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2015 Supreme(Pat) 921
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ramesh Kumar Datta, Amaresh Kumar Lal, JJ.
Manish Dwivedi - Petitioner
Versus
The State of Bihar through the Secretary, Registration, Excise and Prohibition Department & Ors. - Respondents
Civil Writ Jurisdiction Case No.9127 of 2015
Decided On : 28.07.2015
For the Petitioners:Mr. Satyabir Bharti, Advocate with Mr. Alok Chandra, Advocate
For the State : Mr. Vikash Kumar, AC to PAAG
For Respondent No.5:Mr. Prabhakar Singh & Mr.Rakesh Mohan Singh, Advocates
The main legal point established in the judgment is the requirement for a fair and proper enquiry before cancelling a licence, emphasizing the importance of expert verification of signatures and the inadmissibility of layman decisions on such matters.
Headnote:
amendment - quashing of licence - Bihar Excise Act, Section 42 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 42 of the Bihar Excise Act, which empowers the Collector to cancel a licence transferred without permission. The court emphasized the need for a fair and proper enquiry before such cancellation and highlighted the consequences of cancellation under the settlement scheme. The court also considered the petitioner's right to seek alternative remedy and the relevance of disputed questions of fact in the writ jurisdiction.
Fact of the Case:
The petitioner sought to quash the licence issued to respondent No.5 for a retail liquor shop and restore it in his favor. The Collector had cancelled the petitioner's licence based on allegations of selling/transferring the licence and being a Government servant.
Finding of the Court:
The court found that the cancellation was based on a perfunctory enquiry and violated fair enquiry principles. It also noted the lack of examination of key individuals, absence of proper verification of signatures, and the Collector's layman decision on signature identity. The court observed a conspiracy between the Excise authorities and respondent No.5.
Issues: Violation of fair enquiry principles, expertise of the Collector in deciding signature identity, conspiracy between authorities and respondent No.5, availability of alternative remedy, relevance of disputed questions of fact in the writ jurisdiction.
Ratio Decidendi: The court emphasized the need for a fair and proper enquiry before cancelling a licence, regardless of the availability of alternative remedy. It highlighted the importance of expert verification of signatures and the inadmissibility of layman decisions on such matters.
Final Decision: The writ application was allowed, quashing the impugned order and directing the restoration of the petitioner's licence. The respondents were directed to permit the petitioner to operate his licence within a week and proceed afresh against the petitioner after holding a due enquiry.
RAMESH KUMAR DATTA
I.A.No. 5773 of 2015
The interlocutory application has been filed for amending the prayer made in the writ application so as to seek quashing the licence issued in favour of respondent No.5 for Group No. 37 shops in the district of Siwan for the remaining part of the Financial Year 2015-16 and direct its restoration in petitioner’s favour.
2. Learned counsel for the petitioner submits that when the writ application was filed the petitioner was not aware of the licence having actually been issued to respondent No.5 and the same has not been challenged. It is submitted by learned counsel that in any view of the matter if the initial order dated 22.6.2015 is quashed by this Court then any subsequent action of the respondents would automatically go away but by way of abundant precaution the petitioner seeks amendment of the prayer by way of the said interlocutory application.
3. In the aforesaid circumstances, the prayer for amendment is allowed.
4. I.A.No. 5773 of 2015 is accordingly disposed of.
5. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for respondent No.5.
6. The petitioner seeks quashing of the order dated 22.6.2015 passed by the Collector, Siwan by which the licence of Group No.37 retail liquor shops in the district of Siwan granted to the petitioner has been cancelled and a direction has been issued to settle the said licence with the second winner in the lottery and for quashing the licence granted to respondent No.5 for Group No.37 shops and for consequential directions.
7. The petitioner, respondent No.5 and others pursuant to the Sale Notification issued by the Collector, Siwan filed their applications for settlement of retail liquor shops for the year 2015- 16 and upon draw of lots the petitioner was declared successful in the draw of lots at Serial No.1 and respondent No.5 was placed at Serial No.2. As per the Settlement Rules three lots are to be drawn and the successful candidates are placed seriatim and in case of failure of the drawee at Serial No.1 to take settlement or cancellation of licence or for any other reason the benefit of settlement would go to the second successful candidate at Serial No.2 and so on at Serial No.3 if the occasion arises. The petitioner deposited the necessary fees and security amount and licence was issued in his favour. Thereafter on 27.3.2015 respondent No.5 filed a complaint with the Superintendent of Excise alleging that the petitioner being a Government servant is disentitled to participate in the settlement. The Excise Superintendent by notice dated 28.3.2015 directed the petitioner to show cause as to why his settlement be not cancelled on the said ground. The petitioner replied to the same on 3.4.2015 denying the allegation stating that he was merely a Gramin Dak Sewak and not a Government servant, who is allowed to work for a maximum period of 5 hours in a day on a fixed allowance and the Rules itself provide that the Sewak should have other known source of income for himself and his family. In support of his stand relevant extract of Rules was also annexed to the show cause reply by the petitioner. Upon the said reply no further action was taken and the petitioner was continuing to operate the shop.
8. Thereafter it is alleged that respondent No.5 came up with another complaint annexing forged and fabricated documents alleging that the petitioner has sold/transferred his licence for a consideration of Rs.11 lacs to one Shri Ajay Kumar Jaiswal. It is the stand of the petitioner that the complainant respondent No.5 is an employee and agent of the said Ajay Kumar Jaiswal. The petitioner was directed by the Excise Superintendent by notice dated 9.5.2015 to file show cause and the petitioner replied to the same on 13.5.2015 denying the allegations and alleging that the agreement in question was a forged and fabricated document. The Superintendent of Excise directed the Sub Inspector of Excise, Mairwan Anchal
