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2019 Supreme(Bom) 1119
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA
S.C. Gupte, Nutan D. Sardessai, JJ.
Advani Hotels & Resorts India Ltd. – Appellant
Versus
State of Goa – Respondent
Writ Petition No. 1126 of 2017
Decided On : 24-06-2019
Nitin Sardessai, Adv., Kaif Noorani, Adv., D. Pangam, Adv., Pravin Faldessai, Adv.
Headnote:
Constitution of India,1950 – Article 166 - Goa, Daman & Diu Public Gambling Act, 1976 - Section 13A - Renewal of the licence - Petitioner is owner of a five star hotel run under name and style of Beach Resort - Petitioner no.1 was operating a casino in this hotel under a licence initially issued and valid for a period of 5 years and thereafter renewed from time to time - Last renewal of licence was granted to petitioners for the period - Licence and its renewal were under Section 13A of the Goa, Daman & Diu Public Gambling Act, 1976, under which the Government had issued a notification fixing conditions including payment of fees for the licence - Government of Goa issued a notification under Section 13A of the Act, read with Section 21 of the General Clauses Act, amending original notification and re-fixing recurring licence fees for authorised game of electronic amusement/slot machines in five star hotels - Notification, inter alia, required a licensee of a land based casino in a five star hotel to pay an annual recurring fee irrespective of number of machines installed on the licenced premises - Notification was said to come into force with immediate effect - Petitioners challenged the show cause notice by filing a Writ Petition - Petitioners, filed a reply and were granted a hearing before respondent no.2. Respondent no.2, by impugned order, directed the petitioners to pay difference in licence fees in the sum for the period - This order is the subject matter of challenge in the present petition - Whether any irrelevant or non-germane material or circumstance is taken into account– Held, As court have noted, view expressed by authority in its impugned order is not just a possible view, but a pre-eminently possible view in light of the law laid down by Supreme Court in the case of Rajasthan State Industrial Development and Investment Corporation (supra) and by our Court in the case of Hotel Leela Ventures Ltd. (supra) - Judgment of Kolhapur Engineering Association (supra) cited is distinguishable - That was a case where the rule framed under Factories Act, before its amendment, provided for application for registration and grant of licence under that Act - Licensee before the Court had already obtained a licence before the rule was amended by revising the licence fees - Revised fees were sought to be made applicable for anterior period -Court held that the amended rule could not be applied to licences already issued - In court case, fees are not fixed licence fees, but annual recurring fees and the revision is being applied only prospectively, i.e. for balance annual licensing period post the revision notification - In court case, the Division Bench has already construed prospectively of revision in that light - Petition is dismissed.
JUDGMENT :
S.C. Gupte, J.
This writ petition is filed by the petitioners who run an onshore casino. The petition challenges an order passed by the Under Secretary (Home) of the Government of Goa in pursuance of a show cause notice issued to the petitioners for recovery of fees for running of the casino and a demand notice issued to the petitioners in pursuance of such order.
2. The bare facts of the petitioners' case, necessary for the purposes of determining the controversy in the petition, may be noted as follows:
2.1 Petitioner no.1 is the owner of a five star hotel run under the name and style of 'Caravela Beach Resort' situated at Varca Goa. Petitioner no.1 was operating a casino in this hotel by the name of 'Goa Nugget' under a licence initially issued on 12/02/1993 and valid for a period of 5 years and thereafter renewed from time to time up to 12/10/2014. The last renewal of the licence was granted to the petitioners for the period from 25/04/2008 to 24/04/2013. The licence and its renewal were under Section 13A of the Goa, Daman & Diu Public Gambling Act, 1976 ('the Act' for short hereinafter), under which the Government had issued a notification fixing conditions including payment of fees for the licence.
2.2 On 25/05/2012, the Government of Goa issued a notification under Section 13A of the Act, read with Section 21 of the General Clauses Act, amending the original notification and re-fixing recurring licence fees for authorised game of electronic amusement/slot machines in five star hotels. The notification, inter alia, required a licensee of a land based casino in a five star hotel to pay an annual recurring fee of Rs.2,50,00,000/- (Rupees two crores fifty lakhs only) irrespective of the number of machines installed on the licenced premises. (In addition to the annual recurring fees, under the notification then operating, the licensees were required to pay a fixed licence fee.) The notification was said to come into force with immediate effect.
2.3 After the notification was published, the petitioners, vide their letter dated 01/06/2012, addressed to respondent no.2, surrendered their licence with immediate effect. The petitioners protested that the increase in the then prevailing recurring annual fee (from Rs.7,60,000.00 to Rs.2,50,00,000.00) was grossly disproportionate and excessive. The petitioners called such surrender to be under duress and under protest, reserving their right of reinstatement upon a reasonable recurring fee being fixed for the operation of the licence. Respondent no.2 accepted the surrender of the licence.
2.4 Subsequently, by clarification/guidelines issued vide order dated 21/08/2012, published in the Official Gazette on 30/08/2012, the respondent State purported to remove doubts in the matter of revision of payment of casino fees made by its notification of 25/05/2012.
2.5 It is the case of the petitioners that this clarification made the increase in annual recurring fees (made by the notification of 25/05/2012) effective only from the date on which it was due, to be collected/paid. They submit that in their case, the fees were due around the beginning of the annual licensing period, that is to say, with effect from 25/04/2012 and that the fees so due were already collected/paid and as a result, for the same period they were not liable to pay the revised annual recurring fees. On that basis, after the clarificatory order was published by the Government, the petitioners, vide their letter dated 30/10/2012, addressed to respondent no.2, requested the latter to return back the original licence, which was surrendered under protest on 01/06/2012 though the same was valid upto 24/04/2013.
2.6 The petitioners' request took some time to process on the part of the Government. Finally, vide their letter dated 22/01/2013, the respondent approved the petitioners' request for reinstatement of the Casino licence. Vide their letter dated 07/02/2014, the respondents acceded to the petitioners' request and extend
