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2011 Supreme(Bom) 970
2011 (5) ALL MR 669
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI, VASANTI A. NAIK & P.D. KODE
Jitendra S/o Manindranath Bose
Versus
The State of Maharashtra, Secretary, State Excise Department & Another
WRIT PETITION NO. 3657 OF 2010
Decided on : 11-08-2011
For the Petitioner: Anand S. Jaiswal with R.A. Jaiswal, counsel.
For the Respondents: Bharti H. Dangre, Additional Government Pleader.
Headnote:Bombay Prohibition Act, 1949 - Sections 11, 49, 52 to 58, 139 and 149-Trade or business in Intoxicants-Right of Government-Government has an exclusive right or privilege of exporting, importing, manufacturing, selling, buying of intoxicants, hemp, toddy etc-Government can validly part with privilege for consideration, by permitting licensee to carry on its activities-Provisions of Act 1949 contains entire scheme of prohibition enumerating various prohibitions imposed in respect of intoxicants.-The Government has an exclusive right or privilege of exporting, importing, manufacturing, selling, buying of intoxicants, hemp, toddy etc. and the Government can validly part with the privilege for consideration, by permitting the licensee to carry on its activities. The provisions of the Bombay Prohibition Act and the Rules framed thereunder regulate the trade and business in liquor and seek to achieve the objects of the Act. Chapter III of the Act of 1949 contains the entire scheme of prohibition enumerating various prohibitions imposed in respect of intoxicants. These prohibitions include the prohibition of manufacture of liquor and construction and working of the Distillery or the Brewery, prohibition of sale of liquor, prohibition of import, export, transport, sale, etc. of intoxicating drugs and sweet toddy, prohibition of possession of opium, prohibition of production of Charas, etc.
Bombay Prohibition Act, 1949 - Section 49-Refund of Privilege fees-Entitlement of licensee-Licensee, prevented by an order of Court or similar reason from carrying on business-Not entitled to refund of privilege fees. 2005 (3) All MR 810-Relied on.
Constitution of India - Article 19(1)(9)-Bombay Prohibition Act, 1949, Sections 11, 49, 52 to 58, 139 and 149-Right to trade or do business -Fundamental right-No citizen has a fundamental right to trade or do business in intoxicants-State under its regulatory powers has a right to prohibit every citizen from activity in relation to manufacture, storage, import, export, sale and possession of intoxicant-No person claim against State, right to trade or do business in liquor-State cannot be compelled to part with its exclusive right or privilege. AIR 1975 SC 1121; 2004 (11) SCC 26-Relied on.-Few undisputed facts giving rise to the writ petition and then to the order of reference, are stated thus-
A FL-III licence was granted in the year 1947 in the name of one Parasram Ghate. Since the licensee failed to carry on business, the licence lapsed and in the year 2005, it was revalidated and transferred in the name of the petitioner. The petitioner descried that the licence be transferred from Narkhed to Nagpur and, hence, applied to the Excise Commissioner in that regard. The Excise Commissioner, however, rejected the application for transfer of the licence to Nagpur, A revision against that order was allowed and the shop was shifted to Bidipeth, Nagpur, Some residents of Bidipeth locality filed a writ petition challenging the order granting permission to shift the shop from Narked to Bidipeth, Nagpur. In Writ petition No. 4693 of 2007, filed by the residents of Bidipeth, this Court granted stay to the effect, implementation and operation of the order of transfer on 19.10.2007. The ad interim relief was confirmed on 23.07.2008. During the pendency of the petition, the petitioner in informed the Court that he was willing to shift his shop to some other locality of Nagpur and the Court granted permission to the petitioner to make the necessary application to the competent authority. The Superintendent of Excise, Nagpur was pleased to allow petitioner to shift his shop from Bidipeth, Nagpur to Radke Layout, Nagpur. Since the petitioner was prevented by the order of the High Court from operating his licence at Bidipeth, Nagpur, the petitioner filed the writ petition seeking the refund of the licence fee paid by him for the period during which his shop remained closed. The Division Bench of this Court, was of the view that in the circumstances of the case, the petitioner was not entitled for refund of privilege fees. Since the Division Bench in the case of Samarth Co-operative Consumers Central Stores Limited v. State of Maharashtra and others, the question stated hereinabove was referred for a decision by a larger Bench.
SMT. VASANTI A. NAIK, J.
This reference before the Full Bench has been made on 26th of April, 2011 in view of the apparent conflict in view expressed by the Division Bench of this Court in the case of M/s Samarth Cooperative Consumers Central Stores Limited Versus State of Maharashtra and the view expressed by the Division Bench of this Court in this writ petition. Earlier, the Division Bench of this Court had, in the case of M/s Samarth Cooperative Consumers Central Stores Limited Versus State of Maharashtra & others, held that the petitioner therein, a foreign liquor licensee, was not liable to pay the license fee for the period during which he had not carried on business. Since the FLIII license of the petitioner therein was not renewed for the period from 01.04.1979 to 01.04.2004, the Division Bench held that the petitioner cannot be asked to pay the license fee for that period. The Court observed that Section 49 of The Bombay Prohibition Act, 1949 did not empower the authorities to demand license fee for the period for which the petitioner had not carried on business. The other Division Bench making the reference, however, was unable to agree with the view and the observations in the case of M/s Samarth Cooperative Consumers Central Stores Limited Versus State of Maharashtra & others. In view of the Division Bench, making the reference, the licensee was not entitled for refund of privilege fees for the period during which the license was not in use. According to the Court making the reference, privilege fee is charged by the State for parting with the exclusive privilege of trading in liquor and since the Government had not withdrawn the privilege granted to the licensee at any point of time, the licensee was not entitled to refund of license fee, even if he was prevented from carrying on business due to the prohibitory order of the Court. In the circumstances, the Division Bench considered it appropriate to refer the following question for a decision by a larger Bench.
“Whether the State Government is bound to refund the privilege fees, charged from a licensee, where such licensee is prevented by an order of a Court or similar reason not attributable to the Government, for the period when such business was not carried out ?”
2. Few undisputed facts giving rise to the writ petition and then to the order of reference, are stated thus A FL-III license was granted in the year 1974 in the name of one Parasram Ghate. Since the licensee failed to carry on business, the license lapsed and in the year 2005, it was revalidated and transferred in the name of the petitioner. The petitioner desired that the license be transferred from Narkhed to Nagpur and, hence, applied to the Excise Commissioner in that regard. The Excise Commissioner, however, rejected the application for transfer of the license to Nagpur. A revision against that order was allowed and the shop was shifted to Bidipeth, Nagpur. Some residents of Bidipeth locality filed a writ petition challenging the order granting permission to shift the shop from Narkhed to Bidipeth, Nagpur. In Writ Petition No.4693 of 2007, filed by the residents of Bidipeth, this Court granted stay to the effect, implementation and operation of the order of transfer on 19.10.2007. The adinterim relief was confirmed on 23.07.2008. During the pendency of the petition, the petitioner informed the Court that he was willing to shift his shop to some other locality of Nagpur and the Court granted permission to the petitioner to make the necessary application to the competent authority. The Superintendent of Excise, Nagpur was pleased to allow the petitioner to shift his shop from Bidipeth, Nagpur to Radke Layout, Nagpur. Since the petitioner was prevented by the order of the High Court from operating his license at Bidipeth, Nagpur, the petitioner filed the writ petition seeking the refund of the license fee paid by him for the period during which his shop remained closed. The Division Be
