ARAMANA BAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ appeal is preferred by respondents 5 and 6 in the writ petition against an order extending the interim order granted in favour of the first respondent, who is the petitioner in the writ petition, after declining the request of the appellants to hear the writ petition and to vacate the interim order. (Hereinafter, the parties are referred to as arrayed in the writ petition. The documents are also referred to as produced in the writ petition). The brief facts leading to the writ petition is as follows: Ext.P1 FL-3 licence was granted in favour of one P.J. Paul on 21.2.1984 for the following financial year. It was renewed from year to year. For the year 1994-95 it was transferred in favour of one P.J. Ajay Ghosh, managing partner of a hotel. Thereafter, it was transferred to the petitioner firm in the name of V.K. Ashokan, the then managing partner. While so, Sri. E. Satheeshkumar, the husband of the 5th respondent and father of the 6th respondent was inducted as a partner of the firm. Satheeshkumar met with an accident on 25.6.2004 and succumbed to the injuries. The remaining partners, on the death of Satheeshkumar, reconstituted the firm after obtaining sanction under rule 19 of the Foreign Liquor Rules. In support of the application for sanction to re-constitute the firm, a declaration said to have been signed by the 5th respondent was produced by the petitioner and the authorities accepted it. According to the 5th and 6th respondents, no such declaration was given and that the document produced is a forged one. A copy of the said declaration is produced by respondents 5 and 6 as Ext.R5 (a) along with the petition seeking impleading them as additional 5th and 6th respondents. However, the Deputy Commissioner accepted Ext Rs(a) and based on it sanction was accorded to re-constitute the firm Consequently, Ext.P1 licence was further renewed. While so, respondents 5 and 6 preferred a writ petition as W.P.(C) 8577 of 2007 seeking a declaration that Ext. R5(a) is a fraudulent document and that re-constitution of the firm as well as renewal of licence basing upon Ext.R5(a) is bad and not sustainable. That writ petition was dismissed by a learned Single Judge of this Court by Ext.P7 judgment dated 29.3.2007 with the reasoning that there was delay and the dispute is an issue of fact and requires to be decided on the basis of evidence. Though they preferred appeal as W.A. 1067/2007 they were not successful. Ext.P8 is the judgment in appeal. Their review petition as R.P. 1031/2009 was also dismissed by Ext.P9 order. The third respondent had been renewing the F.L-3 licence annually treating Ext.R5(a) as a genuine document It appears that respondent No. 5 alleged criminal misconduct and other offences under the Indian Penal Code against the then Circle Inspector of Excise as well as against the other partners and a complaint was lodged before the Vigilance and Anti Corruption Bureau (VACB). The VACB made a preliminary enquiry wherein it was revealed that Ext R5(a) declaration was forged by the surviving partners with the connivance of the then Excise Circle Inspector. The document was seized and sent to the Forensic Science Laboratory. On forensic examination, it was scientifically revealed that it is a forged document Consequently, a case was registered as Crime No. VC 20/2009 of the VACB, Thrissur, alleging offences under Sections 465, 468, 471 and 120(B) IPC and Section 13(1)(c) r/w 12 of the Prevention of Corruption Act against the two partners, the mother-in-law of the 5th respondent and one T.V. Raphel, the then Excise Circle Inspector. The copy of the First Information report is produced as Ext R5(c). When, the petitioner sought for renewal of Ext.P1 licence for the year 2010-11, the third respondent having received the report from the forensic laboratory, by Ext.P6 order dated 20.3.2010, declined to renew the licence. Following the case registered, Circle Inspector Raphel was suspended from service in contemplation of the disciplinary proceedings. Assailing Ext.P6 order the writ petition on hand was filed against respondents 1 to 4. The following are the main reliefs sought in the writ petition:

(2.) On 30.3.2010, the learned Single Judge granted an interim order whereby respondents 1 to 4 were directed to renew the license provisionally, subject to the result of the writ petition. In essence, the interim relief granted is the third main relief which is incidental to relief Nos. 1 and 2. The result is that by the interim order, the petitioner got a relief that would have been got on final disposal of the writ petition in case the petition is allowed. On the basis of the interim order, the petitioner has been running the bar. Respondents 5 and 6 who were not originally on the party array, having got aggrieved, filed a petition as I.A. 5241/2010, seeking an order to get them impleaded as respondents 5 and 6. By order dated 28.6.2010, that petition was allowed and they got impleaded. They filed counter affidavit along with documents. On 15.12.2010, respondents 5 and 6 sought for hearing the matter. But it was not heard for the reason that respondents 1 to 4 had not filed any counter affidavit and adjourned to 12.1.2011. Thereafter, it was adjourned on various dates. While so, on 25.2.2011, 5th respondent filed a petition - LA. 3512/2011 styling under Article 226 (3) of the Constitution of India, seeking an order to vacate the interim order dated 30.3.2010 with a plea that the application for renewal of the licence was based upon a forged document and it was rightly declined by the third respondent and that the interim order would allow the guilty to enjoy the fruits of their own misdeeds which is against the dictum laid down by the Apex Court in Commissioner of Customs v. Essar Oil Ltd., 2004 9 JT 12. It was also alleged that the interim order would tantamount to perpetuating the fraud and forgery. In the meanwhile, the mother-in-law of the 5th respondent filed a petition as I.A. 1733/2010 seeking an order to get her impleaded as 7th respondent. On 15.3.2011 that petition was allowed. While allowing that petition, the interim order issued on 30.3.2010, though not for a particular period, was extended till 25.3.2011 and the petition was posted to 24.3.2011 on which day the interim order was extended till 31.3.2011. On 30.3.2011, the interim order was extended by another two months. Aggrieved by that order extending the interim order, after declining the prayer to hear the writ petition, the writ appeal was preferred.

(3.) At the request of the appellant and having noticed that the order appealed is in effect amounted to allowing the writ petition and the decision of the appeal in one way or other would amount to disposal of the writ petition and thereby the writ petition would become infructuous and also taking note that in a writ petition where the opposite party aggrieved by the interim order makes an application, Article 226 (3) of the Constitution mandates a time bound disposal of the application, the writ petition was also ordered to be posted along with the writ appeal. Accordingly, the writ petition was also posted along with the appeal.