Writ Petition No. 8072 of 2019 · Bombaybench High Court · 1983
Case Details
Ethape( 1 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.8072 OF 20191. Rajaram Gopichand AdvaniAge : major Occu: Business2. Sanjay Rajaram AdvaniAge: 45 years, Occu: Business3. Shailesh Rajaram AdvaniAge : Major, Occu: Business,All residing at B-504, Royal Imperi, Kokane Chowk, Pimplesaudagar, Pune, Dist. Pune and carrying their business under the name and style of Raja Wines at Tuljabhavani Shopping Complex, Osmanabad, District : Osmanabad. ...PETITIONERS VERSUS1. The State of MaharashtraThrough The Minister of State Excise,Mantralaya, Maharashtra State, Mumbai.2. The Commissioner of State,Excise, Maharashtra State,Old Custom House, Mumbai-400 023.3. The Collector of Osmanabad(State Excise Department),Dist. Osmanabad.4. Sheetal Shreeram Naik,Age: Major, Occu: Household,
Legal Reasoning
Ethape( 2 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.5. Vinayak Shrikrishna LavarAge: Major, Occu. Business,both residing at Pandharpur Galli,Tuljapur, District: Osmanabad. ...RESPONDENTSMr.V. D. Sapkal, Senior Advocate i/by Mr. S. R. Sapkal and Mr. A. K. Tiwari, a/w Mr. A. D. Khedkar, Advocates for the Petitioners.Mr.K. B. Jadhavar, AGP for Respondent Nos. 1 to 3/State.Mr. S. A. Wakure, Advocate for Respondent Nos. 4 and 5. CORAM:KISHORE C. SANT, J.RESERVED ON:30th JANUARY 2025PRONOUNCED ON:18th MARCH 2025ORDER :-1.Heard the learned Advocate for the parties. By consent of theparties, the petition is taken up for final disposal.2.This petition arises out of Judgment and Order dated 26th June2019, passed by the Hon’ble Minister, State Excise. The dispute is aboutthe license bearing Nos. F.L.-II/2, C.L./F.L./TOD-III/2 of the year 1973-74. 3.By way of impugned Judgment and Order, the revision of the Ethape( 3 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Petitioner came to be rejected and it is directed to include the names ofthe present Respondent Nos.4 and 5 in the license within two weeksfrom the date of the order. 4.The Petitioner No.1 is the person in whose name the originallicense was standing. Petitioner No.2 and 3 are the sons of PetitionerNo.1. Respondent No.1 is the State Government. Respondent No.2 is theCommissioner of State Excise, State of Maharashtra. Respondent No.3 isCollector of Osmanabad, State Excise Department, and Respondent Nos.4 and 5 are the persons, who are directed to be shown as partners whilerenewing the license. 5.The facts giving rise, in short, to the petition are that, thePetitioner No.1 was having FL-II license. Petitioner Nos.2 and 3 are thesons of Petitioner No.1, who were added as a partner in the said licensewith prior approval of the Collector. The names of Respondent Nos.4and 5 were deleted from the partnership firm. Original license,Petitioner No.1 was having license in his individual name, the presentRespondent Nos.4 and 5 were added as partners by executing Ethape( 4 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Partnership Deed dated 5th November 1983. However, the saidPartnership Deed was not approved by the Collector as larger portionwas in the Partnership Deed was shown of Respondent Nos.4 and 5.Partnership Deed dated 5th November 1983 was, therefore, not accepted.The Petitioner on realizing that the partnership with Respondent Nos.4and 5 was in violation of guidelines issued by the Government videcircular dated 26th March 1984. There was also communication dated 2ndMay 1984 by the Collector informing this to the Petitioner No.1. In viewof that, the Superintendent of State Excise by communication dated 21stNovember 1984 directed the Petitioner No.1 to submit fresh partnership.6.In view of communication, fresh Partnership Deed dated 18thFebruary 1985 was executed in which the Petitioner No.1 was shown tobe the share holder to the extent of 34% and Respondent Nos.4 and 5,each were shown to have 33% share. This Partnership Deed wasaccepted. However, thereafter certain disputes started betweenPetitioner No.1 and Respondent Nos.4 and 5. The Petitioner No.1 sent amessage to Respondent No.4 and 5 on 20th April 1991 and informed that Ethape( 5 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.the partnership firm is dissolved. Pursuant to that, the Petitionerrequested the Collector to delete the names of Respondent Nos.4 and 5from the license. It was clearly stated that, he do not wish to continuepartnership business with them. The Collector, in view of this, calledPetitioner No.1 and Respondent Nos.4 and 5 directing to show cause asto why license should not be suspended pending dispute between them.By communication dated 24th February 1992, the Collector directed thePetitioner No.1 to get the dispute resolved from Civil Court. TheRespondent Nos.4 and 5 filed a Suit. It was prayed for mandatoryinjunction against the Collector and Superintendent not to withhold therenewal of the license for want of signature of Petitioner No.1. The suitwas dismissed for default on 21st November 1995. The said orderattained finality as it was not challenged. 7.The Petitioner No.1 appprehending that the Collector may renewthe license in the name of Respondent Nos.4 and 5, filed a writ petitionin this Court and prayed for writ of certiorari and for quashing ordersadverse to the interest of the Petitioner, therein the interim relief was Ethape( 6 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.granted. He was required to file one civil application in the said petitionfor direction to the Collector and Superintendent to renew the license inthe name of Petitioner No.1 only. The said application also was allowed.Ultimately, the petition was withdrawn by the petitioner. The interimrelief however was extended. In the meantime, the Collector waspleased to delete the names of Respondent Nos.4 and 5 by order dated10th April 1993. The said order was never challenged by the RespondentNos.4 and 5. 8.In 2001, the Petitioner No.1 filed an application admittingPetitioner Nos.2 and 3 as partners in the business. The Collectorallowed the said request by order dated 28th July 2001. The said orderalso attained finality. The Respondent Nos.4 and 5 filed an applicationwith the Collector and prayed for insertion of their names into thelicense without any prayer to delete the names of Respondent Nos.2 and3 from the said business. The Collector directed to continue licence inthe name of petitioners and directed respondent No.4 and 5 to approachCivil Court. The Respondent Nos.4 and 5, however lateron approached Ethape( 7 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.the Appellate authority for insertion of their names. The authorityallowed the application. The said was challenged by the Petitionerbefore the Hon’ble Minister. It is the main grievance of the Petitioner’sthat though revision filed by the Petitioner, the orders passed by theCollector and the Superintendent are set aside. However, direction isgiven to insert names of Respondent Nos. 4 and 5 in the business andtherefore, petitioners are before this Court.9.Mr.Sapkal, the learned Senior Advocate appearing for Petitionersargued that the partnership between Petitioner No.1 and RespondentNos.4 and 5 was partnership at Will. Clause (7) is specific showing this.Thus, every partner was having right to dissolve the partnership bygiving prior notice to other partners. The Petitioner No.1, therefore, hadissued a notice to the Respondent Nos.4 and 5. The partnership,therefore, stood dissolved. As it is, the said Partnership Deed dated 5thNovember 1983 was never acted upon. The Petitioner No.1, thereafter,executed fresh deed on 30th March 1985. Notice was issued for renewalof license. The Petitioner No.1 on 20th April 1991 sent a notice to Ethape( 8 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Respondents by telegraphic message expressing his intention to dissolvethe partnership. The said was never challenged. Thus, the RespondentNos.4 and 5 ceased to be the partners. In that view, the suit was filed byRespondents. However, the suit was filed against the authorities andRespondent No.1. In that view, the Collector issued show cause noticeas to why the license should not be suspended. The Collector, therefore,sent a communication to the Petitioner No.1 to get the dispute resolvedfrom the Civil Court. After dismissal of suit of respondent for default, norights remained with the Respondents. In the said suit, there were noprayer against Petitioners No. 2 and 3. However, because of the orderpassed by the Collector, the Petitioner No.1 was required to approachthis Court by filing writ petition in 1992 praying for direction to theCollector and the Superintendent not to renew the license at theinstance of Respondent Nos. 4 and 5. The said petition was disposed offwith direction to approach the Collector by continuing interim relief. 10.It is in this view, he submits, the Respondent Nos.4 and 5approached the Collector for renewal of license in their names. The Ethape( 9 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Collector however, rejected the application holding that the Respondentswere no more partners of the partnership firm and continued the licensein the name of Petitioner No.1. They were directed to obtain orders fromthe Civil Court. He submits that, the said order was challenged by theRespondents before the learned Commissioner. The learnedCommissioner directed the parties to make fresh Partnership Deed givingsuitable percentage in the share and directed to delete the names ofPetitioner Nos. 2 and 3. It is the submission that the direction fordeletion of the names of Petitioner No.2 and 3 could not have beenpassed by the learned Commissioner. It is, therefore, the Petitionersapproached the Minister in which the Hon’ble Minister has passed anorder. He submits that the order is totally illegal. The learned Ministerhas exceeded the jurisdiction by directing to insert the names ofRespondent Nos.4 and 5 by deleting the names of Petitioner Nos.2 & 3.By relying upon the circular of the Government. There wascommunication by the Joint Secretary, Home Department, State ofMaharashtra dated 6th July 1989 giving direction for issuance/renewal oflicense. The order of the Minister is against the legal position. The Ethape( 10 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Respondents could not have made prayer before the Commissioner forinserting their names as the said prayer was not made before theCollector. However, that was directed to be done by the order of theCommissioner. The Commissioner exercised that power and directed todelete the names of the petitioner Nos. 2 and 3 and has, thus, exceededthe jurisdiction while directing the parties to enter into an agreement.He has wrongly observed that the names of Respondents were renewedin view of interim relief granted by this Court in writ petition No.626 of1992. He further submits that, before the Minister, clause (2) of theorder passed by the Collector, was not challenged. Thus, the orderagainst the Petitioner is without jurisdiction. At the most, the revisioncould have been dismissed but no further order could have been passed.The learned Senior Advocate for the petitioners relied upon thefollowing judgments:-(i)Ajit Majur Kamgar Sahakari Sanstha Vs. State of Maharashtra and Ors.1;(ii)Ramesh Shrikrishna Dhore and Anr. Vs. 12006 (6) Bom. C.R. 402 Ethape( 11 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.Commissioner of State Excise Bombay and Ors.2;(iii)Shamlal Jaglal Jaiswal Vs. The State of Maharashtraand Ors.3;(iv)Uttam s/o Shamlal Jaiswal Vs. The State of Maharashtra and Ors.4’(v)Prabhakar s/o. Mohiniraj Wable Vs. The State of Maharashtra and Ors.5;(vi)Banarsi Vs. Ram Phal 6;(vii)Budheswar Barua Vs. Jatindra Nath Baruia7.11.The learned Senior Advocate for the petitioner relied upon Section23 of the Contract Act and Section 43 of the Partnership Act in supportof this submission and submits that when the partnership was at Will, itwas open for any of the partners to dissolve the partnership by givingnotice to other partner. 12.Mr.Wakure, the learned Advocate for the Respondents opposed thepetition. He submits that the writ petition of the Petitioner wasdismissed. After dismissal of writ petition, the earlier position wouldcontinue i.e. Respondent Nos. 4 and 5 would be treated as partners and21998 (2) Mh.L.J. 93931998 (1) Bom.C.R. 1341998 (1) Bom C.R. 43752002 (2) ALL MR 92162003 DGLS(SC) 1907AIR 1976 Gauhati 12 Ethape( 12 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.the license was required to be continued in their names. Thepartnership, therefore, shall be treated in existence. The Collector haddirected the Petitioner No.1 to get the dispute resolved from the CivilCourt. The Petitioner instead of filing civil suit, approached this Hon’bleCourt. After the Petition was withdrawn, the status quo ante would comeinto force. Even after dismissal of writ petition, the Petitioner No.1 didnot approach civil Court. He submits that when the names ofRespondents were directed to be added as partners, the names ofPetitioner Nos. 2 and 3 would automatically stand deleted as necessaryconsequence without any order. Since last 30 years without getting therights adjudicated before the proper forum, the Petitioner is renewingthe license in his name all alone. He submits that the suit was filed on30th March 1991 by the Respondent whereas the telegraph givingintimation of dissolution of partner sent by the Petitioner No.1 was on20th April 1991. In this view, the suit became infructuous and, therefore,was not prosecuted. None prosecution of the suit would not help thePetitioner in any way. He submits that till the rights are adjudicated bythe proper authority, the earlier position before filing the writ petition Ethape( 13 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.No.626 of 1992 would prevail. He further submits that the partnershipfirm could not have been dissolved by sending only telegraph. He reliedupon the judgments in the case of Addanki Narayanappa and Anr. Vs.Bhaskara Krishnappa and Ors.8 and in the case of Shripat s/o. ChaitujiMahajan Vs. Sanjay Radheshyam Jaiswal and Ors.913.In rejoinder, the learned Senior Advocate Mr.Sapkal submits thatlooking to the clauses of the Partnership Deed, it is clearly seen that thePartnership was at Will and, therefore, can be dissolved by giving noticeby any partner. 14.In the case of Banarsi Vs. Ram Phal (supra), the Hon’ble ApexCourt considered the provisions of Sections 96 of and 100 of the Code ofCivil Procedure, 1908. In the said case, there were cross suits filed onthe basis of agreement to sale. The Court considered the question aboutthe power of the appellate court to interfere with and reverse or modifythe decree appealed against by the appellants in the absence of anycross-appeal or cross-objection by Respondent under Order 41 Rule 22 of8AIR 1966 SC 1300 92002 (3) Bom.C.R. 752 Ethape( 14 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.the CPC. It was held that in absence of cross objection, no decree underappeal can be altered or varied to the advantage of the Respondent or tothe disadvantage of the appellant. In the present case, though it wasonly the revision by the Petitioner therein, the learned Minister not onlydismissed the revision but has passed an order to the disadvantage of thePetitioner. This is done so by directing to insert the names ofRespondent Nos.4 and 5 in the license. This Court finds that, at themost, the revision could have been dismissed. There was no reason forthe learned Minister and Commissioner to pass an order in favour ofRespondent Nos.4 and 5 when they had not preferred any revisionagainst the impugned order passed by the Commissioner. Same principleis applicable to the revision as well. This Court finds that the Petitionerhas rightly relied upon this case. In the case of Ajit Majur KamgarSahakari Sanstha (supra), this Court has relied upon the judgment in thecase of Banarsi (supra) and held that in an appeal filed by the Petitionertherein no prejudicial order could have been passed by the AppellateCourt. Ethape( 15 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.15.So far as judgment in the case of Budheswar Barua (supra) isconcerned, it was the case involving question of Section 43 of thePartnership Act, and the clause “Partnership at Will”. It is held that one’sintention to dissolve the firm is sufficient to dissolve the firm. Thus, inthis case, this Court finds that once notice was issued by the Petitioner toRespondent Nos.4 and 5 declaring his intention to dissolve the firm itwas sufficient and no further action was required. 16.So far as the judgment in the case of Addanki Narayanappa andAnr. (supra), The Hon’ble Apex Court considered various sections of thePartnership Act. It is held that after property is brought in by thepartners in the partnership, the same becomes the property of thepartnership firm. Thereafter, partners are entitled only to his share ofprofits, accruing to the partnership from realization of the property. Evenafter dissolution, the property will vest in all the partners and in thatsense every partner has an interest in the partnership. Considering thiscase, there is no dispute about the same proposition. In the present case,there is nothing to show that any property as such was owned by the
Decision
Ethape( 16 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025.partnership firm. Partnership was only to run the business. 17.The question in the present is that whether the license is broughtby the partners-Respondent Nos.4 and 5, it is the case that the license isalready standing in the name of Petitioner No.1. The Respondent No.4and 5 were merely were taken as partners. There is no dispute about theproperty. The dispute is only with regard continuation of the license. Thepartnership is at Will and Petitioner No.1 has issued notice toRespondent Nos.4 and 5 dissolving the partnership firm. As such afterdissolution of partnership firm, nothing remained as property of thefirm. This Court finds that the judgment in the case of Shripati Mahajan(supra) is not applicable in the present case in the reasons that sincebeginning license was only in the name of Petitioner No.1. 18.Considering all above and in view of the above discussion, thisCourt finds that case is made out to allow the writ petition. Hence, thefollowing order:- Ethape( 17 ) WP-8072-2019 modifiedThis order is corrected pursuant to speaking to minutes order dt.24.03.2025. ORDER(i)Petition stands allowed in terms of prayer clause (B). (ii)No order as to costs. [KISHORE C. SANT, J.]