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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5631/2016
Shri Anand Nandkishor Jaiswal,
aged 42 Yrs., Occu. Business,
R/o Frezarpura, Amravati,
Taluka and District Amravati. ..Petitioner.
..Vs..
1. The State of Maharashtra,
through the Secretary,
Department of State Excise,
Mantralaya, Mumbai.
2. The Commissioner, State Excise,
Maharashtra State, Mumbai.
3. Collector, State Excise,
Amravati.
4. The Superintendent, State Excise,
Amravati.
5. Krishnamanohar Babulal Jaiswal,
aged about 64 Yrs., Occu. Business,
R/o Madhuban Society Camp,
Amravati.
6. Smt. Poonam Karan Jaiswal,
aged Major, Occu. Business,
R/o Shivekta Square, Subhash Colony,
Amravati. ..Respondents.
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Shri A.S. Kilor, Advocate for the petitioner.
Shri N.R. Patil, A.G.P. for respondent Nos.1 to 4.
Shri S.G. Jagtap, Advocate for respondent Nos.5 and 6.
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CORAM : Z.A. HAQ, J.
DATE : 10.11.2017.
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ORAL JUDGMENT
1. Heard Shri A.S. Kilor, Advocate for the petitioner, Shri N.R. Patil, A.G.P. for respondent Nos.1 to 4 and Shri S.G. Jagtap, Advocate for respondent Nos.5 and 6.
2. Rule. Rule made returnable forthwith.
3. The petitioner was granted CL-III licence on the basis of which he was running business at Bapat Chowk, Amravati. The petitioner stopped business at this place and submitted an application on 28 th March, 2016 seeking permission / licence for running business at shop constructed on Plot No.53, Nazul Sheet No.68-D, Badnera Road, Amravati.
The respondent Nos.5 and 6 had CL-III licence on the basis of which they were running business at Nawathe Nagar, Amravati. The respondent Nos.5 and 6 faced some problems while running business at that place and, therefore, submitted an application dated 7th April, 2016 seeking permission to shift the business at Bapat Chowk in the shop in which the petitioner was earlier running the business.
4. The Collector, State Excise considered both the applications, recorded that the petitioner had not submitted documents to show that he was in possession of the shop constructed on Plot No.53 at Nazul Sheet No.68-D. ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:11 :::
3 wp5631.16 The Collector, State Excise recorded that the respondent Nos.5 and 6 can be permitted to run their business at Bapat Chowk.
The application submitted by the petitioner came to be rejected on the ground that the respondent Nos.5 and 6 are granted permission to run the business at Bapat Chowk and the shop where the petitioner intends to start the business is situated within 200 meters of this shop and, therefore, the petitioner cannot be permitted to run the business at that place.
Being aggrieved by this order, the petitioner filed appeal which is pending. As the Appellate Authority failed to consider the prayer of the petitioner for interim order, the petitioner has filed this petition.
5. In this petition, an order came to be passed on 5th October, 2016 as follows:
"It seems that by common order dated 11.07.2016, the respondent No.5 Krishnamanohar Babulal Jaiswal, holder of CL-III license is permitted to transfer his license from Nawathe Plots at Amravati to Plot No.53 at Bapat Chowk. By the same order, the application of Anand Nandkishor Jaiswal, the petitioner in W.P. No.5631 of 2016 for transfer of CL-III license from Bapat Chowk to adjoining area at the distance of less than 200 meters has been rejected. Consequently, both the shops are now to be located at the same place. The application of the petitioner Anand Nandkishor Jaiswal has been rejected on the ground that the demand for shifting was at the place which is less than 200 meters.
In view of the above, the Collector, State Excise to take appropriate decision in the matter so that the controversy can be resolved and to file an affidavit.
Put up these matters on 16.11.2016."::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:11 :::
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6. After the order dated 5th October, 2016 was passed, the Collector, State Excise passed an order on 28th November, 2016 directing the respondent Nos.5 and 6 to stop their business. However, the Collector, State Excise again took up the matter suo motu and issued the order dated 20th December, 2016 permitting the respondent Nos.5 and 6 to run the business in the shop at Bapat Chowk, Amravati. The petitioner amended this petition and incorporated the challenge to the order dated 20th December, 2016.
7. The submission on behalf of the petitioner is that though the application seeking permission to run the business is submitted by him on 28 th March, 2016 before the respondent Nos.5 and 6 applied for running the business at the shop at Bapat Chowk, Amravati on 7 th April, 2016, the application submitted by the respondent Nos.5 and 6 is granted and the application submitted by the petitioner is rejected on the ground that the premises where the petitioner intends to start / run the business is situated within distance of 200 meters from the shop where the respondent Nos.5 and 6 are permitted to run the business.
8. The submission on behalf of the respondent Nos.5 and 6 is that the application submitted by the petitioner is not rejected only on the above ground but also on the consideration that the petitioner has not submitted any document to show that he is in possession of the premises where he intends to ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:11 ::: 5 wp5631.16 run the business.
9. The appeal filed by the petitioner challenging the order dated 11 th July, 2016 is pending before the Appellate Authority. It would not be appropriate for this Court to examine the legality of the order dated 11 th July, 2016 at this stage.
The order dated 20th December, 2016 is issued during the pendency of this petition and this order records that it is issued as per the advise given by the Government Pleader. Considering these facts, I felt it necessary to examine the legality of the order issued on 20th December, 2016.
10. The Collector, State Excise had passed an exhaustive order running into three and quarter pages on 28th November, 2016 and had directed the respondent Nos.5 and 6 to stop the business. The learned A.G.P. and the learned Advocate for the respondent Nos.5 and 6 have not been able to point out that the Maharashtra Prohibition Act enables the Collector, State Excise to suo motu review his order. Furthermore, the reasons recorded in the order dated 20th December, 2016 for its issuance are also unacceptable. Considering the facts of the case, the following order is passed:
(i) The order issued by the Collector, State Excise on 20 th December, 2016 is set aside.
It is submitted that the respondent Nos.5 and 6 had filed Writ ::: Uploaded on - 18/11/2017 ::: Downloaded on - 19/11/2017 00:34:11 ::: 6 wp5631.16 Petition No.6819/2016 before this Court to challenge the order dated 28 th November, 2016, however, after the order dated 20th December, 2016 is issued Writ Petition No.6819/2016 is disposed and now if the order dated 20 th December, 2016 is set aside then the respondent Nos.5 and and 6 will be deprived of challenging the order dated 28th November, 2016 by filing appeal provided under the Act.
The respondent Nos.5 and 6 will be at liberty to file appeal to challenge the order dated 28th November, 2016, if so advised.
(ii) The respondent Nos.5 and 6 shall comply with the order dated 28 th November, 2016 with immediate effect.
(iii) The Commissioner, State Excise shall decide the appeal filed by the petitioner till 28th January, 2018.
(iv) The petitioner and the respondent Nos.5 and 6 shall appear before the Commissioner, State Excise on 15th December, 2017 and abide by further instructions / orders in the matter.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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