Gurdeep Singh vs The State Of Jharkhand
2023 Latest Caselaw 1119 Jhar

                                                   1



                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                W.P.(C) No. 1059 of 2020
            Gurdeep Singh                                              ..... Petitioner
                                          Versus
            1. The State of Jharkhand
            2. The Member, Board of Revenue, Ranchi
            3. The Commissioner of Excise, Ranchi
            4. The Deputy Commissioner, Ranchi
            5. The Assistant Commissioner, Excise, Ranchi              ..... Respondents
                                            -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

-----

            For the Petitioner:       Mr. Rajesh Kumar
            For the Respondents:      Mr. Manav Poddar, A.C to A.A.G-I
                                            -----


03/15.03.2023     The present writ petition has been filed for quashing the letter as

contained in memo No. 282 dated 18.02.2019 (Annexure-5 to the writ petition)

issued by the respondent No.5 to the petitioner pursuant to his application

dated 26.12.2018 whereby his request for refund of excess amount charged

against annual license fee of his bar/restaurant for the financial year 2017-18

has been rejected.

2. Learned counsel for the petitioner submits that the petitioner had earlier

preferred a writ petition being W.P.(C) No. 4135/2018 before this Court

challenging the letter as contained in memo No. 1839 dated 03.11.2017 issued

by the respondent No.5 whereby he was directed to pay Rs.18 Lac as license

fee for the entire financial year 2017-18 despite the fact that he could run his

bar-cum-restaurant only for five months. The said writ petition was disposed of

vide order dated 05.11.2018, the relevant part of which reads as under:

"Learned counsel for the petitioner submits that the petitioner is carrying on the business of bar and restaurant for several years and his bar licence has been renewed from time to time by the respondent authorities. It is further stated that in view of the judgment dated 15th December, 2016 rendered by the Hon'ble Supreme Court in the case of State of Tamilnadu & Ors. Vs. K. Balu & Anr., reported in (2017)2 SCC 281, the sale of liquor within 500 meters from the national and state highways was prohibited. According to the respondents, the petitioner's restaurant-cum-bar fell within 500 meters from the national and state highways and as such the bar licence of the petitioner of the petitioner was withheld by them. However, the said aspect was

clarified by the Hon'ble Supreme Court subsequently vide order dated 11th July, 2017 passed in S.L.P. (Civil) No. 10243 of 2017 (Arrive Safe Society of Chandigarh Vs. The Union Territory of Chandigarh & Anr.). Accordingly, the petitioner preferred a representation before the Commissioner of Excise, Government of Jharkhand on 28th August, 2017, pointing out that as per the order passed by the Hon'ble Supreme Court, no such restriction is there for sale of liquor within the municipal area and, thus, requested for release of his bar licence. Thereafter, the respondent no.3 issued order dated 30th August, 2017, clarifying that the order of the Hon'ble Apex court does not prohibit the licensed establishments within the municipal area from serving liquor. Subsequently, in response to the representation of the petitioner dated 28th August, 2017, the respondent no.5 vide impugned letter dated 3rd November, 2017, directed the petitioner to deposit Rs.18.00 Lacs in the treasury through challan on account of annual licence fee. The petitioner though deposited the said amount and the bar licence was granted to him on 13 th November, 2017 for the year 2017-18, but due to the aforesaid confusion prevailing with the respondent authorities, the petitioner could run his bar-cum-restaurant only for about five months i.e. from 13th November, 2017 to March, 2018. The petitioner, therefore, represented the respondent no.5 on 24th February, 2018, requesting, inter alia, to extend the period of licence for entire one year i.e. up to 12th November, 2018 or to refund the proportionate amount of Rs.11,15,000/- from the total amount deposited by the petitioner towards licence fee for the entire financial year 2017-18. However, the said representation of the petitioner has not yet been responded.

Having heard learned counsel for the parties and looking to the nature of the prayer made in the writ petition, the petitioner is given liberty to file a fresh representation before the respondent no.5, claiming proportionate refund of the amount deposited by the petitioner towards the bar licence fee for the financial year 2017-18. On receipt of such representation, the respondent no.5 after providing due opportunity of hearing to the petitioner/his representative shall take appropriate decision by passing a reasoned order within a period of eight weeks from the date of receipt of the representation.

While passing the said order, the respondent no.5 shall not be influenced by the impugned letter dated 3rd November, 2017 (Annexure-3 to the writ petition).

The writ petition is, accordingly, disposed of with the aforesaid liberty and direction."

3. Accordingly, the petitioner preferred representation before the

respondent No.5 on 26.12.2018, however, the same was rejected vide the

impugned letter dated 18.02.2019 merely stating that the said license was

renewed for the financial year 2017-18 on the consent of the petitioner and the

license fee of Rs.18 Lac was accepted on that basis and hence the petitioner's

claim for adjustment/refund of the license fee was considered to be not

acceptable. The respondent No.5, however, did not consider the fact that due to

the confusion prevailing with the respondent authorities with regard to the

aforesaid orders passed by the Hon'ble Supreme Court, the petitioner could run

his bar-cum-restaurant only for about five months i.e. from 13th November,

2017 to 31st March, 2018.

4. A counter affidavit has been filed on behalf of the respondents stating

inter alia that the petitioner knowingly deposited the license fee for the

particular financial year i.e. from 01.04.2017 to 31.03.2018. Moreover, as per

Jharkhand Gazette Notification No. 125 dated 14.03.2014 (published on

21.03.2014), the licensee has to pay one time license fee for a particular

financial year and there is no provision to pay the same half yearly or for a

specified period.

5. Heard learned counsel for the parties and perused the relevant materials

available on record. The respondents in their counter affidavit have not denied

that the petitioner could run his bar-cum-restaurant only for about five months

i.e. from 13th November, 2017 to 31st March, 2018 as the authorities were under

impression that the sale of liquor within 500 Meters from the National and State

Highways was prohibited in terms with the judgment rendered by the Hon'ble

Supreme Court in the case of State of Tamilnadu & Ors. (Supra) and

according to them, since the petitioner's bar-cum-restaurant was situated within

500 Metres from National and State Highways, his bar license was withheld.

However, the said aspect was subsequently clarified by the Hon'ble Supreme

Court vide order dated 11.07.2017 passed in the case of Arrive Safe Society

of Chandigarh (Supra). Accordingly, the petitioner's bar license was renewed

on 13.11.2017 for the financial year 2017-18.

6. The respondent No.5 while rejecting the petitioner's application for

proportionate refund of the amount of bar license fee has merely stated in the

impugned letter dated 18.02.2019 that as per Jharkhand Gazette Notification

No. 125 dated 14.03.2014, annual license fee for bar-cum-restaurant within the

area of Ranchi Municipal Corporation was Rs.18 Lac per financial year and that

the petitioner's license was renewed for the said financial year on his consent.

The respondents' stand taken in the counter affidavit is that the petitioner is not

entitled for any refund/adjustment against the annual license fee charged for

the financial year 2017-18.

7. This Court is of the view that any rule or regulation is framed by the

State Government keeping in view the ideal situation and it generally does not

deal with the eventuality as has occurred in the present case. As per the

Gazette Notification dated 14.03.2014, the license fee for the relevant financial

year with respect to hotel, restaurant, club, bar and canteen was fixed as Rs.18

Lac for the area within the Ranchi Municipal Corporation. Admittedly, the

petitioner could not run his bar-cum-restaurant from 01.04.2017 to 12.11.2017

as his bar license was not renewed till that period for the reasons discussed

herein above. Thus, the impugned letter as contained in memo No. 282 dated

18.02.2019 issued by the respondent No.5 refusing refund/adjustment of

proportionate amount of license fee of the petitioner appears to be

unreasonable and arbitrary. Hence, the same cannot be sustained in law and is

hereby quashed and set aside. Though the petitioner as per his calculation, has

claimed refund of Rs.11,15,000/- as proportionate amount of license fee,

however, the respondent No.5 is directed to calculate the proportionate amount

of license fee of the petitioner for the period from 01.04.2017 to 12.11.2017

and to refund the same to him within six weeks from the date of

receipt/production of a copy of this order, failing which the said amount shall

carry simple interest @ 6% per annum till the date of actual payment.

8. The present writ petition is accordingly allowed.

Satish/-                                                          (RAJESH SHANKAR, J)