Jyoti Partab Lalwani And Anr. vs Collector Of Mumbai And Anr.
2003 Latest Caselaw 1059 Bom

JUDGMENT

R. M. S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records.

2. Rule. By consent, the rule is made returnable forthwith.

3. The short point which arises in both these petitions is whether the provisions of the Bombay Prohibition (Privilege Fees) Rules, 1954, hereinafter called as "the Privilege Fees Rules" are attracted in case of transposition of the names of the legal heirs of the deceased licence holder in the liquor licence and that therefore the legal heirs are liable to pay the privilege fees? Since common question of law and facts arise in both the petitions, they were heard together and are being disposed of by this common judgment.

4. In Writ Petition No. 1860 of 2003, the excise licence granted for sale of foreign liquor in terms of the provisions of the Bombay Foreign Liquor Rules, 1953 hereinafter called as "the Foreign Liquor Rules," read with the Bombay Prohibition Act, 1949, hereinafter called as "the Prohibition Act." stood in the name of one Partab Tolaram Lalwani. The said Partab expired on 23rd March, 2000 leaving behind him the petitioners. On 29th March, 2000, the petitioner No. 1 while bringing the fact of death of Partab to the notice of the respondents requested for grant of permission to the petitioner No. 1 to continue the business till 31st March, 2001 pending the transfer of licence in her name and also informed that the other heirs of Partab had renounced their right in the business and licence in favour of the petitioner No. 1. It is to be noted that late Partab, during his lifetime, had already applied for renewal of licence for the year 2000 - 2001 and had even paid the licence fee for the said year. On 22nd July, 2000, the petitioners informed the respondents that they wanted to withdraw their application dated 29th March, 2000 and that it was decided to have the licence endorsed in the joint names of the petitioner No. 1 and her son, namely the petitioners herein. The other two heirs had renounced their right in the business and licence in favour of both the petitioners. Necessary affidavit confirming the contents of the said application by the remaining heirs of Partab was also submitted along with the said application. By the letter dated 25th September, 2000, the Collector of Mumbai (Suburbs), (State Excise Department), informed the petitioners that pursuant to death of Partab, for having the licence transferred to the names of his heirs, viz. the petitioners herein, they were required to deposit Rs. 10/- under Section 8 of the Privilege Fees Rules, as amendment fees and Rs. 1,50,000/-, and Rs. 32,000/- as 100% licence fees in the Government treasury. The petitioners deposited the said amount under protest. Placing reliance upon the various decisions passed by this Court, the petitioners have now sought to quash the demand for privilege fees and for direction to the respondents for refund of the said amount which was ordered to be deposited as privilege fees on the ground that, for the purpose of transposition of the names of the heirs, the respondents are not entitled to claim privilege fees under any of the provisions of the Privilege Fees Rules.

5. In Writ Petition No. 2402 of 2000, the licence for sale of country liquor was issued in the name of Sitaram K. Puthran and said Sitaram expired on 15th November, 1997 leaving behind him the petitioner as his legal heirs, along with some others. The petitioners by their letter dated 17th November, 1997 sought permission to continue the liquor business upto 31st March, 1998 in the name of the deceased, which was allowed by the Collector by the letter dated 18th December, 1997. On 16th January, 1998, the petitioners applied for converting the licence in their names contending that the other legal heirs had no objection for the same and also produced affidavit of the other legal heirs in that regard. On 17th February, 1998, the petitioner repeated their request for change of licence in their names. By the letter dated 18th June, 1998, the petitioners were informed that for incorporation of their names in place of that of deceased Sitaram, they would have to pay privilege fees amounting to Rs. 48,400/- and amendment fees of Rs. 10/-. By the letter dated 19th August, 1998, the petitioners sought to bring to the notice of the Collector of Mumbai that the privilege fee was not required to be paid in case of transfer of licence by succession. By the letter dated 31st March, 1999, the petitioners were informed by the Collector (for Mumbai City) that the request of the petitioners for transfer of licence in their names was allowed, however, in order to include their names in the licence, an amount of Rs. 48,400/- as the privilege fee and amendment fee of Rs. 10/- was required to be paid in the Government treasury. The petitioners paid the said amount under protest and filed the appeal under Section 137(2) of the Prohibition Act, which was dismissed by the Commissioner for State Excise by the impugned order dated 16th May, 2000 and hence, the petitioners have filed the present petition challenging the said orders and for refund of the amount deposited as the privilege fees.

6. The contention of the petitioners is that the provisions of the Privilege Fees Rules nowhere empower the Government to claim any privilege fee for the purpose of transposition of the names of the heirs of the deceased licence holder and the same is well settled by catena of decisions of this Court, and in that regard, attention is drawn to the decisions of the Division Bench in Appeal No. 198 of 1993 in Writ Petition No. 352 of 1993 delivered on 17th February, 1994, of the learned Single Judge in Writ Petition No. 2510 of 1994 delivered on 15th June, 1999, and in the matter of Sylvia Leo Carvalho v. The Collector of Mumbai and Anr., delivered on 20th January, 2000 and reported in 2002(2) Mh.LJ. 781 = 2000(2) All MR 4 as well as of the Division Bench in the matter of Writ Petition No. 3171 of 2002 delivered on 27th January, 2003. Further, referring to the privilege fees rules including the amendment brought about to Rules 5 and 6 by way of addition of proviso, it was contended that incorporation of the names of the heirs in the licence which was originally granted to the deceased predecessor of the parties does not amount to transfer of business within the meaning of the said expression either under Rule 5 or Rule 6 of the Privilege Fees Rules nor it amounts to inclusion of any partner as such in the business of liquor, and, therefore, the demand for payment of privilege fees was without jurisdiction, and hence the petitioners are entitled for refund of the said amount. On the other hand, while contending that the petitioners have no fundamental right to trade in liquor, and the law in that regard being well settled by the decision of the Apex Court in Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., , and it being the exclusive right of the State Government to trade in such businesses in terms of Section 49 of the Prohibition Act, and referring to Rules 5 and 6 of the Privilege Fees Rules, it was sought to be contended on behalf of the respondents that the alleged transposition in favour of the heirs of the deceased amounts to transfer of licence and the same having been allowed, the petitioners cannot deny liability to pay the privilege fees. It was also sought to be contended that there are appeals filed before the Division Bench against the decisions of the learned Single Judge relief upon and the appeals have been admitted for final hearing. In Writ Petition No. 2402 of 2000, the learned Advocate appearing for the respondents has contended that the licence to sell liquor is granted by the State as a personal privilege and, on the death of the licensee, the licence comes to an end and it is not heritable, and neither the provisions of Transfer of Property nor of the Succession Act apply thereto, and it is an exclusive right and privilege of the Government to trade in liquor and the fees charged are to be considered to be inclusive of the transfer of grant or transfer of such privilege, and in that regard, attention is drawn to the decision in the matter of State of Uttar Pradesh and Ors. v. Sheopat Rai and Ors., reported in AIR 1994 SC 813. The learned Advocate for the said respondents further placing reliance in the decision in the matter of Union of India and Anr. v. Shree Ganesh Steel Rolling Mills Ltd. and Anr., , has argued that, in the matters involving the questions relating to revenue, the Court should provide for necessary safeguard for the revenue and the same should be borne in mind while dealing with the matters in hand. It is further sought to be contended that since it is not the fundamental right of the petitioners to trade in liquor business, they cannot challenge the order imposing licence fees and seek intervention of this Court under Article 226 of the Constitution of India. It is further contended that since the appeals filed against the judgments of the learned Single Judges are pending for final disposal, the law is not settled on the point which was dealt with by this Court in the decisions relied upon and particularly in respect of the right of inheritance to liquor business.

7. Undisputedly, the licence in Writ Petition No. 1860 of 2003 was for the purpose of sale of foreign liquor in terms of the Foreign Liquor Rules whereas in Writ Petition No. 2402 of 2000, it was for the country liquor, granted in terms of the provisions of Maharashtra Country Liquor Rules, 1973, hereinafter called as "Country Liquor Rules." Nevertheless, the provisions dealing with the grant of licence in both the Rules are in pari materia.

8. While, in case of foreign liquor, the application for licence for sale thereof is to be filed in terms of Rule 24 of the Foreign Liquor Rules, and the same is required to be dealt with by the Committee under Rule 24A thereof, and in case the Committee determines the application in favour of the applicant in terms of Rule 25 thereof, the Collector in conformity with the Committee's recommendation, and after satisfying himself that the premises proposed for location of the shop for selling foreign liquor are in conformity with the provisions of the rules and instructions issued by the State Government or the Commissioner in that behalf from time to time, and that there is no objection to grant the licence applied for, may inform the applicant of the decision and grant the licence in accordance with the provisions of law whereas, in relation to the sale of country liquor, the application for licence for sale filed under the Country Liquor Rules, is required to be dealt with by the Committee constituted in terms of Rule 24A of Country Liquor Rules and the decision being favourable to the applicant, under Rule 24 thereof, the Collector shall in conformity with the Committee's recommendation and after satisfying himself that the premises proposed for location of the shop for selling liquor are in conformity with the provisions of the rules and instructions issued by the State Government or the Commissioner in that behalf from time to time, and that there is no objection to grant the licence applied for, may inform the applicant of the decision and grant the licence in accordance with the provisions of law. Obviously, on intimation of the decision, the applicant is required to pay licence fee as provided under the relevant rules.

9. In case of grant of licence for sale of foreign liquor, the same is to be issued in Form F.L.II. under Foreign Liquor Rules. The Clause (8) of the said Form provides that the licensee, his heirs, legal representatives or assignees shall have no claim whatsoever to the continuance or renewal of the licence after the expiry of the period for which it is granted and it shall be entirely within the discretion of the Collector to permit or not the assignee of the licensee, in case of sale or transfer or the heir or legal representatives of the licensee, in case of death, to have the benefit of the licence for the unexpired portion of the term for which it is granted. Similarly is the case in relation to the licence granted for sale of country liquor, which is to be issued in Form C.L. III under the Country Liquor Rules, and Clause 10 of the format of the licence provides that the licensee, his heirs, legal representatives or assignees shall have no claim whatsoever to the continuance or renewal of the licence after the expiry of the period for which it is granted and it shall be entirely within the discretion of the Collector to permit or not the assignee of licensee, in case of sale or transfer or the heir or legal representatives of the licensee, in case of death to have the benefit of the licence for unexpired portion of the term for which it is granted.

10. In the background of above referred provisions of law which are in force for all these years, the Division Bench of this Court in its unreported judgment in Appeal No. 198 of 1993 in Writ Petition No. 352 of 1993, in the matter of State of Maharashtra and Ors. v. Pushpalata wife of N. Rajeev Adyanthaya, delivered on 17th February, 1994 dealing with a matter wherein the Government was trying to sustain the claim of demand of Rs. 20,000/- for deletion of the name of the deceased's mother from the joint licence holder and wherein the trial Judge had directed refund of the said amount on the ground that the deletion of name of joint licence holder on the death cannot amount to a transfer from one person to another and specifically referring to Rule 5 of the Privilege Fees Rules had held that:--

"The plain reading of the rule makes it clear that the expression "transfer" contemplates transfer inter vivos i.e. from one living person to another living person. When licence is standing in the names of joint holders and one of the joint holders dies, then by no stretch of imagination it can be suggested that the interest of the joint holder stands transferred to another holder."

11. In the matter of Kamala M. Poojary (Durga Lunch Home) v. The Collector of Bombay and Anr. in Writ Petition No. 2510 of 1994 delivered on 15th June, 1999, the learned Single Judge of this Court dealing with the matter wherein one Monappa Poojary was running a business in the name and style of M/s Durga Lunch Home, the said Monappa Poojary was granted licence for liquor business and on his death, his widow- the petitioner in the said petition was allowed to carry on the said business on the strength of the licence granted to her husband, till 31st March, 1994. Thereafter, an application was filed by the widow for renewal of the licence and it was renewed upto 31st March, 1995 in the name of M/s Hotel Durga Lunch Home. Subsequently, the widow was informed that the licence had been transferred in her name subject to the payment of privilege fee and therefore she was required to pay the same. The same was sought to be challenged placing reliance in the decision of the Division Bench referred to above. Upholding the plea of the widow, the learned Single Judge referred to the affidavit-in-reply by the State Government wherein it was conceded that the expression "transfer" appearing in Rule 5 contemplates inter vivos from one living person to another living person and that therefore the case did not fall within the four corners of Rule 5. While rejecting the contention on behalf of the Government that there is no provision for automatic devolution of the licence upon the legal heir, and, therefore, the licence granted to the widow should be treated as a case of transfer and consequently the widow was bound to pay the privilege fee under Rule 5 of the said Privilege Rules, and following the decision of the Division Bench in Pushpalata's case (supra), it was held that "the language of the rule clearly suggests that the rule was attracted only in case of voluntary transfer and in that event privilege fee would be payable by the licensee on account of the transfer. Referring to the facts of Kamala M. Poojari's case (supra), it was held that "in the instant case, there is no voluntary transfer. The licence originally stood in the name of the late husband of the petitioner. After his death, the licence was continued in the name of the deceased till the end of March, 1994 but thereafter, the application made by the petitioner for transfer was accepted and licence was issued in the name of M/s Hotel Durga Lunch Home. Thus, in the instant case there is no transfer inter vivos." Therefore, it was held that the State was not justified in demanding the privilege fees under Rule 5 of the Rules.

12. Again in Sylvia Leo Carvalho's case (supra), the learned Single Judge dealing with a case wherein upon the death of Leo J. Carvalho, the licence holder on 1st June, 1999, an application for transfer of the licence was filed by his widow on 4th June, 1999 and pending disposal of the said application, the widow was allowed to carry on business on the strength of the licence granted to her husband till such time her name was added in the licence, and on 17th December, 1999, she received a letter calling upon her to pay privilege fee in the sum of Rs. 97,000/- for transfer of licence in her name. Referring to Rule 5, based on which the claim for the amount of Rs. 97,000/- was made, the learned Single Judge observed thus:--

"A perusal of the said Rule would show that the fee for transfer of a licence from one name to the other is payable by any licensee for the privilege of having the transfer of his licence from one name to the other and it is same as chargeable for the grant of a licence or renewal of the licence or continuance of the licence. Obviously, the said rule applies to the voluntary transfer of the licence from one person to the other and cannot be made applicable to the transposition of the name of the legal representative or the heir of the deceased licensee. When the original licensee or one of the joint licensee dies and in his or her place, the legal representative or heir prays for insertion of his or her name in place of deceased licensee, this cannot be said to be a transfer of licence strictly speaking and therefore, would not be covered under Rule 5 of the Bombay Prohibition (Privilege Fees) Rules, 1954. Rule 5 cannot be extended nor can be applied to a case where the licensee has expired and in his place his heir or legal representative is to be transposed.

" Further, referring to Clause 17 of the licence, it was held thus:--

"The said clause in the licence would show that though the heir or legal representative has no claim whatsoever to the continuance or renewal of licence after the expiry of the period for which it was granted to the licensee in case of death of licensee. Such heir or legal representative may have the benefit of the licence for the unexpired portion of the term for which it is granted. Such prayer of continuance of licence for unexpired period by legal heir upon death of licensee cannot be burdened with privilege fee under Rule 5 aforequoted."

13. The Division Bench of this Court in its decision in Smt. Suchitra w/o Yuvraj Avhad v. The State of Maharashtra and Ors., in Writ Petition No. 3171 of 2002 delivered on 27th January, 2003, placing reliance in the decision of the learned Single Judge in the matter of Sylvia Leo Carvalho's case (supra) held that the charge of the fee in respect of the transposition of legal heirs of the deceased licensee could not have been levied and the petitioner in the said case was entitled for the refund of the same. Therein the grievance of the petitioner was that she was made to pay a sum of Rs. 64,000/- towards transfer fee on account of transfer of licence in her favour on the death of her husband.

14. The above quoted decisions disclose the consistent view taken by this Court in the matter of interpretation of Rule 5 of the Privilege Fees Rules and the law settled in that regard is that the liability to pay privilege fee under Rule 5 can arise only in the matter of transfer inter vivos and not otherwise. It was clarified by the Division Bench in February, 1994 that the transfer contemplated under Rule 5 is the transfer inter vivos. It was explained by the learned Single Judge in June, 1999 that the language of the rule clearly suggests that only voluntary transfers are attracted thereunder. It was further clarified by the learned Single Judge in January, 2000 that it is only the voluntary transfer of licence from one person to another that could attract the privilege fee under Rule 5 of the Privilege Fees Rules, and the transposition of the name of legal representative or heir of the deceased licence holder cannot be brought within the four corners of the provisions contained in the said Rule 5. It was observed that continuance of the business under the licence for unexpired period by legal heir of the licence holder, upon death of the latter, cannot be burdened with privilege fee under the said Rule 5. The said settled position in law was reiterated by the Division Bench again in January, 2003.

15. Undoubtedly, nobody disputes that the decisions delivered by the learned Single Judges of this Court are subjected to appeals before the Division Bench. However, mere filing of the appeal or the admission thereof by the Division Bench against the decision of the learned Single Judge does not amount to stay of the order passed by the learned Single Judge. It is only when the decision of the learned Single Judge is stayed during pendency of the appeal for final hearing that the law laid down in the decision by the learned Single Judge could be said to be not settled. Till and until the Division Bench has not set aside the decision on the point of law delivered by the learned Single Judge, it cannot be said that the law settled by the decision of the learned Single Judge of the High Court can be ignored and it cannot be said that the law is not settled. High Court is a Court of records and it should be always borne in mind that once a law is explained by a decision of a learned Single Judge of this Court, till and until it is disturbed in any manner either by the Division Bench or by the Apex Court, the point should be taken as settled and it cannot be contended that the law is not settled merely because an appeal is pending against such decision. Undoubtedly, the decision of a learned Single Judge may be subject to the final ruling either by the Division Bench or by the Apex Court but that cannot be construed to mean that till and until the decision of the Division Bench or of the Apex Court, the law laid down by the learned Single Judge can be ignored. Being so, the contention of the learned Advocate for the Respondents that the law on the point in issue is not settled till this day and that therefore they can demand the privilege fees for transposition of the names of heirs of the deceased licence holder and the petitioners cannot challenge the decision of the authorities in that regard, cannot be accepted. In fact, till and until the respondents are not able to get decisions of the Division Bench in Pushpalata's (supra) and Suchitra's (supra) cases set aside, they are not entitled to demand any privilege fee for the purposes of transposition of the names of legal heirs of the deceased licence holder. Whether the heirs would be otherwise entitled for licence or not on some other count is totally different issue and certainly those points can be gone into while arriving at a decision regarding continuation of the licence in favour of the heirs of a deceased licence holder. However, transposition of the names cannot be refused merely on the ground of non-payment of the privilege fees in terms of Rule 5 of the Privilege Fees Rules. It is to be noted that it is not merely a decision of the learned Single Judge which deals with the point in issue. In fact, the law in that regard is well settled by the decision of the Division Bench delivered as long back as in February, 1994 in Pushpalata's case and reiterated in 2003 in Suchitra's case. It was clearly ruled by a Division Bench that the plain reading of the Rule 5 makes it clear that the expression "transfer" contemplates transfer inter vivos. In the circumstances, therefore, the law is well settled by the decision of a Division Bench of this Court as regards the point that the authorities cannot demand privilege fee for transposition of the names of legal heirs of the deceased licence holder. Albeit, refusal to continue the licence in favour of the legal heirs on other counts, is within the discretion of the licensing authority, but that would not entitle the authorities to insist for payment of privilege fee in case of transposition of names of legal heirs in place of deceased licence holder.

16. The contention that there is no fundamental right to trade or business in liquor and it is exclusive privilege of the State in terms of Section 49 of the Prohibition Act, it cannot be disputed that the right to business in liquor is not the fundamental right and the same has been made clear, time and again, by the Apex Court in various decisions and one of such decisions is in the matter of Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. (supra). However, it is nobody's case that the petitioners have fundamental right to trade in liquor. Yet once such a privilege, which is available exclusively to the State under Section 49 of the Prohibition Act, has been made available to a businessman on payment of consideration as licence fee, the continuation of privilege in favour of legal heirs has to be governed by the statutory rules under which the same is granted and merely because it is a continuation of privilege to the legal heirs, the authorities are not entitled to act arbitrarily in the matter of demand of fees for continuation of enjoyment of such privilege by the legal heirs of a businessman to whom it was originally granted. The demand for the fees for allowing to continue to enjoy such privilege has to be in accordance with the statutory provisions dealing with the matter and therefore, once it is made clear by more than one judgment that in case of death of a licence holder, his or her heirs approaching the authorities for continuation of benefits under such licence for the balance period for the year for which already the licence fee is paid, and thereafter further continuance on payment of licence fee, the authorities are not entitled to insist for payment of privilege fees under Rule 5 of the Privilege Fees Rules in such cases, unless the respondents are able to get the decision of this Court altered or modified, nor can it be said that the insistence on the part of the respondents to continue to demand transfer fee under Rule 5 in such cases cannot be challenged under Article 226 of the Constitution of India. In fact, it does not befit the Government authorities to insist for payment of such fees when the law on the point is well settled by this Court by series of decisions and the respondents have not been able to get the same set aside or altered or modified till this date. In fact, in the circumstances, the insistence in that regard can amount to a contemptuous act on the part of the concerned authorities.

17. Reverting to the facts of the case, in Writ Petition No. 1860 of 2003, undoubtedly, upon the death of the licence holder Partab Tolaram Lalwani on 23rd March, 2000, the petitioner No. 1 filed an application on 29th March, 2000 requesting the authorities to allow her to continue the business till 31st March, 2001. Undisputedly, the said Partab had already paid the licence fee in the year 2000-01. The same was not objected to by the respondents nor any action adversed to the interest of the petitioners was taken. Further, on 22nd July, 2000, the petitioners requested for endorsement of the licence in the joint names of both the petitioners while requesting that the application dated 29th March, 2000 should be treated as withdrawn. By the letter dated 25th September, 2000, the respondents demanded the privilege fee and the amendment fee. Undoubtedly, there is no right to inherit the liquor business as there is no right to trade in liquor business and further that the licence granted for sale of liquor cannot be considered as forming part of the estate of the deceased licence holder. However, as already observed above, considering the statutory provisions of law and the decisions of this Court, the legal representatives continuing with the business for the balance period of the year for which the licence was granted to the licence holder, cannot be burdened with the privilege fee for continuation of enjoyment of such benefits. Besides, the transposition of names of legal heirs in place of the deceased licence holder does not amount to transfer of licence within the meaning of the expression "transfer" under Rule 5 of the Privilege Fees Rules, and, therefore, there was no question of demanding the privilege fee from the petitioners.

18. Though, no contentions were raised on behalf of the respondents in relation to the right of the respondents to demand the licence fees in terms of the 2nd proviso of Rule 6 of the Privilege Fees Rules, a query in that regard by the Court to the effect that since the original application dated 29th March, 2000 was made to seek transposition in favour of the petitioner No. 1 alone and thereafter by the letter dated 22nd July, 2000, the transposition was sought in the name of both the petitioners, why the fees demanded should not be considered as the demand under the 2nd proviso to Rule 6 of the Privilege Rules applying the principles that incorrect reference to the provisions of law regarding the source of power would not vitiate the order of the authority, it was sought to be argued by the learned Advocate for the petitioners that in the application dated 22nd July, 2000, the petitioners had specifically requested for withdrawal of the application dated 29th March, 2000 and the said request was not rejected by the respondents while demanding the privilege fee. Indeed, the order dated 25th September, 2000 which was issued demanding the privilege fee nowhere speaks of rejection of the withdrawal of the application dated 29th March, 2000. Added to this, there is nothing on record to disclose that the application dated 29th March, 2000 was already acted upon or allowed by the respondents. On the contrary, the order dated 25th September, 2000 merely required the petitioners to pay privilege fee on account of alleged transfer of names of both the petitioners in place of the original licence holder. Apparently, the respondents had not acted upon the application dated 29th March, 2000 so far as it related to the transposition of the licence in favour of the petitioner No. 1 alone. Being so, the impugned order demanding the privilege fee cannot be even justified in terms of the 2nd proviso to Rule 6 of the Privilege Fees Rules.

19. As far as the Writ Petition No. 2402 of 2000 is concerned, though the impugned order dated 31st March, 1999, on the face of it, nowhere discloses the demand of Rs. 48,400/- being pursuant to the privilege fees, the same has been clarified by the respondents in their affidavit dated 7th December, 2000. Apparently, therefore, for the reasons stated above, in this case also, the respondents were not entitled to demand privileged fee for transposition of names of the petitioners in place of the deceased licence holder.

20. It was also sought to be contended on behalf of the respondents that the petitions suffer from laches. It is to be noted that no tax or fee can be imposed or levied or collected in contravention of the statutory provisions and any such tax or fee collected, has to be refunded to the parties from whom the same is illegally collected. The law in that regard is well settled by umpteen number of decisions of this Court and the Apex Court. Being so, mere delay by itself cannot be a ground to reject the petitions when on merits, the petitioners have disclosed and established a very good case. The contentions regarding the point of laches raised by the respondents are therefore rejected.

21. It is therefore to be held that the provisions of the Privilege Fees Rules are not attracted in case of transposition of the names of the legal heirs of the deceased licence holder in the liquor licence and therefore, in such cases the legal heirs cannot be made liable to pay privilege fees for such transposition of their names in the liquor licence. Both the petitions therefore succeed. The demand for payments of the privilege fee amounting to Rs. 1,50,000/- and Rs. 32,000/- in Writ Petition No. 1860 of 2003 and the demand for the payment of Rs. 48,400/-in Writ Petition No. 2402 of 2000 are hereby quashed and set aside and the respondents are directed to refund the said amount to the respective petitioners within a period of four weeks from today, failing which the respondents shall be liable to pay interest at the rate of 6% per annum thereon, from the date of the expiry of the said period till payment of the actual amount. Rule is made absolute accordingly.

22. At this stage, the learned Advocate for the respondents prays for stay of this order. The prayer is objected by the learned Advocate for the petitioners. In the facts and circumstances of the case, I do not find any justification for grant of stay of this order. Hence, the prayer for stay is rejected.