Bombay High Court
Shivkumar Bansilal Modi vs State Of Maha & Ors on 7 August, 2017
Bench: R.D. Dhanuka
1 WP 2595 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 2595 of 2004
1) Shivkumar s/o Bansilal Modi,
Age 49 years, Occupation : Business,
R/o Plot No.17, N-2, CIDCO,
Near Kasliwal Corner, Aurangabad.
2) Neeta Subhash Jaiswal,
Age 50 years, Occupation : Business,
R/o N-12, C-13, HUDCO,
Swami Vivekanand Nagar,
Aurangabad. .. Petitioners.
Versus
1) The State of Maharashtra,
Through Secretary,
Home Department,
Mantralaya,Mumbai.
2) The Collector, Aurangabad.
3) The Superintendent of
State Excise, Aurangabad. .. Respondents.
----
Shri. R.R. Mantri, Advocate, for petitioners.
Shri. S.B. Joshi, Assistant Government Pleader, for
respondents.
----
Coram: R.D. DHANUKA &
SUNIL K. KOTWAL, JJ.
Date : 7 AUGUST 2017
2 WP 2595 of 2004
ORAL JUDGMENT (Per R.D. Dhanuka, J.) :
1) By this petition filed under Article 226 of the
Constitution of India, the petitioners seek a writ of
certiorari to quash and set aside condition No.3 contained
in letter dated 6 March 2004 and condition No.1
contained in letter dated 11 March 2004 issued by
respondent Nos.2 and 3 respectively. Some of the relevant
facts are as under :-
2) It is the case of the petitioner that the
petitioner is holding C.L.-III Licence under the
Maharashtra Prohibition Act. When the said licence was
held by the petitioner, business was being conducted in
village Radi, Taluka Ambajogai, District Beed. It is the
case of the petitioner that since the petitioner was
suffering from serious illness, he requested respondent
No.1 to shift his licence from village Radi to Aurangabad.
By an order dated 20 January 2000 respondent No. 1
directed to give permission to the petitioner to shift the
licence from village Radi to Aurangabad. By letter dated
6 February 2001 a report was called by respondent No.3
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to ascertain whether problem of law and order would be
caused at the spot which was located in House No.27 at
Naregaon where the petitioner had proposed to shift his
business. By letter dated 16 Mach 2001 the Commissioner
of Police Aurangabad reported that there would be no
such problem if the licence held by the petitioner is
transferred at the premises at Naregaon. On 16 October
2001 the Municipal Corporation of Aurangabad also gave
its no objection.
3) On 6 March 2004 respondent No.3 issued a
letter to the petitioner asking him to deposit various
amounts towards renewal of licence fees and also transfer
fees. The petitioner deposited the amounts towards
licence fees and also transfer charges on 10 March 2004.
4) It is the case of the petitioner that the
Municipal Corporation Aurangabad thereafter started
collecting taxes from the petitioner in respect of the said
shop at Naregaon which fell within the jurisdiction of
Municipal Corporation Aurangabad. Receipts of payment
of such taxes are annexed to the petition.
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5) On 6 March 2004 the office of the
Superintendent of State Excise after referring to the
order passed by the Government on the proposal sent by
the Collector for transfer of licence from village Radi to
Aurangabad imposed various conditions in the said letter.
Condition No.3 of the said letter provides that the said
permission was given to the petitioner on the condition
that certificate from the Aurangabad Municipal
Corporation was required to be submitted mentioning that
the construction made on Plot Nos.27 and 45 from Gat
No.14 at Naregaon was authorised. It was clarified in the
said letter that unless such certificate was submitted by
the petitioner, there would be no transfer under the said
licence at the said shop situated at Naregaon. The said
letter dated 6 March 2004 issued by the office of the
Superintendent of State Excise, Aurangabad, is impugned
and more particularly the condition No.3 mentioned in the
said letter on various grounds.
6) Mr. R.R. Mantri, learned counsel for the
petitioners invited our attention to some of the documents
annexed to the writ petition. He submitted that when the
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petitioner was granted licence under the provisions of the
Maharashtra Prohibition Act, the premises from which the
petitioner was carrying on his business was on the
agricultural land. He submitted that because of the
sickness of the petitioner, the petitioner had requested to
transfer the said licence. The premises situated at
Naregaon where the licence has been transferred has
subsequently fallen within the jurisdiction of Aurangabad
Municipal Corporation. He submitted that neither the
Gram Panchayat at any time raised any objection in
respect of the said construction in which the petitioner
was carrying on his business in the earlier premises
alleging that it was an unauthorised construction nor the
Municipal Corporation of Aurangabad raised any such
objection since last several years. He submitted that after
such licence was transferred to the new premises within
the jurisdiction of Aurangabad, the Municipal Corporation
Aurangabad has collected taxes from the petitioner. He
submitted the petitioner has not carried out any new
construction in the said premises at Naregaon at any time
after such licence was transferred by the authorities.
6 WP 2595 of 2004
7) The learned counsel submitted that the Gram
Panchayat within whose jurisdiction the earlier structure
of the petitioner fell has been disbanded. He invited our
attention to Maharashtra Country Liquor Rules 1973 and
in particularly Rule 24(4). He submitted that none of the
conditions which are set out therein for grant of licence
would permit the Superintendent of State Excise or the
Collector to impose such condition as imposed in clause
No.3 by the Superintendent of State Excise. He submitted
that there is no question of obtaining any certificate from
the Aurangabad Municipal Corporation in respect of the
construction which was in existence prior to the date of
transfer of such licence and prior to the said structure
falling in the jurisdiction of the Municipal Corporation of
Aurangabad. He submitted that as the Gram Panchayat
which had jurisdiction to grant such permission, if any for
making construction is already disbanded, the petitioner
could not have produced any such permission from the
Gram Panchayat also. It is submitted that since last
about 20 years the petitioner has been carrying on
business without any objection of any nature by the
Municipal Corporation the said shop alleging any
7 WP 2595 of 2004
unauthorised construction by the petitioner.
8) It is submitted that the Collector who has
purportedly issued the impugned order dated 6 March
2004 does not have jurisdiction to impose any such
condition. Such action could have been taken only by the
Superintendent of State Excise.
9) It is submitted that recently an action was
initiated against the petitioner upon a complaint made by
some of the persons from the locality and based on such
complaint, by the authorities which culminated into an
order passed under section 142 (2) of the Maharashtra
Prohibition Act, 1949. He submitted that by an order
dated 14 June 2017 passed by Division Bench of his Court
in Writ Petition No.6697/2017 the said action of the
authority came to be quashed by this Court. He submitted
that, apart from the said action initiated recently, the
Municipal Corporation or the respondents have not
initiated any other action against the petitioner.
8 WP 2595 of 2004
10) Mr. Joshi, the learned Assistant Government
Pleader, on the other hand, submitted that petitioners
ought to have obtained appropriate permission from the
Municipal Corporation or at least a certificate showing
that the construction in question was authorised
construction and he ought to have complied with
condition No.3 which was imposed by the respondent in
the impugned letter.
11) The learned Assistant Government Pleader
invited our attention to the guidelines issued by the
Government to be considered for issuance of liquor
licence. He submitted that the said guidelines specifically
provide for seeking permission of the Municipal
Corporation even in respect of existing structure. The
next submission of the learned AGP is that the Municipal
Corporation Aurangabad has not been impleaded as party
respondent to this petition and on this ground the petition
deserves to be dismissed. He submitted that the petitioner
ought to have applied to the Municipal Corporation for
issuing any such certificate requisitioned by the
authorities under the impugned letter and particularly
9 WP 2595 of 2004
the condition No.3. He further submitted that, there are
several complaints received by the authority against the
petitioner alleging nuisance to the residents of same
locality. The learned AGP, however, fairly submitted that
the complaint, if any made by the members of the locality,
is not the subject matter of this petition and if any action
is required to be taken by the authority against the
petitioners, the same would be taken in accordance with
law.
12) The learned counsel for the petitioners in his
rejoinder submitted that complaints, if any, made by the
members of the locality is not the subject matter of this
petition and thus no cognizance thereof can be taken by
this Court in this petition. He submitted that the
complaint filed by the residents was the subject matter of
Writ Petition No.6697/2017 and the action initiated based
on such complaint has been quashed by this Court by
order dated 14 June 2017. It is submitted by the learned
counsel for the petitioners, that in the event of any
unauthorised construction alleged to have been carried
out by the petitioners in future, the Municipal Corporation
10 WP 2595 of 2004
would be entitled to take action in accordance with law.
The submission is accepted.
13) It is not disputed that the petitioner was
granted licence by the authority when the petitioner was
carrying on the business from the premises which was
falling in the jurisdiction of the Gram Panchayat. The
petitioner had thereafter applied for transfer of the said
licence. The Municipal Corporation had issued no
objection. The new premises in which the petitioner
proposed to carry on the said business has fallen within
the jurisdiction of Municipal Corporation Aurangabad.
14) In our view the learned counsel for the
petitioners is right in his submission that the condition
No.3 directing the petitioners to obtain no objection
certificate from the Municipal Corporation could not have
been imposed by the respondents in respect of the
existing structure which had earlier fallen within the
jurisdiction of the Gram Panchayat from the Municipal
Corporation Aurangabad subsequently. Learned Assistant
Government Pleader does not dispute that the Gram
11 WP 2595 of 2004
Panchayat, which was having jurisdiction over the
structure of the petitioner prior to the transfer of licence,
has been disbanded. In view of these circumstances, in
our view the conditions imposed by the respondents and
more particularly condition No.3 to obtain "no objection
certificate" from the Municipal Corporation was totally
unreasonable, arbitrary and without authority of law.
15) Reliance placed by the learned Assistant
Government Pleader on the guidelines dated 6 July 1989
and condition No.9 of Scheduled "A" in our view would not
assist the case of the respondents. The petitioner, in view
of the peculiar facts and circumstances, could not have
obtained any permission from the Gram Panchayat in view
of the fact that the Gram Panchayat has been disbanded
and at the same time the Municipal Corporation could not
have verified the position and issued any certificate about
the authorised construction in respect of the structure
which was constructed prior to the date of such structure
falling within the jurisdiction of the Municipal
Corporation.
12 WP 2595 of 2004
16) So far as the argument of the learned AGP that
the Municipal Corporation is not made party respondent
and thus the writ petition deserves to be dismissed on
that ground is concerned, a perusal of the prayers in the
petition clearly indicates that no relief is claimed against
the Municipal Corporation. In our view the Municipal
Corporation was thus not a necessary party to this
petition.
17) In so far as the complaints received by the
respondents from 172 persons alleging nuisance due to
the liquor shop of the petitioners is concerned, since the
said complaint is not the subject matter of this petition,
we are not inclined to express any view on such
complaints alleged to have been made by the residents of
the same locality.
18) In our view the condition No.3 in the letter
dated 6-3-2004 and condition No.1 mentioned in letter
dated 11-3-2004 being unreasonable, harsh and arbitrary
deserve to be quashed and set aside. We therefore pass
the following order.
13 WP 2595 of 2004
19) Rule is made absolute in terms of prayer clause
(B). It is however made clear that this Court has not
expressed any views on the issue whether the
construction in question in which the petitioner has been
carrying on business is authorised structure or not. It is
also made clear that if any new construction is proposed
to be carried out by the petitioner, the same shall be
carried out after obtaining requisite permission from the
Municipal Corporation and the other authorities, if any
such permission is required. If the Municipal Corporation
proposes to take any action against the petitioners in
respect of any alleged unauthorised construction in
respect of the existing structure, the Municipal
Corporation would be at liberty to initiate such action in
accordance with law. The petition is disposed of in above
terms. No order as to cost.
Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (R.D. DHANUKA, J.)
rsl
