Shamlal Jaglal Jaiswal vs State of Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 230

IN THE HIGH COURT OF BOMBAY
`(AURANGABAD BENCH)
R.G. Deshpande, J.
Shamlal Jaglal Jaiswal ..... Petitioner.
Versus
The State of Maharashtra others......Respondents.
Writ Petition No. 2643 of 1992, decided on 6-5-1997.
Advocates appeared :
R.N. Dhorde, for petitioner.
D.A. Gursahani, for respondent 2(a).
K.B. Choudhari, AGP, for respondents 1, 3 and 4.

Headnote:Sections 137 and 139-Constitution of India, Article 226-Accountability of-Revisional power of Government-deletion of name of second partner-Direction by government-Name cannot be deleted-Only on wish of original licence-Held-If deletion is as per provisions of rules -Revisional authority can not interfere.-In the present case the learned revisional authority while passing the impugned order committed a patent illegality when it observed, fa licence should not trade in his licence, having obtained the licence to sell foreign liquor, cannot be at will bring in and remove the particulars to suit his own convenience. This observation of the learned revisional authority is absolutely unwarranted. The revisional, authority totally lost sight of the fact that the very Rules and regulations permit issuance of licence in the name of joint licensees or, even in the name of partnership firm if it is made in accordance with the provisions of law and if the said partnership is to be governed by the provisions of the Partnership Act and if the law permits dissolution or deletion then, in that case, any action in pursuance thereof or the legal provisions cannot be said to be the simple wish or desire of the original licensee. Even if the original licensee may wish or desire to delete somebodys name, he has to follow the legal procedure and relevant provisions of the law and if he has done so, then it cannot be said that the same act or action taken by the person concerned is arbitrary or capricious. Revisional authority has unnecessarily dealt with the points as regards investment by the respondent whether he made any substantial investment or not, was not the matter to be considered by him. The only thing with which he was concerned was to find out as to whether the partnership stood validly dissolved, in pursuance of the notice and if so, then were the authorities below justified in permitting the deletion of the name of the respondent No.2 from PI. If licence.
Sections 137 and 139-Constitution of India, Article 226-Dissolved partnership-License of-Deletion of name of are partner-Certain directions also attached with-Objection-Government cannot direct the collector as far as he is working within the Act-Held-Higher authorities are empowered for giving directions-Provided- They are acting within their power assigned to them -For effective enforcement under provisions of law.- The learned counsel appearing on behalf of the respondent No.2 argued that the order passed by the revisional authority was just, legal and proper and well within the competence of the authority concerned. He argued that, in fact, all the administrative powers in accordance with the relevant rules are vested in the Collector as regards transfer of licence from one name to another or of adding or deleting the names of any partner after the licence is granted. According to him, it was not open for the Government to give suggestion or impose certain additional conditions as regards this matter as is done in the present case. He, therefore, stated that it was the exclusive jurisdiction of the authorities created under the Act to deal with the matter and issuance of Circular dated 6th July, 1989 by the Government in that matter was unnecessary interference -in the working of the authority and the duties cast upon the officer under the Act and the Rules. This argument cannot be accepted at all. It would suffice to say that if the powers are vested in the Collector and if the higher authorities give certain directions which are in accordance with their administrative powers and administrative jurisdiction including the State, it cannot be said that those directions can be challenged if they are strictly with an intention of effective implementation of the provisions of law. The administrative instructions or circulars cannot run counter to the main object of the statutory provisions and the Rules framed there-under. No doubt, this proposition cannot be disputed. However, if the administrative instructions and circulars are to promote the aims and objects of the Act and the Rules and they are by way of compliance thereof and if not in any way contrary to any of the provisions of the Act or the Rules, then such circular and administrative instructions could be issued by the Government and, therefore, in the present case, this challenge raised by the learned counsel for the respondent No.2 has no merits and deserves no consideration.
Article 226-See Bombay Prohibition Act, 1949, Sections 137 and 139.

JUDGMENT - R.G. DESHPANDE, J.:---By the present petition, the petitioner is challenging the order dated 29th September 1992, passed by the respondent No. 1- Secretary to the Government, Home Department, Bombay, arising out of the order dated 14-5-1992 passed by the Commissioner of State Excise, M.S. Bombay, in Appeal No : 56/1992 whereby the respondent No. 1 set aside the order passed by the Commissioner of Prohibition and ordered that the foreign liquor licence should be restored in the name of legal heirs of deceased - Shivnarayan Jaiswal, the respondent No. 2.

2.The facts of the case, in nutshell, are as under :---

On 26th of June 1973, the present petitioner Shamlal Jaglal Jaiswal was issued a licence in Form FL. II (foreign liquor Licence II) for sale of foreign liquor. The licence was issued by the Collector, Aurangabad. After obtaining the licence, the petitioner-Shamlal started his liquor shop in the name and style "Jaiswal Wines" at Gulmandi, Aurangabad. It appears that in the passage of time, the said Shamlal, the petitioner, with a view to have a financial assistance as also the assistance in work, took the respondent No. 2- Shivnarayan as a partner and, accordingly, necessary partnership-deed was drawn on 21st November 1979. However, it further appears that the said Shivnarayan was required to wait to get his name inserted in the licence till 6th of February 1982 when an application was made by the present petitioner, impressing upon the authorities concerned to enter the name of said Shivnarayan, the respondent No. 2 in the licence. It would be necessary at this stage to mention that during the pendency of the proceedings before the authorities below the said Shivnarayan expired and the names of his legal representatives are brought on record (who are hereinafter referred to as "respondent No. 2" jointly).

3.The application which was made for introducing the name of the respondent No. 2 in the said licence was first refused by the Collector, Aurangabad. An appeal before the Commissioner of Prohibition and State Excise against the above-said order of refusal was allowed by order dated 12th March 1985 and their names were permitted to be introduced in the said licence. However, it was subject to certain conditions. The said conditions were; that the petitioner who is the original licensee was to remain a major beneficiary and that the incoming partner, i.e. respondent No. 2 was to have no claim to the licence in the event of death or retirement of original licensee. I feel it proper to refer to the exact wordings of the said order :---

"However in order to safeguard the interest of the original licensee, this grant will be subject to the conditions that;

(i) the original licensee remains the major beneficiary;

(ii) the incoming partner will not have any claim to the license in the event of death or retirement of the original licensee;

(iii) the incoming partner does not hold any other scheduled excise licence."

4.As it happens in many cases of partnership, in the present case also, after certain time, the relations between the petitioner and the respondent became strained, may be for various reasons and the petitioner since was well armed with an additional condition in the partnership in the nature of "partnership at will", issued a notice dated 28th March 1988 under the provisions of the Partnership Act, thereby dissolving the partnership as it was a partnership at will. Naturally, the partnership stood dissolved on receipt of the notice by the respondent No. 2 and there could not be any traces of existence of partnership business thereafter. It is this action on the part of the petitioner which gave rise to the present litigation.

5.In Writ Petition No. 472/1988 which was initiated at the instance of the respondent No. 2 in this Court, this Court had directed the authorities to renew the licence provisionally without prejudice to the rights of the parties for the year 1988-89.

6.On 25th March 1991, the present petitioner

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