the firm was not yet proved despite the judgment in W.P.(C)No.7509 of 2005 that ultimately resulted in transfer of the licence to the legal heirs, the second respondent passed Ext.P12 order. I am of the view that the said action cannot be sustained in law. It is true that as per the judgment in W.P. (C)No.7509 of 2005 the concerned respondent was directed only to consider the issue. However, when it is considered and granted pursuant WP(C).No.247/2011 8 to such a direction, in this case, also based on the direction in the judgment dated 3.4.2008 in W.P.(C)No.11545 of 2008, the respondents cannot, without specific authority under law, review the said order passed pursuant to that direction. Certainly, it would not be open to the respondents to re-open that issue on the ground that such a direction for consideration was obtained by non-disclosure of certain facts. In this context, it is relevant to refer to the decision of the Hon'ble Apex Court in S.Nagaraj v. State of Karnataka (1993 Supp. (4) SCC 595). Even if the order has been arbitrarily obtained the authorities cannot assume on themselves the role of substituting it expressly or impliedly. Any doubt or ambiguity can be removed by the court which passed the order. As already noticed hereinbefore, in paragraph 5 of the counter affidavit filed by respondents 2 and 3 it is stated that the transfer of licence to the legal heirs was done as per the directions of this Court in W.P.(C) No.7509 of 2005. In Ext.P6 it is stated that the question of renewal of petitioner's licence was considered pursuant to the judgment dated 3.4.2008 in W.P.(C)No.11545 of 2008. When that be the case, the action on the part of the second respondent in passing Ext.P12 order based on the reason specifically stated in the counter affidavit cannot be countenanced. That apart, as noticed hereinbefore, based on the WP(C).No.247/2011 9 directions of this Court Ext.P6 order was passed by the Excise Commissioner. It is to be noted that as per Ext.P6 order and also as per Ext.P8 judgment it was found that the partnership firm was dissolved. Though an appeal was preferred against Ext.P6, the same was dismissed as per Ext.P7. Evidently, Ext.P7 order was passed relying on a Full Bench decision of this Court in Narayanan & Company v. Commissioner of Income Tax (1996 (1) KLT 546 (FB)) and it was ordered thus:- “Therefore, relying on the aforesaid ruling in Narayanan & Co. V. Commissioner of Income Tax I find no reason to interfere with the order appealed against. If the parties have any civil dispute to be got resolved this is not the appropriate forum for that. In the result, the present appeal petition stands dismissed.” It is thus obvious that pursuant to the direction of this Court all the aforesaid aspects were considered by the Excise Commissioner and the appeal preferred against Ext.P6 was dismissed. It is also relevant to note that as per Ext.P7 it was observed that if the parties had any civil dispute that has to be got resolved in appropriate proceedings and not in a proceeding before the authorities. Evidently, respondents 5 and 6 have instituted a civil suit as O.S.No.491 of 2004. As per Ext.P8 judgment the said suit was dismissed. I do not think that this Court WP(C).No.247/2011 10 should go into that question any further on account of the fact that admittedly, the said matter was taken up in R.F.A.No.38 of 2011 and it is pending. Ext.P19 is the interim order passed thereon. Evidently, that would safeguard the interests of both the parties. Ext.P8 judgment was passed prior to the passing of Ext.P12 order. In Ext.P8 judgment it was held:- “So from the evidence available in this case it is clear that the 2nd defendant firm is not in existence as it was dissolved much earlier, i.e. with effect from 20.5.1988. Even as per the terms in Ext.A2, also the firm stands dissolved with effect from 31.03.1991.” 5. Ext.R5 is the judgment in O.S.No.667 of 1988. That was a suit for permanent injunction filed by respondents 5 and 6 herein. As per Ext.R5, a decree of permanent injunction was granted restraining the first defendant viz., father of the petitioner, from appropriating the income and profits of `Deepa Bar' for himself and also from operating all the account of `Deepa Bar' with the second defendant. The second defendant, the Manager, State Bank of India, Thampanoor Branch, Trivandrum was also injuncted permanently from allowing the first defendant therein viz., father of the petitioner, to operate the account of the partnership firm with it. In Ext.P12 the second respondent has WP(C).No.247/2011 11 categorically found that the fact of dissolution of the partnership firm viz., `Deepa Bar', is yet to be proved. The said finding would definitely run counter to the specific finding by the competent Civil Court in Ext.P8 and also the findings in Ext.P6 order of the Excise Commissioner. I have adverted to these facts only to show that in the light of Ext.P8 judgment, Ext.R5, Exts.P6 and P7 there was absolutely no reason for the second respondent to reopen the issue and to make an observation that goes contrary to the specific finding by the competent Civil Court with respect to the dissolution of the firm in question and then to suspend the licence till the disputes between the parties are settled and reported. Though respondents 2 and 3 have filed a counter affidavit no reason has been assigned to sustain and support the action in Ext.P12. I am of the view that the order passed by the second respondent in Ext.P12 cannot be sustained in view of the aforesaid circumstances. 6. In the counter affidavit filed by respondents 5 and 6 the contention is that in the judgment in W.P.(C)No.7509 of 2005 this Court only directed the Commissioner to consider the issue on application by the widow of the aforesaid Sri.M.P.Philip and other legal heirs. According to respondents 5 and 6, the second respondent is perfectly justified in interfering with the matter and passing Ext.P12 order. According to WP(C).No.247/2011 12 them, the licence was issued in the name of the firm. In that context, it is to be noted that the stand of respondents 2 and 3 in their counter affidavit is that it was, in fact, issued in the personal capacity of Sri.M.P.Philip. But, according to them, the issue was reopened only on account of the fact that there was non-disclosure of certain material facts. The learned Senior Counsel appearing for respondents 5 and 6 submitted that even if Ext.P12 order is held as invalid in law, after setting it aside liberty has to be given to the second respondent to decide the issue, in accordance with law. I cannot countenance with the said contention. As already noticed, the very question is whether there was any justifiable reason for the second respondent to interfere with the licence issued to the petitioner and to suspend the same with a direction to settle the dispute with the partners. If the answer is in the negative there is no reason to leave it to the second respondent to take a fresh decision especially, in the light of Exts.P6 and P7. Evidently, as per Ext.P6, a decision was taken in the matter. Feeling aggrieved by the same the concerned parties took up the matter in appeal and the Excise Commissioner had considered the issue and rejected the appeal preferred against Ext.P6. When that be the position, unless and until the rights of the parties are decided otherwise by a competent Civil Court, as WP(C).No.247/2011 13 observed by the Excise Commissioner in Ext.P7 order, there is no occasion for the Excise Commissioner to reconsider the issue in the light of Exts.P6 and P7. Though respondents 2 and 3 have filed a counter affidavit no reason has been assigned to justify the action in suspending Ext.P1 FL-3 licence issued in the name of the petitioner. I am of the view that if there is a dispute between the party respondents touching their rights, the said dispute has to be got resolved in properly constituted civil proceedings. Admittedly, in this case, R.F.A.No.38 of 2011 is pending before this Court and this Court passed Ext.P19 order. The question whether the right of the petitioner or respondents 5 and 6 in the matter of issuance of FL-3 licence is liable to be reopened in such circumstances would depend on the outcome of R.F.A.No.38 of 2011 or any decision by a competent Civil Court deciding the rights of the parties in any properly constituted proceedings. In short, I am of the view that the action on the part of the second respondent in suspending the FL-3 licence issued in the name of the petitioner till disputes between the partners are settled and reported and as per Ext.P12 holding that the dissolution of `Deepa Bar' is a matter which is yet to be proved, calls for interference. The said order cannot be construed as an order passed by invoking the power under Section 26 of the Abkari Act read with Rule 34 WP(C).No.247/2011 14 of the Foreign Liquor Rules. At any rate, respondents 2 and 3 have failed to support the said decision in Ext.P12. In the circumstances, Ext.P12 cannot be sustained. Accordingly, Ext.P12 is set aside. Consequently, the petitioner is entitled to run the bar, in accordance with the provisions of law. Sd/- C.T.RAVIKUMAR Judge TKS