DONNIE J M PHILIP Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 01/01/2011.

(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 R.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 31/03/2011. In the year 2008-2009 respondents 5 and 6 raised objections against its 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 05/04/2008. 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 WP (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 RP No. 423 of 2008 in WP (C) No. 9872 of 2008. Ext. P4 is the order passed in the said review petition and later, as per Ext. P5, Ext. P3 judgment was recalled and WP (C) No. 9872 of 2008 was dismissed. On 05/04/2008 Ext. P6 order was passed pursuant to the direction in WP (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 31/03/1991 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 KHC 117 : 1996 (1) KLT 546 (FB) : ILR 1996 (2) Ker. 549 . Later, respondents 5 and 6 herein filed OS 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 12/03/2010, 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 13/05/1988 which was marked as Ext. C1 therein. While so, the petitioner received Ext. P10 show cause notice 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 S.26 of the Abkari Act read with R.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 S.26 of the Abkari Act read with R.34 of the Foreign Liquor Rules. In short, according to the petitioner, Ext. P12 is actuated by mala fides 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 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 OS No. 491 of 2004 dated 12/03/2010 a Regular First Appeal was filed before this Court as RFA No. 38 of 2011. In fact, copies of RFA No. 38 of 2011, IA No. 203 of 2011 in RFA No. 38 of 2011 and the order passed thereon by this Court on 01/02/2011 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, Thiruvananthapuram, the subject matter of the suit, by themselves, pending disposal of the appeal. As per Ext. P19 it was ordered as follows: