RAGHUNATH J KHANDELWAL Vs. COLLECTOR OF PUNE

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution seeks to challenge the orders dated 18th July, 1994 and 13th March, 1997 passed by the Commissioner of State Excise and the Secretary, Government of Maharashtra, Home Department, respectively directing suspension of FL II licence No.167 granted in favour of the petitioner. Briefly the facts leading to this petition are that the petitioner was granted FL II license sometime in 1973. At the relevant time, the petitioner did not take the licence and it remained in a lapsed condition. In December 1986, the petitioner got his licence revalidated and FL II licence No.167 was granted in his name. The petitioner renewed the licence in the year 1987-88 and the licence was valid upto 31st March, 1989. For the year 1988-89, the petitioner appointed 4th respondent as a servant for looking after the business and in accordance with Rule 40 of the Bombay Foreign Liquor Rules, 1953, executed a nokarnama and accordingly nokarnama fees also were paid by the petitioner. It is the case of the petitioner that he suffered a cerebral stroke and thus was not keeping good health. By an application dated 29th March, 1989 the petitioner informed the Collector that he would not be renewing FL II licence after 31st March, 1989, although he had paid licence fees of Rs.30,000/- plus Rs. 25/- for renewal of the licence.

(2.) THE Respondent No.4 filed a civil suit No.733 of 1989 in the Court of Civil Judge, Senior division, Pune, for injunction restraining the Excise authorities from revoking the licence or witholding renewal of licence FL II 167 for 1989-90 and further restraining them from committing seizure/ sealing of stocks at the licensed premises at shop No.3/A, Survey No.132/B, Parvati Sinhagad Road, Pune. The 4th respondent also prayed for injunction against the present petitioner who was joined as defendant No.4 from surrendering license No. FL II 167. By an amendment which was effected on 27th April, 1989, 4th respondent also sought a declaration that he is entitled for the transfer of licence No.FL II 167 under the provisions of amended Rule 61A of the Bombay Foreign Liquor Rules, 1953 and sought direction against the Excise authorities to act accordingly. The 4th respondent relied upon an irrevocable general power of attorney executed by the petitioner to substantiate his claim in the suit. On 31st March, 1989, an ex-parte status quo order came to be passed by the civil court. By an order dated 6th July, 1989, ex-parte status quo order was set aside by the civil court after hearing all the concerned parties.

(3.) THE Collector thereafter held fresh enquiry into the matter and by order dated 29th April, 1993 came to the conclusion that the petitioner was the only licensee and 4th respondent had no concern with FL II licence. The Collector found that under the provisions of the Bombay Foreign Liquor Rules, 1953, the 4th respondent cannot claim any right in respect of the licence and he directed the petitioner to pay licence fees for the entire intervening period and directed renewal of the licence. Against the said order dated 29th April, 1993, the 4th respondent again filed an appeal before the 2nd respondent. The said appeal was decided on 18th July, 1994 by which the Commissioner, State Excise, directed that the licence be kept suspended till the disputes were settled between the parties. The said order passed by the Commissioner, State Excise, Mumbai, was confirmed by the Secretary, Home Department, by order dated 13th March, 1997.