Kedar Bhile Singh Girare vs The State Of Maharashtra And ...
2016 Latest Caselaw 1804 Bom

                                        (1)                              wp6203.15




                                                                         
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD




                                                 
                           WRIT PETITION NO. 6203 OF 2015

    Kedar Bhile Singh Girase                              ..       Petitioner




                                                
    Age. Major, Occ. Business,
    FL/Beer II licence Holder,
    Town, Aslod, Tq. Shahada,
    Dist. Nandurbar.




                                        
                                        Versus

    1.
     
          The State of Maharashtra
                                  
          Through State Excise Department,
                                                          ..       Respondents

          Mantralaya, Mumbai - 32.
                                 
    2.    The Collector, Nandurbar,
          Dist. Nandurbar.

    3.    The Superintendent,
       


          State Excise, Nandurbar,
          Dist. Nandurbar.
    



    Mr. Anil H. Kasliwal, Advocate for the petitioner.
    Mr. A.G. Magare, A.G.P. for respondent/State.





                                        CORAM :  A.V.NIRGUDE &
                                                 V.L. ACHLIYA,JJ.

DATED : 25.04.2016

ORAL JUDGMENT : [PER : A.V. NIRGUDE,J.] :-

1. Rule. Rule made returnable forthwith and heard

finally with the consent of learned Counsel for the

parties.

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2. This petition challenges order dated 26.05.2015

passed by the Superintendent, State Excise Department,

Nandurbar, directing the petitioner not to continue his

business of Beer Bar. Admittedly, for the petitioner's

business of Beer Bar, a licence was issued to him by the

Collector i.e. respondent No.2. During subsistence of

such licence, the impugned order is passed due to which

the petitioner's running business came to halt.

3. It is an admitted fact that the petitioner was

given FL-Beer-II licence for Beer Bar since many years.

Every year the licence is renewed. It is also admitted

fact that the licence was issued in the year 2011 and

same was renewed thereafter in every year till

31.05.2015. So, also there is no dispute that the

petitioner has made application in prescribed form for

renewal of licence for the year 2015-16 and deposited

requisite amount.

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4. The impugned letter makes a reference to the

Provisions of the Panchayats (Extension to the Scheduled

Areas) Act, 1996. In this Act, there is provision for

declaring a particular area as scheduled area. Such

scheduled area is generally a tribal area, where the

locals have peculiar traditions and customs. Their

cultural identity is a little different. The Act was

made to protect such traditions, customs and cultural

identity of residents of such scheduled area. Pursuant

to the provisions of the Act, the Government of

Maharashtra issued notification on 4th March, 2015 and

introduced Rules that are called the Maharashtra

Panchayat Extension to Scheduled Area (Prohibition and

Regulation of Licensing) Rules, 2015. Rule No.4 of said

Rules of 2015 provides that before the expiry of licence

granted earlier, the Gram Sabha resolution shall be

necessary for renewal. Rule-4 of said Rules reads as

under :-

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"4. Before the expiry of the licence so granted, the Gram Sabha resolution shall be

required for its renewal. The proposal for renewal of the licence shall required to be presented by the licensing authority, if the licence-holder so applies, to the Gram Sabha, thirty days prior to the date of expiry of the

licence. The Gram Sabha shall convey its opinion in the form of a resolution on the said application prior to the date of expiry of the licence."

5.

We are told that the petitioner's licence was

renewed prior to 26th May, 2015. But the licensing

authority did not obtain opinion of local Gram Sabha.

Such step was required to be taken as per the provisions

of the Rules. It seems that as the rules were notified

on 4th March, 2015 and later on brought to notice of

Superintendent, he felt that he should enforce the

provisions of the Rules by sending communication dated

01.04.2015 and in the meanwhile renewed licence upto

31.05.2015. In order to seek the compliance of rule, the

respondent No.3 issued impugned communication dated

26.05.2015. In our view before issuance of renewal, the

Superintendent ought to have obtained opinion of Gram

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Sabha. If this was not done and once the licence was

issued then the effect of licence cannot be curtailed by

sending the impugned order when the licence was renewed

up to 31.05.2015. In our view, the impugned order is,

therefore, not lawful.

6. In the facts and circumstances of the case, till

the licence issued to the petitioner remains in force and

not cancelled then at-least for the year 2015-16, the

petitioner cannot be abruptly prevented to carry business

till the period the licence is renewed. Certainly,

Superintendent would obtain opinion of Gram Sabha before

renewing this licence for next year i.e. 2016-2017.

7. Learned Counsel for the petitioner asserted that

in-case of old licences i.e. the licence issued prior to

04.03.2015, Rules of 2015 will not apply. In this context

he placed emphasis on certain words used in Rule-3 & 4.

We are not inclined to accept this contention for sole

reason that the language used in Rule-3 & 4 is clear and

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unambiguous and calls for no interpretation. Rule-3

provides that before issuing new licence, opinion should

be obtained while Rule-4 provides that before renewal of

such licence, opinion of Gram Sabha must be obtained.

Learned Counsel wishfully thought that Rule-4 would apply

to licences issued after passing of the Rules in 2015,

but we do not accept this contention. Rule-4 refers to

obtaining opinion in the form of resolution before the

expiry of licence granted earlier and due for renewal

after the said Rules brought in to force. The submission

made, that words "so granted" in Rule-4 to be interpreted

in the sense that it is applicable to those cases in

which licences issued after the rules brought in to

force, cannot be accepted as, Rule-3 provides for

obtaining opinion of Gram Sabha before granting licence.

Whereas Rule-4 provides for obtaining opinion of Gram

Sabha before renewal of licences, due for renewal after

the Rules are brought in force.

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8. In view of this, we pass the following order :-

(a) The impugned order dated 26th May, 2015, shall remain in abeyance till expiry of licence issued to the petitioner for the year 2015-16.

9. The writ petition is allowed in above terms.

Rule made absolute accordingly. No costs.

[V.L. ACHLIYA,J.] [A.V.NIRGUDE,J.]

snk/2016/APR16/wp6203.15