Dismissed

Mrs. S.Rajalakshmi, v. The Commissioner (Prohibition and Excise)

Madras HC7 Jan 2022WP/9931/2021

Case brief

AI extract

What is this about?

In a writ petition, the petitioner, a co-heir to a deceased father holding a liquor licence, challenged the authorities for renewing the licence to her siblings. The court held that the writ jurisdiction cannot be used to resolve private succession disputes or obstruct a running business when civil proceedings are pending.

What did the court decide?

Impugned order confirming FL-3 Licence renewal stands confirmed; Writ Petition dismissed; connected miscellaneous petitions closed.

Mrs. S.Rajalakshmi, Vs The Commissioner (Prohibition and… — Property and Title | Madras HC (2022)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

Reserved On 30.11.2021 Pronounced On 07.01.2022

¶3

CORAM

¶4

THE HON'BLE MR.JUSTICE C.SARAVANAN

¶5

W.P.No.9931 of 2021 and W.M.P.Nos.10544, 10550 & 10547 of 2021

¶6

(Through Video Conferencing)

S.Rajalakshmi

... Petitioner

Vs.

1.The Commissioner (Prohibition and Excise), Ezhilagam, Chepauk, Chennai – 600 005.

2.M.Balasubramanian

3.M.Sundaram

4.M.Muthu Selvam

5.M/s.Hotel Blue Star International, No.108, Wall Tax Road, Park Town, Chennai – 600 003. ... Respondents

¶15

Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to call for the records of the first respondent in Na.Ka.No.Ma. (Ma)A2(4)/ 8539/19, dated 24.02.2020 and quash the same and direct the first respondent to withdraw the FL-3 Licence granted to the second to fourth respondents and fifth respondent at once and also suspend supplies of Indian Made Foreign Liquor forthwith, pending adjudication of the rights of the parties, who shall be entitled to run the Hotel / Bar / Business.

¶16

For Petitioner : Mrs.Vasudha Thiagarajan

¶17

For R1 : Mr.D.Ravichander Special Government Pleader For R2 to R5 : Mr.M.Ravind Subramaniam & Mr.M.Premkumar

¶18

https://hcservices.ecourts.gov.in/hcservices/

¶19

ORDER

¶20

The petitioner has challenged the impugned order dated 24.02.2020 bearing reference Na.Ka.No.Ma.(Ma).A2(4) / 8539 / 2019, whereby, the FL-3 Liquor Licence which was originally granted in the name of the father of the petitioner and the second to fourth respondents on 27.03.2019 has been allowed to be continued by the second to fourth respondents (hereinafter referred to as the second to fourth private respondents) without obtaining “No Objection” from the petitioner.

¶21

The petitioner and the second to fourth private respondents are siblings. They are children of late Mrs.M.Kaliammal who died on 02.07.2007 and Late Mr.P.M.Maruthai Chettiar who died on 07.10.2019.

¶22

The Commissioner of Prohibition and Excise, the first petitioner, had issued FL-3 Licence in the name of the Late Mr.P.M.Maruthai Chettiar during his life time. The said licence was last renewed for a period of one year on 18.03.2019. It was valid for a period one year between 01.04.2018 and 31.03.2019, though the copy of the said Licence states that it was valid between 01.04.2018 and 31.03.2019.

¶23

FL- 3 Licence was used for the business of the fifth respondent (Hotel Blue Star International) by the second to fourth private respondent who were partners along with their father/FL-3 licencee late Mr.P.M.Maruthai Chettiar till his death.

¶24

After the death of their father late Mr.P.M.Maruthai Chettiar, the private second to fourth respondents are running the said Hotel business and are using the said licence.

¶25

It is the case of the petitioner that the land on which the fifth respondent Hotel is situated and is located belonged to their mother Mrs.M.Kaliammal who passed away on 02.07.2007.

¶26

It is submitted that the said FL-3 Liquor License in the name of their late Mr.P.M.Maruthai Chettiar has been wrongly allowed to be used for the fifth respondent Hotel without obtaining “No Objection” from the petitioner. It is submitted that since late Mr.P.M.MaruthaiChettiar died intestate, the renewal of the license without obtaining “No Objection” from the petitioner was bad.

¶27

It is submitted that the fourth respondent herein namely, Mr.M.Muthu Selvam had earlier forged a Will dated 05.11.1998 to make it seem as if their mother had bequeathed the immoveable property to the fourth respondent, on which, the

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

fifth hotel is situated. It is submitted that O.P.No.906 of 2013 filed by the fourth respondent to probate the aforesaid forged Will and is pending before this Court.

¶30

The learned counsel for the petitioner submits though the petitioner and their father Mr.P.M.Maruthai Chettiar during his lifetime had objected the above Will and an order came to be passed as early as 11.12.2015 by this Court, yet no steps was taken to re-number the said O.P.No.906 of 2013 as a Testamentary Suit.

¶31

The learned counsel for the petitioner further submits that the petitioner as one of legal heirs of her mother late Mrs.M.Kaliammal the deceased owner of the property was also entitled to a share in the immovable property along with her sister who is also one of legal heirs and is also entitled to a sharein the business of the partnership firm as the father of the petitioner and the second to fourth private respondents died intestate without bequeathing / disposing the rights in favour of any of the second to fourth private respondents herein for running fifth respondent Hotel exclusively.

¶32

The learned counsel for the petitioner further submits that the petitioner had sent a representation to the first respondent to cancel the FL-3 Liquor Licence dated 18.03.2019, pursuant to which, the first respondent had temporarily suspended the supply of Liquor and had also issued Show Cause Notice dated 13.01.2020 to the fifth respondent Hotel in terms of Rule 22(2) of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981 framed under Sections 17-C, 17-D, 17-E, 18-B, 18-C, 20, 21 and 54 of the Tamil Nadu Prohibition Act, 1937.

¶33

The learned counsel for the petitioner further submits that the impugned order has however revoked the suspension without notice to the petitioner and was therefore liable to be quashed as it was in violation of principles of natural justice. It is further submitted that as long as the petitioner is entitled to a share in the assets of their father (i.e. late Mr.P.M.Maruthai Chettiar), the renewal of FL-3 Liquor Licence which stood in the name of their father or grant of new Liquor Licence, without “No Objection” from the petitioner was in violation of the rights of the petitioner.

¶34

The learned counsel for the petitioner further submits that on this score alone, the impugned order passed by the first respondent was liable to be quashed. The learned counsel for the petitioner has also referred to Paragraph No.19 of the counter affidavit filed by the private respondents for sustaining the impugned order that FL-3 Liquor Licence has been allowed to be continued by the second to fourth private respondents

¶35

https://hcservices.ecourts.gov.in/hcservices/

¶36

considering the genuineness and the welfare of the business.

¶37

It is submitted that such a stand cannot be countenanced as the first respondent has ordered in the impugned order to continue FL-3 Liquor Licence contrary to the rights of the petitioner under the Hindu Succession Act, 1956.

¶38

It is also submitted that the petitioner has an equal share in the immovable property and also has a right in the renewal of FL-3 Liquor Licence which was issued in the name of their father on 18.03.2019 which was earlier renewed from time to time.

¶39

Appearing on behalf of the second to fourth private respondents, the learned counsel submits that the petitioner filed C.S.No.336 of 2020 and had prayed for partition of the property, i.e. in the fifth respondent Hotel and for rendition of mesne profit and has further asked for interim relief. During the interregnum, the petitioner has filed this Writ Petition.

¶40

The learned counsel for the second to fourth private respondents submits that the issue as to whether the petitioner is entitled to interfere with business of the fifth respondent partnership concern is to be ultimately decided in C.S.No.336 of 2020.

¶41

He further submits that pending disposal of the aforesaid suit, the petitioner cannot interfere with the business of the fifth respondent and therefore this Writ Petition is without any merits. Under these circumstances, the learned counsel for the second to fourth private respondents prays for dismissal of this Writ Petition.

¶42

Appearing on behalf of the official respondent, i.e. first respondent, the learned Special Government Pleader submits that no doubt that there was an order dated 13.01.2020 bearing reference Na.Ka.No.Ma. (Ma). A2 (4)/8539/2019 suspending the supply of Liquor to the fifth respondent in view of the dispute, which was subsequently revoked vide the impugned order dated 24.02.2020. It is submitted that it is in line with the provisions of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981.

¶43

The learned Special Government Pleader for the first respondent further submits that the FL-3 Liquor Licence was not suspended. Only the supply of liquor was suspended temporarily. He further submits that there is no violation of principle of natural justice either in suspending the supply under FL-3 Liquor Licence under Rule 22(2) of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981 or in the subsequent revocation

¶44

https://hcservices.ecourts.gov.in/hcservices/

¶45

of the suspension order vide impugned order dated 24.02.2020.

¶46

The learned Special Government Pleader for the first respondent further submits that the petitioner has to work out remedy in accordance with law in O.P.No.906 of 2013 and C.S.No.336 of 2020 and therefore also prays for dismissal of this Writ Petition.

¶47

Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the first respondent and the learned counsel for the second to fourth private respondents and perused the impugned order dated 24.02.2020 bearing reference Na.Ka.No.Ma. (Ma). A2 (4) / 8539 / 2019.

¶48

Short point that arises for consideration in this Writ Petition is whether the petitioner is entitled to have say in the renewal of FL-3 Liquor Licence which was admittedly issued in the name of the father of the petitioner and the second to fourth private respondents who were the partners of the fifth respondent Hotel and whether there was any violation of principle of natural justice while revoking the suspension order.

¶49

The operative portion of the impugned order dated 24.02.2020 reads as under:-

¶50

nkw;fhQqk; NH;epiyapy;. g;gp/vk;/ Kuij brl;oahh; vd;gtuJ ,wg;gpw;F gpd;dh; jp/-s; g;S !;lhh; ,d;lu;nec&;dy; ncwhhl;lypid bjhlu;e;J elj;JtJ Fwp.j;j neu;tpy;. cau;ePjpkd;wj;jpy; bjhlug;gl;l tof;Fvz;. O.P.No.906 of 2013 kw;Wk; gl;lhtpid uj;J bra;af; nfhup 1) vk;/ghyRg;gpukzpak. 2) vk;/Re;juk; kw;Wk; 3) vk;/Kj;Jbry;tk; Mfpa K:tUk; mspj;j kDtpd; kPjhd tUtha; nfhl;lhr;rpau;. tlbrd;id tUtha; nfhl;lk; mtu;fspd; Mizfs; gpwg;gpf;fg;gl;l gpd;dnu. jp-s; g;S !;lhh; ,d;lu;neco;dy; ncwhl;lypd; cupkjhuu; bgau; khw;wk; Fwpj;j ,Wjp Mizfs; gpwg;gpf;f ,aYk;. Vdnt. cau;ePjpkd;wj;jpy; bjhlug;gl;l tHf;F vz;/ O.P.No.906 of 2013 kw;Wk; gl;lhtpid uj;J bra;af;nfhup 1) vk;/ghyRg;gpukzpak;. 2) vk;/Re;juk; kw;Wk; 3) vk;/Kj;Jbry;tk; Mfpa K:tUk; tUtha; nfhl;lhr;rpu;> tlbrd;id tUtha; nfhl;lk; mtu;fsplk; mspj;jkD Mfpatw;wpd; kPJ Mizfs; gpwg;gpf;fg;gLk; tiu nkw;go vg/vy;/3 cupkj;jpid 1) vk;/ghyRg;gpukzpak;. 2) vk;/Re;juk; kw;Wk; 3) vk;/Kj;Jbry;tk; Mfpnahu; bjhlu;e;J elj;jp tu mDkjp tH';fp Mizaplg;gLfpwJ.

¶51

A reading of the impugned order indicates that pending further orders by the Tahsildar on the application filed by the second to fourth private respondents for cancelling the patta,

¶52

https://hcservices.ecourts.gov.in/hcservices/

¶53

permission shall be granted to use the FL-3 Licence by the second to fourth private respondents for running the aforesaid Hotel business in the name of the fifth respondent.

¶54

A Reading of the reply affidavit filed by the petitioner seems to indicate that the petitioner and her sister had claimed rights over the property, on which the fifth respondent Hotel is situated, on the strength of a Will dated 20.03.2002 registered as Document No.28/2002, Book III at the Office of the Sub-Registrar, Periyamet, in favour of the petitioner and her sister.

¶55

The fourth respondent has also claimed that the same property had been bequeathed by their mother by a registered Will dated 05.11.1998 vide Document No.29/1999, Book III at the office of the Sub-Registrar, Periamet which is the subject matter of O.P.No.906 of 2013.

¶56

A reading of the Show Cause Notice dated 13.01.2020 issued to the fifth respondent which preceded the impugned order also reveal that the petitioner's son namely, S.Govidarajan had sent a representation dated 26.12.2019 claiming that the petitioner was also a partner in the fifth respondent Hotel business

¶57

Reference No.5 in the said Show Cause Notice dated 13.01.2020 also indicates that a legal notice was also issued on 31.12.2019 on behalf of the petitioner stating that in view of the pendency of O.P.No.906 of 2013, the licence should not be renewed in favour of any of the second to fourth private respondents.

¶58

There are inter-se disputes regarding the ownership over the property as to whether the petitioner and her sister Jeevarathinam are entitled for a share in the property or business or not.

¶59

It is the contention of the petitioner that the fourth respondent fabricated a Will” dated 05.11.1998 as if the property, on which the fifth respondent is running Hotel had been bequeathed by their mother late Mrs.M.Kaliammal.

¶60

The facts also indicate that the petitioner and her sister (Jeevarathinam) have also got a registered Will dated 20.03.2002 registered as Document No.28/2002. Facts also indicate that the petitioner and her sister had also managed to obtain a Patta issued in their name. The facts also reveal that the second to fourth private respondents have taken steps for cancelling the patta vide their Application dated 10.12.2019 before Tahsildar.

¶61

https://hcservices.ecourts.gov.in/hcservices/

¶62

It is also the case of the petitioner that the petitioner is one of the partners in the fifth respondent partnership concern as is evident from a reading Show Cause Notice. Therefore, it is not open for the petitioner to strangulate a running business of a going concern by objecting the renewal of the FL-3 Licence used for the business.

¶63

Further, the rights of the petitioner over the immoveable property is a subject matter of O.P.No.906 of 2013. The said proceeding is to be renumbered as a Testamentary Suit after the petitioner and their father late Mr.P.M.Maruthai Chettiar had objected to relief sought for in O.P.No.906 of 2013.

¶64

It is not clear as to why the second to fourth private respondents, particularly fourth respondent, had not taken any steps to re-number as Testamentary Suit even though an order came to be passed as early as 11.12.2015.

¶65

The facts also indicate that the petitioner has also filed C.S.No.336 of 2020 for partition of the property where the petitioner has also prayed for a mesne profit from the business, of which, their late father was a partner along with second to fourth private respondents.

¶66

The disputes in these proceedings require a early resolution. Pending such resolution, the petitioner cannot interfere with the business. The petitioner should take steps for early resolution of civil dispute.

¶67

The provision of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981 has not specifically addressed a situation where the licence holder dies. Rule 24 of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981 merely prescribes for transfer of a licence and for situation arising out of a change of premises or locality. Rule 24 of the aforesaid Rules reads as under:-

¶68

Transfer of licence, change of premises or locality;— Licences issued under these rules shall not be sold, transferred or sub-rented without the previous permission of the licensing authority. A licence holder shall not change the premises in which he carries on business under his licence except with the previous permission of the licensing authority. Permission to shift the business during the currency of the licence outside the area in which the licence is intended to serve shall be treated as the grant of a fresh licence and all the provisions relating to the grant of a new licence shall

¶69

https://hcservices.ecourts.gov.in/hcservices/

¶70

likewise apply to granting of such permission except those relating to the payment of the licence fee and collection of security deposit with reference to rule 23.

¶71

The Tamil Nadu Liquor (Licence and Permit) Rules, 1981 has been framed under Sections 17-C, 17-D, 17-E, 18-B, 18-C, 20, 21 and 54 of the Tamil Nadu Prohibition Act, 1937 (Tamil Nadu Act X of 1937). Chapter IV of the aforesaid Rules deals with Rules relating to the grant of personal licences.

¶72

Under Rule 17(a) of the aforesaid Rules, FL3 Licence is issued for possession of liquor by a Star Hotel for supply to foreign tourists and foreigners resident in India holding personal permits and also citizens of India holding personal permits for consumption within the licensed room of the Hotel or for removal to their private rooms in the same Hotel.

¶73

As per Rule 18 of the aforesaid Rules, every licence granted is valid for the financial year beginning from the 1^st April or the date of issue of the licence and ending with the 31^st March, immediately following unless otherwise stated in the licence issued in a particular case. The licence is valid for a period one year.

¶74

For getting a Licence under the Rules, a prospective applicant has to pay a (1)Privilege Fee; (2)Licence Fee; and (3) Application Fee prescribed under the Rules.

¶75

Under Rule 21 of the aforesaid Rules, a licence holder desiring to renew the licence may make an application in the prescribed form (the same as for the original grant of the Licence) atleast one month before the date of expiry of the licence. The application may be sent to the licensing authority directly.

¶76

The provisions of Rules 18 to 20 of the Rules which prescribe the procedure to be followed while getting a new Licence shall, as far as may be, apply to an application for renewal of licence as if it were an application for the original grant of a licence, where such an application for renewal of the licence has not been made within a period of one month before the expiry as specified herein, but in no case after the expiry of the licence, the licensing authority may admit such application, provided there are good and sufficient reasons for the delay on payment of an additional fee of twenty five per cent of the prescribed licence fee.

¶77

As per Rule 24 of the aforesaid Rules which has been extracted above, Licence issued under these Rules shall not be

¶78

https://hcservices.ecourts.gov.in/hcservices/

¶79

sold, transferred or sub-rented without the previous permission of the licensing authority.

¶80

A Licence holder also cannot change the premises, in which, he carries on business under his licence except with the previous permission of the licensing authority.

¶81

It is also clear from the reading of Rule24 of the aforesaid Rules that permission to shift the business during the currency of the licence outside the area in which the licence is intended to serve shall be treated as the grant of a fresh licence and all the provisions relating to the grant of a new licence shall likewise apply to granting of such permission except those relating to the payment of the licence fee and collection of security deposit with reference to Rule 23 of the Rules.

¶82

A Licence holder is also not entitled to claim any compensation on account of cancellation, suspension, temporary suspension or non-renewal of the licence.

¶83

Though the Rules are simple and straight forward and seem to indicate that Licence is to be granted as a matter of right to those who satisfy the conditions of the Rules. The reason why the second to fourth private respondents have not applied for a new FL3 licence and have tried to renew the old licence is perhaps on account of delay and difficulties in getting it. It is perhaps easier to renew an existing licence than processing a fresh licence.

¶84

The original licensee late Mr.P.M.Maruthai Chettiar the father of the petitioner and the second to fourth private respondents died intestate on 07.10.2019. The said FL3 licence would have been valid upto 31.03.2020, though photo copy of the said FL-3 Licence dated 18.03.2019 says that it was valid between 01.04.2018 and 31.03.2019.

¶85

The facts indicate that in C.S.No.336 of 2020 filed before the Original Side of this Court to partition the assets of the family and the share of the father in the fifth respondent partnership firm (Hotel), the petitioner has also prayed for mesne profit pending disposal of the about suit.

¶86

Though there is no doubt that the petitioner has a right to share in the profits made from the utilization of FL-3 Licence which stood in the name of their father late Mr.P.M.Maruthai Chettiar, it is not open for the petitioner to strangulate a going business of the fifth respondent Hotel, of which, their father was a partner and had contributed the said FL-3 Licence.

¶87

https://hcservices.ecourts.gov.in/hcservices/

¶88

Further, though the petitioner's son has also stated that the petitioner is one of the partner in the fifth respondent Hotel business, an attempt of the petitioner to frustrate the business cannot be permitted particularly when the Rules are silent as to what would happen when the licence holder dies.

¶89

The reason why such a situation has not been contemplated in the Rule is perhaps on account of the fact that the FL-3 licence is itself valid only for a period of 12 Months and on account of Rule 21A of the said Rules which contemplates refund of the amount paid as licence fee and privilege fee.

¶90

Therefore, it is not open for the petitioner to object the renewal of the FL-3 Licence for vending liquor in the fifth respondent Hotel. The petitioner cannot strangle the business in a bid to force the second to fourth private respondents to either settle the dispute or have the suit partly decreed inthis Writ Petition.

¶91

Further, there are several disputed questions of facts which are subject matter of C.S.No.336 of 2020 and O.P.No.906 of 2013. Internecine private disputes between the parties cannot be decided in this Writ Petition whether directly or indirectly.

¶92

The impugned order also does not clearly state as to when FL-3 Licence dated 18.03.2019 which was issued in the name of Mr.P.M.Maruthai Chettiar during his lifetime was renewed and whether the said FL-3 License was renewed in the name of any one of the second to fourth private respondents.

¶93

The petitioner therefore has to workout a remedy against the second to fourth private respondents in the manner known to law in C.S.No.336 of 2020 and O.P.No.906 of 2013.

¶94

The renewal of FL-3 licence which is essential for the business of fifth respondent cannot be questioned by the petitioner merely because there was a suspension of supply of liquor earlier under the FL-3 licence which was later revoked vide impugned order.

¶95

Jurisdiction of this Court under Article 226 of the Constitution of India also cannot be allowed to be misused for settling the private dispute between the private parties particularly when the Court is already seized of civil disputes between them.

¶96

Therefore, the impugned order stands confirmed and this Writ Petition is liable to be dismissed and is accordingly

¶97

https://hcservices.ecourts.gov.in/hcservices/

¶98

dismissed. No. cost. Consequently, connected Miscellaneous Petitions are closed.

¶99

Sd/Assistant Registrar(CS-VII)

¶100

//True Copy//

¶101

Sub Assistant Registrar

¶102

jen

¶103

¶104

The Commissioner (Prohibition and Excise), Ezhilagam, Chepauk, Chennai – 600 005.

¶105

+2cc to Mr.R.Thiagarajan, Advocate, S.R.No.1549

¶106

+1cc to Mr.M.Aravind Subramaniam, Advocate, S.R.No.1865

¶107

W.P.No.9931 of 2021 and W.M.P.Nos.10544, 10550 & 10547 of 2021

¶108

PVS(CO) SB(07/02/2022)

¶109

https://hcservices.ecourts.gov.in/hcservices/

Mrs. S.Rajalakshmi, v. The Commissioner (Prohibition and Excise)

Case brief

What is this about?

What did the court decide?

Mrs. S.Rajalakshmi, v. The Commissioner (Prohibition and Excise)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S.Ss Bright Steels Vs The Union of India

M/s.Ootacamund Club Vs The Principal Commissioner

M/s.Bharath Traders Vs The Commercial Tax officer

Tvl.Sonal Vyapar Limited Vs The Assistant Commissioner (St)

M/S.Lalith Supplies Vs The Superintendent

A.Pavunkumar Vs The Member secretary