T.S. KRISHNAMURTHY AND ANR. Vs. THE STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PROHIBITION AND EXCISE AND ORS.

JUDGEMENT

(1.) These Writ Appeals are directed against the order of Mohan J., in Writ Petition No. 6334 of 1981 and Writ Petition No. 6112 of 1981 and they are dealt with together as common questions arise for decision. While Writ Appeal No. 332 of 1982 is directed against the dismissal of Writ Petition No. 6334 of 198.1, Writ Appeal Nos. 263 of 1982, 274 of 1982 and 281 of 1982 have been preferred at the instance of the third Respondent Respondents 1 and 2 and the Petitioner respectively against the order in Writ Petition No. 6112of 1981. The common question that arises relates to the propriety or otherwise of the grant of the privilege for the whole -sale in Indian made foreign liquor with reference to Thanjavur and Tirunelveli districts respectively.

(2.) In Writ Appeal No. 332 of 1982, the Appellant and the third Respondent and three others had applied for the grant of the privilege for locating a wholesale depot for Thanjavur for storage and supply of Indian made foreign liquor in respect of that district. The Commissioner of Prohibition and Excise considered the applications of the Appellant and the third Respondent in Writ Appeal No. 332 of 1982 and stated with reference to the application made by the Appellant therein, that there is no reference to the registration of the firm or to the turnover of the firm in the records and that though the Managing Partner of the firm slated that the firm is doing business in Surgical Instruments and Plastic Industry and the partners together can invest Rs. 50 lakhs in the business, yet the solvency certificate had not been produced to substantiate this. In dealing with the application filed by the third Respondent in Writ Appeal No. 332 of 1982, the Commissioner found that the application was in order excepting for the fact that one Thiru Gopalakrishnan had not signed the application. The financial soundness was taken into account in the light of the solvency certificate for Rs. 5 lakhs issued by the Tahsildar, Kumbakonam and the report of the Collector and the statement of the third Respondent himself to the effect that nearly Rs. 40 Lakhs could be invested by him. The proposal of the third Respondent to run the wholesale business only in his name and not with Thiru Gopalakrishnan, who had not signed the application, and who had not appeared for the enquiry, was also taken note of. On a purported consideration, of the matters enumerated under Rule 5 of the Tamil Nadu Indian Made Foreign Spirits (Supply by Wholesale) Rules, 1981, the Commissioner granted a licence in favour of the third Respondent in Writ Appeal No. 332 of 1982 subject to his depositing a sum of Rs. 25,000 by way of security for the due observance of the conditions of the licence. Aggrieved by this order, the Appellant in Writ Appeal No. 332 of 1982 filed Writ Petition No. 6334 of 1981 praying for the issue of writ of Certiorari to quash the order of the Commissioner of Prohibition and Excise, dated 3rd August 1981 by which the licence was granted in favour of the third Respondent in Writ Appeal No. 332 of 1982. Inter alia, it was contended on behalf of the Appellant in Writ Appeal No. 332 of 1982 that the rejection of the application on the ground of insufficiency of the solvency certificate was not correct as it has no place whatever with reference to the matters to be considered under Rule 5 and solvency is not one of the criteria for the selection under the Act and rules, that it was overlooked that the Managing Partner of the Appellant in Writ Appeal No. 332 of 1982 was a disabled ex -service man and that the application filed by the third Respondent in Writ Appeal No. 332 of 1982 having been signed by Usman Ali only and not Gopalakrishnan, would be incompetent. In the counter filed by Respondents 1 and 2 in Writ Appeal No. 332 of 1982, it was stated that the authorities had taken into account all the relevant considerations in granting the privilege in favour of the third Respondent in Writ Appeal No. 332 of 1982 and that the licensing authority had granted the license in favour of the third Respondent only after being satisfied that the application was in order and the applicant was also found suitable. In the counter affidavit filed by the third Respondent in Writ Appeal No. 332 of 1982, it was stated that a solvency certificate only for Rs. 75,000 had been produced by the Appellant in Writ Appeal No. 332 of 1982, that though the application made was stated to emanate from the third Respondent and Thiru Gopalakrishnan, Thiru Gopalakrishnan did not join and had not even signed the application and therefore, the authorities were justified in the treating the application as one emanating from the third Respondent only and granting it, that the authorities had taken into account the relevant factors in granting the licence and that the order is not vitiated in any manner.

(3.) Mohan J. who dealt with Writ Petition No. 6334 of 1981 Was of the view that the Appellant in Writ Appeal No. 332 of 1982 should dislodge the order adverse to him before he can question the grant in favour of the third Respondent in Writ Appeal No. 332 of 1982 and in this view, concluded that the solvency certificate produced by the Appellant in Writ Appeal No. 332 of 1982 was only for a meager sum of Rs. 75,000 which was inadequate having regard to large stakes involved and that the Commissioner was quite right in declining to grant a licence in favour of the Appellant in the view that the Government should not be obliged to go after sixteen partners of the unregistered firm, viz., the Appellant in Writ Appeal No. 332 of 1982, should it fall into arrears or otherwise become liable to the Government. In this view, the learned Judge did not deal with the other objection raised by the Appellant in writ Appeal No. 332 of 1982 that the application filed on behalf of the third Respondent was not application in the eye of law which could be considered by the licensing authorities ultimately, the learned Judge concluded that the Appellant cannot be permitted to attack the validity of the order passed by the Commissioner as a petition for the exercise of Writ jurisdiction, at the instance of a person who is least interested and who had lost, before the lower authority, cannot be entertained. In this view, the writ petition was dismissed and it is the correctness of this order that is challenged in Writ Appeal No. 332 of 1982.