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2003 Supreme(Bom) 304
IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
Commissioner of State Excise others .... Applicants.
Versus
Maharashtra Retail Liquor Dalrs Association.... Respondent.
Civil Application Nos. 2601, 2602, 2603, 2604, 2605, 2606, 2608, 2607, 2578 of 2002 in Writ Petition Nos. 2012, 1818, 1657, 2514, 2515, 2125, 2516, 2033, 1605 of 2002 with 393, 18 of 2003 in Writ Petition Nos. 2033, 2040, of 2002 (O.S.) Notice of Motion Nos. 93 of 2003 in Writ Petition Nos. 1023 of 2002, decided on 6-3-2003.
Advocates appeared :
Veena B. Thadani, in C.A. Nos. 2601, 2602, 2606, 2578/2002 in W.P. Nos. 2012, 1818, 2125, 1605/2002, for respondent.
Shrihari Aney, S.C. with C.R. Sonawane, A.G.P., in C.A. Nos. 2602, 2603, 2604, 2605, 2606, 2608, 2607, 2578/2002 in W.P. Nos. 1818, 1657, 2514, 2515, 2125, 2516, 2033, 1605/2002, for applicants.
J. Pochkhanwala with Rajiv Deokar Shri D.B. Sawant, in C.A. Nos. 2603, 2604, 2605, 2608/2002 in W.P. Nos. 1657, 2514, 2515, 2516/2002, for respondent.
Mohan Pungaliya, in C.A. Nos. 2607/2002 in W.P. Nos. 2033/2002, for respondent.
Ms. Rajani Iyer, in C.A. Nos. 393/2003 in W.P. Nos. 2033/2002, for applicant.
Mohan Pungaliya, in C.A. Nos. 393/2003 in W.P. Nos. 2033/2002, for petitioner.
Shrihari Aney, S.C., C.R. Sonawane, A.G.P., in C.A. Nos. 393, 18/2003 in W.P. Nos. 2033, 2040/2002, for respondent.
J. Pochkhanwala, Rajiv Deokar, D.B. Sawant, in C.A. No. 18/2003 in W.P. Nos. 2040/2002, for respondent.
Shrihari Aney, S.C. with Smt. Manjari Shah, A.G.P., in Notice of Motion No. 93/2003 in W.P. No. 1023/2002, for respondent in support.
A.K. Abhyankar with A.A. Joshi, Notice of Motion No. 93/2003 in W.P. No. 1023/2002, for petitioners.
Headnote:Bombay Prohibition Act, 1949 - Section 143(3) - Maharashtra Potable Liquor (Periodicity and fees for grant, renewal or continuance of licence) Rule 1996, Rules 2(1) and (4) - Licence fee - Fixation of - Interim orders - Scope of - Vacation of interim orders sought in view of final decision taken by State Government regarding fixation of licence fee - Held - Since a decision taken and earlier order approved and reiterated - Interim relief granted liable to be vacated - Interim orders staying payment of taxes, fees, revenues etc. not to be made - At time of final hearing of matters appropriate orders will be passed. - Interim order was passed by the Court in the light of the circumstance brought before the Court that the Government was reconsidering the question. Till a decision had been arrived at by the Government, interim relief should be granted in favour of the petitioners. Therefore, once a decision has been taken and earlier order was approved and reiterated, interim relief granted in favour of the petitioners deserves to be vacated.
As and when matters have been taken up for final hearing, appropriate orders will be passed, keeping in view the facts and circumstances in their entirety. Hence, no further observations are necessary at this stage on the observations made by the Division Bench on March 27, 2002.
It may also be observed that ordinarily in such matters, interim orders staying payment of taxes, fees, revenues, etc. should not be made.
2.These Civil Applications and Notice of motion have been filed for vacating interim order passed by this Court on April 4, 2002 in the writ petition.
3.To appreciate the contentions raised by the Special Counsel for the applicants, it may be necessary to state that petitioner of Writ Petition No. 2012 of 2002 (Maharashtra Retail Liquor Dealers Association) and several other petitioners, approached this Court by filing substantive petitions. The case of the petitioners was that in contravention of the provisions of the Bombay Prohibition Act, 1949 and the Maharashtra Potable Liquor (Periodicity and fees for grant, renewal of continuance of Licence) Rules, 1996 (hereinafter referred to as "the Rules"), the Commissioner of State Excise had increased licence fee to the extent of about 400 per cent. The said action was illegal, ultra vires, without authority of law, arbitrary and unreasonable. The petitioners, therefore, prayed for quashing and setting aside the decision and all consequential actions of demand of licence fees.
4.Initially the matter came up before a Division Bench on March 27, 2002. Rule was issued and the following order was passed.
"Rule, returnable in two weeks.
To be finally heard peremptorily on 17th April, 2002 with all other connected petitions pending in this Court including those filed in 1996, 1997, 1998 and 1999.
Heard the Counsel for interim relief. In so far as the petitioners claiming violation of their right of five years licence are concerned, the State shall not require them to pay the enhanced fees till the decision of this Court. In so far as the other petitions are concerned, the State shall grant extended time to pay licence fees by 6th April, 2002. However, the renewal shall be at the fee levied by the Government now and impugned by the petitioners in these petition.
It is made abundantly clear that the fees under challenge today shall be liable to be refunded in the event of the petitioners succeeding in this Court.
The State Government shall not close the shops till 6th April, 2002.
Parties to act on the authenticated copy of this order."
From the above order, it is clear that the Court was prima facie satisfied that the matters required consideration. Hence, rule was issued. On interim relief, the Court was of the opinion that so far as the petitioners claiming violation of the right of "five years licence" were concerned, interim relief deserved to be granted. In respect of other petitioners, they were not entitled to such interim relief. Extension of time was, however, granted to pay licence fees by 6th April, 2002. It was also clarified that renewal was to be at the fee levied by the Government and impugned in the petition.
5.The Court further observed that the fees under challenge would be liable to be refunded in the event of petitioners succeeding in the petition.
6.On 4th April, 2002, few more matters came up for admission before the Division Bench. Rule was issued in those petitions also. The Court observed that a bunch of petitions had been admitted earlier and interim order was granted staying increase in licence fees in favour of persons holding licences for five years. In relation to annual licence holders, however, a limited relief was granted by giving breathing time till April 6, 2002. Within that period, they were asked to pay the amount.
7.It was then observed that after the said order was passed (on 27th March, 2002), the matter had been reconsidered by the State Government and a Resolution was issued on April 3, 2002, a copy of which was tendered in the Court.
8.In paragraph 4, therefore, the Court stated:
"4. From perusal of the Government Resolut
