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2013 DIGILAW 573 (KAR)

Motekar Brothers, Durga Wine Shop v. State of Karnataka

2013-04-30

RAM MOHAN REDDY

body2013
ORDER Ram Mohan Reddy, J.—Petitioners being partnership firms constituted under the Indian Partnership Act, 1932 with four brothers as partners in the first two firms and two brothers in the third firm, obtained CL-2 licences under the Karnataka Excise Act, 1965 and Rules framed thereunder, carry on business of the retail vending in liquor at the address shown in the cause title. It appears that one of the partners by name Kubendra B. Motekar reportedly died on 7-11-2011 where afterwards one of the partners in the firms made a representation to the Deputy Commissioner of Excise-third respondent, to induct the widow of the deceased partner as a partner in each of the firms in place of the deceased partner in terms of Clause 10 of the partnership deeds - Annexures-B1 and B2. The respondent 3 instead of passing orders, invoking Rule 17-A of the Karnataka Excise Licences (General Conditions) Rules, 1967, is said to have misread the provisions and applied Rule 17-B of the said Rules to direct the petitioners to pay transfer fee as applicable to a transfer of business, by issuing demand notice dated 19-3-2013 to which the partner responded by a reply, where afterwards notices of even date 2-4-2013 Annexures-A1, A2 and A3 were issued. Hence, these petitions. 2. Learned Counsel for petitioners reiterates the averment set out in the memorandum of writ petitions. Per contra, learned Government Pleader for the respondent-State seeks to sustain the notices impugned as being well-merited, fully justified and not calling for interference. 3. Heard the learned Counsel for the parties. Perused the pleadings and examined the notices impugned. 4. There can be no more dispute that Kubendra Motekar reportedly died on 7-11-2011 on which date, he was a partner in the petitioner-firms, as disclosed in the partnership deeds Annexures-B1 and B2 as well as the copies of the CL-2 licences for the year 2012-13 Annexures-C1, C2 and C3. 5. There is also no dispute that, Clause 10 of the partnership deeds -Annexures-B1 and B2 provides that, on the death of one of the partners, the partnership firms will not stand dissolved but a legal representative of the deceased partner may be inducted as a partner. 6. In the light of the admitted facts, the question is, whether Rule 17-A or 17-B of the Rules applies? 7. 6. In the light of the admitted facts, the question is, whether Rule 17-A or 17-B of the Rules applies? 7. Rule 17-A of the Rules reads thus: 17-A. Transfer in the event of death.--In the event of death of the licensee or the lessee during the currency of the licence or lease, the Deputy Commissioner may on an application by the legal heirs of the deceased with the previous sanction of the Excise Commissioner, transfer the licence or the lease as the case may be, in their favour. 8. Rule 17-B reads thus: 17-B. Transfer of licence in other cases.--(1) Notwithstanding anything contained in Rule 2, licences issued.-- (i) for sale of Indian Liquor (other than arrack) or Foreign Liquor or both, in Form CL-1 (Wholesale licence) or CL-2 (retail shop licences) or CL-7 (Hotel and Boarding House Licenses) or CL-9 (Refreshment room (Bar) Licence under the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968; or (ii) for sale of Beer under the Karnataka Excise (Lease of Right of Retail Vend of Beer) Rules, 1976; The Deputy Commissioner may on an application by the licensee and subject to payment of transfer fee equivalent to the annual licence fee specified in Rule 8 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 or Rule 5 of the Karnataka Excise (Lease of Right of Retail Vend of Beer) Rules, 1976, as the case may be, and with the prior approval of the Excise Commissioner, transfer such licence in favour of any person named by such licence, if such person is eligible for grant of a licence under the Karnataka Excise Act, 1965 or the Rules made thereunder. (2) Nothing in this rule shall apply to transfer of licence under Rule 17-A. 9. A bare reading of the Rule 17-A of the Rules makes it abundantly clear that, in the event of the death of a partner in a partnership firm, a licensee, during the currency of the licence, the Deputy Commissioner may on an application by the legal heirs of the deceased with the previous sanction of the Excise Commissioner, transfer the licence in their favour. If that is so, then the legal representative of the deceased K.B. Motekar is entitled to be inducted as a partner in the petitioner-firms and the Deputy Commissioner is bound by Rule 17-A to transfer the licences in respect of the three firms. In that view of the matter, Rule 17-B has no application to the facts of the case. In the result, these petitions are allowed. The demand notice Annexure-E1 followed by notices Annexures-A1, A2 and A3 are quashed. The third respondent-Deputy Commissioner is directed to pass orders on the representation Annexure-E2 by exercising jurisdiction under Rule 17-A of the Rules and to pass orders in accordance with law and in the light of the observation made supra, in any event on or before 9th May, 2013.