Karunakar Mudann Shetty vs State of Maharashtra

Pendse, J.—On April 5, 1973, one Madansingh Manvansingh residing at Ambarnath was granted licence in Form II bearing Licence No. 19 for selling Indian made Foreign Liquor by trade name M/s. Ambar Wine Mart, at Lokmanya Tilak Road, Ambarnath, Thane.

Madansingh expired on November 23, 1974 leaving behind his widow Tarabai. The licence was transferred on February 25, 1975 in the name of Tarabai as the sole legal representative of deceased Madansingh.

Prior to that date, on January 15, 1975 Tarabai entered into a partnership agreement with the petitioner for running the business of sale of liquor in the shop. On July 17, 1975, an application was made by Tarabai for inclusion of the name of the petitioner as a partner in the licence. The request was considered by the Collector and the name of the petitioner was admitted as partner in the licence.

On July 28, 1979, Tarabai died and the petitioner gave intimation of her death on July 30, 1979 and also requested that the name of Tarabai should be deleted from the licence and the petitioner should be permitted to avail of the privileges under the licence. The request was turned down by Collector of Thane and the licence granted to Tarabai was forfeited to Government. The Collector observed in the impugned order dated February 4, 1982 that the petitioner is not a member of the family of deceased licensee, but was admitted as a partner only and, therefore, cannot claim the continuance of licensed privileges after the death of Tarabai. The order of the Collector is under challenge in this petition filed under Article 226 of the Constitution of India.

Shri Pradhan, learned counsel appearing on behalf of the petitioner, submitted that the order of the Collector is in violation of Rule 40 of the Bombay Foreign Liquor Rules, 1953. Rule 40(1) reads as under :-

"No person shall be recognized as partner of the holder of a vendor''s licence for the purposes of his licence, unless the partnership has been declared to the Collector before the licence is granted and the names of the partners have been entered jointly in the licence or if the partnership is entered into after the granting of the licence, unless the Collector agrees on application made to him, to alter the licence and to add the name or names of the partner or partners in the licence."

The plain reading of this rule indicates that the Collector has been given power to accept the agreement of partnership entered into by the original licensee and entered the name of the partner in the licence. In accordance with this provision, the Collector accepted the petitioner as partner in licence on application of Tarabai in the year 1975. It is difficult to appreciate how the continuance of the privileges under the licence can be denied to the petitioner on the death of Tarabai. The Collector declined to continue the privileges only on the ground that the petitioner is not related to Tarabai. We enquired from Shri Yande, learned Government Pleader as to what is the discretion of the Collector to deny the relief and the learned counsel invited our attention to Condition No. 8. The condition prescribes that the licensee, his heirs, legal representatives or assigns shall have no claims whatsoever for the continuance or renewal of the licence after the expiry of the period for which it is granted and it shall be entirely within the discretion of the Collector to permit or not assign the licence. We fail to appreciate how this condition is relevant to the facts of the present case. The petitioner is neither claiming a heir, legal representative or assignee of the original licensee, but merely as surviving partner and the surviving partner is neither heir, legal representative or assignee. The Collector accepted the petitioner as partner of the licence in the year 1975 and it is impossible to appreciate how such a partner can be denied advantage of the licence on the death of the other partner who was the original licensee. In our judgment, the order of the Collector of entirely unsustainable and is required to be quashed.

Accordingly, rule is made absolute and the impugned order dated February 4, 1982, a copy of which is annexed as Ex. ''F'' to the petition, passed by the Collector, Thane is set aside and the Collector is directed to permit the petitioner to enjoy the privileges of the licence by deletion of name of deceased Tarabai. It is made clear that this order would not take away the right of the licensing authority to take any action against the petitioner in case any of the conditions of licence are violated. In the circumstances of the case, there will be no order as to costs.