LALLU PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) These are two writ applications under Articles 226 and 227 of the Constitution for quashing Annexure 8 in both the applications which is order of the Member Board of Revenue dated the 10th of April, 1975 setting aside the order of the Commissioner of Excise, Bihar, Patna of the 21st of January, 1975. Both the applications have been filed by the same set of petitioners and relate to a country spirit shop at Diliya within the Municipality of Dehri-on-Sone. Respondents 5, 6 and 7 in both the applications had objected to the opening of the shop at village Diliva. They are, therefore, being disposed, of by this common judgment.

(2.) The petitioners were joint licensees of a country spirit shop at village Basa in the district of Rohatas within Dehari-on-Sone Police Station. It appears that the contribution to the State revenue from this shop was considered inadequate and, therefore, the Collector of Rohtas while drawing up a list of country spirit shops in the district for the financial year 1975-76 showed a new country spirit shop at Diliya and deleted the one at village Basa, the petitioners remaining the licensees for the shop at Diliya. This list was drawn up in terms of Section 30 of the Bihar and Orissa Excise Act (hereinafter to be called as 'the Act'). After completing the formalities in terms of Sections 30 to 33 of the Act, the Collector submitted his proposal to the Commissioner of Excise in terms of Section 34 (2) of the Act and the latter in turn accorded approval to the said proposal in terms of Section 35 of the Act His approval was conveyed to the Collector of Rohtas by letter dated 21-1-1975 (Annexure 11). It appears, that the Excise Commissioner having approved the proposal, the Collector ordered for grant of licence in village Diliya to the petitioners by order dated the 14th of February, 1975. Steps were taken for selection of actual site of the country spirit shop for which the petitioners had been granted licence. It appears that the actual location of the new shop was either within New Diliya or too near to it. Objections were, therefore raised against locating a country spirit shop in a residential area comprising of girls school and a Church. In view of the objections the Collector ordered on the 20th of February, 1975 that no country spirit shop should be opened in village New Diliya and he approved a place 1000 yards south of the Grand Trunk Road which was far removed from habitation in village, Diliya. This did not seem to have satisfied A. C. Sao, Lakshmi Singh and Mandal Raj, respondents 5, 6 and 7 (in C. W. J. C. No. 1058 of 1975) and, therefore, they filed an application before the Board of Revenue which was numbered as Board Case No. 117 of 1975. This application before the Board was against locating the country spirit shop at New Diliya. The Member Board of Revenue on the same day admitted the application and called for record of the case and report of the Excise Commissioner on the points raised by the petitioners to the application fixing 10-5-1975 as the date for hearing of the application. The grant of licence for the shop at New Diliya was also stayed pending disposal of the application before the Board. Having come to know of the order of stay passed by the Board, the petitioners filed an application on the 21st of March. 1975 for vacating the order of stay on the ground that no order had been passed by any authority for opening of a country spirit shop at New Diliya and, therefore, the application by the respondents before the Board was misconceived. Since a confusion was created about Diliya and New Diliya, the member Board of Revenue by his order dated 21-3-1975 in modification of his order passed on the 20th of March, 1975 ordered as follows :--

(3.) Mr. Rajeshwari Prasad appearing for the petitioners in C W. J. C. No. 1034 of 1975 has urged that the revision before tine Board of Revenue was not maintainable and that the order of the Board of Revenue dated 10-4-1975 (Annexure 8) was without jurisdiction, as the order of the Excise Commissioner under Section 35 of the Act affirming the orders of the Collector was final. Since a lot of argument has been addressed by the counsel for the parties in this behalf, I should proceed to consider the effect of the order passed by the Excise Commissioner under Section 35 of the Act. The provisions regarding grant of licenses, permits and passes are contained in Chapter VI of the Act The duration of every license granted under the Excise Act is one financial year. Before the expiration of the year in question the Collector is required to prepare a list in regard to the licensees for the subsequent year. Section 30, therefore, enjoins that the Collector shall prepare a list in a form (Form 124) showing what licenses were proposed to be granted for the retail sale of spirit for consumption on the vendors' premises for the next period of settlement. Section 31 enjoins upon the Collector to publish the list in regard to old shops a notice to the effect that licenses were proposed to be granted for the next period of settlement. In regard to new shops, he was required to get it proclaimed by beat of drum in the locality that it was proposed to grant a license for the retail-sale of spirit. Clauses (c) and (d) of Sub-section (1) of Section 31 of the Act required the Collector to send a copy of that list to the Chairman of the District Board and the Municipality with the slight difference that in regard to the former the entire list had to be sent, but in regard to the latter only an extract of the said list as related to the shops in the Municipality was to be sent. In addition to the provisions mentioned above, the said list has to be published in such other mode as prescribed by rules made under Section 89 (j) of the Act. Sub-sections (2) and (3) of Section 31 of the Act are not relevant, and, therefore, they need not be referred to. Section 32 of the Act deals with time for preparation and publication of such list. Section 33 provides for objections to be filed before the Collector in regard to the list prepared and published by the Collector in terms of Sections 30, 31 and 32 of the Act. After objections have been received, the Collector is required to apply his mind to the objections and if necessary to revise the list prepared by him. Since the entire controversy between the parties centres round the scope of Sections 34 and 35 of the Act, I consider it proper to quote them here in extenso which read as follows :--