Alka Anil Chaudhari vs The State Of Maharashtra And ...
2016 Latest Caselaw 1452 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                   
                             WRIT PETITION NO. 3926 OF 2014



     Alka Anil Chaudhari




                                                  
     Age 38 years, Occ. Business,
     R/o. Shop Nos. 45 and 47,
     Narayanwadi, College Road,
     Chopda, Tq. Chopda
     District Jalgaon




                                           
     Through its Power of Attorney Holder
     Lalchand s/o Hiralal Chaudhari
                             
     Age 38 years, Occ. Business
     R/o. Shop Nos. 45 and 47
     Narayanwadi, College Road,
     Chopda, Tq. Chopda
                            
     District Jalgaon.                                      ...Petitioner

              versus

     1.       The State of Maharashtra
      


              Through its principal Secretary,
              State Excise Department,
   



              Mantralaya, Mumbai.
              (Copy to be served on Govt.
              Pleader, High Court of Judicature
              at Bombay, Bench at Aurangabad)





     2.       The Hon'ble Cabinet Minister,
              State Excise Department,
              Mantralaya, Mumbai.

     3.       The Collector,





              State Excise,
              Old Custom House
              S.B. Road, Mumbai.

     4.       The District Superintendent
              Of State Excise, Mumbai.

     5.       The Collector,
              State Excise, Jalgaon.

     6.       The District Superintendent
              State Excise, Jalgaon.



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     7.       Arjunlal Narsilal Ahuja




                                                                              
              Age 70 years, Occ. Business,
              R/o. 201, Ahuja Palace,
              96, Richmand Road,




                                                      
              Bengalaru (Karnataka State)
              At present R/o. A-12, Juhu Apartment,
              Juhu Road, Santacruz (W), Mumbai.

     8.       The Commissioner of State Excise




                                                     
              Old Custom Home Bhavan,
              2nd floor, S.B. Road, Mumbai.

     9.       Prem s/o Chandrakant Advani
              Age : adult, Occ. Busienss




                                       
              R/o. Ring Road, LIC Colony Road,
              Jalgaon         ig                               ...Respondents

                                        .....
     Mr. R.N. Dhorde, senior counsel i/b Mr. V.R. Dhorde, advocate for the
     petitioner
                            
     Mr. G.O. Wattamwar, A.G.P. for respondents 1 to 6 and 8
     Mr. A.B. Kale, advocate for respondent No.7
     Mr. V.D. Hon, senior counsel i/b Mr. A.V. Hon, advocate for respondent
     No.9.
      

                                          .....
   



                                                CORAM : V. K. JADHAV, J.

Date of Reserving the Judgment: 29.02.2016

Date of pronouncing the Judgment: 12.04.2016

JUDGMENT:-

1. Heard learned counsel for the respective parties.

2. By way of this petition, the petitioner is seeking to quash and

set aside the order dated 18.10.2013 passed by the respondent

Hon'ble Minister thereby renewing the licence so also transferring the

FL-II licence to Jalgaon District along with letter dated 13.03.2014

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issued by the Desk Officer, Maharashtra State, Mantralaya, Mumbai

and further seeking to quash and set aside the order dated 29.3.2014

passed by the Collector, State Excise, thereby renewing the said

licence, which was in the name of deceased Jankibai, in favour of

respondent No.7.

3. Brief facts, giving rise to the present petition, are as under:-

a) The petitioner is licence holder of FL-II, CL-III and FL-III under

the provisions of Maharashtra Prohibition Act and is the owner

of Shanti Wines running business at Chopda Municipal

Council, Taluka Chopda, District Jalgaon. It is not necessary

to reproduce here as to how the petitioner has become sole

proprietor of the said licence. However, suffice it to say that on

26.3.2010, the Collector has permitted to delete the names of

four other partners from the said licence and the petitioner, at

present is the sole proprietor of the said licence bearing FL-II

which is renewed up to 31.3.2016.

b) One Jankibai Narsilal Ahuja was holding FL-II licence No. 315

and was running shop at Dadar (West), Mumbai. Said

Jankibai Ahuja expired on 18.1.1997. The said shop was

illegally run by one Smita Raju Deokar and she has not paid

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any sales tax for the period 2.9.2000 to 31.3.2001.

Consequently, the Sales Tax Officer has informed the District

Superintendent of State Excise, Mumbai, specifically

requesting therein not to renew the licence of said defaulter till

issuance of No Objection Certificate from Sales Tax Officer.

c) One fictitious and fraudulent person had applied to the

Superintendent of State Excise in the name of Jankibai Ahuja

to re-start the FL-II licence by letter dated 16.8.2013.,

However, the said request was not considered by the

authorities. The said licence was already cancelled on

7.1.1997. Thereafter, the said fictitious person then applied to

the respondent Hon'ble Minister by filing Revision stating

therein that said licence should be renewed in the name of

Jankibai Narsilal Ahuja. Even said Jankibai Narsilal Ahuja is

shown as revision petitioner. Even on the basis of said revision

application, a show was made to issue notice to said Jankibai

Narsilal Ahuja and notice was tried to be served through

Superintendent of State Excise Mumbai city, however, the said

notice returned unserved with a report that said Jankibai was

not residing on the given address. However, the said fictitious

person appeared at the time of hearing and even though

revision was filed only for the purpose of renewal of said FL-II

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licence, respondent Minister has not only renewed the said

licence but even accorded permission to transfer the said

licence from Bombay to Jalgaon without following due

procedure. The Hon'ble Minister by order dated 18.10.2013

allowed the revision permitting renewal after 16 years without

there being any application for condonation of delay.

d) Thereafter the Desk Officer has communicated the said order

to the Superintendent of State Excise, Mumbai and the

Collector has directed said revision petitioner Jankibai to

remain present for verification of the documents and for

transferring the said licence in Jalgaon District. Thereafter,

affidavit came to be prepared in the name of revision petitioner

Jankibai Ahuja on 13.11.2012 before the notary.

e) The Collector, State Excise Department, Mumbai, on

17.11.2013 issued a letter to the Assistant Medical Officer/Sub

Registrar, Birth and Deaths, Mumbai Municipal Corporation,

informing therein that the legal representatives have made an

application to the collector in respect of the said licence

excluding the four legal heirs and therefore, it is necessary to

verify death certificate issued by the said department. In

pursuance to the said letter, the Medical Officer has informed

that death certificate issued by the Municipal Corporation and

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the death certificates annexed along with the said application

are different and the same are not finding place in the SAP

system.

f) In view of this, the Deputy Superintendent of State Excise has

written a letter to the Commissioner to the State Excise

specifically pointing out the above position as to how fraudulent

documents are prepared to renew the licence in the name of

said Jankibai Narsilal Ahuja. Thus, the order passed by the

State Government is kept in abeyance. Thereafter, necessary

report dated 1.1.2014 came to be submitted to the office of

Principal Secretary through the office of Commissioner.

However, said report submitted by the Superintendent

contends that said Jankibai Narsilal Ahuja expired on

18.4.1997 and false application came to be submitted for

renewal of licence along with false death certificate of three

other persons.

g) On 11.2.2014, another application was made to the Minister for

State Excise by respondent No.7 Arjunlal Narsilal Ahuja stating

therein that he was not aware that revision is not maintainable

in the name of deceased person and further contended in the

said application that he along with is sister Nanda Ahuja are

the only surviving heirs of said Jankibai. It is also further sated

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in the said application that his sister has given no objection to

transfer the said licence in his name and accordingly he prayed

in the said application that said licence be renewed in his

name as Arjunlal Narsilal Ahuja. The Desk Officer, by his letter

dated 13.3.2014 has however, informed that if the holder of

licence is expired then the Collector is competent authority to

transfer the licence in the name of legal heirs. In view of the

said letter dated 13.3.2014 issued by the Desk Officer,

Superintendent of State Excise has issued letter to respondent

No.7 Arjunlal Ahuja and further directed the Deputy

Superintendent of State Excise to conduct necessary enquiry

and submit report. In pursuance to the said directions, the

Deputy Superintendent has submitted report contending

therein that after death of Jankibai, Arjunlal and Nanda are the

legal heirs and since Nanda has given No Objection

Certificate/Affidavit to transfer the said licence in the name of

Arjunlal Ahuja, the licence may be transferred in the name of

respondent Arjunlal Ahuja in accordance with law. On

29.3.2014, the Collector directed renewal of licence in favour of

respondent No.7 Arjunlal Ahuja and in pursuance of the same,

name of respondent no.7 is entered in the licence.

h) The collector, State Excise Mumbai has written a letter on

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10.4.2014 to the Collector, Jalgaon State Excise stating therein

that the licence in the name of Jankibai Narsilal Ahuja is

renewed by the State Government and the said licence is

renewed subject to the decision taken by the Sales Tax Office.

It is further requested to make necessary compliance in

respect of the same. Hence, this writ petition.

4. Learned counsel for the petitioner submits that Jankibai

Narsilal Ahuja expired in the year 1997 and licence was cancelled on

the application made by Jankibai by letter dated 2.12.1996. The said

licence was cancelled during the life time of Smt. Jankibai and on the

face of record, there is no question of renewal of said licence after a

period of almost 16 years. Though said Jankibai, who was original

holder of licence, expired in the year 1997, she shown to have made

an application on 16.8.2013 stating therein that the said licence is

closed from 1997 and now she intends to renew the said licence. The

said revision came to be filed in the name of Jankibai and a show

was made for issuance of notice to her. An order dated 18.10.2013

came to be passed in favour of deceased Jankibai. The said

application is allowed consequent to the fraud played and therefore,

the order dated 18.10.2013 itself is nullity. Learned counsel submits

that the respondent Hon'ble Minister, without making any proper

enquiry into the matter and without application of mind, has not only

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renewed the licence after a period of 16 years but also permitted the

dead person to transfer her licence to Jalgaon District. The

respondent Minister has not perused the record, relevant documents

and it also seems that no personal hearing had taken place in the

matter. After filing of said revision in the name of deceased person,

only in three dates, without calling any record, without perusing the

documents and without giving personal hearing in the matter, the

respondent Minister has passed the impugned order dated

18.10.2013. Smt. Jankibai Ahuja, who was original holder of licence,

expired in the year 1997, yet fabricated record was prepared to show

that application was made on behalf of her making false averments in

the said application that licence is closed in the year 1997 and now

she intends to renew the said licence.

5. Learned counsel for the petitioner further submits that the

Superintendent of State Excise had written a letter dated 1.1.2014

(Exhibit L) to the Commissioner of State Excise specifically pointing

out that fraudulent documents have been prepared to renew the

licence in the name of deceased Jankibai. It was also informed that

said order dated 18.10.2013 is kept in abeyance, in view of the

same. It was also informed by the said communication that

necessary report is also submitted to the Principal secretary, through

the Office of Commissioner. However, on 12.2.2014, an application

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was made before the Hon'ble Minister for State Excise by respondent

Arjunlal Ahuja, wherein it is stated that the respondent Arjunlal was

not aware that revision was not maintainable in the name of dead

person and further requested that he being the sole survivor of

deceased Jankibai and since his sister Nanda has given no objection

to transfer the said licence in his name, the said licence should be

renewed in his name as Arjunlal Narsilal Ahuja. Even though there

is specific endorsement on the said application date 12.2.2014 to the

effect that entire facts shall be brought to the notice of Hon'ble

Minister and hearing shall be kept on 17.2.2014, the Desk Officer by

letter dated 13.3.2014 has informed to the Collector, Mumbai City

that the Collector is competent authority to transfer the licence in the

name of legal heirs and after verifying the documents, as per the

order passed by the Government dated 18.10.2013 the licence be

renewed and issued in the name of legal heir by obtaining necessary

charges. The Superintendent of State Excise, Mumbai who has

informed by his letter dated 1.1.2014 to the Commissioner, State

Excise, Maharashtra State that renewal of licence has been obtained

in the name of deceased Jankibai Ahuja fraudulently and order of

Government dated 18.10.2013 is thus kept in abeyance, in view of

letter issued by the said desk Officer dated 13.3.2014, further

directed the Deputy Superintendent of State Excise to make

necessary enquiry and submit report. Learned counsel submits that

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in the light of the so called enquiry conducted by the Deputy

Superintendent of State Excise and the report dated 26.3.2014 in this

regard, the Collector by order dated 29.3.2014 directed renewal of

the licence in favour of respondent No.7. Learned counsel submits

that the Collector, State Excise Mumbai by letter dated 10.4.2014

informed to the Collector, Jalgaon, State Excise that licence in the

name of deceased Jankibai has been renewed by the State

Government and said renewal is subject to decision taken by the

Sales Tax department. Learned counsel submits that a fraud is being

played all throughout and the same is evident from the documents

submitted before the authorities concerned. Even though it was

revealed during the course of enquiry that fraudulent documents

came to be submitted for renewal of licence, in view of the letter

issued by the Desk Officer dated 13.3.2014, instead of taking any

action in respect of said fraud played on the authorities, the licence

was renewed in the name of respondent No.7 Arjunlal Ahuja.

Learned counsel submits that nothing was brought to the notice of

the Minister about fraud played while obtaining renewal and even

though there was no order passed by the Minister granting renewal in

favour of respondent No.7 Arjunlal Ahuja, the Collector has renewed

the licence in the name of respondent No.7 Arjunlal Ahuja and

transferred it to Jalgaon District. Learned counsel submits that the

licence continued to run on forged and fabricated documents.

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In support of his arguments, learned counsel for the petitioner

places reliance on the following judgments

1) Suryakant Baburao Khaladkar and Anr. vs. State of

Maharashtra and others, reported in 2003 (1) All MR 691,

2) Smt. Pushpa Jivatram Mihani vs. State of

Maharashtra and others, reported in 2007 (5) ALL MR 608,

3) Govind s/o. Rameshwar Agrawal vs. State of Maharashtra and others, reported in 2009 (5) ALL MR 663,

4) Ragho Singh vs. Mohan Singh and others, reported

in 2001 AIR SCW 2351,

5) T. Vijendradas and Anr. vs. M. Subramanian and

Ors., Reported in 2008 (1) ALL MR 446 (SC),

6) A.V. Papayya Sastry and Ors. vs. Government of

A.P. and others, reported in AIR 2007 SC 1546 and

7) Kishun @ Ram Kishun (dead) through L.Rs. vs. Bihari (D) by L.Rs., reported in AIR 2005 SC 3799.

6. Learned counsel for respondent No.7 Arjunlal Ahuja submits

that the original FL-II licence was issued in favour of mother of

respondent No.7 and said licence was used and operated in the

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name of "Wine Plaza" Wine shop at Dadar in Mumbai. Since

husband of original licencee i.e. father of respondent No.7 was

expired and since nobody was there to look after the business,

deceased Jankibai had decided to surrender said licence and

accordingly surrendered it to the Government by application dated

2.12.1996. The District Collector has passed order on the said

application on 7.1.1997 for closing down the said licence. The father

of respondent No.7 was expired in the year 1998, mother Jankibai

was also expired in the year 1997. Respondent No.7 and his sister

Nanda are only legal heirs of deceased Jankibai. Since respondent

No.7 had shifted to Karnataka during all this period, by taking

advantage of this situation, some bogus persons by making

application to the concerned authority had requested for renewal of

said licence. Learned counsel submits that said application was

made in the name of mother of respondent No.7 and on the very

same day, District Collector has rejected the said application.

Learned counsel submits that being aggrieved by said order of the

Collector, the very persons have approached the Minister by filing

revision under Section 138 of the Maharashtra Prohibition Act in the

name of mother of respondent No.7. After considering the record,

the Hon'ble Minister was pleased to allow the said revision by order

dated 18.10.2013. Learned counsel submits that while deciding the

said revision, Hon'ble Minister has directed the respondent

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authorities to verify the status as well as to verify the Government

dues. The Minister has also considered various provisions of law

and circulars. Then the matter was considered by the respondent

Officers and from investigation, it revealed that Smt. Jankibai Ahuja

is no more and by taking advantage of this situation, bogus

proceedings came to be initiated in her name and licence was tried to

be renewed.

7.

Learned counsel for respondent No.7 submits that till that time

respondent No.7 was not aware about the happening of said

proceedings. He had noticed this fact only during the course of

enquiry conducted by respondent No.4. Consequently, respondent

No.7 approached the Government by filing an affidavit and an

application requesting the said authorities to renew the licence in his

name being legal heir of deceased Jankibai. Respondent No.2 after

enquiry, considering the documents placed on record by respondent

No.7 along with affidavit of his sister giving No Objection Certificate

to renew the licence in the name of respondent No.7, by order dated

13.3.2014 has maintained the said order dated 18.10.2013 but in the

name of respondent No.7. So far as the order passed by the Minister

dated 18.10.2013 is concerned, the same was maintained by

substituting the name of respondent No.7 being legal heir of

deceased Jankibai. By no stretch of imagination it can be said that

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fraud alleged, has been played by respondent No.7. After the order

passed by the Minister on 13.3.2014, respondent Nos. 3, 4 and 6

have conduced close scrutiny of the documents and have inquired

into the matter thoroughly and after satisfaction, order of renewal

came to be issued in favour of respondent No.7. Even the authorities

have imposed renewal charges to the tune or Rs.58,65,000/-

(Rupees fifty eight lacs sixty five thousand only) on respondent No.7

and the same has already paid by respondent No.7 with Treasury of

the Government.

8. Learned counsel for the respondent No.7 submits that the

petitioner has no locus standi to challenge the orders passed by the

authorities as above. The State Government has taken policy

decision that no licence should be issued afresh and the licences

issued earlier are to be made operative. The petitioner is the person

who is having liquor shops licence in Chopda, District Jalgaon and he

is the only person who is holding licence at present, and therefore

created monopoly in Chopda city. All sorts of allegations have been

made against respondent No.7 with some ulterior motive. The order

dated 10.4.2014 transferring the licence to Jalgaon from Mumbai is

not challenged by the petitioner. The order dated 29.3.2014 creates

right in favour of respondent No.7 and same is not challenged

by the petitioner. Learned counsel submits that there is no

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substance in the writ petition and the writ petition is liable to

dismissed. Learned counsel in the alternate submits that the matter

may be remanded to the respondent Minister for conducting enquiry

afresh and to take appropriate decision in the matter for renewal of

licence in the name of respondent No.7. Learned counsel for

respondent No.7 places reliance on the Government Resolution

dated 20.8.1996 issued by the Government.

In support of his submissions, learned counsel for respondent

No.7 places reliance on the following judgments:-

I) Shivaji Tulshiram Thakre vs. State of Maharashtra

and others, reported in 2012 (6) Bom.C.R. 593 and

II) Unreported judgment of this Court dated 7.1.2011, in writ petition No. 199 of 2006 (Smt. Keti Ardeshir

Kapadia vs. State of Maharashtra and others).

9. Learned A.G.P. for respondent Nos. 1 to 6 and 8 submits

that entire action in the present matter is completed at Mumbai and

the same is done under the order passed by the Collector and

Superintendent of State Excise at Mumbai, so also under the order of

Hon'ble Minister. Learned A.G.P. submits that after passing of the

order by the Minister dated 18.10.2013, correct facts came to the

knowledge of the department and accordingly Superintendent of

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State Excise, Mumbai has submitted his report dated 1.1.2014 to the

Commissioner State Excise and also to the Principal Secretary, State

Excise department. Learned A.G.P. submits that it is an admitted

position that in the year 1996 itself, original licencee Smt. Jankibai

Ahuja filed an application dated 2.12.1996 along with affidavit and

surrendered the licence and the collector, by its order dated 7.1.1997

permanently cancelled the said licence. Thus, there is no question of

Sales Tax amount for the period of 2000 to 2001. So far as the

revision before the Minister is concerned, the same is filed through

advocate and under such circumstances, there is no requirement to

personally call the party for hearing as the advocate was attending

the hearing. It is the regular practice in revision before the Minister to

issue notice to the parties through Superintendent of State Excise

and the same is served on the concerned party through the Inspector

or Sub Inspector. Learned A.G.P. further submits that hearing took

place on 27.8.2013 and representative of original licencee and the

advocates were present. Furthermore, Inspector of State Excise from

Mumbai was also present and by following procedure as laid down in

Government Circular dated 13.2.2012, revision was decided.

10. Learned A.G.P. submits that the writ petition is misconceived

because the letter issued by the Desk Officer, Home Department is

only in the form of covering letter for supply of copies of order of

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Minister and further, the letter dated 2.11.2013 is issued by the

Collector, Mumbai to original licencee calling for necessary

compliance of the documents. After receiving the application filed by

respondent No.7 Arjunlal, the Desk Officer has informed the

concerned authority that pursuant to the order dated 18.10.2013,

name of legal representative can be inserted in the licence by the

Collector and informed the Collector to include the name of legal

representative of deceased original licencee by following due

procedure of law. The learned A.G.P. further submits that the

question of condonation of delay does not arise because renewal of

FL-II licence was brought by the Government Circular dated

13.2.2012 and further, for entertaining revision application under

Section 138 of Maharashtra Prohibition Act 1949 no period of

limitation is prescribed. In the revision petition itself, there was

prayer for renewal of licence and also for shifting of licence. Learned

A.G.P. submits that the licence was renewed by the orders of the

Minister and the department got knowledge of death of original

licencee only at the stage of compliance of order of the Minister.

Accordingly necessary information was given to the Higher Officer.

Learned A.G.P. submits that considering all these facts, and

considering the fact that FL-II licence is renewed by the Minister and

after necessary compliance, the same is transferred in the name of

respondent No.7 Arjunlal Ahuja being legal representative of original

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licencee, no interference is necessary in the matter so far as the

renewal of licence is concerned.

11. I have also heard learned counsel for respondent No.9.

Learned counsel for respondent No.9 submits that respondent No.9

was not party to the revision application filed on behalf of Jankibai

Ahuja nor he had signed Vaklatnama in the capacity as power of

attorney. Learned counsel submits that the allegations made by way

of carrying out amendment in the petition against respondent No.9

are totally baseless. Learned counsel for respondent No.9 has no

objection if any enquiry is directed in the matter.

12. I find substance in the allegations made in this writ petition.

The following are the admitted instances indicating fraud,

misrepresentation and suppression of material facts,

highhandedness and collusive approach of the authorities, besides

total violation of the provisions of law:-

I) FL-II licence bearing No. 315 at Dadar (West), Mumbai

named M/s. Wine Plaza which was granted in favour of

deceased Jankibai Ahuja and she expired on 18.4.1997.

On 16.8.2013, an application was filed before the

Superintendent of State Excise singed by Jankibai Ahuja

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pretending to be an application filed by Jankibai before the

said authority for renewal of licence. The said request was

not considered by the Collector, State Excise, Mumbai on

the ground that the said licence was already cancelled on

7.1.1997 permanently. It is stated in the communication

dated 16.8.2013 by the Collector State Excise, Mumbai that

Smt. Jankibai Ahuja was not interested in continuing with

the licence and on her own request, the licence issued in

her name came to be cancelled.

II) Thereafter same person pretending to be Smt. Jankibai

Ahuja filed revision before the Minister for renewal of the

licence.

III) On the basis of the said revision application, notice was

issued to Jankibai and it was tried to be served through the

Superintendent of State Excise Mumbai city, however, said

notice was not served and it was informed that the applicant

Jankibai Ahuja is not residing on the given address. It is

thus informed that the person, who has field revision was

not traceable.

IV) The revision petition was filed by Mrs. Veena Thadani,

advocate for the revision petitioner before the Minister and

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general power of attorney shown to have been prepared by

Smt. Jankibai Ahuja in the name of present respondent

No.9 and one Rajan Suryabhan Sonkawde. In the said

revision petition of the year 2013, the fact is suppressed

that said FL-II licence bearing No. 315 was permanently

cancelled by the authorities. It is stated in the revision

application that the said licence was functioning till 1.7.1997

and licence thereafter remained inoperative and has not

been renewed.

V) The revision application was filed on 5.8.2013 and it was

heard finally on 27.8.2013 wherein the presence of general

power of attorney holder Rajan Suryabhan Sonkawde and

advocate Smt. Veena Thadani was shown for hearing and

by order dated 18.10.2013 the Minister has allowed the said

revision application with certain directions.

VI) It is recorded in the order dated 18.10.2013 that the

husband and daughter of Jankibai Ahuja died and therefore

the applicant Jankibai Ahuja being an old aged lady has no

independent source of income. It is also recorded that on

account of death of husband and daughter, none else was

there in the family to support her and the said licence was

given on lease to other person, who had not paid sales tax

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and other taxes and therefore, the said licence is closed

since 7.1.1997. It is further recorded in the order that the

Collector, State Excise Mumbai city has cancelled the said

licence w.e.f. 7.1.1997 by his order dated 16.8.2013.

Further it is noted that in view of the Government circular

dated 13.2.2012, the Government has framed policy to

renew the FL-II licence which have been closed.

Accordingly, revision was allowed with the directions to the

Collector, Mumbai city to verify all documents and after

complying with the terms and conditions by charging

renewal fees, necessary orders be issued for renewal of the

licence. The Minister has also directed the authorities to

shift the said licence in Jalgaon District as per the

provisions of Rules in this regard.

VII) Pursuant to the order dated 18.10.2013 passed by the

Minister and the subsequent communication issued by the

Desk Officer, Mantralaya, Mumbai, the authorities of the

State Excise set in motion. Thereafter the Superintendent of

State Excise, wrote a letter on 1.1.2014 to the

Commissioner of State Excise, specifically pointing out

therein that fraudulent documents have been prepared to

renew the licence in the name of Jankibai Ahuja and that

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said Jankibai Ahuja expired on 18.4.1997 and bogus

persons have filed application for renewal of licence

alongwith the false death certificates of three other legal

heirs of Narsilal Ahuja. It was also informed to the superior

officers that the order passed by the State Government is

therefore, kept in abeyance.

VIII) On 11.2.2014 an application was made before the Hon'ble

Minister of State Excise by respondent No.7 Arjunlal Ahuja

stating therein that he was not aware that revision is not

maintainable in the name of deceased person and that he

alongwith his sister Nanda are the sole surviving heirs of

deceased Jankibai. It is further stated in the said application

that his sister has given no objection to transfer said licence

in his name and licence should be renewed in his name.

Respondent No.7 Arjunlal has substituted himself in the

order dated 18.10.2013 passed by the Minister in revision

shown to have been preferred by Jankibai.

IX) The Desk Officer by his letter dated 13.3.2014, informed to

the authorities of the State Excise department that in terms

of the Government order dated 18.10.2013, the documents

submitted along with application filed by respondent Arjunlal

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be verified and after recovering the charges, the licence

shall be transferred in the name of legal heir in terms of

provisions of Maharashtra Prohibition Act and Rules made

there under. The said order dated 13.3.2014 and the

communication made to the Collector, Mumbai stated to

have been made as per the approval by the Minister.

X) In view of the said letter, dated 13.3.2014, the same

Superintendent of State Excise, who has given earlier

report of fraud played for obtaining renewal of licence by a

person who is not alive, directed enquiry through Deputy

Superintendent of the State Excise and accordingly on

29.3.2014 the Collector, Mumbai State Excise directed

renewal of the licence in favour of respondent No.7 Arjunlal.

In pursuance to the same, name of respondent No.7 is

entered in the licence.

13. It appears that fraud has been played all throughout and above

facts and circumstances specifically indicate the same. Smt. Jankibai

expired in the year 1997 itself and the licence to run FL-II bearing No.

315 was cancelled on the application made by Smt. Jankibai herself,

during her lifetime. Therefore, on the face of record, there is no

question for renewal of said licence in the year 2013. It also appears

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that an application was submitted within the knowledge of

respondent No.7 in the name of deceased Jankibai Ahuja for renewal

of licence and also the revision application after the said application

came to be rejected. It is also part of record that false address of

deceased Jankibai was shown in the revision application and false

documents of G.P.A. was prepared. It is also a part of record that

false affidavits have been prepared and false death certificates have

also been procured. Further, the Minister has also hastily decided

the revision application without verifying the documents etc. It further

appears that even though fraud was unearthed and reported by the

State Excise authorities to the superiors, the same was not

considered by the Minister and respondent No.7 Arjunlal has been

permitted to be substituted in the proceeding of revision application

by way of allowing his application dated 12.2.2014.

14. It is also a matter of record that at the time of verification of

documents in terms of order passed by the Minister dated

18.10.2013, one woman pretending herself Jankibai Ahuja remained

present before the Excise authorities along with her affidavit. It was

also revealed that death certificates of husband, son and daughter of

Jankibai produced before the Excise authorities are fake death

certificates. It is necessary to repeat here that renewal of licence

was obtained under the pretext that Jankibai is the sole surviving

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member and all her family members are no more and therefore,

renewal of the licence is sought. The statement of respondent No.7

was recorded on 25.3.2014 and he has admitted in his statement that

said licence was in operation till 1997. He has also admitted the

communication dated 2.12.1996 by Jankibai to the collector, State

Excise Mumbai for cancellation of licence and the order passed by

the Collector, dated 7.1.1997 thereby cancelling the licence

permanently. In the application dated 12.2.2014, it is stated that

respondent No.7 Arjunlal Ahuja was not aware that revision was not

maintainable in the name of dead person. Learned counsel for

respondent No.7 submitted that said application is not happily

drafted, however, I do not find any substance in the submissions and

it appears that respondent No.7 was knowing about all earlier

proceedings and the same reflects from the contents of his

application dated 12.2.2014. It also appears that the Desk Officer of

Mantralaya, has also played prominent role in this case. The order

passed by the Minister on the application of respondent No.7 is not

placed before this Court, however, letter issued by the Desk Officer

dated 13.3.2014 indicates that the decision has been approved by

the Minister and accordingly excise authorities have been directed to

consider the application of respondent No.7 dated 12.2.2014 for

renewal of licence in continuation with the order dated 18.10.2013

passed in the said revision application. It also appears that the order

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according sanction for shifting of shop is passed without following

due procedure of law.

15. In view of the above discussion, in my considered opinion, the

order dated 18.10.2013, which is obtained by fraud in favour of dead

person, itself is nullity. Consequently, subsequent order passed by

the Excise department dated 29.3.2014 and the order dated

10.4.2014 according sanction for shifting of licence to Jalgaon District

does not survive being collusive, tainted with scandal. I do not find

any substance in the submission that the matter may now be

remanded to the Minister. Undisputedly, the petitioner is licence

holder and is proprietor and owner of Shanti Wines and conducting

business of Chopda, District Jalgaon. I thus find that the petitioner

has locus to challenge the impugned orders as the transfer of licence

by the authorities affects the right of the petitioner.

16. Accordingly, I proceed to pass the following order:-

ORDER

I. Writ petition is hereby allowed in terms of prayer clause "B"

and "C".

II. The Principal Secretary of State Excise Department, Mantralaya, Mumbai is hereby directed to make enquiry

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into the matter himself or through any responsible

subordinate officer and take necessary legal action against erring officials/officers of the State Excise department and

based upon the conclusion of the said enquiry, may also propose legal action against respondent Nos. 7 and 9 within a period of six months from today.

III. Rule is made absolute in the above terms. Writ petition is disposed of.

                              ig                          ( V. K. JADHAV, J.)
                            
     rlj/