Ramkishor Nathulal Jaiswal vs The State Of Mah And Others
2021 Latest Caselaw 1918 Bom

                                                    1                J-LPA-65-2010.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR

                 LETTERS PATENT APPEAL NO.65 OF 2010
                                 IN
                  WRIT PETITION NO. 2796 OF 2005 (D)

 Ramkishor S/o Nathulal Jaiswal,
 Aged about : 55 years,
 Occ : Business, Proprietor of
 M/s. J. B. Restaurant, FL-III
 License at WARUD, Tah. Warud,
 Dist. Yavatmal.                                             ... Appellant :
                                                                 Petitioner

                               VERSUS

 1. State of Maharashtra,
    Department of Home and State Excise,
    Through its Secretary, Mantralaya,
    MUMBAI.

 2. The Commissioner,
    State Excise,
    Maharashtra State,
    Old Custom House,
    MUMBAI.

 3. The Collector,
    State Excise,
    AMRAVATI.

 4. The Superintendent,
    State Excise,
    AMRAVATI.                                                 ... RESPONDENTS :
                                                                  Respondents
 -------------------------------------------------------------------------------------------
 Shri S. G. Jagtap, Advocate for appellant.
 Ms. S. S. Jachak, Assistant Government Pleader for respondent
 Nos.1 to 4.
 -------------------------------------------------------------------------------------------
                                CORAM: A.S. CHANDURKAR AND
                                             G. A. SANAP, JJ.

2 J-LPA-65-2010.odt

DATE ON WHICH ARGUMENTS WERE HEARD : 06/07/2021 DATE ON WHICH JUDGMENT IS PRONOUNCED : 29/07/2021

JUDGMENT : (PER : G. A. SANAP, J.)

1. In this Letters Patent Appeal, challenge is to the

Judgment and order dated 11/12/2009 passed by the learned

Single Judge in Writ Petition No.2796/2005, whereby the learned

Single Judge dismissed the writ petition and thereby, confirmed

the order dated 18/05/2005 passed by the respondent No.2. The

respondent No.2 vide order dated 18/05/2005 had confirmed the

order of respondent No.3 whereby the respondent No.3 cancelled

the FL-III license issued in favour of the appellant vide order dated

16/03/2005.

The facts leading to the filing this Letters Patent

Appeal are as follows :-

2. The appellant runs a business of Eating House

under the license and of Selling Important Foreign Liquor

(potable) and Indian make Foreign Liquor under the License Form

FL-III issued as per the Bombay Foreign Liquor Rules, 1953 (for

short, "Rules 1953"). On 09/04/2002, the officials of the

respondent No.4 - Superintendent visited the appellant's business

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place. At the time of inspection, they found certain breaches under

the provisions of Bombay Foreign Liquor Rules 1953, The Bombay

Foreign Liquor (Sale on Cash, Register of Sales, etc.) Rules, 1969

and violation of the Condition Nos.8 to 10 of the license. The

respondent No.4 after completing necessary enquiry, made report

to the respondent No.3 - Collector, State Excise, Amravati. The

respondent No.3 on the basis of material collected during the

course of enquiry, issued Show Cause Notice dated 30/01/2004 to

the appellant and called upon him to show cause as to why his

license should not be cancelled. The illegalities, breaches and

violations of the law, rules and Condition Nos.8 to 10 attributed to

the appellant are i) Alterations in the licensed premises without

approval of the licensing authority. ii) There was a vast difference

in the stock and IMFL resulting shortages and iii) The stock of

1680 X 180 mm bottles of 50 U.P. rum and 12 x 750 mm bottles of

Diplomat Whisky found without transport permit. The appellant

filed his reply dated 20/02/2004 and tried to explain his

bonafides and placed on record his assurance that in near future,

he would take care. The respondent No.3 on the basis of material

placed on record and the seriousness of the breaches, came to the

conclusion that the appellant does not deserve any leniency and

4 J-LPA-65-2010.odt

ultimately cancelled the license vide order dated 16/03/2005.

3. The appellant filed the Statutory Appeal against the

order of cancellation of the license by the respondent No.3 to the

respondent No.2. The respondent No.2 on appreciation of the

material, did not find any reason to disagree with the conclusion

reached by the respondent No.3 and ultimately dismissed the

appeal vide order dated 18/05/2005.

4. The appellant preferred the writ petition

mentioned above and challenged the order passed by the

respondent No.2 dated 18/05/2005 and prayed for setting aside

both the orders dated 16/03/2005 passed by the respondent No.3

and dated 18/05/2005 passed by the respondent No.2. The

learned Single Judge came to the conclusion that the material

placed on record is sufficient to maintain both the orders. The

learned Single Judge on the basis of proved facts and by applying

the law, confirmed the aforementioned two orders and dismissed

the writ petition.

5. Being aggrieved by the order of dismissal of the

writ petition, the appellant has filed this Letters Patent Appeal.

5 J-LPA-65-2010.odt

The grounds of challenge to the impugned order have been set out

in the memo of appeal. It is mainly assailed on the ground that the

learned Single Judge has failed to apply the law laid down in the

case of K.V. Acharya and another Vrs. State of Maharashtra and

others, reported in 2000 CRI.L.J. 2038 and came to the wrong

conclusion.

6. We have heard Shri S. G. Jagtap, learned counsel

for the appellant and Ms. S. S. Jachak, learned Assistant

Government Pleader for the respondent Nos.1 to 4. We have gone

through the record and proceedings of the appeal as well as record

of the proceeding conducted before the respondent No.3.

7. Learned counsel for the appellant submitted that

the learned Single Judge has not correctly considered the law laid

down in the case of K.V. Acharya and another Vrs. State of

Maharashtra and others, reported in 2000 CRI. L.J. 2038 and as

such, came to the wrong conclusion. Learned counsel submitted

that the license issued in favour of the appellant was renewed for

the years 2003-2004 and 2004-2005, despite alleged illegalities,

violations and breaches of the same attributed to the appellant.

Learned counsel submitted that the renewal of the license for

6 J-LPA-65-2010.odt

subsequent two years would clearly indicate that the illegalities,

violations and breaches were not found sufficient for refusal of the

renewal of the license. Learned counsel submitted that the facts in

the case of K.V. Acharya (supra) and the facts in the present case

are identical and therefore, the law laid down in the case of K.V.

Acharya is applicable to the facts of this case. Learned counsel

submitted that in view of the provisions of law and the law laid

down in the case of K.V. Acharya (supra), the learned Single

Judge ought to have accepted the case of the appellant. Learned

counsel submitted that the reasons recorded by the learned Single

Judge to distinguish the decision are not acceptable in the

backdrop of the facts and law.

8. Learned counsel for the appellant further submitted

that the subsequent renewal of the license for two years for the

alleged illegalities, violations and breaches committed in 2002

would amount to waiver of the right by the authorities to cancel

the license issued in favour of the appellant.

9. Learned Assistant Government Pleader for the

respondent Nos.1 to 4 submitted that the learned Single Judge has

not committed any mistake while dismissing the writ petition filed

7 J-LPA-65-2010.odt

by the appellant. Learned AGP submitted that the learned Single

Judge has recorded the concrete and cogent reasons in support of

conclusion arrived at by him. Learned AGP submitted that in the

backdrop of the peculiar facts of this case and the material

difference between the provisions of the Bombay Prohibition Act

and the Bombay Police Act and the Rules framed thereunder, the

reliance placed by the learned counsel for the appellant on the

decision in the case of K.V. Acharya (supra) is totally misplaced.

Learned AGP submitted that the learned Single Judge has

minutely considered the facts and law and arrived at a just and

reasonable conclusion. In the submission of learned AGP, the

proposition of law laid down in the case of K.V. Acharya (supra) is

not applicable to the facts of this case. As far as the submission

touching the plea of waiver raised by the learned counsel for the

appellant are concerned, in the submission of learned AGP, the

plea of waiver is not available to the appellant. Learned AGP

submitted that the enquiry initiated after the inspection of the

premises of the appellant took time due to peculiar facts of the

case and ultimately, had culminated in passing of the order of

cancellation. Learned AGP, in short, supported the Judgment and

order passed by the learned Single Judge.

8 J-LPA-65-2010.odt

10. We have given thoughtful consideration to the

submissions advanced by the learned counsel for the appellant

and learned AGP for the respondent Nos.1 to 4.

11. In order to appreciate the submissions made by the

learned counsel for the appellant and the learned AGP for the

respondent Nos.1 to 4 on the point of applicability of law laid

down in the case of K.V. Acharya (supra) and to consider the plea

of waiver raised by the learned counsel for the appellant, it would

be necessary to go through the record and proceedings minutely.

In order to appreciate the submission on the point of law and deal

with the plea of the waiver, proved and admitted facts need due

consideration. The officials of the Excise Department, Amravati

visited the establishment of the appellant on 09/04/2002. The

officials found grave illegalities, violations and breaches of law,

rules and the conditions of the license issued to the appellant. The

Inspector who was heading the team drew panchnama and noted

down the facts found at the time of inspection. The panchnama is

dated 09/04/2002. The samples from the liquor bottles found in

the premises were drawn. The record would show that the

appellant was present on the spot. His statement was recorded on

09/04/2002. Perusal of his statement, which is part of record and

9 J-LPA-65-2010.odt

proceeding, would show that he had admitted the illegalities,

violations and breaches found by the Inspector at the time of

inspection. The Inspector during the course of enquiry, wrote a

letter to M/s. Jamner Taluka Co-operative Distillery Ltd., Jamner,

District Jalgaon to obtain its report inasmuch as the liquor was

shown to have been manufactured by it. The letter is dated

15/01/2003. The second letter was written to the manufacture on

30/04/2003. The reply of the manufacturer is dated 22/06/2003.

It was received by the Inspector, Excise Department, Amravati on

15/10/2003. Along with this reply, the manufacture annexed

photocopy of reply dated 30/01/2003 which according to it was

earlier forwarded to the Inspector, Excise, Amravati. This fact

would show that during enquiry, the officer received confirmation

from Jamner Taluka Co-operative Distillery, Dist. Jalgaon that the

liquor was not manufactured by it.

12. During the course of enquiry, the Excise Inspector

forwarded the samples to Chemical Analyzer, Nagpur on

31/12/2002. He received the report of Chemical Analyzer, Nagpur

dated 22/12/2003 on 23/12/2003. Perusal of the report would

show that the Chemical Analyzer had analyzed the sample on

17/10/2003. The Chemical Analyzer's Report is undisputedly

10 J-LPA-65-2010.odt

against the appellant. The Chemical Analyzer's Report proves that

the liquor in the bottles purportedly manufactured by Jamner

Taluka Co-operative Distillery, Dist. Jalgaon contained in 35 boxes

was duplicate, spurious and the duty on the same was evaded.

The aforesaid chronology of the events would prove beyond doubt

that from the date of visit and inspection i.e. from 09/04/2002 to

23/12/2003, the enquiry was in process. After completion of the

initial enquiry, the respondent No.3 issued a show cause notice to

the appellant on 30/01/2004. The appellant gave reply to the

same on 20/02/2004.

13. In our opinion, the abovestated undisputed and

proved facts are relevant to decide the plea of waiver as well as

distinguishable features of this case.

14. Before proceeding to consider the law laid down in

the case of K.V. Acharya (supra), it would not be out of place to

mention that the appellant throughout the enquiry admitted the

illegalities, violations and breaches attributed to him. The

grievance has been made in the memo of appeal that during the

course of enquiry, the copy of Chemical Analyzer's Report was not

provided to the appellant. In our view, this grievance is ill-founded

11 J-LPA-65-2010.odt

for two reasons. Firstly, learned counsel for the appellant

categorically stated that the licensee has not disputed the facts.

Secondly, the appellant had participated in the enquiry

proceedings and exhausted the right to deal with the case and

documents. The Chemical Analyzer's Report is part of record and

proceeding. The record and proceeding of the enquiry called by

this Court would show that time and again, the notices were

issued to the appellant to appear before the respondent No.3 for

the purposes of enquiry. The appellant participated in the enquiry

conducted by respondent No.3. During the course of enquiry on

22/03/2004, the appellant had categorically admitted his guilt. He

appeared and participated in the enquiry proceeding, as can be

seen from the record and proceedings, on 28/05/2004 and

08/06/2004. A perusal of the record would show that the

reasonable opportunity had been granted to the appellant to meet

the case of the respondents. He availed the opportunity. Despite

availing the opportunity of hearing and in the teeth of the concrete

evidence against appellant on record, a plea has been raised that

the cancellation of the license vide order dated 16/03/2005, due

to the renewal of the license for two years would amount to

waiver of right by the respondent No.3 to pass the order. In our

12 J-LPA-65-2010.odt

opinion, the abovestated admitted and proved facts cannot be

brushed aside while dealing with this plea raised by the appellant.

Similarly, the abovestated undisputed and proved facts would also

facilitate the task to highlight the distinguishing features of this

case and the judgment relied upon by the learned counsel for the

appellant.

15. In this background, it would be necessary to

appreciate the submissions advanced by the learned counsel for

the appellant relying upon the decision in the case of K.V. Acharya

(supra). We have minutely perused the judgment and order

passed by the learned Single Judge. The learned Single Judge has

made threadbare analysis of facts and relevant provisions of law

and on doing so, recorded the finding that on facts and in view of

the provisions of Section 54 of the Bombay Prohibition Act, 1949

and the provisions of Rule 45 Sub-Rule (4) of the Bombay Foreign

Liquor Rules, 1953, the proposition of the law in the case of K.V.

Acharya (supra) is not applicable to the facts of this case. Learned

counsel vehemently argued that the learned Single Judge has not

considered the law laid down in the decision as well as the

provisions of Rule 45 Sub-Rule(4) of Rules, 1953 in proper

perspective. In order to appreciate the submissions, we have gone

13 J-LPA-65-2010.odt

through the provisions of the Bombay Prohibition Act, 1949 and

the Rules. We have also gone through the provisions of Section 33

of Bombay Police Act, 1951 and Rule 13-A framed thereunder. In

the case of K.V. Acharya (supra), Section 33 of the Bombay Police

Act and the Rule 13(A) governing the issuance of license or

controlling places of public amusement or entertainment fell for

consideration. Chapter IV of the Bombay Police Act and more

particularly, Section 33 deals with the Police Regulations. The

heading of Section 33 is "Power to make rules for regulations of

traffic and for preservation of order in public place, etc." Sub-

Section (7) which is relevant for our purpose provides for the

powers of the Competent Authority to refuse a license for, or to

prohibit the keeping of any place of public amusement or

entertainment by a person of notoriously bad character. Sub-

Section (7) begins with non-obstante clause and as such would

obviously prevail over earlier sub-sections of that Section as well

as Rules made thereunder. A perusal of the Judgment would show

that Rule 13(A) of the Rules has been reproduced in the text of

the reported Judgment. For our purpose, Sub-rule (4) would be

relevant. It states that the Commissioner of Police may refuse to

renew the license if he is satisfied after such enquiry, as he thinks

14 J-LPA-65-2010.odt

fit that the licensee is not a suitable person for continuing to hold

license. A perusal of the Judgment would show that the petitioner

therein was served with show cause notice dated 15/11/1995 and

after enquiry, the order was passed on 02/04/1996 whereby his

license was suspended for 15 days. The said order was maintained

in appeal on 17/06/1996. It is seen that the instances in the show

cause notice relate to all 19 illegalities, violations and breaches

that had been mentioned for the suspension of the license. The

instances are from 17/04/1992 onwards till 24/03/1995. It is,

therefore, apparent that after 1992 till the issuance of show cause

notice on 15/11/1995, there were renewals and admittedly those

breaches or incidents were available when those renewals were

considered.

16. Perusal of Section 33 Sub-section (7) of the

Bombay Police Act would show that it gives a blanket and

overriding power to the Competent Authority to refuse a license or

to prohibit keeping of any place of public entertainment to a

person of notoriously bad character. Similarly, Rule 13(A)(4)

enables the Commissioner of Police to refuse to renew license to a

person found not suitable for continuing to hold it. Perusal of the

15 J-LPA-65-2010.odt

Judgment in the case of K.V. Acharya (supra) would show that in

view of this express provision, this Court has found that when the

license is being renewed from time to time, suspension for a

period of 15 days for repeatedly committing breaches of law and

creating law and order problem was not legal. It was also found

that when the illegalities, violations and breaches were not found

sufficient by the Competent Authority either to deny a license or

to deny its renewal, the same could not furnish a ground for

cancellation or suspension of license which was renewed after

initiation of proceeding for alleged breaches. In the case of K.V.

Acharya, powers are available with the authority and the co-

relation with their purpose. It was not a case of cancellation of

license like a case before us but a case of suspension of the license

for 15 days only.

17. In the backdrop of these facts, it was held in K.V.

Acharya's case that the license cannot be suspended when such

offences, incidents of breaches were not found sufficient for

refusal of renewal of the license.

18. It would be necessary to highlight the

distinguishable facts and relevant provisions of law in the case

16 J-LPA-65-2010.odt

before us. In this case, the cancellation of license has been ordered

relaying upon the provisions of Section 54 of the Bombay

Prohibition Act and the Rule 45 of Rules, 1953. Section 54 of the

Bombay Prohibition Act provides for the power to cancel or

suspend the license and permits. Sub-section (1) permits and

empowers the authority granting license under the Bombay

Prohibition Act to suspend or to cancel it for the reasons to be

recorded. Clauses (a), (b) and (c) postulate the grounds and the

contingencies for such suspension or cancellation of license by the

Competent Authority. Clause (c) would show that if there is any

breach by the holder of any license, action for suspension or

cancellation can be taken. It provides for suspension or

cancellation for previous breaches by the holder as well. The

provisions of Rule 45 of the Rules, 1953 deals with the procedure

and the powers of the authority to grant the license. As per Sub-

Rules (1) and 1(A), the license can be granted after consideration

of the application of the applicant by the committee. Sub-Rule (3)

provides for renewal of the license. It provides that the person

desirous of renewal of such license has to apply 30 days before the

date of expiry of that license to renew it. In our opinion, Sub-Rule

(4) of Rules 1953 would be relevant for deciding the case before

17 J-LPA-65-2010.odt

us. Sub-Rule (4) states that any license granted under Sub-Rule

(1) can be renewed by the Collector for a period not exceeding

one year at a time. Sub-Rule (4) does not mandate the placing of

renewal application before the committee as is required under

Sub-Rule (1) at the time of initial grant of license. It, therefore,

goes without saying that the renewal of license appears to be as a

matter of course. It seems that such power to refuse renewal has

not been provided to take care of the situation obtained on record

in this case. It is with purpose. Such provision could have

empowered the Competent Authority to refuse renewal during

enquiry, which in the given case could take its own time and

result of the enquiry could be in favour of the licensee. This, in our

view, is the distinguishing feature in this case. The provisions

similar to Section 33(7) of the Bombay Police Act and Rule 13(A)

(4) framed thereunder does not find place in the Bombay

Prohibition Act or the Rules framed under the Prohibition Act. It,

therefore, goes without saying that in absence of power to refuse

the renewal of the license on the application made by the

appellant by relying upon the provisions of Rule 4, the license in

this case was renewed pending the enquiry. Therefore, the

submission that the power to renew license under sub-rule (4)

18 J-LPA-65-2010.odt

includes power to refuse renewal of license cannot be accepted.

19. It is not out of place to mention that the order of

suspension or cancellation of license under the provisions of the

Bombay Police Act is intended to prevent the breach of public

peace and tranquility. It has no direct relation with the general

public health. Section 54 of the Bombay Prohibition Act and the

Rules framed under it, are intended to control and regulate the

issuance of liquor license and as such has a direct bearing and

relation with the general public health. The comparative analysis

of the provisions would show that more serious public health

related object & situation is sought to be redressed by the

provisions of Section 54 of the Bombay Prohibition Act and the

Rules thereunder.

20. In our view, the aforestated paramount difference

would also be one more consideration to record agreement with

the view taken by the learned Single Judge. We have already

noted down the admitted and proved facts. The appellant has

categorically admitted the illegalities, violations and breaches

committed by him. The appellant is now estopped from making

statement contrary to the one made by him during the course of

19 J-LPA-65-2010.odt

enquiry. During the course of enquiry, the appellant has admitted

the illegalities, violations and breaches attributed to him in the

notice. A perusal of the record would show that the enquiry was

conducted by strictly adhering to the procedure prescribed under

the law and the principles of natural justice, as well. In our view,

the learned Single Judge has properly considered the facts and

law and came to the conclusion that the decision in the case of

K.V. Acharya (supra) is distinguishable and is not applicable to the

facts of this case. On re-appreciation of the admitted and proved

facts and application of the same to the provisions of law, we are

of the considered opinion that the law laid down in the case of

K.V. Acharya (supra) would not be applicable to the facts of this

case. We are in full agreement with the view taken by the learned

Single Judge. On undertaking the exercise of re-appreciation of

the undisputed and proved facts and the provisions of law

involved in this case and in the case of K.V. Acharya (supra), in

our opinion, the view taken by the learned Single Judge is the

only possible view in this case. On re-appreciation of the evidence,

we are not persuaded to take a different view. We fully agree with

the view taken by the learned Single Judge. In the facts and

circumstances of the case, we conclude that the submissions

20 J-LPA-65-2010.odt

advanced by the learned counsel for the appellant on the basis of

law laid down in K.V. Acharya's case, cannot be accepted. The

learned AGP on the basis of material placed on record has fully

justified in making submissions. The submissions deserve

acceptance.

21. In view of this, we conclude that there is no

substance in the appeal. The appeal deserves to be dismissed.

Hence, the following order :

ORDER I] The Letters Patent Appeal stands dismissed. II] In the peculiar facts and circumstances of the case, the parties shall bear their own costs.

(G. A. SANAP, J.) (A.S. CHANDURKAR, J.)

Learned advocate for the appellant submits that the interim relief granted in the appeal may be continued for some time.

We have heard Ms. S. S. Jachak, learned AGP for respondent Nos.1 to 4.

In the interest of justice, the interim relief granted in the LPA to continue for a period of six weeks. After six weeks, it shall cease to operate automatically.

                 (G. A. SANAP, J.)           (A.S. CHANDURKAR, J.)
 Choulwar