Recovery of interest on liquor shop license fee is not permissible under Section 49 of the Bombay Prohibition Act, 1949, and relevant circulars.

VIBHA KANKANWADI, J.

1. Rule. Rule made returnable forthwith and heard learned advocates for the parties appearing finally, by consent.

2. The present petitioners have invoked the writ jurisdiction of this Court under Article 226 of Constitution of India in order to challenge the communication dated 4th March, 2017 to the extent of calling upon them to deposit amount of interest issued by the 3rd respondent and for issuing directions to the respondents No.3 and 4 to refund the amount of interest that has been deposited by the petitioners under protest.

3. The brief facts of the case are that, the father of the petitioners viz. Dwarkaprasad Hiralal Jaiswal was the license holder of “CLIII” category in respect of shop at Shahabazar, Aurangabad. Dwarkaprasad Jaiswal expired on 3rd June, 1992. After his death, the license was temporarily transferred in the name of his widow Smt. Ramdulari Jaiswal. However, said Ramdulari also expired on 18th June, 1994. They both had left four sons and three daughters as their heirs. There was a dispute between the legal representatives, and therefore, the matter was taken before the Civil Court in Aurangabad. The said petition came to be decided on 5th August, 1994 and it was decided that the present petitioners would run the liquor shop in question. Petitioner No.1 submitted an application on 22nd February, 2010 with the department in respect of dispute between the brothers i.e. both the petitioners in respect of partnership. It was communicated to the petitioners that, unless the dispute is settled, the license will not be renewed. Therefore, the writ petition was filed before this Court bearing Writ Petition No.2441 of 2010. It was disposed of giving direction to respondent No.2 to decide the representation within eight weeks. In view of the facts referred, the second respondent by its order dated 17th June, 2010 suspended the license until the dispute is resolved. The said dispute got resolved but till then i.e. between 2011-2012 the license remained suspended. After the dispute was resolved, the petitioners decided to run the shop jointly. Therefore, they moved an application for renewal of license with effect from 2011-2012 till 2016-2017. By letter dated 4th March, 2017 the 3rd respondent called upon the petitioner to pay / deposit the license fee for the period 2011-2012 till 2016-2017 to the tune of Rs.16,15,852/- along with interest of Rs.11,68,375/-. The said amount came to be deposited by the petitioners under protest. After the said amount was deposited, the license was renewed and an endorsement is put on the same.

4. The license fee for the current year is also paid by the petitioners. Thereafter, they had made an application/ representation to the 3rd respondent stating that, the direction regarding payment of interest on the license fee was illegal and against the principle laid down in Writ Petition No.199 of 2006 decided by this Court. No action has been taken by the respondents, and therefore this petition has been filed.

5. The petition has been objected by the learned Additional Government Pleader stating that, the amount has been paid by the petitioner, and therefore, there is no question of refund. The learned counsel appearing for the petitioner has relied on the decision in Writ Petition No.199 of 2006 passed by the Single Judge on 7th January, 2011.

6. The facts are not in dispute and it is also evident from the documents those have been produced on record that, a license came to be issued in the name of Dwarkaprasad Hiralal Jaiswal in respect of liquor shop to be run at Shahabazar, Aurangabad. After his death, the license was transferred in the name of his widow Smt. Ramdulari Jaiswal. After death of Ramdulari dispute arose between the legal heirs as to who would conduct the shop.

7. It appears that, the interse dispute between the heirs has been ultimately resolved and the petitioners decided to run the shop. Accordingly, they applied for the renewal of license who