Omprakash Ramgopal Jaiswal vs The State Of Mah. & Others
2017 Latest Caselaw 4172 Bom

                                            1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                     BENCH AT AURANGABAD

                        WRIT PETITION NO.4594 OF 1994

Omprakash s/o Ramgopal Jaiswal,
Age-46 years, Occu-Business,
R/o 'Krushna-Vandan' Block No.2,
Murli Nagar, College Road, Jalna                              -- PETITIONER 

VERSUS

1. The State of Maharashtra,

2. The Collector,
    Dist. Jalna,

3. The Commissioner,
    State Excise, Maharashtra State,
    Old Custom House,
    Bombay                                                    -- RESPONDENTS 

Mr.Rajendra Deshmukh alongwith Mr.Amol Joshi, Advocate for the petitioner.

Mr.S.P.Deshmukh, AGP for respondents/State.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 07/07/2017

ORAL JUDGMENT :

1. The petitioner by this petition has put forth prayer clause 16-B

and 16-C as under :-

"B. This Hon'ble Court be pleased to issue a writ of certiorari or any other writ direction or order in the nature of writ of certiorari quashing and setting aside the order passed by the respondent No.2 dated 19/11/1993 filed at Exhibit-D.

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C. This Hon'ble Court be pleased to issue a writ of certiorari or any other writ direction or order in the nature of writ of certiorari quashing and setting aside the order dated 05/09/1994 passed by the Respondent No.3 in File No.CLR.1994/6164/56/I."

2. This Court has granted interim relief to the petitioner on

20/12/1994 and the petition was admitted 20/04/1995.

3. I have heard Mr.Deshmukh, learned Advocate for the petitioner

and have gone through the grounds for challenge, as well as the

affidavit in rejoinder. I have heard the learned AGP on behalf of the

State Authorities and have perused the affidavit in reply.

4. The issue is that the father of the petitioner Ramgopal had a

CL-III license in his name. He subsequently entered into a

partnership with his son, the petitioner. After the demise of

Ramgopal, the petitioner approached the competent authority for

seeking transfer of the CL-III license in his name on the basis of a

Will-Deed. By order dated 19/11/1993, respondent No.2/District

Collector rejected the request of the petitioner on the ground that due

to the passing away of his father, the partnership firm would come to

an end and the license cannot be transferred in his name only on the

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basis of a Will-Deed purportedly executed by his deceased father.

5. The petitioner filed an Appeal No.56/1994 before respondent

No.3/Commissioner, State Excise, Maharashtra u/s 137 of the

Bombay Prohibition Act, 1949 and prayed for quashing of the order of

the Collector and transfer of the license in his name. By the

impugned order, respondent No.3 concluded that besides the

petitioner, there was at least 1 known LR of the deceased Ramgopal,

namely Vedprakash Ramgopal Jaiswal. He is the real brother of the

petitioner. An affidavit was tendered as having been executed by

Vedprakash mentioning that the license be transferred in the name

of the petitioner.

6. Learned Advocate submits on instructions that besides the

petitioner and Vedprakash, there are 6 more siblings. Respondent

No.3 rejected the appeal on the ground that the Collector was right in

insisting for the details of all the LR's of deceased Ramgopal and an

heir ship certificate which is supposed to be the best piece of

evidence.

7. Learned Advocate for the petitioner submits that respondent

No.3 / Commissioner or for that reason even the District Collector,

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should have scrutinized the Will and on the basis of the said will, he

should have believed that the petitioner has inherited the license.

Despite the strenuous submissions of Mr.Deshmukh, I am not

convinced for the reason that the Collector or the Commissioner of

Excise does not have the powers of the Civil Court to decide the

legality and the validity of a Will on the basis of which one out of the

8 siblings i.e. the petitioner, who claims to have inherited the CL-III

license, could be said to be entitled. The Collector as well as the

Commissioner were therefore justified in demanding a proper

evidence and insisting for a heir ship certificate. This cannot,

therefore, be termed as being an abuse of authority by the said

authorities.

8. Notwithstanding the above, subsequent events that have

occurred after the lodging of this petition will have to be taken into

consideration. By the ex-parte relief granted by this Court, the

petitioner is said to have continued with his CL-III license and is

operating the shop. None of his 7 siblings have approached this

Court to intervene in the matter and oppose the continuation of the

interim relief, which ex-facie indicates that they are not objecting to

the petitioner running the shop which was earlier operated by the

deceased father. In these 23 years, during the pendency of this

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petition, they have not intervened in this matter to contend that

either of them desires to have the CL-III license in his or her name.

This would indicate that at least for the present, the siblings of the

petitioner are not opposing the license to be transferred in his name.

9. It, however, cannot be ignored that the procedure laid down by

the Government vide the circular dated 25/02/1994 issued by the

Home Department, requires the competent authority to scrutinize

whether there is any dispute in between the LR's as regards the

transfer of the CL-III license. Exceptions cannot be carved out for the

fear of diluting the rules and the procedure applicable.

10. I, therefore, find it appropriate, in the peculiar facts as

recorded above and without laying down a precedent, that the

petitioner shall now approach the competent authority by filing an

application for transfer of CL-III license in his name. He shall file

individual affidavits of his siblings to evidence that none of his

siblings desire the transfer of the license in their name. Besides this,

the petitioner shall have a notice published in "Marathi Daily

Lokmat", Jalna Edition calling for objections, if any, and such

objections shall be addressed to the competent authority.

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11. At this juncture, Mr.Deshmukh interjects and submits that

instead of following the procedure as stated above, the petitioner is

willing to obtain an heir ship certificate with regard to the CL-III

license from the competent Court at Jalna. This was the direction set

out in the impugned order.

12. By recording the abovesaid statement, this petition is partly

allowed as under :-

[a] As the renewal of the license is due from 1 st April of each year, it shall be presumed that the shop operated by the petitioner would continue with the operations till 31/03/2018. [b] The interim relief granted by this Court shall continue to protect the petitioner in so far as his present status of the CL- III license is concerned till 31/03/2018.

[c] The petitioner shall file an appropriate proceedings for seeking an heir ship certificate, on or before 29/07/2017. [d] After being granted the heir ship certificate, if so granted by the competent court, he shall produce the said certificate before the competent authority for seeking the renewal of his license on or before the 01/03/2018.

[e] The protection granted to the petitioner shall not create any right or equity in his favour.

[f] If any of the above directions are not complied with, the CL-III license of the petitioner shall expire on 31/03/2018 and shall not be renewed.

[g] The petitioner shall not seek extension of time in this

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matter for any reason.

13. Since respondent Nos. 2 and 3 had issued the direction to

submit an heir ship certificate, the impugned orders do not call for

any interference, except with the modifications as above. Rule is

made partly absolute in these terms.

( Ravindra V.Ghuge, J.)

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