Bombay High Court
Prabhakar Mohiniraj Wabale Died Thr Lrs ... vs The State Of Maharashtra And Others on 20 June, 2025
2025:BHC-AUG:15498
Ethape (1) WP-14861-2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14861 OF 2019
WITH
CIVIL APPLICATION NO.437 OF 2025
WITH
CIVIL APPLICATION NO.8987 OF 2021
Prabhakar Mohiniraj Wabale, (now deceased)
Deceased Through LR's
Smt. Vimalbai Prabhakar Wabale,
Age: 73 Years, Occu. Household,
Partner, M/s. Kailas Wines, Sonai,
Tq. Newasa, District Ahmednagar. ...PETITIONER
(Orig. Opponent)
VERSUS
1] The State of Maharashtra,
Through its Secretary,
Excise and Drugs Department,
Mantralaya, Mumbai.
2] The Minister of State,
The Excise and Drugs Department,
Mantralaya, Mumbai.
3] The Commissioner of State Excise,
Maharashtra State, Mumbai.
4] The Collector (Excise Department),
Ahmednagar, District Ahmednagar.
5] Vitthal Janardan Phadke,
Age: 60 years, Occu: Business,
R/o. Sonai, Tq. Newasa,
District Ahmednagar. ...RESPONDENTS
(Resp. No.5-Orig. Applicant)
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.....
Mr. Arun Longani, Mr. S. Mukherzee, Mr. Yogesh Kumar, Advocates for
the petitioner.
Mr. K. S. Patil, AGP for Respondent No.1 to 4-State.
Mr. Rajendra Deshmukh, Senior Advocate a/w Mr. Ashwini Deshmukh
i/by Mr. S. V. Natu, Advocate for Respondent No.5.
.....
CORAM : KISHORE C. SANT, J.
RESERVED ON : 1st APRIL, 2025
PRONOUNCED ON : 20th JUNE 2025
JUDGMENT :
-
1. Heard Mr. Longani, the learned Advocate for the petitioner,
Mr. Patil, Mr. Deshmukh, the learned Senior Advocate appearing for
Respondent No.5 and the learned AGP for the Respondent Nos. 1 to
4/State
2. Rule. Rule made returnable forthwith. With the consent of both
sides, heard finally at the stage of the admission.
3. Civil Application No.437 of 2025 is filed seeking modification of
order dated 23rd September 2024 by which this Court had vacated the
interim relief that was granted in the petition. Civil Application No. 8987
of 2021 is filed by the petitioner for fixing early date of hearing of writ
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petition and for directing the learned District Magistrate to maintain
status quo as per order dated 10th December 2021.
4. This Writ Petition arises out of judgment and order dated 30 th July
2019 passed by the Hon'ble Minister, Excise and Drugs Department,
Mantralaya, Mumbai, in Revision Application No.FLR-1217/RA-14/
RAUSHU-2, thereby allowing the Revision Application filed by
Respondent No.5.
5. The dispute is about FL-II and CL-III license standing in the name
of petitioners. The learned Minister, by way of impugned judgment and
order, has held that Respondent No.5 is entitled to the said license,
thereby setting aside the judgment and order passed by the learned
Collector, State Excise Department, Ahmednagar, and learned
Commissioner, Excise Department, Mumbai.
6. The dispute, in short, is that on 21st December 1973, a license was
granted by the State in favour of the petitioner since deceased now
through present petitioners. However, for some reason, the petitioner
could not operate the said license. On 21 st November 1984, the
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petitioner entered into a partnership agreement with Respondent No.5
for running business under the name as "M/s. Kailas Wines". The
partnership was at Will. This partnership was not accepted by the
learned Collector, and therefore, a fresh partnership was executed
between the parties on 28th May 1992. Both partners were shown as
working partners. This partnership was also at Will. The license
continued to stand solely in the name of the petitioner.
7. On 23rd December 1993, the petitioner issued a legal notice for
dissolution of partnership to Respondent No.5 for violation of terms and
conditions of the partnership agreement. On noticing this, the learned
Collector suspended the liquor license by order dated 27 th March 2000.
An appeal before the learned Commissioner filed by Respondent No.5
came to be rejected on 31st August 2000. A revision came to be
preferred before the Hon'ble Minister against the order in appeal. The
learned Minister passed an order dated 30 th June 2001 in favour of
Respondent No.5, allowing him to continue and operate the liquor
business until the partnership dispute is resolved.
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8. The petitioner, thereafter, filed Writ Petition No.4308 of 2001. The
said came to be allowed in favour of the petitioner on 23 rd October 2001.
Thereafter the Respondent No.5 filed Letters Patent Appeal (for short
"LPA") No.51 of 2002. By order dated 7th February 2003, the Division
Bench held that the dispute regarding the dissolution of the partnership
is pending in the Civil Court, as that time, arbitration proceeding was
going on. The business of Respondent No.5 was protected to save the
Government Revenue. The respondent No.5 was allowed to continue the
business.
9. The State Government filed Review Application seeking review of
the judgment in LPA. In the review proceedings, the Division Bench
clearly held that the Respondent No.5 had no right to apply for a fresh
license or any license independently. It is the petitioner who had to apply
for renewal of licence afresh. The respondent No.5 carried the order
passed in review by filing an SLP in the Hon'ble Supreme Court.
However, the same came to be dismissed. On 17 th March 2010, the
Arbitration Tribunal, by a majority, ruled in favour of the petitioner. The
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Principal District Judge, Ahmednagar, turn down the objections of the
respondent No.5 against the arbitration award, in so far as declaration of
dissolution of partnership is concerned.
10. Thereafter on 31st March 2012, the learned Collector again
suspended the license. The Respondent No.5 then preferred an appeal to
the learned Commissioner. There was no stay granted by the learned
Commissioner. The Respondent No.5, thereafter, preferred revision to
the Hon'ble Minister. The Hon'ble Minister granted stay directing
respondent No.5 to continue the license during the pendency of the
appeal before the learned Commissioner. The petitioner, therefore, filed
Writ Petition No.4914 of 2012. This Court in the said writ petition,
directed the Collector to decide the issue and passed order within four
weeks. Against this order also, LPA was preferred.
11. In LPA, the learned Collector was directed to decide applications
for grant of licenses in the name of petitioner in view of dissolution of
partnership. Respondent No.5 was allowed to continue the business
only till 31st March 2013. On this order, the learned Collector passed an
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order on 22nd January 2013 holding that the name of the Respondent
No.5 be dropped. The license be retained only in the name of this
petitioner. In the meantime, LPA No.146 of 2012 also came to be
dismissed. This order was also challenged by Respondent No.5 by filing
Special Leave Petition (C) No.13990-13991 of 2013 before the Hon'ble
Apex Court. In the SLP proceeding, an agreement by both the parties,
the learned Collector was directed to take a fresh decision without
disturbing orders passed in LPA No.146 of 2012 and in Review
Application.
12. Pursuant to this, the learned Collector passed an order dated 31 st
December 2016, holding that the Respondent No.5 cannot have license
in his name. Since the license was continued, the respondent No.5 was
allowed to continue the license only till 31 st March 2017. This order
again came to be challenged before the learned Commissioner. The said
appeal also came to be dismissed on 17 th February 2018. The Hon'ble
Minister, by way of impugned order dated 30th July 2019, passed an
order in a Revision by Respondent No.5 which is now a subject matter of
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this writ petition. In the year 2017, the original petitioner (father of the
present petitioner) died on 4th March 2015, and thereafter, present
petitioner was brought on record. The learned Minister has now
directed to delete the name of the present petitioner and directed to
continue the license in the name of Respondent No.5.
13. Mr. Longani, the learned Advocate for the petitioner, submits that
the petitioner, Prabhakar Wabale, was granted license in his individual
name. Though he entered into partnership with Respondent No.5, the
license still was continued in his name only. At no point of time, it was
transferred in favour of the partnership firm. The license was never
issued in the name of partnership i.e. "M/s. Kailash Wine". As it is, the
license is non-transferable. The license was never property of the
partnership firm. The partnership firm was only for the purpose of
carrying out business. By issuing due notice, the partnership was
dissolved. After dissolution of partnership firm, there is no question of
Respondent No.5 getting any right in the business or in the license. This
Court, in earlier two rounds, has clearly held that the respondent no.5
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does not have any right to continue with the business. Only he was
allowed to continue the business till end of respective financial year, that
will not create any interest in his favour. Orders passed by this Court
were confirmed even by the Hon'ble Apex Court. Now, the arbitration
award is also passed in favour of the petitioner. The learned Collector
and the learned Commissioner rightly passed the orders. The Hon'ble
Minister has passed the order totally in defiance of observations made in
the orders passed by this Court and the Apex Court.
14. In support of his submissions, the learned Advocate for the
Petitioner relied upon the following judgments.
(i) Addanki Narayanappa and Anr. Vs. Bhaskara
Krishtappa and Ors.1;
(ii) Ramesh s/o. Shrikrishna Dhore and Ors. Vs. The
Commissioner of State Excise and Ors.2;
(iii) Ramchandra Namdeo Chonde Vs. The State of
Maharashtra and Ors. Writ Petition No.8671 of
2005 (Aurangabad).
1 1966 AIR 1300
2 1997(1) ALL MR 272
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15. Mr. Patil, the learned AGP appearing for Respondent No.1 to
4/State, supported the order passed by the Hon'ble Minister and prayed
for dismissal of the writ petition.
16. Mr. Deshmukh, the learned Senior Advocate appearing for
Respondent No.5, strenuously argued that the learned Minister has
rightly passed the impugned order. It is clear from the record that the
petitioner was not in a position to carry on the business, though the
license was in his name. It is submitted that the petitioner entered into
partnership with Respondent No.5 since he was not in a position to carry
on business on his own. The respondent No.5 thus became entitled to
run the business. Though this Court held against the petitioner in earlier
round of litigation, the respondent No.5 was allowed to continue the
business. The existence of a partnership was never disputed. The
petitioner himself filed a Civil Suit bearing Special Civil Suit No.354 of
2009 seeking rendition of accounts. The arbitration proceeding is not
yet finalized. There are two arbitration appeals still pending. A challenge
is pending before the learned District Judge. Though the High Court's
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orders are not disturbed by the Hon'ble Apex Court, the Hon'ble Apex
Court has clearly directed the learned Collector to take fresh decision
without looking to the earlier orders passed by this Court. It is further
submitted that, the license is, in fact, an asset of the partnership firm.
He submits that in the year 1984, the deceased Prabhakar Wabale
himself filed an application before the learned Collector requesting to
add the name of Respondent No.5 in the license in the capacity of
partner. He had also given a statement to that effect before the Collector.
17. In support of his submissions, Mr. Deshmukh, the learned Senior
Advocate relied upon the following judgments:
(i) Addanki Narayanapa and Anr. Vs. Bhaskara
Krishtappa and Ors.3;
(ii) Sachin Jaiswal Vs. Hotel Alka Raje and Ors.4;
(iii) Yunnus Abdulla Shaikh Vs. The Collector, State
Excise and Ors. Writ Petition No.4086 of 1994
(At Bombay).
(iv) Laxman V. Kamble Vs. Collector, Latur and Ors.
Writ Petition No.2924 of 2000 (Aurangabad).
3 (1966) 3 SCR 400
4 2025 SCC OnLIne SC 446
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(v) Pamela P. Braganza Vs. Mr. Finlay Braganza,
Writ Petition No.147 of 2005 (Aurangabad).
18. The short question involved in this petition is as to whether the
Respondent No.5 has any right to have license in his name?. Merely
because he happened to be partner for some time.
19. To answer this question we need to consider following; So far as
the license is concerned, there is no dispute that the license was granted
to deceased Prabhakar Wabale. It was only for some reason, the
deceased Prabhakar Wabale could not start business though he had the
license in his name. He therefore entered into a partnership with
Respondent No.5. From the clauses of the agreement, it is clear that the
partnership was at Will. There was notice issued dissolving partnership
firm. In the arbitration proceedings, there is an award now passed in
favour of the petitioner. The appeals are pending. By looking to the
orders passed by this Court in earlier round of litigation, it is clearly
seen that this Court in Writ Petition as well as in LPA clearly held that
the Respondent No.5 had no right to continue with the business. The
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said orders are not disturbed by the Hon'ble Apex Court in both the
rounds. What is directed is to decide the application of both the parties
by directing the learned Collector to decide the same uninfluenced by
the observations in earlier orders passed by this Court.
20. The learned Collector considered the notification issued by the
Home Department, Mantralaya, Mumbai, dated 20 th August 1996 by
which the learned Collector is vested with the power to take decision on
induction or deletion of partners in a license. The learned Collector also
considered Rule 40(1) of the Bombay Foreign Liquor Rules, 1953. This
Rule requires that for the purpose of license in the name of partnership,
a person has to apply to the Collector prior to issuance/grant of license.
In case the license is already granted, the name of the partner cannot be
inserted in the license. He, thus, held that the license was granted only
in the name of Prabhakar Wabale and the same can not be granted in
favour of Respondent No.5. The learned Collector considered that now
the partnership is dissolved by award of the Arbitrator. He, therefore,
allowed Respondent No.5 to continue the license only till 31 st March
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2017. The learned Collector further ordered that the renewal of license
in the name of petitioner be considered thereafter.
21. The learned Commissioner in appeal filed by respondent No.5
referred to all previous orders passed by this Court in LPAs, wherein it
was clearly held that the deceased Prabhakar Wabale alone was entitled
to renew the license. By observing this, the learned Commissioner held
that Prabhakar Wabale is entitled to hold FL-II license and confirmed the
order passed by the learned Collector.
22. Looking to the order passed by the Hon'ble Minister, it is seen that
the learned Minister considered the judgment in the case of Addanki
Narayanappa (supra), and observed that, if a partner brings capital then
such capital becomes property of the partnership firm. After the said
capital becomes property of the partnership firm, every partner has a
right over the property of the firm. He further held that the petitioner
does not have any right in the license while passing the impugned order.
23. Respondent No.5 has brought on record a letter dated 29 th
November 1984 by the deceased Prabhakar Wabale addressed to the
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learned Collector wherein he has clearly stated that in the license, the
name of Respondent No.5 be shown as partner. He had also given a
statement to the Collector on 1st May 1984 stating that the Respondent
No.5 is providing finance in the business. He is having three years
experience in the business and therefore, he be added as partner in the
license. Attention of the Court is also invited to guidelines dated 2 nd
September 1989 and clause (iv) which gives power to the Collector to
add the name of the partner and notification dated 2 nd December 1989
and 30th August 1993 issued by Home Department, Mantralaya,
Mumbai.
24. Rule 40(1) of the Bombay Foreign Liquor Rules, 1953 reads as
follows:
"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".
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A reading this Rule, makes it clear that it is for the Collector to
consider entering the name of the partners in the license.
25. In the case of Addanki Narayanappa (supra), there was dispute
between two families entered into partnership for the purpose of
carrying on business of hulling rice, decorticating groundnuts etc. Both
the families had equal shares in the business. The lands belonging to the
families were the capital of the partnership. In the business, some more
lands were acquired by the partnership. The plaintiff's family i.e.
Addanki family filed a suit for various reliefs claiming equal rights over
all the properties of the partnership firm. The Hon'ble Apex Court
considered that properties of the partners were used as capital in the
business. The property was therefore directed to be divided rateably
among all the partners after settlement of account between partners and
upon dissolution of the firm. This was to be done after debts and
liabilities are made out from the property of the firm. It was the case
that, the capital was brought by all the partners. Thereafter, some more
lands were acquired by the partnership firm and naturally those became
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properties of the partnership firm. In the present case, the partnership
firm was only to run the business, that will not make license a property
of the partnership firm. The statement and the letter of the petitioner,
Prabhakar Wabale, to the Collector would only show that he had desire
to run the business alongwith Respondent No.5. However, the fact
remains that, at no point of time, the license was granted or renewed in
the name of partnership firm.
26. In the case of Ramesh Dhore (supra), it was held that the license
to run the retail country liquor shop was granted in the name of
individual. The said individual, later, had entered into partnership. The
names of partners, thereafter, were included in the license. It was held
that the Collector can grant renewal of license in favour of original
grantee by deleting the names of other partners. The license was
ultimately renewed in the name of original grantee. Deletion of names
of other two partners was held to be valid.
27. In the case of Ramchandra Chonde (supra), on similar facts, it was
held that it is only an individual in whose name the license was granted
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is entitled to hold a licence. The order passed on an application to add
the Respondent as partner passed by the Superintendent of Excise held
to be ineffective. From reading of judgment, it is clear that after
dissolution of partnership firm, the license would continue only in the
name of original grantee.
28. In the case of Sachin Jaiswal (supra), the facts were that the
individual partners converted their property into partnership property.
In view of Section 40 of the Partnership Firm, the property became
property of the partnership firm. In the present case, the license cannot
be said to be the property of the firm as the name of the partner or the
partnership firm was never entered in the license.
29. In the case of Yunnus Abdulla Shaikh (supra), the rights of the
parties were not determined by the Civil Court in the Civil Suit. In the
case of Laxman Kamble (supra), the matter was disposed off by directing
that the application be considered within eight weeks. In the case of
Pamela P. Braganza (supra), the FL-II license was in the name of
partnership firm. One partner namely, Peter Braganza was having 60%
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share and Pamela Braganza had 40% share. Peter Braganza expired on
9th May 2002. He bequeathed his share in the partnership firm. Pamela
Braganza was entitled to have 30% share of the 60% share of the Peter
Braganza. One respondent was to get 40% of share of the Peter
Braganza and respondent No.1 was to be 30% of share of Peter
Braganza. The respondent No.1 thereafter applied for liquor license as
he had 30% in the share of Peter Braganza. The learned Collector
passed an order that till the dispute is resolved by the appropriate Court,
the license was to remain suspended. This Court ultimately held that on
death of Peter Braganza, who was partner, the partnership stood
dissolved and the firm becomes sole proprietary concern of the surviving
partner Pamela Braganza. This Court find that in the present case it is
not the question when the license itself was not in the name of
partnership firm. In the present case, the said judgment is not
applicable. So far as the decisions in Sachin Jaisawal, Yunus Abdulla
and Laxman Kamble are also not applicable to the facts of the present
case.
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30. Ultimately, this Court has to see as to whether the license was ever
standing in the name of partnership firm. The answer is clearly no. The
learned Collector and the learned Commissioner had rightly passed the
orders. The learned Minister, however, passed an order without looking
into the earlier orders passed by the this Court and the Hon'ble Apex
Court. The order therefore certainty calls for interference.
31. The impugned judgment and order needs to be quashed and set
aside. Hence, the following order:
ORDER
(i) Writ Petition is allowed in terms of prayer clause (A).
(ii) The impugned order dated 30th July 2019 passed by
the Hon'ble Minister, Excise and Drugs Department,
Mantralaya, Mumbai, in Revision Application No.FLR-
1217/RA-14/ RAUSHU-2, are quashed and set aside.
(iii) The respondent No.5 has no right to get the license in
his favour. The petitioner shall be entitled to apply for and
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obtain renewal of the license in accordance with law.
(iv) In view of disposal of writ petition, Civil Applications
do not survive and are accordingly disposed off.
(v) Rule is made absolute in the above terms.
[KISHORE C. SANT, J.]
32. At this stage, the learned Advocate for the Respondents seek stay
to the effect and operation of this order for a period of six (6) weeks
from today.
33. In view of the same, to take effect and operation of this order after
four (4) weeks from today.
[KISHORE C. SANT, J.]
