Entitlement to remission of licence fee under Section 39 of the Bihar Excise Act for the period the petitioner was unable to run the shop.

Navin Sinha and Jyoti Saran JJ.

1. The petitioner was a licensee to deal in country liquor from 1.4.1988 to 31.3.1989 at Dehri No. 2, Mohan Bigha. Just before the commencement of the licence period after settlement, he was asked to shift to another site on 30.3.1988. He filed Appeal No. 41 of 1988 before the Excise Commissioner which came to be dismissed on 29.3.1988. It was questioned in CWJC No. 3397 of 1988. Status quo ante was granted but it was finally dismissed as infructuous on 24.4.1990 when the.licence period expired. In the meantime he obtained another licence from 1.4.1989 to 31.3.1990 for the same location presumably under the interim order of this Court in his pending writ application and ran the shop for the entire duration.

2. On 1.4.1990 he was granted afresh licence valid till 31.3.1991. He made an application on 30.3.1990 that the licence may be given to him for period of one month only as he had been unable to obtain a fresh location which he shall shortly do. He deposited the licence fee for six months of Rs. 2,85,780/- alongwith security deposit of Rs. 43,300/-. After the expiry of one month his shop was sealed on 1.5.1990 as he had failed to submit proposal for a fresh location for the remaining period of the licence. On 4.5.1990 he was asked to shift to an alternative site. The second alternative site submitted by him on 31.5.1990 was approved by the authorities at Plot No. 59, Khata No. 49, Dehri No. 2. On 19.6.1990 the petitioner made an application that he required one and half months time to set up business at the new location. On 24.7.1990 he sought permission to be allowed to run the liquor shop either at the old place or the new location as he was suffering financial loss. His licence was renewed for the period 1.7.1990 to 31.7.1990 and again from 1.8.1990 to 31.8.1990. He therefore ran the liquor shop under the new licence for a total period of three months.

3. On 10.8.1990 he was told that the new site furnished by him on 31.5.1991 he become objectionable under Section 48(C) of the Bihar Excise Act and he was required to relocate the shop. He filed Appeal No 264 of 1990 before the Excise Commissioner. The order dated 9.11.1990 dismissing the appeal noticed that he did not run the liquor shop at the new location for a single day attempting to a back door entry to the old site. It also held that the conduct of the Collector in canceling the new site soon after approval was not proper and left much to be desired. The petitioner then filed Revision Case No. 629 of 1990 before the Board of Revenue. By interim order dated 26.11.1990 he was allowed to run shop at the old premises but was unable to do so in absence of a licence. The appeal was finally dismissed by the impugned order dated 13.6.1991. He also preferred Case No. 675 of 1990 under Section 39 of the Bihar Excise Act for remission of licence fee in respect of the period that he was unable to run shop during the licence period 1.4.1990 to 31.3.1991. This application has been allowed in part holding that the Collector ultimately granted him fresh licence on 15.3.1991 only. That he was in a position to run his shop with effect from 15.1.1991 which was not complied with by the Collector notwithstanding the interim order in Excise Case No. 629 of 1990. He was therefore granted remission in the licence fee from 15.1.1991 to 14.3.1991. His prayer for remission of licence fee from 1.5.1990 to 14.1.1991 has been rejected.

4. It is apparent from the order of the Excise Commissioner dated 9.11.1990 that both the petitioner and the District Magistrate had created an imbroglio by their respective conducts and both were not above aboard.

5. We have already noticed above that for the licence duration of 1.4.1990 to 31.3.1991 the petitioner did actually run shop for three months. He has been granted remission for two months. That leaves seven months of the licence for which fee stood paid. It has already been noticed above that on 19.6.1990 he had h