Rule 5 of the Bombay Prohibition (Privileges Fees) Rules, 1954, applies to voluntary transfers between living persons and does not cover the transposition of the name of the legal representative or heir of the deceased licensee.

R. M. LODHA

( 1 ) RULE. Returnable forthwith. Mr. R. M. Sawant, Government Pleader waives service for respondents.

( 2 ) BY consent, rule is heard forthwith.

( 3 ) BRIEF facts as set out by the petitioner in the writ petition are: One Leo J. Carvalho was the licensee and carrying on business of running the country liquor bar in the name and style of M/s. Leos Bar at Achanak Niwas, Opp. Darpan Cinema, A. K. Road, Andheri (East), Mumbai. The said Leo J. Carvalho expired on 1-6-99 leaving behind the petitioner and her minor son as his only legal heirs. On the death of Leo J. Carvalho, the petitioner made an application for transfer of the licence for country liquor bar viz. Licence No. CL III 50 in her name since the licensee (her husband) had died. The said application made by the petitioner to the Collector of Bombay on 4-6-99 for transfer of the licence in her name is still pending. The petitioner was allowed to carry on the business on the strength of the licence granted to her husband till such time her name was added in the licence. On 17-12-99, the petitioner received a letter from the first respondent calling upon her to pay a sum of Rs. 97,000/- as privilege fee for transferring the licence to her name from the name of her late husband. It is the case of the petitioner that she has been told categorically by the office of the first respondent that if she did not pay the privilege fee as demanded in the letter dated 17-12-99 she would be stopped from running the said Bar. In the backdrop of these facts, the petitioner seeks to challenge the demand made by the first respondent in the sum of Rs. 97,000/- for transferring the licence to her name from the name after the death of her husband.

( 4 ) THE learned Counsel appearing for the petitioner submits that the demand made by the first respondent calling upon the petitioner to deposit a sum of Rs. 97,000/- towards privilege fee is totally illegal, wholly unjustified and contrary to the provisions of the Maharashtra Country Liquor Rules, 1973 and the Bombay Prohibition (Privileges Fees) Rules, 1954.

( 5 ) IT is not disputed that Leo J. Carvalho was the original licensee of licence No. CL III 50 for running the country liquor bar. The said Leo J. Carvalho expired on 1-6-99. The petitioner as his widow made an application on 4-6-99 for transfer of the licence viz. licence No. CL III 50 in the name of the petitioner and that on 17-12-99 by its communication, the respondent No. 1 called upon the petitioner to pay privilege fee in the sum of Rs. 97,000/- in the Government treasury and submit the original challan for further action in the matter. The demand of Rs. 97,000/- from the petitioner as privilege fee is being claimed under Rule 5 of the Bombay Prohibition (Privileges Fees) Rules, 1954. The said Rule of 1954 has been framed by the State Government in exercise of its powers conferred by Clause (u) of sub-section (2) of section 143 of Bombay Prohibition Act, 1949. Rule 5 reads thus. Fees for transfer of a licence from one name to another.---The fee payable by any licensee for the privilege of having the transfer of his licence from one name to another shall be the same as (the fee chargeable for the grant or renewal or continuance of the licence ). "

( 6 ) A perusal of the said rule would show that the fee for transfer of a licence from one name to the other is payable by any licensee for the privilege of having the transfer of his licence from one name to the other and it is same as chargeable for the grant of a licence or renewal of the licence or continuance of the licence. Obviously, the said rule applies the voluntary transfer of the licence from one person to the other and cannot be made applicable to the transposition of the name of the legal representative or the heir of the deceased licensee. When the original licensee or one of the joint licensee dies and in his or her place, the legal representative or heir prays for insertion of his or her name in place of d