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2004 Supreme(Cal) 659
High Court Of Calcutta
A. K. GANGULY, TAPAN KUMAR DUTT
MAHENDRA SHIVLAL GANDHI - Appellant
Versus
STATE OF WEST BENGAL - Respondent
M. A. T 1983 Of 2004
Decided On : 09/28/2004
Advocates: Abhratosh Majumdar, Ajit Kumar Panja, Debi Prasad Pal, JAYTOSH MAJUMDAR, JOYDEEP KAR, NABA KUMAR DAS, NIRMALYA BISWAS, SUPRIYO ROY CHOWDHURY
An inferior Tribunal, such as the Principal Secretary, Excise Department, must act within the four corners of the statute and cannot exceed its authority by disposing of a matter beyond its jurisdiction.
Headnote:
PARTNERSHIP - LIQUOR BUSINESS - EX-PARTNER'S OBJECTION - SUSPENSION OF LICENCE - APPEAL AGAINST INTERIM ORDER - JURISDICTION OF PRINCIPAL SECRETARY, EXCISE DEPARTMENT - MAINTAINABILITY OF SUIT - GRANT OF EXCISE LICENCE - COMPOUNDABLE OFFENCE - DISCRETION OF EXCISE COMMISSIONER.
Fact of the Case:
A partnership firm, "M/s. New Wine Palace," ran a retail business of Indian-made foreign liquor. One of the partners, Bhanumati Vyas, objected to the induction of new partners without permission from the Excise authorities. The Additional District Magistrate (General) suspended the firm's license for this reason. The petitioners, who were the new partners, intervened in the proceedings and also filed a suit for a declaration of their partnership and an injunction restraining Bhanumati from obstructing their business. Bhanumati appealed the suspension order to the Excise Commissioner, who modified the order and kept the suspension in abeyance for two months to await the outcome of the civil suit. Bhanumati then appealed to the Principal Secretary, Excise Department, who allowed the appeal and quashed the suspension order.
Finding of the Court:
The Court held that the Principal Secretary, Excise Department, had no jurisdiction to dispose of the entire matter pending with the Excise Commissioner. The Principal Secretary's order was beyond his authority and jurisdiction and was liable to be quashed.
Issues: 1. Whether the Principal Secretary, Excise Department, had jurisdiction to dispose of the entire matter pending with the Excise Commissioner. 2. Whether the civil suit filed by the petitioners was maintainable. 3. Whether the petitioners were disqualified from obtaining an excise license under Rule 12 of the West Bengal Excise (Selection of new Cites and Grant of Licence for Retail of Spirit, etc.) Rules, 1993.
Ratio Decidendi: 1. The authority of the Principal Secretary, Excise Department, as an appellate authority, is created under the statute. Such statutory authority always functions as an inferior Tribunal and must act within the four corners of the statute. 2. The appeal, which was filed before the Principal Secretary, Excise Department, was an appeal from an interim order. Therefore, the authority of the Principal secretary, Excise Department, is confined to the question whether the interim order should have been granted or not by the Excise Commissioner. 3. In deciding the said question, the Principal Secretary cannot decide the whole matter and allow Bhanumati to run the business in the usual manner. 4. The distinction between the jurisdiction of an inferior Tribunal and that of a superior Tribunal is well-recognized in law. 5. Nothing is within the jurisdiction of an inferior Tribunal, unless it is expressly shown to be so on the face of the statute, which confers power on such an inferior Tribunal. 6. The sweeping order passed by the Principal Secretary, Excise Department, disposing of the entire us between the Excise Department, the appellant before us and Bhanumati is obviously beyond the jurisdiction of the Principal Secretary, Excise Department.
Final Decision: The Court quashed the order of the Principal Secretary, Excise Department, and remitted the matter to the Commissioner of Excise for a decision on merits. The Commissioner was directed to decide the matter without being influenced by any observations made in the judgment and was not required to wait for the outcome of the suit.
( 1 ) THIS appeal has been filed againyt an order dated 19. 5. 04 passed by the learned Judge of the Writ Court refusing to grant any order staying the operation of an order passed by the appellate authority under the Bengal Excise Act, 1909. The learned Judge instead of granting any stay directed the matter to be heard upon affidavits.
( 2 ) BEFORE this Court, all the contesting parties submitted and orayed for final hearing of the entire matter including the writ petition. Affidavits were filed by the parties. As much, this Court, with the consent of parties, heard the matter finally and by this judgement, both the appeal and writ petition are disposed of.
( 3 ) THE dispute is over the running of the retail business of Indian made foreign liquor by the parties and the various orders passed by the Excise authorities from time to time in the matter.
( 4 ) INITIALLY, one Dhirendra Kumar Vyas, the husband of Bhanumati Vyas, the respondent No. 6, carried on the said business. The excise licence was in his name.
( 5 ) THE petitioners' case is that as the said Dhirendra Kumar needed financial assistance, he approached Tushar Gandhi and the petitioner No. 1 to join him as partners. A partnership was, thus, entered into between the said Dhirendra kumar, Tushar Gandhi and the petitioner No. 1 on or about 30. 11. 1980 under the name and style of "m/s. New Wine Palace". That was a partnership-at-will.
( 6 ) THAT partnership continued for 14 years and in January, 1994, Dhirendra kumar died. After his death, his wife Bhanumati became a partner along with one Jayashree R. Vyas, J. P. Thakkar, Tushar Gandhi and the petitioner No. 1. Bhanumati also became the licensee.
( 7 ) THE deed of partnership was reconstituted on a number of occasions and ultimately a deed of partnership was reconstituted consisting of Bhanumati, sunil D. Vyas, Brijesh B. Vyas, Kalpen Kumar Tripathy and petitioner No. 2 and the petitioner No. 1. Of these partners, Sunil and Brijesh are sons of bhanumati and Kalpen is the cousin of Bhanumati.
( 8 ) WHILE the business was thus continued, the Additional District magistrate (General) by a memo dated 9th April, 2003 issued a show-cause notice on Bhanumati asking her to show-cause why the licence shall not be suspended or cancelled for entering into partnership business without prior permission from the licensing authority. As already noted, the licence was in the name of bhanumati Vyas, respondent No. 6 herein, but the business was carried as a partnership business in view of the partnership, which has been reconstituted from time to time and the particulars of which have been given above. Since no notice was given to the petitioners who were also partners in the said partnership business, the petitioners made an intervener application in the proceedings initiated by Additional District Magistrate (General), by the show-cause notice dated 9th April, 2003.
( 9 ) THE petitioners also filed the suit being 0. S. No. 65 of 2003 in the First court of Civil Judge, Senior Division, Midnapore, praying for a declaration that they are partners of the firm "m/s. New Wine Palace" at 11, Railway Market, golebazar, Kharagpur. A prayer was also made for the permanent injunction restraining Bhanumati and others from obstructing the petitioners in their taking part in the business and also from restraining the petitioners from entering the business premises. The learned Judge granted an interim order directing the defendant Nos. 1 to 4 who are Bhanumati, her two sons and her cousin, who are partners in the said partnership farm, to maintain status quo regarding the suit premises till the disposal of the petition for temporary injunction.
( 10 ) HOWEVER, Bhanumati as a partner of the said partnership firm wrote a letter on 30th April, 2003 to the Manager, Punjab National Bank, advising the said Bank to stop operation of the account maintained with the said Bank. In the meantime an order dated 22nd September, 2
