[Cites 10, Cited by 0]
Bombay High Court
Anjali Arvind Aswani And Anr vs The State Of Maharashtra Through Its ... on 28 January, 2026
Author: M. S. Karnik
Bench: M. S. Karnik, S. M. Modak
2026:BHC-AS:5867-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6445 OF 2024
1. Sau. Anjali Arvind Aswani ]
Age-36 years, Occ.- Business, ]
R/o. Ganesham C.H.S., A-Wing, ]
Flat No.604, Pimple Saudagar, ]
Pune-411 027. ]
]
2. Sau. Urmila Bharat Ramchandani ]
Age-46 years, Occ.-Business, ]
R/o. Parwatiai Niwas, P.W.D. 6/7, ]
Opp. Anil Photo Studio, Pimpri, ]
Pune-411 017. ] ..Petitioners
Versus
1. State of Maharashtra ]
Through its Principal Secretary, ]
State Excise Department, Mantralaya, ]
Mumbai-400 032. ]
]
2. The Collector, ]
State Excise Department, Pune. ]
]
3. The Superintendent, ]
State Excise Department, Pune. ] ..Respondents
__________________________
Ms. Veena Thadhani a/w. Ms. Rutuja Gaikwad i/b Mr. Dinesh Ramesh
Gulabani for the Petitioners.
Mr. Ketan Joshi 'B' Panel for the Respondent-State.
__________________________
CORAM : M. S. KARNIK AND
S. M. MODAK, JJ.
DATED : 28th JANUARY, 2026.
Amk 1/16
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ORAL JUDGMENT (PER M. S. KARNIK, J.):
1. The challenge in this Petition filed under Articles 226 and 227 of the
Constitution of India is to the Order dated 6th May, 2024 passed by
Respondent No.2-the Collector, State Excise, Pune. The Petitioners further
pray for directions to Respondent No.2-the Collector, State Excise, Pune to
record/enter the names of the Petitioners in the C.L.-III License No.355 in
place of Shri Jaikishan Chandulal Sugand and Shri Shankarlal Duseja in
view of the Order dated 6th July, 2021 passed by Respondent No.2.-
Collector.
2. The facts of the case in brief are that the Petitioners are partners of a
firm, namely, M/s. Laxmi Country Bar, and are jointly holding C.L.-III
License bearing License No.355 for retail sale of country liquor. On 9 th
March, 2021, Shri Jaikishan Chandulal Sugand and Shri Shankarlal Duseja
had made an application to Respondent No.2-Collector for transfer of C.L.-
III License to the names of the Petitioners. The said application for transfer
of C.L.-III License to the names of the Petitioners was allowed by the
Collector vide Order dated 6th July, 2021 and the Petitioners were directed
to pay requisite fee of Rs.20,21,270/- as per Rule 5 of the Bombay
Prohibition (Privileges Fees) Rules, 1954 (the said Rules for short). It is
the Petitioners' case that no time limit for payment of privilege fees was
mentioned.
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3. The Petitioners kept visiting and following up with the Area
Inspector, State Excise Department, Pune to issue the challan for paying
the privilege fees, but no challan was issued to the Petitioners, with the
result the privilege fees remained to be paid.
4. In the meantime, the State Government issued a Notification dated
31st May, 2022 enhancing the amount of privilege fees payable for transfer
of CL III Licences from Rs.20,21,270/- to Rs.45,00,000/-. The Petitioners
made numerous representations to Respondent No.3 from 3rd June, 2022
to 17th April, 2023 for issuing the Challan for payment of the requisite
privilege fees, as per the Order dated 6th July, 2021. A challan was finally
issued to the Petitioners on 20th April, 2023 for payment of Rs.20,21,270/-
as privilege fees. The said privilege fees were paid by the Petitioners.
5. The Inspector, State Excise, informed the Superintendent, State
Excise on 24th March, 2023 that the requisite privilege fees had been paid
by the Petitioners and requested him to proceed with other formalities for
recording the names of the Petitioners in the CL-III License in place of
Jaikishan Chandulal Sugand and Shankarlal Duseja. It is the Petitioners'
claim that no steps were taken by the Collector or Superintendent, State
Excise despite the Petitioners making several representations from 24 th
April, 2023 to 12th February, 2024 for recording their names in the CL-III
License. The Petitioners sent a final representation-cum-reminder to the
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Superintendent, State Excise for recording their names in the CL-III License
on 4th March, 2024 since all formalities had been completed and only the
names of the Petitioners were required to be endorsed on CL-III License in
place of the erstwhile license holders. The Petitioners therefore filed the
present Writ Petition on 10th April, 2024 seeking directions to Respondent
Nos.2 and 3 to record/enter the names of the Petitioners in the CL-III
License and delete the names of the erstwhile License Holders, namely,
Jaikishan Chandulal Sugand and Shankarlal Duseja.
6. During the pendency of the Petition, the Collector passed the Order
dated 6th May, 2024, directing the Petitioners to pay the enhanced privilege
fees of Rs.45,00,000/-. This Court on 8 th May, 2024 directed the
Petitioners to deposit Rs.10,00,000/- with the Collector with a further
order not to take any coercive steps. The amount of Rs.10,00,000/- was
deposited by the Petitioners on 20th May, 2024.
7. Learned counsel for the Petitioners in challenge to the impugned
Order submitted that the Collector does not have a power to review his
earlier Order dated 6th July, 2021 directing the Petitioners to pay privilege
fees as per the said Rules. It is further submitted that the direction of the
Collector to pay the enhanced fees of Rs.45,00,000/- on the strength of the
Rules which were amended on 31 st May, 2022, although the privilege fees
were directed to be paid by an Order dated 6th July, 2021, which had
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attained finality, is completely uncalled for and unjustified. In support of
the submissions, learned counsel for the Petitioners relied upon the
following decisions of this Court
(i) Somras Distillers, Nagpur Vs. State of Maharashtra & Ors.
reported in 1996 (1) Mh.L.J. 782,
(ii) Nagpur Distillers, Nagpur Vs. State of Maharashtra & Anr.
reported in 2007(2) Mh.L.J. 285,
(iii) Shubhada Sharad Bhole Vs. The State of Maharashtra & Ors. in
Writ Petition No. 11765 of 2019 of Aurangabad Bench of this Court
dated 7th September, 2022 and
(iv) Balabai Vasantrao Patil Vs. The Collector of Kolhapur & Ors. in
Writ Petition No. 4994 of 2004 of this Court dated 15th June, 2004.
8. Learned AGP on the other hand submitted that there was failure on
the part of the Petitioners to pay the privilege fees within a reasonable
time. It is submitted that though the Collector had already passed an
Order in the year 2021, the Petitioners failed to take any steps to pay the
privilege fees and therefore after the amendment came into force on 31 st
May, 2022, the privilege fees were payable taking into consideration the
position as on 31st May, 2022. It is further submitted that the Collector's
Order is not in the nature of review but it only gives effect to the
amendment to the said Rules on account of the Petitioners having failed to
pay the privilege fees as directed as on the date when the amendment
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came into force on 31st May, 2022. Learned AGP invited our attention to
the Affidavit-in-reply filed on behalf of Respondent Nos. 1 to 3. Learned
AGP invited our attention to the provisions of Maharashtra Country Liquor
Rules, 1973, especially Rule 3, which provides grant of license and Rule 4
which provides renewal of licence. It is submitted by learned AGP that
what is material is the privilege fees that are prescribed by the Rules on the
date when an application is made for renewal of license. It is the
submission of learned AGP that the Petitioners having failed to pay
privilege fees till the date when the amendment came into force, the earlier
Order of the Collector dated 6 th July, 2021 will loose its efficacy and the
fees in such circumstances, will have to be determined on the basis of
license fees stipulated by the amended Rules, as virtually the Petitioners
are seeking renewal of license.
9. We have heard learned counsel for the Petitioners as well as learned
AGP. We have perused the memo of the Petition, materials on record and
the Affidavit-in-Reply.
10. The stand taken by the learned AGP is that it is the exclusive
privilege of the State Government to grant/issue license to intending
parties under the Act. The licenses, so granted by the State, are subject to
the Conditions and Regulations framed in that regard. The relevant rules
prescribed privilege fees for transfer of license from one name to another.
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The grantee of the licenses is obliged to abide by the conditions of license
and any direction issued from time to time, in that regard, by the
authorities.
11. Vide Notification dated 31st May, 2022, the State Government in
exercise of powers vested under the proviso to Section 143(3) of the
Maharashtra Prohibition Act, 1949 (hereinafter 'the Act' for short) has
amended the Bombay Prohibition (Privilege fees) Rules, 1954 and thereby
sub rule (b) of Rule 5 of the said Rules, 1954 has been substituted as (b)(i)
and (b)(ii), wherein the fees payable by any licensee for the privilege of
transfer of his license under Form of CL-III granted under the Maharashtra
Country Liquor Rules, 1973 have been increased. By virtue of the
amendment, the Rules have prescribed Rs.45 Lakhs as the transfer fees.
The said Notification has been brought into force with immediate effect
from 31st May, 2022 by the State of Maharashtra and accordingly from that
day recovery of privilege fees at the said rate has been initiated throughout
the State.
12. In the present case, as indicated earlier, Shri Jaikishan Sugandh and
Mr. Shankarlal Duseja decided to transfer the said license to the
Petitioners. The Petitioners had filed an application dated 9 th March, 2021
with the Collector for seeking permission to transfer the license in their
names. Respondent No.2 passed an Order as per Rule 5(b) of the said
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Rules on 6th July, 2021 by which Petitioners were asked to pay
Rs.20,21,270/- as privilege fees for transfer of license to the names of the
Petitioners. The Petitioners paid the amount on 20 th April, 2023, around
10 months after the Notification dated 31st May, 2022 and 21 months after
the Order dated 6th July, 2021.
13. The question is, whether the Collector is justified in insisting the
Petitioners pay the privilege fees at the rate prescribed by virtue of the
amendment of Rule 5 which came into force w.e.f. 31 st May, 2022. No
doubt the Petitioners have given an undertaking that they will abide by all
rules and regulations, terms and conditions and orders made under
Maharashtra Prohibition Act, 1949. It is therefore the stand of learned
AGP that the Petitioners were well aware about the fact that they were
supposed to abide by the existing Rules stipulating the privilege fees at the
time of renewal of the license under the Rules, 1954.
14. Let us examine the relevant provisions in the context of the present
case. Rule 5 as it stood prior to the coming into force of the amendment
w.e.f. 31st May, 2022 reads thus:-
"5. Fees for transfer of a licence from one name to another.--(a)
the fee payable by any licensee for the privilege of having the
transfer of his licence, in Form 'CL-1', granted under the Maharashtra
Country Liquor Rules,1973, 'PLL' or 'I'. granted under the
Maharashtra Distillation of Spirit and Manufacture of Potable Liquor
Rules, 1966, from one name to another, shall be five times of the fee
chargeable for grant or renewal or continuance of such licence
whichever is higher ;
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(b) the fee payable by any licensee for the privilege of having the
transfer of his licence, in Form ' CL-III ', granted under the
Maharashtra Country Liquor Rules, 1973, "FL-II" or "FL-III", granted
under the Bombay Foreign Liquor Rules, 1953 shall be as follows :--
(i) In the areas of Municipal Corpo Eight times of the fee
ration of Mumbai, New Mumbai, chargeable for grant or
Thane, Bhiwandi, Mira- renewal or continuance of
Bhayander, Virar-Vasai, Kalyan, such licence, whichever is
Dombivali and Pune. higher.
(ii) In the area of other Municipal Five times of the fee
Corporations [excluding those chargeable for grant or
mentioned in clause (i) above)], renewal or continuance of
and all Municipal Councils. such licence, whichever is
higher.
(iii) In all other areas [excluding Four times of fee chargeable
those mentioned in clauses (i) for grant or renewal or
and (ii),]. continuance of such licence,
whichever is higher.
15. The amended provisions of the said Rule w.e.f. 31 st May, 2022, reads
thus:
"2. In rule 5 of the Bombay Prohibition (Privileges Fees) Rules,
1954 (hereinafter referred to as "principal Rules"), for clause (b), the
following clause shall be substituted, namely: -
"(b) (i) The fee payable by any licensee for the privilege of
having the transfer of his licence, in Form CL-III granted under
maharshtra Country Liquor Rules, 1973 shall be rupees forty-five
lakhs per transfer.
(ii) The fee payable by any licensee for the privilege of
having the transfer of his licence, in Form FL-II granted under
Bombay Foreign Liquor Rules, 1953 shall be rupees one crore per
transfer."
16. Thus, it is not in dispute that after the amendment, the fee payable
by any licensee for the privilege of transfer of his license, in Form CL-III
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granted under Maharashtra Country Liquor Rules, 1973 shall be rupees
forty-five lakhs per transfer.
17. Learned AGP heavily relied upon Rule 3 and 4 of the Maharashtra
Country Liquor Rules, 1973 in support of his submission. We deem it
appropriate to reproduce Rule 3 and 4 for the facility of convenience,
reading thus:
"3. Grant of Licence.--Grant of Licence. (1) Any person holding a
licence for constructing and working a distillery for the manufacture
of spirit [in Form I appended to the Maharashtra Distillation of Spirit
and Manufacture of Potable Liquor Rules, 1966 and also] a licence
for the possession and use of rectified spirit in Form R.S. II appended
to the Bombay Rectified Spirit Rules, 1951], and desiring to
manufacture country liquor shall make an application in Form C.L.A.
for a licence in that behalf to the Director along with a challan
evidencing payment of a fee of [five hundred Rupees (Rs. 500)] for
such application. The application shall be accompanied by a plan in
quadruplicate containing a full description of the premises and
material, utensils, implements or apparatus required for
manufacturing country liquor. The applicant shall also submit with
the application four signed copies of a statement explaining the
process which he desires to adopt for manufacturing each kind of
country liquor.
(2) If the Director is satisfied, that the materials utensils,
premises, plant and implements or apparatus to be used in
connection with the manufacture of Country Liquor and
arrangements for the storage and issue thereof are suitable, he may,
with the previous sanction of the State Government, grant a licence
in Form C.L.I. to the applicant (hereinafter referred to as
manufactory licensee) on payment of a 5[fee (inclusive of
consideration) of [rupees One Lack fifty thousand (Rs. 1,50,000)] or
may, after recording the reasons therefor refuse to grant it, and
inform the applicant of the decision. On a licence being granted, the
Director shall retain with him the original of the plan and of the
statement explaining the process forwarded by the applicant,
forward the duplicates and triplicates thereof to the Manufactory
Officer and the Superintendent respectively, and return the
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quadruplicates together with the licence to the applicant duty signed
and stamped with the seal of the of the Director
(3) No licence shall be granted for a period beyond 31st March
next following the date of the commencement of the licence:
Provided that in respect of licences granted prior to 1st April,
1973, the period of the licence shall stand extended upto 31st
March, 1974.
4. Renewal of Licence.--(1) Any licence granted under Rule 3
may subject to the provisions of this rule be renewed by the Director
with the previous sanction of the State Government for a period not
exceeding one year at a time on payment of renewal fee [inclusive of
consideration) of rupees fifty thousand Rs 50,000)) unless the State
Government or the Director has reason to believe that there has been
a breach of any of the terms and conditions of the licence or that the
manufactory licensee has not been working the licence property.
(2) An application in Form CLA. [along with a challan evidencing
payment of a fee of Rs. 25] for renewal of a licence shall be made
two months before the expiry of the licence or such other extended
period as the Director may by order specify in this behalf, through
the Manufactory Officer and the Superintendent concerned provided
that where there is no change in the particulars furnished in the
original application, they need not be furnished afresh, but it shall be
certified accordingly.
18. Rule 3 and 4 in our opinion will not apply as present is not a case for
grant of a license or for renewal of a license. This is a case of transfer of a
license.
19. Reading of the amended provisions makes it clear that by virtue of
Rule 5 of the amendment w.e.f. 31st May, 2022, the fees payable by any
licensee for the privilege of having the transfer of his licence, in Form CL-III
granted under Maharashtra Country Liquor Rules, 1953 shall be rupees
forty-five lakhs per transfer. However, it is pertinent to note that in the
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present case, the application for transfer of license was already made in the
year 2021, on the basis of which application, the Order dated 6th July, 2021
was passed by the Collector permitting such transfer. Thus, present is not a
case where application for transfer of the license was made after coming
into force of the amendment of Rule 5 on 31 st May, 2022, but this is a case
where the application for transfer was already made prior to coming into
force of the amendment. Not only was the application made but the
Collector had passed an Order on 6th July, 2021, directing payment of
privilege fees for transfer of license. It is only that the transfer fees were
paid by the Petitioners post coming into force the amendment of 31 st May,
2022.
20. What we find is that by virtue of the amendment, fees for the
transfer of license has been enhanced from the date of the amendment.
There is nothing in the amendment which indicates that such a provision
has retrospective operation affecting applications where transfer has been
ordered but the fees remain to be paid. In the absence of such indication
in the Rules, the Rule will have a prospective application. As indicated
earlier, present is a case where not only the application for transfer was
made prior to the date of the amendment coming into force but even the
Collector had passed an order permitting such transfer on payment of
privilege fees prior to coming into force of the amendment. The amended
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Rules do not provide any consequence as to what is the effect of such
amendment on those applications which have already been decided
permitting transfer of license on payment of privilege fees on the basis of
Rules which were in force on the date when the application was
considered. In such circumstances, the only consequence that can arise in
the event the Petitioner pays the privilege fees belatedly would be payment
of interest in terms of Section 114 (1) of the Bombay Prohibition Act.
Section 114 (1) reads thus:-
"[114. Recovery of duties, etc.- (1) All duties, taxes, fines (except
fines imposed by a Court) and fees leviable under any of the
provisions of this Act or in respect of any licence, permit, pass or
authorization granted under it and the cost of the supervising staff
appointed under section 58A [if not paid within the due date or the
prescribed period, shall be recovered from any person liable to pay
the same or from his surety, if any, with simple interest at the rate of
2 per cent. per month, from the date it has become due, as if they
were arrears of land revenue].
(emphasis supplied)
21. The next contention urged by the learned counsel for the Petitioners
is that by the impugned Order the Collector virtually amounts to review of
the Order passed by him on 6 th July, 2021. This, according to learned
counsel for the Petitioners, is impermissible. Though learned AGP
submitted that this is not a review of the order but it is only giving effect to
the amended provisions of the Rules, we are not persuaded by such
submission made on behalf of the AGP. The Collector had already passed
an Order on 6th July, 2021 permitting such a transfer on payment of
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privilege fees. The consequence of paying interest in case of delayed
payment is provided in Section 114(1). The Order is not revoked. We are
inclined to hold that the impugned Order passed by the Collector after
coming into force of the amendment virtually amounts to the review of his
earlier order, which is impermissible. Present is not a case where the
application is pending and the Collector passes an Order after the
amendment comes into force. This is not the question before us. Present
is a case where the application was made and the Order permitting
transfer was made prior to the coming into force the amended Rules.
Thus, the application was dealt with and decided in terms of unamended
Rule 5. The proceedings thus had concluded prior to the amendment.
22. In support of her submission, learned counsel for the Petitioners
relied upon the decision of this Court in Balabai Vasantrao Patil Vs. The
Collector of Kolhapur & Ors. (supra). The relevant portion of paragraph
No.3 reads thus:-
"The only question that arises in the present matter is whether the
Collector has power either suo moto or on the application made by
third party, to reopen the proceedings and take a view different than
already taken in the concluded proceeding before him. There is no
provision atleast brought to my notice that such a course is open to
the Collector. The Counsel appearing for the contesting Respondent
fairly accepts that there is no power of review invested in the
Collector and if it is so, the Collector could not have on his own or
for that matter on the application filed by the third party
reconsidered his earlier decision."
23. The decision in Balabai Vasantrao Patil (supra) is in support of the
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Petitioners' contention. We are, thus, inclined to hold that the Collector
could not have, on his own, reconsidered his earlier decision.
24. In such view of the matter, we are inclined to hold that the Order
passed by the Collector directing the Petitioners to pay the privilege fees
for transfer of license in terms of the amended provisions of Rule 5 of the
Rules is unwarranted. The Petition, therefore, succeeds. The impugned
Order is, therefore, quashed and set aside. The Petition is allowed in terms
of prayer Clauses (a) and (a-1) which read thus:-
"a) That this Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction under Article 226 of the
Constitution of India thereby directing the Respondent No. 2-The
Collector, State Excise, Pune and/or the Respondent No. 3 The
Superintendent of State Excise Department, Pune to record/enter the
names of the Petitioners in the C.L.-III License No. 355 in place of
Shri. Jaikishan Chandulal Sugand and Shri. Shankarlal Duseja in
view of the order dated 6th July, 2021 passed by the Respondent No.
2. order dated 6th July, 2021 passed by the Respondent No.2.
a-1) That this Hon'ble Court be pleased to issue a writ of Certiorari
or a writ in the nature of Certiorari or any other appropriate writ,
order or direction under Article 226 of the Constitution of India
thereby quashing and setting aside the impugned order dated 6th
May, 2024 bearing No. CLR 112020/1616 passed by the Respondent
No. 2 - The Collector, State Excise, Pune."
25. It is, however, made clear that the Petition is allowed subject to the
Petitioners paying interest in terms of Section 114 of the of the Bombay
Prohibition Act.
26. Learned counsel for the Petitioners, on instructions, undertakes to
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pay the interest as directed by the Collector in accordance with the Rules.
27. The amount of Rs.10,00,000/-, which is paid to the Collector in
terms of directions of this Court, be duly adjusted.
(S. M. MODAK, J.) (M. S. KARNIK, J.)
