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Judgment
Ramesh Ranganathan, CJ
Heard Sri B.P. Nautiyal, learned Senior Counsel appearing on behalf of the appellant, Sri Navneet Kaushik, learned counsel for the first respondent,
and Sri Vikas Pandey, learned Standing Counsel appearing on behalf of respondent nos. 2 to 4 in this Special Appeal and, with their consent, the
Special Appeal is disposed of.
The first respondent herein had invoked the jurisdiction of this Court filing Writ Petition (M/S) No. 1278 of 2013 seeking a writ of certiorari to quash
the order passed by the second respondent dated 17.05.2013 in Excise Revision No. 220 of 2012. Writ Petition (M/S) No. 1278 of 2013 was allowed
by the order under appeal dated 10.10.2019, and the order dated 17.05.2013 was quashed and set aside.
Facts, to the limited extent necessary, are that there was a bar-cum-hotel styled as ‘Motel Polaris’, which was being run by Sri Yudhisthir
Singh. On his demise, his widow’s name was mutated as the successor of the licensee, and the license was renwed in her favour. While Sri
Yudhisthir Singh passed away in the year 1980, his wife Smt. Madhu Singh passed away on 15.03.1999. Thereafter, the license was renewed in the
name of Smt. Madhu Singh’s son Sri Dhruv Singh. On his demise on 18.08.2012, a dispute arose in the family. Sri Yudhisthir Singh and Smt.
Madhu Singh had four children : Ms. Shalini Prem, Shivani, Sunaina and Mr. Dhruv Singh. Sri Dhruv Singh is survived by his widow (the first
respondent herein) and his daughter Ms. Namya, aged 9 years. Ms. Shalini Prem, the sister of the appellant, filed Suit No. 158 of 2012 wherein she
arrayed her sister-in-law (the respondent-writ petitioner) as the first defendant, her niece Ms. Namya as the second defendant, and her sisters Ms.
Shivani and Ms. Sunaina as defendants 3 and 4. The Civil Court decreed the suit on 27.05.2016 holding that the property be divided into four equal
parts i.e. 1/4th share each to the three sisters, namely, Ms. Shalini, Ms. Shivani, Ms. Sunaina, and the remaining 1/4th share to the respondent-writ
petitioner.
While the respondent-writ petitioner claims to have been thrown out from the property by her sisters-in-law, the appellant herein contends that the
food-license was mutated in her name, and the hotel is in the possession of the appellant and her sisters. It does not appear to be in dispute, however,
that the bar-cum-hotel is now closed, and is not in operation.
On the respondent-writ petitioner making an application to have her name mutated in the FL-6 bar license, which was earlier in her husband’s
name, the Commissioner, Excise, mutated the FL-6 bar license in her name, and granted renewal of the said license in her favour. Questioning the said
order, the appellant herein preferred a revision to the second-respondent (Principal Secretary, Excise) who passed the order dated 17.05.2013, which
was subjected to challenge by the first-respondent herein before the learned Single Judge.
In the order dated 17.05.2013, the Principal Secretary, Excise, observed that the appellant could not claim to have her name mutated in the FL-6 bar
license, since she could not claim to be the successor of Sri Dhurv Singh, in whose name renewal of the FL-6 bar license was granted; and it is only
the widow i.e. the first respondent herein who was entitled to claim that the FL-6 bar license be renewed in her favour. The second respondent,
however, held that the first respondent was not in physical possession of the property and, therefore, the FL-6 bar license could not be renewed in her
favour, nor could her name be mutated as the successor of late Sri Dhruv Singh; and since there was a dispute between the members of the family
regarding the said property, (when the order impugned in the writ petition dated 17.05.2013 was passed, Suit No. 158 of 2012 was still pending on the
file of the Civil Court), the order of the Commissioner was liable to be set aside.
On the first respondent invoking the jurisdiction of this Court by filing Writ Petition (M/S) No. 1278 of 2013, the learned Single Judge observed, in
the order under appeal dated 10.10.2019, that Suit No. 158 of 2012 was decreed on 27.05.2016; the property was directed to be divided equally in four
parts i.e. 1/4th share each to the sisters and the remaining 1/4th share to the respondent-writ petitioner; the decree was challenged by the respondent-
writ petitioner in First Appeal No. 61 of 2016, which was dismissed by this Court on 12.09.2019 upholding the decree of the lower Court; the admitted
fact was that the property was to be equally divided among the three sisters and the respondent-writ petitioner, and the decree of the Court below had
to be executed; the FL-6 bar license, granted in favour of the respondent-writ petitioner by the Excise Commissioner, was cancelled by the second
respondent in Excise Revision No. 220 of 2012; the decision of the State Government could not be sustained as the only reason given in the impugned
order dated 17.05.2013 was that, while the license had to be given in favour of the respondent-writ petitioner, she was not in physical possession of the
property; and as there was a dispute over the property between the parties, it could not be given in her favour; and this order could not be sustained
under the present facts of the case, as the dispute stood decided in terms of the decision of this Court in FA No. 61 of 2016 dated 12.09.2019.
While allowing the Writ Petition, the learned Single Judge quashed the order dated 17.05.2013, and made it clear that the Excise Department, while
considering the grant of license in favour of the respondent-writ petitioner, should ensure that the respondent-writ petitioner fulfilled all the norms,
prescribed under the law, required to run a bar in the premises; the sisters had a claim on the property but no claim on the bar license; and the claim to
get the bar license was that of the respondent-writ petitioner subject to her fulfilling the general mandatory conditions of the Excise Department, and
the law in such matters. Aggrieved thereby, the fourth respondent in the writ petition has preferred this Special Appeal.
Sri B.P. Nautiyal, learned Senior Counsel appearing on behalf of the appellant, would submit that, in the light of the decree passed by the Civil
Court, which was affirmed in appeal, the first respondent-writ petitioner has only been given 1/4th share of the entire property; the order of this Court
in FA No. 61 of 2016 dated 12.09.2019 continues to remain in force; as a result of the orders passed by the Civil Court as affirmed in appeal, the
respondent-writ petitioner merely has 1/4th share in the undivided property; it is only after an execution petition is filed, and the subject property is
partitioned by metes and bounds, can she then claim to be the owner of the land allotted in her favour by the Executing Court; among the essential
requirements, for the grant of a bar license, is that the applicant should have sufficient land and building to operate a bar; the bar-cum-hotel was in the
physical possession of the appellant, and her sisters, before it was closed; the order under appeal may be construed by the Excise authorities as
requiring a license to be granted in favour of the first respondent-writ petitioner with respect to the property called ‘Motel Polaris’; and the
observations in the said order that the sisters had no claim on the bar license may be construed as disabling the appellant and her sisters from applying
for a bar-license, and to run a bar in their 3/4th share of the property.
On the other hand, Sri Navneet Kaushit, learned counsel for respondent no. 5, would submit that, on the demise of Ms. Madhu Singh, it is the
name of her son (Dhruv Singh) which was mutated in the FL-6 Bar license, as the successor of Ms. Madhu Singh, and the bar license was renewed
in his favour; Smt. Madhu Singh pre-deceased her son; on his death, it is the respondent-writ petitioner and her daughter Namya, who are his only
legal heirs; renewal of the bar-license is unrelated to the family dispute, and partition of the said property; on such a bar license being renewed in her
favour, the respondent-writ petitioner can run a bar either on her 1/4th share of the property or elsewhere; the second respondent intends to prefer an
appeal, against the order passed by this Court in FA No. 61 of 2012 dated 12.09.2019, before the Supreme Court; and, despite holding that the bar
license can only be renewed in her favour, the Principal Secretary had erred in setting aside the order passed by the Commissioner, Excise, renewing
the bar-license in favour of the respondent-writ petitioner on the ground that there was a dispute regarding the subject property.
As has been held by the second respondent himself, in the order impugned in the writ petition dated 17.05.2013, the FL-6 bar license was renewed
in the respondent-writ petitioner’s favour as the legal heir of late Sri Dhruv Singh, the erstwhile licensee. Neither the appellant, nor her sisters can
claim to be the legal heirs of late Sri Dhruv Singh, or that the FL-6 bar license hitherto renewed by the Commissioner in favour of the respondent-writ
petitioner, should now be renewed in their favour.
The learned Single Judge was, in our view, justified in holding that the FL-6 bar license was rightly renewed in favour of the respondent-writ
petitioner. Mere renewal of the FL-6 bar license would not confer any right on the respondent-writ petitioner to operate the bar over the subject
property called ‘Motel Polarisâ€, since, in terms of the decree passed by the Civil Court as affirmed in appeal, she is not the owner of the entire
property but is only the owner of 1/4th thereof. The learned Single Judge has made it clear that the prescribed norms under law should be fulfilled by
the respondent-writ petitioner, which would include identifying the land and building where she would operate the bar which cannot, obviously, be on
the entire property of the hotel-cum-bar called the ‘Motel Polaris’. While renewing the FL-6 bar license in her favour, the Excise authorities
shall ensure that she identifies any other property apart from the ‘Motel Polaris’, or, in case the said property is divided by metes and bounds by
the Executing Court, on the land and building identified and allotted as her 1/4th share.
The observations in the order under appeal that sisters (which would include the appellant) did not have any claim on the bar license would only
mean that they are not entitled to have the FL-6 bar license, which hitherto was granted in the name of Sri Dhruv Singh, renewed in their favour. That
does not mean that they cannot seek any independent bar license, provided, of course, like the respondent-writ petitioners, they also produce proof of
having the prescribed extent of land and buildings, and fulfill all other formalities prescribed in the Excise Act, the Rules made thereunder, and the
Excise policies framed by the State Government from time to time.
Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, closed. No costs.