NILESH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution takes exception to Exh. A being an order dated 28/07/1986 passed by the 2nd respondent, the Collector of Bombay, Prohibition and Excise Department.

(2.) LAXMAN Shankar More was licenced to sell country liquor in a country liquor shop situated at Dhavda Chawl, Hingwala Lane, Ghatkopar, Bombay-75. The licence bore the registration No. CL III/206. More addressed a letter to the 2nd respondent on 29/12/1975 expressing a desire to take the petitioner as a partner in the country liquor shop aforementioned. He has also the petitioner addressed communications to the 2nd respondent which are at Exhs. C and D. As required by the authorities, petitioner submitted an affidavit at Exh. E and the deed of partnership which is at Exh. G. The proposal made by More and the petitioner was accepted and the original licence Exh. H, which formerly stood in the sole name of More, was amended to show the petitioner as a partner in the business covered by the licence. More was ailing and seriously at that. For this reason, on 4/04/1977, he addressed Exh. I to the 2nd respondent expressing a desire to withdraw from the partnership leaving the petitioner wholly the owner and conductor of the country liquor shop. Before the Government could reply or took it upon itself to reply. More passed away on 14/02/1980. The death of More was intimated to the 2nd respondent by Exh. K. The licence continued as before showing More to be the licensee with petitioner occupying the status of a partner. Suddenly on 17/04/1986, the 2nd respondent addressed Exh. L. to the petitioner calling upon him to disprove the belief entertained by the author i. e. the 2nd respondent, that the original licensee was not conducting the business himself but had passed on the benefit/privilege unto the petitioner for which reason the said licence had become ripe for suspension or cancellation. Petitioner made a representation informing the 2nd respondent of all that had transpired and seeking that the licence be transferred to his name. This was not acceptable to the 2nd respondent who justified the refusal on the ground - "it is the Government's policy not to transfer any excise licence to the name of a person who is not a member of the original licensee's family". Petitioner was called upon to close down the business and hand over the entire unsold stock to the 3rd respondent. Impugning that order passed on 28/07/1986, the petitioner came to Court and obtained interim relief in terms of prayer (a) of the petition.

(3.) THE contention taken by the petitioner is that the impugned order is arbitrary and without the force of law. Respondents have not filed a return and the only four contentions raised by Counsel representing them are (i) that the grant or refusal of a licence to vend liquor is entirely within the discretion of the Government; (ii) if the Government refused to grant a licence or renewal thereof to a licensee, the aggrieved person has no cause of action to approach a Court for redress; (iii) the petitioner is already holding a foreign liquor licence (FL) albeit one standing in the name of his father, who has died and from whose name, it is proposed to be transferred to the names of the petitioner, his mother and brother; and (iv) that the petitioner has come to this Court without exhausting the statutory remedy provided under Section 137 of the Bombay Prohibition Act, 1949 (Act ).