YUNNUS ABDULLA SHAIKH Vs. COLLECTOR, STATE EXCISE

JUDGEMENT

(1.) A licence was issued to late Dattatraya Kondiba Degaonkar being licence in form FL II and CL/FL/TOD III under the provisions of Bombay Foreign Liquor Rules sometime on 8th May, 1973. The licence holder as per the documents on record not being in a position to operate the said licence entered into an agreement with the petitioner herein. Consequent thereto, by an order dated 17th September, 1985 the name of the petitioner was also inserted in the licence. The name of the petitioner was included in terms of the Rules as they then stood. Several documents have also been filed on record in the form of Agreement dated 28th May, 1985 wherein it is set out that the late D.K. Degaonkar has handed over possession of the shop to carry on business along with the present stock and good-will of the shop in favour of the petitioner and on account of the Law as it then stood, a partnership deed was being entered into. The partnership deed contained a nominal condition with regard to profit and loss and that the business would be carried on by the petitioner at his own responsibility and that he would be solely responsible for any profit or loss accruing in the business. Two sons of the late D.K.Degaonkar declared that the agreement was binding upon them. The wife of the late D.K.Degaonkar, the Respondent No 2 herein, gave her consent to the said transfer.

(2.) THE said D.K.Degaonkar expired on 31st July, 1990. Subsequent to his death, the Respondent No.2 purportedly sought to take advantage of a new Rule that was introduced in the Bombay Foreign Liquor Rules 1953, which came into effect in the year 1989. The said Rule reads as under:

(3.) THE 1st Respondent after the petitioner had given a communication about the death of Dattatraya K. Degaonkar informed the petitioner that his name had been deleted in terms of Rule 4-A (Condition) of the Bombay Foreign Liquor Rules, 1953. The petitioner has averred that of enquiries he found that the 2nd and 3rd Respondents had moved an application for the purpose of getting the licence transferred in their name. The petitioner aggrieved by the order preferred a Petition in this Court being Writ Petition No.1370 of 1991. The said petition came to be rejected on 14th June, 1991. A Single Judge of this Court upheld the contention of the present Respondent No.3 and the other Respondent that the petitioner had no claim to the said licence in view of Rule 4-A (Condition) in the licence. The petitioner took up the matter to the Apex Court Special Leave was granted and it was numbered as Special Leave to Appeal (Civil) No.10768/91. An interim order was passed whereby the petitioner was allowed to pay the licence fees and to run the business. The said Special Leave Petition was subsequently disposed of by order dated 21st April, 1994. It would be worthwhile to reproduce the said order of the Apex Court, which reads as under: