1975 Supreme(Pat) 194

PATNA HIGH COURT
K.B.N.Singh and Uday Sinha JJ.
Lallu Prasad And Another
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1034 of 1975 ; 1058 of 1975 ;
Decided On : OCTOBER 28, 1975

The order of the Excise Commissioner under Sec.35 of the Act was final and the Board of Revenue had no jurisdiction to revise it.

Headnote:

EXCISE - Grant of license - Shifting of shop - Procedure - Finality of order of Excise Commissioner - Bihar and Orissa Excise Act (II of 1915), Ss. 30, 31, 32, 33, 34, 35, 8.

Fact of the Case:

The Collector of Rohtas while drawing up a list of country spirit shops in the district for the financial year 1975-76 showed a new country spirit shop at Diliya and deleted the one at village Basa, the petitioners remaining the licensees for the shop at Diliya. This list was drawn up in terms of Sec.30 of the Bihar and Orissa Excise Act (hereinafter to be called as the Act). After completing the formalities in terms of Sections 30 to 33 of the Act, the Collector submitted his proposal to the Commissioner of Excise in terms of Sec.34 (2) of the Act and the latter in turn accorded approval to the said proposal in terms of Sec.35 of the Act. His approval was conveyed to the Collector of Rohtas by letter dated 21-1-1975 (Annexure - 11). It appears, that the Excise Commissioner having approved the proposal, the Collector ordered for grant of licence in village Diliya to the petitioners by order dated the 14th of February, 1975. Steps were taken for selection of actual site of the country spirit shop for which the petitioners had been granted licence. It appears that the actual location of the new shop was either within New Diliya or too near to it. Objections were, therefore raised against locating a country spirit shop in a residential area comprising of girls school and a Church. In view of the objections the Collector ordered on the 20th of February, 1975 that no country spirit shop should be opened in village New Diliya and he approved a place 1000 yards south of the Grand Trunk Road which was far removed from habitation in village, Diliya. This did not seem to have satisfied A. C. Sao, Lakshmi Singh and Mandal Rai, respondents 5, 6 and 7 (in C. W. J. C. No. 1058 of 1975) and, therefore, they filed an application before the Board of Revenue which was numbered as Board Case No. 117 of 1975. This application before the Board was against locating the country spirit shop at New Diliya. The Member Board of Revenue on the same day admitted the application and called for record of the case and report of the Excise Commissioner on the points raised by the petitioners to the application fixing 10-5-1975 as the date for hearing of the application. The grant of licence for the shop at New Diliya was also stayed pending disposal of the application before the Board. Having come to know of the order of stay passed by the Board, the petitioners filed an application on the 21st of March, 1975 for vacating the order of stay on the ground that no order had been passed by any authority for opening of a country spirit shop at New Diliya and, therefore, the application by the respondents before the Board was misconceived. Since a confusion was created about Diliya and New Diliya, the member Board of Revenue by his order dated 21-3-1975 in modification of his order passed on the 20th of March, 1975 ordered as follows:- “Heard parties, From 1-4-1975 till this case is disposed of, the provisional licence for New Diliya may be given. This will not confer any right to the party.” In terms of the above order a provisional licence was granted for opening a country spirit shop at village Diliya without conferring any substantive right upon the petitioners. On the 22nd of March, 1975 respondents 5, 6 and 7 of C. W. J. C. No. 1034 of 1975 filed an application before the Board of Revenue under S.8 of the Act against opening of a country spirit shop at Diliya, also known in common parlance as New Diliya which was numbered as Board Case No. 127 of 1975.

Finding of the Court:

The provisions contained in Sections 30 to 34 of the Act had been fully complied in so far as the Collector had drawn up a list showing (a) what licences were proposed to be granted, (b) the list so prepared was published to the people of Diliya by beat of drum, (c) a copy of the list had been sent to the Chairman of the District Board, (d) a copy of the list in regard to the shifting of the shop from village Basa to Village Diliya had been sent to the Chairman of the Dehri-on-Sone Municipality, (e) the list had been published as prescribed, (f) objections filed by various persons and authorities had been considered by the Collector and the Collector having found the objections without any substance rejected them (g) the Collector transmitted the list along with objections and opinion with his own opinion to the Excise Commissioner in terms of Sec. 34 of the Act and (h) in terms of Sec.35 the Excise Commissioner had approved the list or proposal of the Collector so sent to him under Sec.34 (2) of the Act. I am also of the view that the approval of the Excise Commissioner as contained in Annexure 11 to the proposal of the Collector under Sec.34 of the Act was final and that the learned Member Board of Revenue had no jurisdiction to sit in judgment over the approval accorded by the Excise Commissioner in exercise of his revisional powers under Section 8 of the Bihar and Orissa Excise Act.

Issues: 1. Whether the order of the Excise Commissioner under Sec.35 of the Act was final? 2. Whether the Board of Revenue had jurisdiction to revise the order passed by the Excise Commissioner under Sec.35 of the Act? 3. Whether the Collector had complied with the provisions of Sections 30 to 33 of the Act?

Ratio Decidendi: 1. The order of the Excise Commissioner under Sec.35 of the Act was final and the Board of Revenue had no jurisdiction to revise it. 2. The Board of Revenue had no jurisdiction to revise the order passed by the Excise Commissioner under Sec.35 of the Act. 3. The Collector had complied with the provisions of Sections 30 to 33 of the Act.

Final Decision: The writ applications were allowed with costs; hearing fee Rs. 250.00 payable by respondents 5, 6 and 7 of each application to the petitioners of each writ application.