K. Vinod Chandran, CJ. – The petitioner challenged the cancellation of his license to carry on a retail ‘Foreign Liquor Off Shop’ bearing No. 46 and sought restoration of permission to operate the shop at the existing site. As of now, there is a prohibition in place, within the State and there is no question of resumption of the license. The learned counsel for the petitioner has also confined the relief to the refund of the security deposit and advance amounts; which obviously has been forfeited.

2. The learned counsel for the petitioner submits that the petitioner applied for an “Off shop”; meaning a retail shop for sale of foreign liquor without permission for consumption within the premises. As required under the settlement notice, he proffered an objection free site. The site first offered by the petitioner was approved, but since the building in the site was demolished the petitioner submitted yet another objection free site at New Punaichak, Boring Canal Road, Patna. There was due inspection carried out in the premises as evident from Annexure-2 series. The site was approved by the District Collector and the petitioner commenced operation of the shop. While the shop was continued, without any notice, Annexure-3 order was passed directing the petitioner to shift the location of the shop within 24 hours; threatening closure on failure.

3. On 15.07.2011, the shop was sealed and the petitioner approached this Hon’ble Court. By Annexure-4 judgment, this Court set aside the order and directed the Collector to hear the parties on the next date; failing which the petitioner was found entitled to open his shop. The petitioner approached the Collector with a detailed representation as per Annexure-5. The Collector, however, reiterated the order, directing shifting to another objection free site; but granted 15 days time as per Annexure-6. The petitioner preferred a statutory appeal before the Excise Commissioner on 23.08.2011 and it is also asserted though the appeal was heard on 16.09.2011, there were no orders passed. On 18.10.2011, cancelling the license of the petitioner and forfeiting the security deposit and advance amounts, an order was passed by the District Collector, even when the appeal was pending before the Excise Commissioner. The order dated 18.10.2011 cancelling the license of the petitioner is produced as Annexure-8, which is impugned in the above writ petition. Later, the appeal preferred by the petitioner was dismissed by the Excise Commissioner on 08.11.2011.

4. As was earlier observed, the petitioner is now concerned only with the refund of his security deposit and advance amounts. The petitioner has filed an Interlocutory Application challenging Annexure-11 order, which raised a demand against the petitioner under Section 43 of the Bihar Excise Act, 1915 as it existed at the relevant time. The said order has been challenged by way of an I.A. which, the learned counsel for the petitioner submits, is not pressed. The learned counsel for the petitioner also takes us through the provisions of the Excise Act to impress upon us that the consequence of no refund, arises only under Section 42 and the instant cancellation does not fall under Section 42 of the Act. It is pointed out that if the ‘objection free site’ is not proffered by a licensee, then the only consequence would be that the licensee would not be able to commence the foreign liqour shop in which event, he would have to be refunded the advance amounts and the security deposit. Though, a cancellation other than on grounds specified under Section 42 entails the licensee to compensation; the petitioner does not seek for the same. It is also submitted by the learned counsel for the petitioner that the cancellation was effected without notice and when the appeal was pending before the Excise Commissioner.

5. The learned Government Advocate, on the other hand, submits that the last order impugned in the writ petition is appealable to the Board and the alternate r