Ramkishor vs State Of Maharashtra
2009 Latest Caselaw 77 Bom

                                            1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                 
                        NAGPUR BENCH, NAGPUR.




                                                         
                        WRIT PETITION  No. 2796 OF 2005.




                                                        
    Ramkishor s/o Nathulal Jaiswal,
    aged about 50 years, Occ - Business,
    Proprietor of M/s. J.B. Resturant, FL-III Licence
    at Warud, Tq. Warud, District Amravati.                           ....PETITIONER.




                                          
                           ig            VERSUS
                         
    1.State of Maharashtra,
    Department of Home and State Excise,
    through its Secretary, Mantralaya,
    Mumbai.
      


    2.The Commissioner,
    State Excise, Maharashtra State, 
   



    Old Custom House, Mumbai.

    3.The Collector,
    State Excise, Amravati.





    4.The Superintendent,
    State Excise, Amravati.                                             ....RESPONDENTS.


                               ----------------------------------- 





                       Mr. S.G. Jagtap, Advocate for Petitioner.
                       Assistant Govt. Pleader for Respondents. 
                               ------------------------------------



                               CORAM :   B.P. DHARMADHIKARI ,  J.

DATED : DECEMBER 11, 2 0 0 9.

ORAL JUDGEMENT.

1. By this petition under Articles 226 and 227 of the Constitution of

India, the petitioner a person holding FL-III licence has challenged the

order dated 16.03.2005 passed by respondent no.3 - Collector,

canceling that licence under Section 54[1][c] of Bombay Prohibition

Act, 1949 (hereinafter referred to as "the Prohibition Act" and an

order in Appeal preferred under Section 137 [2] thereof, delivered by

respondent no.2 Commissioner, maintaining it on 18.05.2005.

2. Shri S.G. Jagtap, learned Counsel appearing for petitioner licensee

has not disputed the facts and has restricted his challenge only to legal

grounds. The ground pressed into service by him is after renewal of

license with knowledge to the competent Authority of alleged lapses /

irregularities, no action in relation to such past lapses or irregularities

is possible and the punishment of cancellation of licence for such pre-

renewal period is not legal. He has relied upon the judgment of this

Court reported at 2000 Cri.L.J. 2038 (K.V. Acharya .vrs. State of

Maharashtra), in support of his contentions.

3. He has pointed out that as per the provisions of Bombay Foreign

Liquor Rules, 1953 the duration of licence is from 1st April till 31st

March of next year and in this case, the alleged lapses or irregularities

were noted in inspection dated 09.04.2002. Thereafter FL-III licence

of petitioner was renewed for period from 01.04.2003 to 31.03.2004

and then for subsequent period from 01.04.2004 to 31.03.2005. He

points out that first order of cancellation is passed by respondent no.3

Collector on 16.03.2005 and the Appellate Order is passed thereafter

i.e. on 18.03.2005. He points out that, the cancellation therefore, is

after two renewals and hence, legally unsustainable. He has relied

upon the provisions of Rule 45 of the Foreign Liquor Rules to show

that the authority has been empowered to grant licence and also to

renew it. According to him the power to grant, includes power to

cancel also and hence when alleged lapses were within the knowledge

of competent renewing authority and despite that knowledge, the

renewals were granted regularly from year to year, the action, the

cancellation of that licence by the impugned order on 16.03.2005 is

uncalled for and arbitrary. He has invited attention to the provisions

of Section 54 of the Prohibition Act, in this respect.

4. Learned Assistant Government Pleader points out that petitioner has

relied on the above judgment to show that, there for similar

lapses between 1992 - 95, action of suspension of licence was taken in

the year 1997, and this Court held that having granted renewal

after those action, the Authority was estopped from taking any such

action. He contends that there, this Court was dealing with the

provisions of Section 33 of the Bombay Police Act and Rules 13[A] of

the Rules framed thereunder. He states that the provisions of Bombay

Police Act and Bombay Prohibition Act are pari materia. He has

invited attention to the provisions of Section 54[1][c] to urge that

even for past lapses or irregularities, action of cancellation is

contemplated by the said provision and according to him because of

this power the Authorities have decided to cancel FL-III licence for

present petitioner in the matter. He has also invited attention to reply

affidavit filed on record, particularly paragraph no.10 thereof to show

how the developments have taken place in the meanwhile and how

after giving petitioner an opportunity in accordance with the principles

of natural justice, impugned action has been taken. He argues that,

considering the gravity of lapses noticed, the Authorities have taken

correct action and no interference is warranted in writ jurisdiction.

5. The earlier judgment of this Court in the case of K.V. Acharya (supra),

needs to be considered first to find out what it exactly says. It

considers the provisions of Section 33 as appearing in Chapter IV,

which deals with the Police Regulation and heading of Section 33 is

"Power to make Rules for regulation of traffic and for preservation of

order in public place etc." Sub-rule [7], states that, it is always lawful

for the competent authority to refuse a licence or to prohibit keeping

of any place of public amusement or entertainment by a person of

notoriously bad character. This sub-section begins with non-obstante

clause and prevails over earlier sub-section and that section and also

other rules made thereunder. Rule 13A has been reproduced in the

text of the reported judgment and it's sub-section [4] states that,

Commissioner of Police may refuse to renew the licence, if he is

satisfied after such enquiry as he thinks fit, that the licensee is not a

suitable person for continuing to hold licence. The facts there show

that, the petitioner was having a licence to keep the place of public

entertainment. He was served with the impugned show cause notice

dated 15.11.1995 and then an order was passed thereafter on

02.04.1996, which was maintained in appeal on 17.06.1996, whereby

his licence was suspended for 15 days.

6. The show cause notice gave particulars of incidents, offences, breaches

and omissions which were to be used for pressing that suspension.

Those instances are total 19 in number and from 17.04.1992 onwards

till 24.03.1995. It is thus obvious that after 1992 till the issuance of

the show cause notice on 15.11.1995, there were renewals and those

breaches or incidents were available when those renewals were

considered. Section 33[7] mentioned above, give a blanket and

overriding power to the competent authority to refuse a licence or to

prohibit keeping of any place of public entertainment to a person of

notoriously bad character. Rule 13A[4], enabled the Commissioner of

Police to refuse to renew licence to a person found not suitable for

continuing to hold it. In view of this express provision, this Court has

found that, when licence was being renewed from time to time,

suspension for a period of 15 days for repeatedly committing breaches

of law and creating law and order problem was not legal. It was

found that, when the offences or incidents or breaches were not found

sufficient by the competent authority to deny licence or to deny its

renewal, the same cannot furnish a ground for cancellation or

suspension of licence which was renewed after said licence. It is thus

obvious that, this Court has considered the powers available and the

co-relation thereof with purpose. The licence was sought to be

suspended and was infact suspended only for 15 days and the

observations have been made in this background.

7. The provision of Section 54 of the Prohibition Act deals with power to

cancel or suspend licence and permits. The provision of Sub-section

[1] permits authority granting any licence under Prohibition Act to

suspend it or cancel it for reasons to be recorded. Clauses [a], [b] and

[c] of this sub-section speak of contingencies in which such suspension

or cancellation can be ordered. Clause [c] shows that, if there is any

breach by holder of any licence, the action for suspension or

cancellation can be taken. The said clause [c] reads as under :

"[c] in the event of any breach by the

holder of such licence, permit, pss or authorization or by his servant or by any one acting with his express or implied permission on his behalf of any

of the terms or conditions of such licence, permit, pass or authorization or of any licence, permit, pass or authorization previously by the holder."

It is to be noted that, it also takes within its hold, breach of any

licence, permit, pass or authorization previously held by the holder.

Thus, if, earlier a holder of licence was having some other licence and

its conditions are breached, action under Section 54[1][c] may be

possible. However, as this is not the issue before this Court, it is not

necessary for me to go into more details in this respect.

8. Provisions of Rule 45 of Bombay Foreign Liquor Rules, 1953 deal with

grant of licence and its duration. Under sub-rule [1] and [1][a] licence

can be granted after application therefor is considered by the

committee. Its' sub-rule [3] provides for renewal and any person

desiring to renew such licence has to apply 30 days before the date of

expiry of that licence for its renewal. Sub-rule [4] states that, any

licence granted under sub-rule [1] can be renewed by the Collector for

a period of not exceeding one year at a time. Thus there is no

requirement of placing the renewal application before the Committee,

as is required under sub-rule [1] at that time of initial grant of licence,

and renewal therefor appears to be as a matter of course. The

provision like Section 33[7] of Bombay Police Act or then Rule 13

A[3] of Rules framed thereunder, does not figure in Prohibition Act or

Foreign Liquor Rules, framed thereunder.

9. In the reported judgment of this Court considered supra, total 19

incidents have been mentioned and looking to the nature of challenge

therein, the facts of each such incident or event were not relevant. In

present circumstances, it can be seen that on 09.04.2002, during

inspection spurious liquor was found in the licensed premises.

Because of this discovery, the respondents have then made inquiries

with the manufacturer and the concerned manufacturer namely

Jamner Taluq Cooperative Distillery, District Jalgaon has on

30.01.2003 informed the respondents that though labels and cocks

[seals] of seized bottles of European Rum, looked similar to their

labels and cocks, they were not belonging to them. Similarly Rum as

contained in the seized bottles and one manufactured by them was

also different and seized Rum was also not manufactured by them.

The manufacturer's letter dated 22.06.2003 was received on

15.10.2003 by the respondent. The respondent had also sought report

from Chemical Analyzer and that report dated 22.12.2003 was

received on 23.12.2003. After collecting this material, show cause

notice was issued to the petitioner on 30.01.2004 and petitioner

submitted his explanation on 22.02.2004. He had requested for

hearing and accordingly, he was heard on 28.05.2004 and

08.06.2004. It is thereafter that the impugned orders came to be

passed. On affidavit, respondents have stated that at the time of

personal hearing petitioner was unable to put evidence regarding

legality or genuineness of 35 boxes of seized liquor. The Chemical

Analyzer's report and manufacturer's report confirms that the liquor

contained in those 35 boxes were duplicate, spurious and duty

evaded.

10. It is therefore, clear that the respondents were proceeding further

with investigation after 09.04.2002 and after they secured proper

reports and materials, they issued show cause notice and have taken

action in accordance with the law. This process of collecting reports

and, thereafter proceeding further in accordance with in principles of

natural justice, has taken its time. During that period, the renewal for

the year 2003-04 and 2004-05 had became due and was granted. It

cannot be viiewed as waiver of its rights by respondents. It is to be

noted that, such renewal before the impugned order is in March/April,

2004 for period from 01.04.2004 to 31.03.2005. At that time, the

petitioner had submitted his explanation to show cause notice on

21.02.2004 and he was aware of pending action against him. The

impugned order has been passed by the Collector on 16.03.2005 after

noticing all these facts and after noticing the prohibited contents of

Ethyl Alcohol in the seized bottle. The said order also mentions that,

earlier i.e. on 16.08.2000 also licence of petitioner was cancelled for

similar mal-practice.

11. In these circumstances, the judgment on which petitioner has placed

strong reliance is not at all relevant here. Here the action is of

permanent cancellation and in terms of Rules. The Rules contemplate

cancellation only for reasons to be recorded in writing and that has

been appropriately done by the Competent Authority, after complying

with the principles of natural justice.

12. I, therefore, find that no case is made out warranting interference in

writ jurisdiction. Writ Petition is thus dismissed, with no order as to

costs.

13. At this stage, Shri Jagtap, learned counsel states that, petitioner is

carrying on his business by using the licence because of interim orders

operating in this matter. He states that the interim order should be

continued further for 8 weeks more, so as to enable the petitioner to

take further appropriate measures. Learned A.G.P. is opposing the

request. Shri Jagtap, learned counsel further states that during the

period after impugned order, there is not a single violation or breach

of any condition noticed in so far as the business of petitioner is

concerned. He also states that this statement can be recorded by the

Court. In the circumstances, in view of the statement made, the

operation and effect of todays judgment is suspended till 31.01.2010.

Interim protection given to petitioner shall cease to operate

automatically thereafter.

JUDGE

Rgd.