P,G. JOSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner who is the Managing Partner of a partnership firm by name and style 'Hotel Salkara' covered by Ext.P3 deed of partnership dated 28.4.2017 is before this Court in this writ petition filed under Art. 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P7 order dated 21.2.2018 of the Commissioner of Excise, the 2nd respondent herein, to the extent of requiring the petitioner to pay a sum of Rs. 20 lakhs for reconstitution of Ext.P1 partnership deed dated 14.10.2007, on account of the death of K.D.Antony, who was the Managing Partner, by inducting his son and legal heir Joseph Antony as partner, and a further sum of Rs. 20 lakhs for changing the name of the licensee in Ext.P2(c) FL 11 licence for the year 2017-18 issued by the 4th respondent Deputy Commissioner of Excise, Malappuram on account of the death of the existing licensee representing the partnership. The petitioner has also sought for a writ of mandamus commanding the respondents to permit him to run the beer and wine parlour covered by Ext.P2(c) licence and Exts.P7 and P8 orders without insisting payment of a fee of Rs. 40 lakhs for induction of the legal heir of the deceased Managing Partner and for allowing change of name in Ext.P2(c) licence on account of death of the existing licensee representing the partnership firm. Ext.P8 order is one passed by the 2nd respondent, the Commissioner of Excise, sanctioning shifting of the licensed premises.

(2.) During the pendency of this writ petition, the petitioner has filed I.A. No. 3775 of 2018 seeking an interim order directing the respondents to permit him to run the beer and wine parlour covered by Ext.P2(c) license and Exts.P7 and P8 orders on furnishing bank guarantee for the amount of fee demanded in Ext.P7 order, pending disposal of this writ petition. The said interlocutory application was followed by I.A. No. 4202 of 2018 filed by the petitioner seeking an order to accept Ext.P10 bank guarantee dated 1.3.2018 for a sum of Rs. 40 lakhs, taken in favour of the 4th respondent.

(3.) A statement dated 1.3.2018 has been filed on behalf of the 4th respondent opposing the reliefs sought for in the writ petition. In the said statement, it is contended that as per the 2nd proviso to Rule 19(iv) of the Foreign Liquor Rules, 1953, constitution/re-constitution of partnership of a hotel which do not have two star classification will be allowed only on payment of Rs. 20 lakhs for each partner. The petitioner's hotel is having only one star classification. As per Ext.P3, the partnership is re-constituted by inducting the legal heir of the deceased Managing Partner. As per the 3rd proviso to Rule 19(iv), change of name of licensee of hotel which do not have two star classification shall be allowed only on payment of Rs. 20 lakhs. Therefore, as per the 3rd proviso to Rule 19(iv), the transfer of licence in the name of the petitioner can be regularised only on payment of a further sum of Rs. 20 lakhs. The statement dated 1.3.2018 was followed by a counter affidavit filed by the 4th respondent.