Patna High Court
Ashok Sah vs The State Of Bihar And Ors on 16 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9879 of 2017
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Ashok Sah Son of Shri Kishun Sah, Resident of Mohalla-Naya Bazar
Dalpatti, Ward No.31, Lakhisarai, P.S. Kavaiya, District Lakhisarai.
... ... Petitioner.
Versus
1. The State of Bihar through the Secretary, Excise and Prohibition
Department, Government of Bihar, Patna.
2. The Excise Commissioner, Bihar, Patna.
3. The Collector, Lakhisarai.
4. The Superintendent of Excise, Lakhisarai.
... ... Respondents.
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Appearance :
For the Petitioner : Mr. Satyabir Bharti, Advocate.
Ms. Kanupriya, Advocate.
Mr. Abhishek Anand, Advocate.
For the State : Mr. Ajeet Kumar, G.A.9.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 16-01-2024
In the instant writ petition, the petitioner has prayed
for the following relief(s):
"(i) For issuance of writ of certiorari, quashing
the communication dated 13.06.2017, as
contained in letter no.2556 passed by the
Excise Commissioner, Bihar and
communicated to the Deputy
Commissioner of Excise (Distillery &
Warehouses), Bihar, by which the
application of the petitioner for refund of
the advance license fee deposited for the
month of March, 2015 and the license fee
from 23.09.2015 to 30.09.2015 totalling
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
2/7
Rs.8,34,973.00 has been rejected solely on
the ground that the Hon'ble Patna High
Court vide its judgment and order dated
29.03.2016
passed in C.W.J.C. No.15685
of 2015 has merely directed for restoration
of the license;
(ii) To direct the respondents to refund the
aforesaid amount of Rs.8,34,973.00 along
with interest @ 18% per annum from the
date of its deposit to the date of its actual
refund;
(iii) To pass such other writ(s), order(s),
direction(s) as your Lordships may
deem fit and proper in the facts and
circumstances of the case."
2. On 20.01.2021, the following order was passed:
"Heard in part.
Let counter affidavit be positively filed
within one week. Rejoinder, if any, be
filed within two weeks thereafter.
List on 04.02.2021."
3. Till today, respondents have failed to comply the
order dated 20.01.2021. Further time cannot be granted for
compliance of the order dated 20.01.2021. Therefore, we
proceed to pass order with the available records.
4. Core issue involved in the present lis is whether
the petitioner is entitled to one month advance license fee to be
refunded to him or not?
5. The brief facts of the case are that the petitioner
was a liquor license holder and he had a valid license for the
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
period from 01.04.2015 o 31.03.2016. Policy of the State
Government in respect of liquor license is concerned, the
concerned liquor trader who intends to have license, he is
required to deposit one month license fee in advance and it was
paid by the petitioner.
6. On certain alleged allegations relating to
violation of certain provisions of the Excise laws, the
jurisdictional Superintendent of the Excise invoked his power
and proceeded to impose penalty of Rs.51000/- instead of
cancellation of the license which stood as on 26.05.2015, the
date on which the penalty of Rs.51000/- was imposed. Petitioner
has not questioned the imposition of fine. Simultaneously the
Collector with reference to the same alleged incident proceeded
to cancel the license on 22.09.2015.
7. Feeling aggrieved by the action of cancellation of
licence by the Collector, Lakhisarai, petitioner invoked the
remedy of filing writ petition bearing C.W.J.C. No.15685 of
2015 and it was allowed on 29.03.2016. In this backdrop, the
petitioner intends to have benefit of refund of one month
advance license fee from the respondents/Excise Department.
The same has been turned down on 13.06.2017. Hence, the
present writ petition.
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
8. Learned counsel for the petitioner submitted that
having regard to the fact that cancellation of licence dated
22.09.2015 has been set aside, the consequence follows. In the
light of paragraph-46 of the order dated 29.03.2016 passed in
C.W.J.C. No.15685 of 2015, consequence means whatever the
benefit which is required to be adjudicated in respect of the
petitioner is concerned and it is to be settled by the official
respondents like one month advance license fee, which was
remitted by the petitioner at the time of obtaining license for the
period from 01.04.2015 to 31.03.2016.
9. Learned counsel for the petitioner submitted that
in effect quashing of the order dated 29.03.2016 results in
restoration of position as on 22.09.2015. It is submitted that
orders of this Court is dated 29.03.2016. Thereafter, only two
days had left over for the purpose of utilizing the license issued
on 01.04.2015 and it is impracticable. In effect, the petitioner is
entitled to refund of one month advance license fee which was
lying with the State-respondents.
10. Per contra, the learned counsel for the
respondents resisted the aforementioned contentions and
submitted that in the absence of any specific direction in
C.W.J.C. No.15685 of 2015 decided on 29.03.2016, one cannot
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
draw inference that the petitioner is entitled to refund of one
month advance license fee. Therefore, the petitioner is not
entitled to reliefs sought in respect of refund of one month
advance license fee.
11. Heard the learned counsel for the respective
parties.
12. Question for consideration in the present lis is
whether the petitioner is entitled to refund of one month
advance license fee with reference to the license issued in his
favour for the period from 01.04.2015 to 31.03.2016 read with
the factual aspects of the matter that for certain alleged
allegations relating to the excise provisions, the Superintendent
of Excise imposed fine of Rs.51000/- on 26.05.2015 and for the
same incident, the Collector, Lakhisarai, cancelled the excise
license of the petitioner on 22.09.2015 and it was set aside by
this Court in C.W.J.C. No.15685 of 2015 on 29.03.2016.
13. Question of refund of advance license fee would
arise only as and when consequential directions have been
issued by this Court in C.W.J.C. No.15685 of 2015 on
29.03.2016, while setting aside the cancellation of licence dated
22.09.2015. The petitioner had remedy of filing Civil Review
insofar as recalling the order dated 29.03.2016 passed in
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
C.W.J.C. No.15685 of 2015 and in seeking clarification in
respect of paragraph-46. It is necessary to reproduce paragraph-
46 to 48 of the order dated 29.03.2016 passed in C.W.J.C.
No.15685 of 2015 and it reads as under:
"46. We, accordingly, set aside and quash
the order, dated 22.9.2015, passed by the
Collector, Lakhisarai, cancelling the
licence held by the petitioner for liquor
shops falling in Group-5 and direct the
respondents to restore forthwith the
licence held by the petitioner for the
aforesaid shops. Consequences of
quashing of the impugned order, dated
22.09.2015, shall follow.
47.This application is allowed, accordingly.
48. Before we part with this judgment, we
make it clear that we have not gone into
the other issues and submissions advanced
on behalf of the petitioner and the
respondents pertaining to power of
competent authority under Section 68 of
the Act to accept money in lieu of
cancellation or suspension of licence for
breach as envisaged in Clause (c) of
Section 42(1) of the Act inasmuch as these
issues have become, in our opinion,
academic in nature for the purpose of
present adjudication."
14. Reading of the aforementioned order, one
cannot draw inference that the petitioner is entitled to refund of
advance license fee paid for one month. In the absence of any
specific clarification by this Court in C.W.J.C. No.15685 of
Patna High Court CWJC No.9879 of 2017 dt.16-01-2024
2015 to the extent that what are the reliefs entitled cannot be
inferred by the authorities or this Court in the present case that
the petitioner is entitled to refund of one month advance license
fee as claimed by him in the present writ petition. Moreover,
there is no statutory provision for refund of any license fee in
the event of cancellation of licence fee if it is set aside in a court
of law. Therefore, there is no infirmity in the impugned order
dated 13.06.2017.
15. Accordingly, the present writ petition stands
dismissed.
(P. B. Bajanthri, J)
( Ramesh Chand Malviya, J)
P.S./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.01.2024
Transmission Date NA
