Bombay High Court
Nandkishor Shivprasad Jaiswal ... vs The State Of Mah. Dept Of Excise And ... on 17 November, 2017
Bench: B.P. Dharmadhikari
Judgment lpa368.09
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 368/2009
IN WRIT PETITION NO. 1682/2009.
Nandkishor Shivprasad Jaiswal,
(Ballah), Aged about 67 years,
Occupation - Business, resident of
Lala Building, Avadhut Wadi,
Yavatmal, Tq. and District
Yavatmal. ....APPELLANT.
VERSUS
1. The State of Maharashtra,
Department of Excise, Mantralaya
Madam Cama Road, Mumbai 400 032.
2. The Collector, Yavatmal,
Tq. and District Yavatmal.
3. The Commissioner of State Excise,
Maharashtra State, Fort, Mumbai 400 001.
4. Shri Kamal Laxmikant Jaiswal,
Aged Major, Occupation Business,
resident of Jamanakargar,
Yavatmal, Tq. and District
Yavatmal. ....RESPONDENTS
.
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Mr. C.S. Dharmadhikari, Advocate for the Appellant.
Ms. A.R. Kulkarni, Asstt. Govt. Pleader for Respondent Nos.1 to 3.
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Judgment lpa368.09
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CORAM : B. P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
Date of Reserving the Judgment : 04.10.2017.
Date of Pronouncement : 17.11.2017.
JUDGMENT. (Per B.P. Dharmadhikari, J)
Appellant/petitioner questions judgment dated 23.06.2009,
delivered by the learned Single Judge, dismissing his Writ Petition
No.1682/2009. In that Writ Petition, he had challenged an order of Hon'ble
Minister on behalf of State Government dated 09.03.2009, by which the
Hon'ble Minister maintained the order dated 31.03.2003, passed by the
Commissioner of State Excise, Mumbai. The Commissioner has refused to
allow second Foreign Liquor Licence (FL-II Licence), in his name. It is to be
noted that the proceedings before the Commissioner, State Excise were in
the form of an appeal under Section 137[2] of the Bombay Prohibition Act,
1949 (hereinafter referred to as "the Prohibition Act" for short). Earlier the
Collector, Yavatmal passed an order on 29.04.2002, rejecting the application
of appellant for renewal of FL-II licence, as he is already holding MFL-2
Judgment lpa368.09
Licence. This appellate order of Commissioner maintained in revision by the
State Government, has also been upheld by the learned Single Judge.
2. Briefly stated, the controversy is due to adjudication dated
31.03.2003 by the Commissioner, State Excise, after decision in Writ Petition
No. 654/1980. The appellant claims that said adjudication by this Court,
permits an individual to claim and have more than one licence under the
Prohibition Act, and hence, second licence issued in his name in 1974 must
be revived and renewed. Adjudication in Writ Petition No. 654/1980 along
with several connected matters is on 19.03.1982 at Bombay.
3. Placing reliance upon the findings of Division Bench in Writ
Petition no. 654/1980, particularly paragraph no. 6[1][a],[b], [f], [g], [h]
and [3], submission is, this Court has found treatment discriminatory and
hence permitted individual also to have licence in his name. It is claimed
that learned Single Judge has overlooked this aspect.
4. Learned A.G.P. has relied upon the reply affidavit and relevant
terms and conditions of Prohibition Act with the terms and conditions of
licence including the Policy Circular dated 06.06.1974 at Exh.X. Contention
is an individual cannot have two licences even after judgment dated
Judgment lpa368.09
19.03.1982.
5. Learned A.G.P. submits that facts at hand are distinct and the
appellant did not claim two licences as an individual, but, in the wake of
restrictions then prevailing, he assumed two different names. As there were
two applications in two names, same were then allowed. It is contended
that the alleged discrimination or policy decision was never questioned by
the present appellant. On the contrary, he acquiesced in it and to defeat it,
posed in different name and got the benefit. Attention is invited to
application of mind by the learned Single Judge in this respect.
6. Without prejudice, it is pointed out that business in liquor is res-
extra commercium and there is no fundamental right to it. Division Bench
judgment of this Court reported at 2016 [6] Mh.L.J. 290 (Rajendrakumar
Shailendrakumar Dixit .vrs. State of Maharashtra), to which one of us
(B.P. Dharmadhikari, J) is party is heavily relied upon for this purpose. It is
claimed that the government can always impose necessary restrictions while
parting with privilege and those conditions cannot be challenged either as
arbitrary or then violative of Article 14 of the Constitution of India.
7. It is not in dispute that on 18.05.1974, by two separate orders, two
Judgment lpa368.09
FL-II licences were allotted in the name of Nandkishore s/o Shivprasad
Ballah and Nandkishore s/o Shivprasad Jaiswal. In application for licence
or then in any other communication at that time, appellant did not disclose
that these two persons were one and same. It appears that in an attempt to
restore the benefit of second licence, appellant for the first time started
describing him as Nandkishore Shivprasad Jaiswal (Ballah).
8. When this Letters Patent Appeal was initially listed, we wanted the
appellant to show from record any other document which disclosed these
two names used interchangeably, and therefore, as names of one and same
person. This could not be so done. Learned Single Judge has while
narrating the facts noted a condition in the grant, that person to whom FL-II
licence is awarded should not have any other licence i.e. either FL-II or CL-III
licence individually or in partnership. Appellant applied in two names in
1974 for grant of two licences, and also procured the same. In his
application, he did not disclose that he has also submitted another
application for same purpose. After acquiring two licences, he again did not
point out to the Authorities that two licences hae been issued to same
person. Licence issued in the name of Nandkishore Shivprasad Ballah was
lying idle (dormant) till 2002. It was sought to be revived thereafter.
Judgment lpa368.09
9. Application of mind by the learned Single Judge in paragraph no.7
therefore, shows that the challenge as presented after 19.03.1982
adjudication in Writ Petition No. 654/1980 at Bombay, was erroneous and
misconceived.
10. This application of mind by the learned Single Judge is not shown
to be erroneous or perverse. Having posed as two different individuals, in
2002, an effort was made to urge that there were no two such distinct
persons. Effort is obviously erroneous and unsustainable. Finding that order
of grant itself prohibited two licences in the name of an individual is not
demonstrated to be erroneous or perverse.
11. Exh. X, circular is dated 06.06.1974. It is on the subject of grant
of Foreign Liquor Vendors Licence under Bombay Foreign Liquor Rules,
1953. It expressly mandates and obliges the licencing authority to issue a
certificate along with the proposal of new licence that such applicant or any
other member in his family is not holding CL-III licence. Thus, person
already holding CL-III licence either in his name or in the name of his family
member, was disqualified to apply for Foreign Liquor Vendors Licence. This
circular is no doubt after 18.05.1974. However, the finding that grant in
favour of Nandkishore on 18.05.1974 itself prohibited two licences in the
Judgment lpa368.09
name of an individual, is not in dispute. Perusal of the impugned
judgment of learned Single Judge or then order of the Hon'ble Minister
dated 09.03.2009, reveal that in an effort to defeat said condition, appellant
never challenged the said condition as unreasonable or violative of Article 14
of the Constitution of India.
12. In judgment dated 19.03.1982 in Writ Petition No. 654/1980 and
other connected matters, Division Bench of this Court at Bombay has
considered explanation to Clause 2 under the Re-grant Order, which
prohibited an individual member of family by treating him as holding a
licence issued to a family unit. However, a partner in a firm or member of
body of individuals, whether incorporated or not, were not deemed to hold
such licence issued to a firm or concerned body of individuals. With the
result, such person or individual became eligible to get one scheduled
licence for himself, while member of a family unit was treated as
disqualified. It is this anomaly which has been found discriminatory by the
Division Bench. This Division Bench judgment therefore, at the most enables
an individual and an artificial body formed jointly by such individuals to
hold separate licences. Licence held by such body, therefore, does not bar its
constituent individual from claiming other licence. This judgment,
therefore, cannot be interpreted to mean that an individual can be allowed
Judgment lpa368.09
and was allowed to claim and enjoy two licences. Grievances made in 2002
by the appellant on the strength of this Division Bench judgment dated
19.03.1982, is therefore, misconceived.
13. In any case, as rightly pointed out by the learned A.G.P., as held in
case of Rajendrakumar Shailendrakumar Dixit .vrs. State of Maharashtra
(supra), the appellant does not have any such fundamental right. Right
given to him gets circumscribed by conditions on which the State
Government has parted with its absolute and exclusive privilege in his
favour. Having accepted the grant of licence accordingly, appellant cannot
turn around and question those terms. Not being a fundamental right, aftr
accepting and acting upon terms of grant, appellant cannot attempt to get
over those terms without challenging the grant in his favour. Moreover, he
has not demonstrated any other instance in which State Government
permitted an individual to hold two such licences. We therefore, find the
challenge itself wholly erroneous and misconceived.
14. With the result, no case is made out for intervention in Letters
Patent Appeal. The same is accordingly dismissed. Rule discharged. No
costs.
JUDGE JUDGE
Rgd.
