Leela vs The Excise Commissioner
2023 Latest Caselaw 4109 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945
                        WP(C) NO. 11368 OF 2023
PETITIONER:

          LEELA
          AGED 70 YEARS
          W/O. LATE K.G PURUSHOTHAMAN, NOW RESIDING AT
          VAYALIRAMBIL PUTHENVEETTIL HOUSE, KARIMULACKAL MURI,
          CHUNAKKARA VILLAGE, ALAPPUZHA DISTRICT.
          (FROM KACHIYIL PUTHENVEEDU, PEROORKARAZHMA MURI,
          THAMARAKKULAM VILLAGE, MAVELIKKARA, ALAPPUZHA DISTRICT.
          PIN - 690530).

          BY ADVS.
          M.P.MADHAVANKUTTY
          MATHEW DEVASSI
          ANANTHAKRISHNAN A. KARTHA
          REMYA M. MENON
          ANOOP SATHYAN


RESPONDENTS:

    1     THE EXCISE COMMISSIONER
          EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O, NANDAVANAM,
          THIRUVANANTHAPURAM., PIN - 695033.

    2     KARUNAGAPPALLY MUNICIPALITY
          REPRESENTED BY ITS SECRETARY, LALAJI JUNCTION,
          KARUNAGAPPALLY, KOLLAM DISTRICT, PIN - 690518.

    3     K.P. KARTHIKEYAN
          AGED 67 YEARS
          S/O. K.G PURUSHOTHAMAN, KACHIYIL PUTHENVEEDU,
          PEROORKARAZHMA MURI, THAMARAKKULAM VILLAGE,
          MAVELIKKARA, ALAPPUZHA DISTRICT, PIN - 690530.

    4     K.P. INDRAPALAN
          AGED 66 YEARS
          S/O. K.G PURUSHOTHAMAN, INDRAPRASTHA HOUSE,
          PEROORKARAZHMA MURI, THAMARAKKULAM VILLAGE,
          MAVELIKKARA, ALAPPUZHA DISTRICT, PIN - 690530.

    5     K.P SMITHA
          AGED 49 YEARS
 WP(C) NO. 11368 OF 2023           2


             D/O. K.G PURUSHOTHAMAN, SUKRUTHI HOUSE,
             MANAKKARA MURI, SASTHAMCOTTAH VILLAGE,
             KOLLAM DISTRICT, PIN - 690521.


             SRI.T R RENJITH, GP
             SRI.N G KARTHIKEYAN, R3-R5


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11368 OF 2023                3




                                JUDGMENT

The petitioner claims to be the wife of a deceased partner of the

partnership firm by name 'Hotel New Excellency' wherein the

respondents 3 to 5 are the other parties. The husband of the petitioner

passed away on 29.1.2017 and at the time of his death, he was holding

55% stake in the partnership firm. The aforesaid partnership firm is

running a bar hotel on the strength of the licences issued in this regard by

the 1st respondent.

2. According to the petitioner, by virtue of her status as the wife

of the deceased partner, she is having 1/4th share in stake of the deceased

in the partnership firm which includes the property in which the aforesaid

bar hotel is functioning. The petitioner has also filed a Civil Suit

numbered as O.S.No.94 of 2020 before the Munsiff Court,

Karunagappally seeking partition of the said property wherein the bar

hotel is functioning, and there is already an injunction restraining the

defendants therein who are respondents 3 to 5 from alienating the

aforesaid property.

3. The petitioner points out that after the death of the husband of

the petitioner, the partnership has been reconstituted by other partners and

as of now none of the legal heirs of the deceased husband are partners.

An application has been submitted on behalf of the reconstituted

partnership firm before the 1st respondent seeking for renewal of the FL 3

licence issued to them for the period 2023-24. The petitioner submitted

Ext.P4 representation before the 1 st respondent highlighting certain

grievances, and in this writ petition, she seeks for an order directing the 1 st

respondent to consider the said objection, before considering the

application for renewal of the licence.

4. Heard Sri.M.P.Madhavankutty, the learned counsel appearing

for the petitioner, Sri.T.R.Renjith, the learned Government Pleader and

Sri.N.G.Karthikeyan, the learned counsel appearing for respondents 3 to

5.

5. The learned counsel for the petitioner submits that she being

the legal heir of one of the deceased partner of the said firm, she has a

right to be heard before a decision is taken on the question of renewal of

licence of the firm.

6. On the other hand, the learned counsel appearing for

respondents 3 to 5 opposed the aforesaid contentions by pointing out that

at any rate the petitioner cannot claim the status as a legal heir of the

deceased. It is pointed out that she is the second wife of the deceased

partner, and in the legal heirship certificate issued by the authorities

concerned, her name is not included. Therefore she does not have the

locus standi to object the renewal of the FL -3 licence, contends the

learned counsel for the respondents.

7. I have gone through the records and heard the contentions

advanced by all the parties concerned. The only question that arises is

whether the petitioner has any locus standi to raise the objection in respect

of the renewal of licence of the said firm. Ext.P5 is the deed on the basis

of which the said partnership was constituted. Clause 15 and 16 of the

said partition firm deals with the contingencies following an instance in

which one of the partner expires. It can be seen from the said clauses that,

none of the stipulations contained therein would enable the legal heir to

get any right to enter as a partner automatically. The only right available

as per Clause 16 for the legal heirs of the deceased partner is the share of

profit as determined in the manner contemplated therein. Therefore it is

evident that in the absence of any specific right accrued by a legal heir on

account the death of a partner, the petitioner herein cannot have any right

to be heard while taking a decision by the 1 st respondent in the matter of

renewal of licence. Besides the same, in this case, it is pointed out that the

status of the petitioner as a legal heir of the deceased partner itself is under

dispute.

Even otherwise, I am of the view that, the basic dispute that are

highlighted in the objections are related to the inter se right of the partners

in the firm. I do no think that the same cannot be a subject matter before

the 1st respondent while deciding the question of renewal of licence.

In such circumstances, I do not find any locus standi for the

petitioner to raise any dispute with respect to the same. Therefore, I do

not find any merit in this writ petition and accordingly this writ petition is

dismissed.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE Sru

APPENDIX OF WP(C) 11368/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER DATED 26.02.2022 IN C.M.A NO. 3/2021 PASSED BY THE SUBORDINATE JUDGE'S COURT, KARUNAGAPPALLY.

Exhibit P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE SECRETARY, KARUNAGAPPALLY MUNICIPALITY.

Exhibit P3 A TRUE COPY OF THE REPLY DATED 16.11.2022 ISSUED BY THE KARUNAGAPPALLY MUNICIPALITY.

Exhibit P4 A TRUE COPY OF THE REPRESENTATION DATED 25.01.2023 BEFORE THE EXCISE COMMISSIONER (1ST RESPONDENT).

Exhibit P5 A TRUE COPY OF THE PARTNERSHIP DEED DATED 17.08.2001.

Exhibit P6 A TRUE COPY OF THE PARTNERSHIP DEED (RECONSTITUTED) EXECUTED BETWEEN RESPONDENTS 3 TO 5.