Judgment lpa368.09
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 368/2009
IN WRIT PETITION NO. 1682/2009.
Nandkishor Shivprasad Jaiswal,
(Ballah), Aged about 67 years,
Occupation - Business, resident of
Lala Building, Avadhut Wadi,
Yavatmal, Tq. and District
Yavatmal. ....APPELLANT.
VERSUS
1. The State of Maharashtra,
Department of Excise, Mantralaya
Madam Cama Road, Mumbai 400 032.
2. The Collector, Yavatmal,
Tq. and District Yavatmal.
3. The Commissioner of State Excise,
Maharashtra State, Fort, Mumbai 400 001.
4. Shri Kamal Laxmikant Jaiswal,
Aged Major, Occupation Business,
resident of Jamanakargar,
Yavatmal, Tq. and District
Yavatmal. ....RESPONDENTS
.
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Mr. C.S. Dharmadhikari, Advocate for the Appellant.
Ms. A.R. Kulkarni, Asstt. Govt. Pleader for Respondent Nos.1 to 3.
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Judgment lpa368.09
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
Date of Reserving the Judgment : 04.10.2017. Date of Pronouncement : 17.11.2017. JUDGMENT. (Per B.P. Dharmadhikari, J)
Appellant/petitioner questions judgment dated 23.06.2009, delivered by the learned Single Judge, dismissing his Writ Petition No.1682/2009. In that Writ Petition, he had challenged an order of Hon'ble Minister on behalf of State Government dated 09.03.2009, by which the Hon'ble Minister maintained the order dated 31.03.2003, passed by the Commissioner of State Excise, Mumbai. The Commissioner has refused to allow second Foreign Liquor Licence (FL-II Licence), in his name. It is to be noted that the proceedings before the Commissioner, State Excise were in the form of an appeal under Section 137[2] of the Bombay Prohibition Act, 1949 (hereinafter referred to as "the Prohibition Act" for short). Earlier the Collector, Yavatmal passed an order on 29.04.2002, rejecting the application of appellant for renewal of FL-II licence, as he is already holding MFL-2 ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 ::: Judgment lpa368.09 3 Licence. This appellate order of Commissioner maintained in revision by the State Government, has also been upheld by the learned Single Judge.
2. Briefly stated, the controversy is due to adjudication dated 31.03.2003 by the Commissioner, State Excise, after decision in Writ Petition No. 654/1980. The appellant claims that said adjudication by this Court, permits an individual to claim and have more than one licence under the Prohibition Act, and hence, second licence issued in his name in 1974 must be revived and renewed. Adjudication in Writ Petition No. 654/1980 along with several connected matters is on 19.03.1982 at Bombay.
3. Placing reliance upon the findings of Division Bench in Writ Petition no. 654/1980, particularly paragraph no. 6[1][a],[b], [f], [g], [h] and [3], submission is, this Court has found treatment discriminatory and hence permitted individual also to have licence in his name. It is claimed that learned Single Judge has overlooked this aspect.
4. Learned A.G.P. has relied upon the reply affidavit and relevant terms and conditions of Prohibition Act with the terms and conditions of licence including the Policy Circular dated 06.06.1974 at Exh.X. Contention is an individual cannot have two licences even after judgment dated ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 ::: Judgment lpa368.09 4 19.03.1982.
5. Learned A.G.P. submits that facts at hand are distinct and the appellant did not claim two licences as an individual, but, in the wake of restrictions then prevailing, he assumed two different names. As there were two applications in two names, same were then allowed. It is contended that the alleged discrimination or policy decision was never questioned by the present appellant. On the contrary, he acquiesced in it and to defeat it, posed in different name and got the benefit. Attention is invited to application of mind by the learned Single Judge in this respect.
6. Without prejudice, it is pointed out that business in liquor is res- extra commercium and there is no fundamental right to it. Division Bench judgment of this Court reported at 2016 [6] Mh.L.J. 290 (Rajendrakumar Shailendrakumar Dixit .vrs. State of Maharashtra), to which one of us (B.P. Dharmadhikari, J) is party is heavily relied upon for this purpose. It is claimed that the government can always impose necessary restrictions while parting with privilege and those conditions cannot be challenged either as arbitrary or then violative of Article 14 of the Constitution of India.
7. It is not in dispute that on 18.05.1974, by two separate orders, two ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 ::: Judgment lpa368.09 5 FL-II licences were allotted in the name of Nandkishore s/o Shivprasad Ballah and Nandkishore s/o Shivprasad Jaiswal. In application for licence or then in any other communication at that time, appellant did not disclose that these two persons were one and same. It appears that in an attempt to restore the benefit of second licence, appellant for the first time started describing him as Nandkishore Shivprasad Jaiswal (Ballah).
8. When this Letters Patent Appeal was initially listed, we wanted the appellant to show from record any other document which disclosed these two names used interchangeably, and therefore, as names of one and same person. This could not be so done. Learned Single Judge has while narrating the facts noted a condition in the grant, that person to whom FL-II licence is awarded should not have any other licence i.e. either FL-II or CL-III licence individually or in partnership. Appellant applied in two names in 1974 for grant of two licences, and also procured the same. In his application, he did not disclose that he has also submitted another application for same purpose. After acquiring two licences, he again did not point out to the Authorities that two licences hae been issued to same person. Licence issued in the name of Nandkishore Shivprasad Ballah was lying idle (dormant) till 2002. It was sought to be revived thereafter. ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 :::
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9. Application of mind by the learned Single Judge in paragraph no.7 therefore, shows that the challenge as presented after 19.03.1982 adjudication in Writ Petition No. 654/1980 at Bombay, was erroneous and misconceived.
10. This application of mind by the learned Single Judge is not shown to be erroneous or perverse. Having posed as two different individuals, in 2002, an effort was made to urge that there were no two such distinct persons. Effort is obviously erroneous and unsustainable. Finding that order of grant itself prohibited two licences in the name of an individual is not demonstrated to be erroneous or perverse.
11. Exh. X, circular is dated 06.06.1974. It is on the subject of grant of Foreign Liquor Vendors Licence under Bombay Foreign Liquor Rules, 1953. It expressly mandates and obliges the licencing authority to issue a certificate along with the proposal of new licence that such applicant or any other member in his family is not holding CL-III licence. Thus, person already holding CL-III licence either in his name or in the name of his family member, was disqualified to apply for Foreign Liquor Vendors Licence. This circular is no doubt after 18.05.1974. However, the finding that grant in favour of Nandkishore on 18.05.1974 itself prohibited two licences in the ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 ::: Judgment lpa368.09 7 name of an individual, is not in dispute. Perusal of the impugned judgment of learned Single Judge or then order of the Hon'ble Minister dated 09.03.2009, reveal that in an effort to defeat said condition, appellant never challenged the said condition as unreasonable or violative of Article 14 of the Constitution of India.
12. In judgment dated 19.03.1982 in Writ Petition No. 654/1980 and other connected matters, Division Bench of this Court at Bombay has considered explanation to Clause 2 under the Re-grant Order, which prohibited an individual member of family by treating him as holding a licence issued to a family unit. However, a partner in a firm or member of body of individuals, whether incorporated or not, were not deemed to hold such licence issued to a firm or concerned body of individuals. With the result, such person or individual became eligible to get one scheduled licence for himself, while member of a family unit was treated as disqualified. It is this anomaly which has been found discriminatory by the Division Bench. This Division Bench judgment therefore, at the most enables an individual and an artificial body formed jointly by such individuals to hold separate licences. Licence held by such body, therefore, does not bar its constituent individual from claiming other licence. This judgment, therefore, cannot be interpreted to mean that an individual can be allowed ::: Uploaded on - 27/11/2017 ::: Downloaded on - 28/11/2017 00:06:48 ::: Judgment lpa368.09 8 and was allowed to claim and enjoy two licences. Grievances made in 2002 by the appellant on the strength of this Division Bench judgment dated 19.03.1982, is therefore, misconceived.
13. In any case, as rightly pointed out by the learned A.G.P., as held in case of Rajendrakumar Shailendrakumar Dixit .vrs. State of Maharashtra (supra), the appellant does not have any such fundamental right. Right given to him gets circumscribed by conditions on which the State Government has parted with its absolute and exclusive privilege in his favour. Having accepted the grant of licence accordingly, appellant cannot turn around and question those terms. Not being a fundamental right, aftr accepting and acting upon terms of grant, appellant cannot attempt to get over those terms without challenging the grant in his favour. Moreover, he has not demonstrated any other instance in which State Government permitted an individual to hold two such licences. We therefore, find the challenge itself wholly erroneous and misconceived.
14. With the result, no case is made out for intervention in Letters Patent Appeal. The same is accordingly dismissed. Rule discharged. No costs.
JUDGE JUDGE
Rgd.
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