Bombay High Court
State Of Mah. Thru. Secty. & 3 Ors vs Jivatram Gangandas Mihani on 22 August, 2017
Bench: B.P. Dharmadhikari
Judgment lpa227.09
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 227/2009
IN WRIT PETITION No. 5253/2006.
1. State of Maharashtra,
through the Secretary, State Excise
and Prohibition Department,
Mantralaya, Mumbai - 32.
2. Hon'ble Minister, State Excise
and Prohibition Department,
Mantralaya, Mumbai - 32.
3. The Commissioner,
State Excise Department,
Mumbai.
4. The Collector, Buldhana. ....APPELLANTS.
VERSUS
Jivatram Gangandas Mihani,
Prop. M/s. J.G. Mihani Wine Shop
through Power of Attorney,
Prop. Of M/s. Mihani Wine Shop,
resident of Nandura, District Buldhana. .... RESPONDENT .
-----------------------------------
Ms. N.P. Mehta, Assistant Govt. Pleader for Appellants.
Mr. A. Parchure with Shri Deshpande, Advocates for Respondent.
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CORAM : B. P. DHARMADHIKARI
& ARUN D.UPADHYE, JJ.
DATE : AUGUST 22, 2017.
Judgment lpa227.09
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Ms. Mehta, learned A.G.P. for appellants and Shri
Deshpande, learned Counsel for the respondent.
2. Facts show that on 01.04.2004, appellant no.4 Collector issued
demand notice to the respondent. An amount of Rs. 46,11,394.80 with
further interest @ 2% per month was sought to be recovered from him on
the ground that as his wife Smt. Pushpadevi, to whom CL-II Licence was
issued, has defaulted in payment of excise duty. In this order, it is claimed
that the respondent was working as her authorized agent/servant and also
happens to be her husband.
3. In Writ Petition No. 5253/2006, filed by the respondent /
husband, the learned Single Judge has looked into this order dated
01.04.2004, and later orders dated 21.10.2005 passed by the Appellate
Authority and dated 05.07.2006 passed by the Revisional Authority.
4. Learned Single Judge found that there is no provision under
Bombay Prohibition Act allowing appellants to effect such recovery from
Judgment lpa227.09
husband. In the process, in paragraph no.8 provisions pertaining to
Schedule licence and possibility of its issuance to any one family unit or
body of individuals, has been looked into. Admittedly here the dues do not
pertain to such scheduled licence. Respondent husband possessed such
Scheduled licence i.e. FL-II licence.
5. CL-II licence was in the name of wife and husband was shown
as servant/agent. Accordingly on the ground of this relationship, recovery
of dues from wife, could not have been effected against husband. Learned
Single Judge has correctly appreciated the position.
6. We clarify that if any coercive step is initiated against wife
Pushpadevi or her properties are attached, the appellants are free to
proceed against that property as per law to recovery the dues.
7. With this clarification, we dismiss the Letters Patent Appeal.
Rule discharged. No costs.
JUDGE JUDGE
Rgd.
