P.G.Joshy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021/30TH AGRAHAYANA, 1943** **RP NO. 392 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WA 1551/2018 OF HIGH COURT OF** **KERALA** ## **REVIEW PETITIONERS/RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY SECRETARIAT TO GOVERNMENT, DEPARTMENT OF EXCISE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033. 3 THE JOINT COMMISSIONER OF EXCISE, KOZHIKODE-673202. 4 THE DEPUTY COMMISSIONER OF EXCISE, MALAPPURAM-676101. 5 THE EXCISE INSPECTOR, TIRUR-676101. BY ADV.V.K.SUNIL,SR. GOVERNMENT PLEADER ## **RESPONDENT/APPELLANT:** P.G.JOSHY, AGED 50 YEARS, S/O. LATE P.K. GEORGE, MANAGING PARTNER, HOTEL SALIKARA, KUTTIPPURAM, KUTTIPPURAM P.O., MALAPPURAM DISTRICT-679571. BY ADVS. M.G.KARTHIKEYAN NIREESH MATHEW **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION** **ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 ## **P.B.SURESH KUMAR & N.NAGARESH, JJ.** ## **-----------------------------------------------** ## **Review Petition No.392 of 2021 in Writ Appeal No.1551 of 2018** ## **-----------------------------------------------** **Dated this the 21[st] day of December, 2021** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Respondents in the writ appeal are the petitioners in this review petition seeking review of the judgement in the writ appeal. The parties are referred to in this order for convenience, as they appear in the writ appeal. 2. The appellant is the Managing Partner of a firm named 'Hotel Salkara'. The firm was running a Bar on the strength of a licence issued to them in Form FL-3 under the Foreign Liquor Rules, 1953 (the Rules). One K.D.Antony was the Managing Partner of the firm when the said licence was issued. As such, the licence was issued on behalf of the firm in 3 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 the name of K.D.Antony. The firm was running the Bar on the strength of the said licence till 31.3.2014, on which day, the licence became non-operational due to the change in the Abkari policy. Later, in terms of Rule 13(11B) of the Rules, licences in Form FL-11 were issued to those who were holding licence in Form FL-3 till 31.3.2014. In the light of Rule 13(11B), the firm was also issued a licence in Form FL-11 in the name of K.D.Antony and the said licence was being renewed from time to time till 31.3.2017, on which day, the firm had to stop its business at the location where the business was being carried on in the light of the directions issued by the Apex Court in **State of Tamil Nadu v. K.Balu,** (2017) 6 SCC 715 **.** K.D.Antony died thereafter on 28.04.2017. As per the deed of partnership of the firm, in the event of death of a partner, the remaining partners are entitled to continue business in the name of the firm after satisfying the claim of the legal representatives of the deceased partner in respect of his share or by admitting one among the legal representatives of the deceased partner as a partner in the firm in the place of the 4 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 deceased partner. In the light of the said provision, the partnership was reconstituted admitting one among the legal representatives of K.D.Antony also as a partner in the firm. When the firm was reconstituted, the appellant was nominated as the new Managing Partner of the firm. The appellant thereupon applied to the competent authority under the Rules for permission to shift the location of the Bar to a place which does not contravene the directions in the judgment of the Apex Court referred to above, for continuing the business of the firm. He also preferred an application to accord sanction for the reconstitution of the firm effected by substituting one of the legal representatives of the deceased partner in the place of the deceased partner. Similarly, he preferred an application for issuing the licence of the firm in his name in the place of the deceased partner. In terms of Ext.P7 order, the competent authority accorded sanction to change the licence of the Bar to the name of the appellant on condition that the appellant shall pay a sum of Rs.20 lakhs. The condition aforesaid was imposed purportedly invoking the third proviso (wrongly shown as 5 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 second proviso in Ext.P7) to Rule 19(iv) of the Rules then in force. In terms of the very same order, the competent authority has also accorded sanction for the reconstitution made on condition that the appellant shall pay a sum of Rs.20 lakhs for the said purpose as well. The second condition was imposed purportedly invoking the second proviso (wrongly shown as first proviso in Ext.P7) to Rule 19(iv) of the Rules then in force. By a separate order, the competent authority has also accorded permission to the firm to change the location of its Bar. Though the appellant challenged the direction in Ext.P7 order to remit Rs.20 lakhs each for according sanction for the reconstitution of the firm effected and for changing the name of the licensee, in W.P.(C) No.6237 of 2018, the same was dismissed. The appeal was one preferred challenging the decision in the said writ petition. 3. This court found on facts that the second and third provisos to Rule 19(iv) of the Rules cannot be applied to the facts of the present case for insisting payment of Rs.20 lakhs each for issuing licence of the Bar in the name of the 6 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 appellant in the place of the deceased partner of the firm and for according sanction for the reconstitution of the firm effected with one of the legal representatives of the deceased partner. It is on that basis that the writ appeal was allowed and Ext.P7 order, to the extent it directs the appellant to pay Rs.20 lakhs each for the said purposes was set aside. Since the appellant had already remitted the said amounts in the meanwhile, this court directed the respondents to refund the said amounts to the appellant. 4. Though the respondents challenged the decision in the writ appeal in S.L.P.(Civil) No.10387 of 2020 before the Apex Court, the same was dismissed on 10.9.2020. The review petition is filed almost seven months thereafter with an application to condone the long delay of 224 days. 5. Though sufficient cause was not shown in the application to condone the delay in filing the review petition, having regard to the peculiar facts of this case, we condoned the delay in preferring the review petition taking the view that since the dictum in the judgment sought to be reviewed is Review Petition No.392 of 2021 7 in W.A.No.1551 of 2018 being followed in other cases as well, it is only appropriate to decide the review petition on merits. 6. Heard the learned Senior Government Pleader. 7. The learned Government Pleader argued the review petition as if he was defending the writ appeal. It was pointed out that Rule 19(ii) of the Rules was amended with effect from 1.6.2018, clarifying that an addition of partner or change of the name of the licensee due to the death of a partner/licensee shall also be deemed to be transfer of licence and this court construed the said provision as a new provision and the impugned judgment was rendered taking the view that in the absence of such a provision when the applications were submitted by the appellant, the respondents could not have deemed that the addition of the partner and the change of name of the licensee necessitated due to the death of a partner to be transfer of licence. According to the learned Government Pleader, the amendment introduced to Rule 19(ii) with effect from 1.6.2018 is only in the nature of a clarification and that the position was the same before the amendment also. To 8 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 substantiate this stand, the learned Government Pleader pointed out that identical provision was there in Rule 19(v) of the Rules prior to 1.6.2018 also. The submission made by the learned Government Pleader therefore, is that if the said provision was only clarificatory in nature, the decision rendered construing the said provision as a new one introduced with effect from 1.6.2018 is an error apparent on the face of the record. It was also argued by the learned Government Pleader that when a firm is reconstituted by adding a partner, whoever be the person added, the reconstituted firm has to be construed as a new firm and therefore, transfer of licence is involved in such reconstitution. 8. As noted, the question considered in the writ appeal was essentially the question as to whether the second and third provisos to Rule 19(iv) of the Rules which were in force then could be applied in the case on hand to insist the appellant to pay Rs.20 lakhs each for according sanction to induct one of the legal representatives of a deceased partner in the partnership in the place of the deceased partner and 9 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 changing the name of the licensee necessitated on account of the death of the partner in whose name the licence was issued. This court interpreted the aforesaid two provisos to Rule 19(iv) to the effect that the said provisos cannot be applied to the facts of the present case and it is on that premise that the judgment sought to be reviewed has been rendered. The respondents have no case that the factual premise on which the judgment sought to be reviewed was rendered, is incorrect. Their case in the review petition is only that the second and third provisos to Rule 19(iv) could be applied to the case on hand as well. As indicated, the question as to whether the provisos aforesaid could be applied to the case on hand is a question relating to the interpretation of the provisos. According to us, in the absence of any case for the respondents that the factual premise on which this court considered the application of the provisos is incorrect, the mistake, if any, committed by this court in interpreting a statutory provision cannot be corrected in the review jurisdiction, for such mistakes cannot be construed as errors apparent on the face of the 10 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 ## record. It was so held by the Apex Court in **State of W.B. v. Kamal Sengupta** , (2008) 8 SCC 612. Paragraph 22 of the judgment in the said case reads thus : **“22.** The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)( _f_ ) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision.” In the said view of the matter, according to us, the review petition is not maintainable. 9. Be that as it may, we do not find any error, much less any error apparent on the face of the record in the interpretation of the second and third provisos to Rule 19(iv) of the Rules made by this court in the judgment sought to be 11 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 reviewed also. Rule 19(iv) of the Rules as it stood at the time when Ext.P7 order was passed reads thus : “19(iv). Change of name of licensee may be allowed on payment of Rs.2 lakhs (Rupees two lakhs only) Provided that such change shall be allowed only if the incumbent in whose name the license is to be granted is eligible otherwise for obtaining a licence under these rules: Provided further that the constitution/re-constitution of a partnership or Director Board of a company of a hotel which does not have two star classification will be allowed on payment of Rs.2,00,000 (Rupees two lakhs) for each partner/director opted out of the partnership or Director Board of the company and on payment of Rs.20,00,000/- (Rupees twenty lakhs) for each partner/director inducted into the partnership or Director Board of the company, as the case may be: Provided also that change of name of licensee of a hotel which do not have two star or above classification shall be allowed on payment of Rs.20,00,000 (Rupees Twenty Lakhs only)” One of the contentions raised by the respondents in the appeal was that the provisos to Rule 19(iv) of the Rules were independent provisions and the amounts specified in the provisos were to be paid, for adding a new partner in a 12 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 partnership holding a licence under the Rules and for changing the name of the licensee irrespective of the circumstances which led to the addition of partner and request for changing the name of the licensee. This court repelled the said contention placing reliance on a few earlier judgements of this court, taking the view that the said provisos could be applied only when there is transfer of licence and that there was no transfer of licence involved in the reconstitution of the firm for the induction of one of the legal representatives of a deceased partner in the partnership in the place of the deceased partner and in seeking change of name of the licensee on account of the death of the partner in whose name the licence was issued. A reading of Rule 19 then in force as a whole would show that the object of the Rule is that there shall not be any transfer of licence without the previous sanction of the competent authority under the Rules. If the aforesaid is the object of the Rule, we are in agreement with the view taken by this court in the judgment sought to be reviewed that the provisos to Rule 19(iv) cannot be construed as independent provisions. If that be 13 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 so, what is required to be examined is the question as to whether there was any transfer of licence involved in inducting one of the legal representatives of a deceased partner in the partnership in the place of the deceased partner and in seeking change of name of the licensee due to the death of the partner. 10. As noted, the firm was the licensee under the Rules. The licence was issued in the name of K.D.Antony only on behalf of the firm and not in his individual capacity. Ext.P1 in the writ petition is the partnership deed of the firm. Clause 13 of the partnership deed reads thus : ## “DEATH In case of death, retirement, insolvency of a partner the partnership shall not be dissolved but carried on by the remaining partners after satisfying the legal heirs of the deceased partner in respect of their shares and/or one major legal heir be admitted as a partner in place of the deceased partner. If none of the legal heirs of the deceased partner is willing to be admitted the share of such legal heir shall be paid off according to law.” A reading of the extracted clause in the partnership deed would show that the death of a partner does not dissolve the firm. If the death of the partner does not dissolve the firm, naturally, 14 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 licence issued to the firm in the name of the deceased partner needs to be issued in the name of one of the surviving partners and it is for the said purpose, the request was made by the appellant for change of name of the licensee. As rightly found by this court in the judgment sought to be reviewed, there is no transfer of licence involved in issuing the licence of the firm in the name of a surviving partner in the event of the death of a partner. Similarly, as seen from the extracted clause of the partnership deed, the provision therein is to permit one of the legal representatives of the deceased partner to come as a partner of the firm in the place of the deceased partner. In other words, if one of the legal representatives of a deceased partner is inducted as a partner by reconstituting the firm, the inducted partner would represent the estate of the deceased partner in the firm. If that be so, there is neither change of ownership nor transfer of licence involved in the induction of the new partner in the partnership. If there is no transfer of licence involved in the induction of the new partner in the partnership, the view taken by this court in the judgment 15 Review Petition No.392 of 2021 in W.A.No.1551 of 2018 sought to be reviewed cannot be said to be bad on any grounds whatsoever. 11. The argument advanced by the learned Government Pleader that the amendment made to Rule 19(ii) of the Rules with effect from 01.06.2018 to the effect that addition of partner or change of name of licensee due to the death of partner shall also be deemed to be transfer of licence is only clarificatory in nature, cannot accepted, for the position was not the same prior to the said amendment. The erstwhile Rule 19(v) of the Rules relied on by the learned Government Pleader to contend that the position was the same prior to the said amendment applies only to a licence issued in Form FL-3 and not for other licenses. The review petition, in the circumstances, is without merits and the same is accordingly, dismissed _in limine._ ## **Sd/P.B.SURESH KUMAR, JUDGE.** **Sd/N.NAGARESH, JUDGE.** Mn