Bombay High Court
Poonam Karan Jaiswal vs The State Of Maharashtra, Through … on 9 April, 2019
Bench: Manish Pitale
WP2829.18-Judgment 1/22 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 2829 OF 2018 PETITIONER :- Poonam Karan Jaiswal, Aged 28 years, Occ. Business under CL-III Lic. No.13, r/o Shivekta Square, Frezerpura, Amravati- 444 606. …VERSUS… RESPONDENTS :- (1) The State of Maharashtra, Through the Secretary, Department of State Excise, Mantralaya, Mumbai. (2) The Commissioner of State Excise, Maharashtra State, Fort, Mumbai – 400 023. (3) The Collector, State Excise, Amravati. (4) The Superintendent, State Excise, Amravati. (5) Anand Nandkishor Jaiswal, CL III Lic. No.18, r/o Shiv Ekta Square, Frezerpura, Amravati. ——————————————————————————————- Mr. S.P.Dharmadhikari, Sr.Counsel a/b Mr.D.V.Chauhan, counsel for the petitioner. Mr.A.R.Chutke, A.G.P. for respondent Nos.1 to 4. Mr. A.S.Kilor, counsel for respondent No.5 ——————————————————————————————- KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 2/22 CORAM : MANISH PITALE, J. DATE OF RESERVING THE JUDGMENT: 25.02.2019. DATE OF PRONOUNCING THE JUDGMENT: 09.04.2019. JUDGMENT
Heard.

2. Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.

3. The present petition concerns the claim of the petitioner as well as respondent No.5 about transfer of their country liquor outlet from one place to other, as both the parties possess a CL-III licence pertaining to country liquor under the provisions of the Maharashtra Prohibition Act, 1949. By the impugned order passed by respondent No.1, the claim of the petitioner for transfer of her liquor shop has been rejected while the application for transfer of liquor shop filed by respondent No.5 is directed to be considered in accordance with law. While issuing KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 3/22 notice in the present writ petition, on 22/05/2018, this Court directed that the application filed by respondent No.5 before respondent No.3-Collector, State Excise, seeking permission to shift the liquor shop shall not be processed until further orders. Accordingly, the rival parties are before this Court in support of their competing claims pertaining to the CL-III licence held by them.

4. Respondent No.5 was running a liquor shop on the basis of a CL-III licence held by him, located at Rathi Mansion, Plot Nos.56 and 57, Bapat Chowk, Amravati. On 28/03/2016, respondent No.5 applied to respondent No.4-Superintendent, State Excise, Amravati, seeking transfer of the said shop from the aforesaid location to a shop at Plot No.53 Nazul Sheet No.68-D, Badnera, Amravati, on the ground that the aforesaid structure where the liquor shop was located had become dilapidated. Thereafter on 30/03/2016, respondent No.5 submitted a letter before respondent No.5 stating that although charges for renewal of CL-III licence for the year 2016-2017 had been deposited by him, but due to financial difficulties, he had decided to close down the said shop. On this basis, on 01/04/2016, a panchanama was KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 4/22 prepared in the presence of respondent No.5, by Inspector of State Excise in presence of panchas, whereby the stock, registers and other items of the liquor shop were surrendered to the Authorities as per the requirement of the said Act and the Rules framed there under.

5. On 07/04/2016, the predecessor of the petitioner applied for transfer of CL-III licence from a premises at Navathe Plots, Amravati to the said shop, wherein the liquor shop was being run by respondent No.5 at Rathi Mansion, Bapat Chowk, Amravati. As the shop premises had been vacated by respondent No.5, a tenancy agreement was executed between the owners of the said Rathi Mansion with the predecessor of the petitioner and on 10/04/2016, he was put in possession of the said premises, which according to the petitioner, continues to be in her possession.

6. On 11/07/2016, respondent No.3-Collector passed an order taking into consideration applications of both the petitioner as well as respondent No.5 for transfer of the liquor shop. By the said order, respondent No.3-Collector allowed the application of KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 5/22 the petitioner, subject to the condition that the petitioner would submit certificate regarding construction being authorized within a period of one month, further stating that in case the said condition was not satisfied, the premises for transfer would stand cancelled. Insofar as the application of respondent No.5 was concerned, respondent No.3-Collector held that as the application for transfer submitted by the petitioner was allowed and the liquor shop of the petitioner could be shifted to the place at Rathi Mansion, Bapat Chowk, Amravati and since the place where respondent No.5 proposed to shift his shop was within the prohibited distance of 200 meters from the said Rathi Mansion, Bapat Chowk, Amravati, the application of respondent No.5 could not be granted.
7. The predecessor of the petitioner as well as respondent No.5 challenged the said order of respondent No.3- Collector. While the predecessor of the petitioner challenged it on the ground that the aforesaid condition could not have been imposed by respondent No.3-Collector while allowing the application for transfer, respondent No.5 challenged the same on the ground that his application could not have been rejected on the ground that the proposed place of the liquor shop of KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 6/22 respondent No.5 was within 200 meters of the said shop at Rathi Mansion, Bapat Chowk, Amravati, wherein the petitioner desired to shift his liquor shop. On 05/10/2016, this Court passed an order in Writ Petition No.5631 of 2016 filed by respondent No.5, directing respondent No.3-Collector to take appropriate decision in the matter so that the controversy could be resolved. It was the case of the petitioner that upon taking possession of the shop at Rathi Mansion, Bapat Chowk, Amravati and after the order dated 11/07/2016 was passed by respondent No.3-Collector, the business of selling country liquor had actually commenced from the said shop. On 28/11/2016, respondent No.3, in pursuance of the aforesaid order dated 05/10/2016, passed an order directing that the liquor shop started by the petitioner at the aforesaid Rathi Mansion, Bapat Chowk, Amravati in pursuance of order dated 11/07/2016, ought to be closed down in view of the fact that there was a dispute amongst the owners of the said shop in respect of which a civil suit had been filed, which was pending. It was directed that till the decision of the said civil suit, the petitioner shall not start the liquor shop at the said place. Aggrieved by the same, the petitioner filed Writ Petition No.6819 of 2016.
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8. On 20/12/2016, respondent No.3 passed another order, suo motu reviewing the said order dated 28/11/2016 stating that, based on the opinion given by the Government Pleader, a decision had been taken to have a re-look at the order dated 28/11/2016. On this basis, respondent No.3 directed that the petitioner be permitted to again start the liquor shop at the aforesaid place i.e. Rathi Mansion, Bapat Chowk, Amravati. In view of the same, this Court passed order dated 21/12/2016 dismissing Writ Petition No.6819 of 2016 filed by the petitioner as having become infructuous. Thereafter, when Writ Petition No.5631 of 2016 filed by respondent No.5 challenging aforesaid order dated 11/07/2016, came up for consideration before this Court, it was found that the order dated 20/12/2016 passed by respondent No.3, reviewing earlier order dated 28/11/2016 was not sustainable and accordingly it was set aside. As a consequence, order dated 28/11/2016 came into effect and the petitioner was required to close the said shop at Rathi Mansion, Bapat Chowk, Amravati. This Court found that it would not be appropriate to deprive the petitioner of an opportunity to challenge the said order dated 28/11/2016. It was also found that even as against the order dated 11/07/2016 respondent No.5 had filed an appeal KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 8/22 before the Appellate Authority i.e. respondent No.2-Commissioner and that it would be in the fitness of things that the petitioner was permitted to file an appeal against order dated 28/11/2016. Accordingly, respondent No.2-Commissioner was to decide both the appeals on or before 28/01/2018.

9. Consequently, respondent No.2-Commissioner took up for consideration the appeal filed by respondent No.5 against order dated 11/07/2016, as well as the appeal filed by the petitioner against order dated 28/11/2016. By order dated 25/01/2018, respondent No.2-Commissioner held that the order dated 11/07/2016 passed by respondent No.3 was bad-in-law and accordingly it was set aside. It was found that since the order dated 28/11/2016 was only a consequential order and when the order dated 11/07/2016 permitting shifting of the CL-III licence of the petitioner to the shop at Rathi Mansion, Bapat Chowk, Amravati itself was found to be void ab initio, the order dated 28/11/2016 was not sustainable. Aggrieved by the same, the petitioner filed revision application under the provisions of the aforesaid Act before respondent No.1. By the impugned order dated 12/04/2018, respondent No.1 rejected the revision KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 9/22 application filed by the petitioner and confirmed the order dated 25/01/2018 passed by respondent No.2-Commissioner. As a consequence, the application for transfer and shifting of CL-III licence preferred by respondent No.5 was to be considered by respondent No.3 on merits. In this backdrop, as noted above, in the present writ petition challenging the said order of respondent No.1, while issuing notice, this Court directed that the application of respondent No.5 seeking permission to shift the liquor shop shall not be processed until further orders.

10. Mr. S.P. Dharmadhikari, learned Senior Counsel appearing along with Mr. D.V.Chauhan, counsel for the petitioner, submitted that the impugned order passed by respondent No.1 was unsustainable and that the order dated 11/07/2016 passed by respondent No.3-Collector deserved to be restored, in the interest of justice. It was submitted that in the present case, the facts on record demonstrated that when the petitioner applied for transfer of the CL-III licence from Navathe Plots to Rathi Mansion, Bapat Chowk, Amravati, the requirements of the aforesaid Act and the relevant Rules were satisfied by the petitioner and there was no other liquor shop existing within the prohibited distance. It was KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 10/22 submitted that the liquor shop of respondent No.5 was admittedly closed down and the CL-III licence of respondent No.5 stood suspended on his own volition and further that respondent No.5 had already surrendered the entire stock, registers, etc. to the Authorities as per panchanama drawn on 01/04/2016. It was submitted that when there was no liquor shop existing and the CL-III licence of respondent No.5 itself was suspended, there was no question of considering the application of the said respondent for transfer of CL-III licence. It was submitted that in this backdrop, the error committed by respondent No.1 in the impugned order was evident and that the writ petition deserved to be allowed. It was submitted that respondent No.1 was not justified in holding that the prohibition of distance of 200 meters between two liquor shops would apply to the application of the petitioner, because the liquor shop of respondent No.5 was no longer in existence and on that ground, the claim of the petitioner could not have been rejected. It was submitted that the order dated 11/07/2016 allowing the application for transfer submitted by the petitioner deserved to be restored.

11. On the other hand, Mr.A.S.Kilor, learned counsel KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 11/22 appearing for respondent No.5, submitted that respondent No.1 was justified in confirming the order passed by respondent No.2- Commissioner and further holding that the order dated 11/07/2016 passed by respondent No.3-Collector, in favour of the petitioner, was unsustainable. It was submitted that the suspension of CL-III licence of respondent No.5 and closing down of shop at Rathi Mansion, Bapat Chowk, Amravati by respondent No.5 was of no consequence for deciding the application dated 28/03/2016 submitted by the said respondent requesting for transfer of the liquor shop to another place at a distance of only about 20 meters. It was submitted that the most significant aspect in the present case was that respondent No.5 had applied for transfer of his liquor shop on 28/03/2016, while the petitioner had admittedly submitted application for transfer on 07/04/2016. On this basis, it was submitted that the application of respondent No.5, being prior in point of time, ought to have been considered first and thereafter the application of the petitioner could have been considered by respondent No.3-Collector. Instead, by the order dated 11/07/2016, respondent No.3-Collector erred in considering and granting the application for transfer submitted by the petitioner and thereafter rejected the application of respondent KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 12/22 No.5, on the ground that upon the application for transfer submitted by the petitioner being allowed, a liquor shop was now existing within 200 meters of the place/shop proposed for transfer by respondent No.5. It was submitted that this was a wholly unsustainable approach adopted by respondent No.3-Collector and it demonstrated the bias of the said Authority in favour of the petitioner. It was further submitted that the bias of respondent No.3-Collector in favour of the petitioner was further evident by the fact that as per order dated 11/07/2016, the application for transfer of the petitioner was allowed, subject to the condition that a certificate regarding the shop at Rathi Mansion, Bapat Chowk, Amravati being authorized structure could be submitted within one month. It was submitted that such conditional permission for transfer was not contemplated under the Act and Rules and, therefore, the order dated 11/07/2016 was correctly set aside by respondent No.2-Commissioner and respondent No.1 in the impugned order.

12. It was further submitted that respondent No.5 in his application for transfer of shop clearly stated that the existing shop at Rathi Mansion, Bapat Chowk, Amravati had become dilapidated KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 13/22 and, therefore, the transfer of the shop was sought only about 20 meters away in a properly constructed shop. The said application was not even considered on merits by respondent No.3-Collector and, therefore, the order passed by respondent No.1 was justified. It was further submitted that suspension of CL-III licence was not equivalent to cancellation thereof and merely because the licence of respondent No.5 was suspended would not lead to a conclusion that the application for transfer of the liquor shop could not be entertained. It was pointed out that even after suspension of the licence of respondent No.5, it was renewed on the very same address of Rathi Mansion, Bapat Chowk, Amravati and that therefore, there was no substance in the contention raised on behalf of the petitioner. Reliance was placed on judgment of the Hon’ble Supreme Court in the case of Nandi Infrastructure Corr. Ent. Ltd. and Ors. v. Election Commission of India and Ors, (2010) 13 SCC 334.

13. Mr. A.R.Chutke, learned Assistant Government Pleader appeared on behalf of respondent Nos.1 to 4, submitted that the impugned orders passed by respondent Nos.1 and 2 are just and reasonable and no interference is required.
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14. Heard learned counsel for the parties. Respondent No.1 has confirmed the order of respondent No.2, thereby holding that order dated 11/07/2016 passed by respondent No.3 allowing the application for transfer of liquor shop submitted by the petitioner, was justified. By the very same order, respondent No.3 rejected the application of respondent No.5. Therefore, it is crucial to first appreciate as to the dates when the petitioner and respondent No.5 had submitted applications for transfer of the liquor shop from one place to other. The record shows that respondent No.5 applied for transfer of his liquor shop located at Rathi Mansion, Bapat Chowk, Amravati to another shop about 20 meters away, on 28/03/2016, on the ground that the aforesaid shop was in a dilapidated condition. It was claimed by respondent No.5 that the proposed shop where transfer was sought satisfied the requirements of the Act and the Rules for setting up a liquor shop on the basis of CL-III licence held by him. It is also an admitted position that the petitioner submitted an application on 07/04/2016 for transfer of liquor shop from a shop located in Navathe Plots to the very shop wherein respondent No.5 had been running his liquor shop at Rathi Mansion, Bapat Chowk, Amravati.
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Therefore, considering the fact that respondent No.5 had submitted application on 28/03/2016 for transfer of shop, respondent No.3 ought to have first considered the said application and thereafter the application of the petitioner could have been considered. But, the dispute between the parties has arisen essentially because respondent No.3 considered both the applications simultaneously and while allowing the application of the petitioner, rejected that of respondent No.5. The two applications ought to have been considered in the chronological order in which they had been submitted .

15. It appears that the main contention raised on behalf of the petitioner is that the intervening events of respondent No.5 having applied to the Authorities for closing down his shop at Rathi Mansion, Bapat Chowk, Amravati and consequent surrender of stock, registers, etc. vide panchanama dated 01/04/2016, resulted in a right that accrued in favour of the petitioner for consideration of his application for transfer to the very shop located at Rathi Mansion, Bapat Chowk, Amravati and in view of the aforesaid closing down of shop and suspension of CL-III licence of respondent No.5, on his own volition, the application for KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 16/22 transfer submitted by respondent No.5 could not have been considered at all. The said contention raised on behalf of the petitioner proceeds on the basis that since respondent No.5 voluntarily closed down his liquor shop and his CL-III licence was suspended, the application for transfer submitted on 28/03/2016 could not have been considered by respondent No.3.
16. It is further submitted on behalf of the petitioner that even if the application of respondent No.5 was to be considered, since the petitioner had already taken possession of the shop at Rathi Mansion, Bapat Chowk, Amravati, upon respondent No.5 having vacated the same, it was the application of the petitioner that was to be considered first and then upon applying Rule 24(5) of the Maharashtra Country Liquor Rules, 1973, the location of the proposed shop of respondent No.5 being within the prohibited distance of 200 meters, the said application of respondent No.5 could not have been granted. On this basis, it was submitted that no error had been committed by respondent No.3 in the order dated 11/07/2016 and that respondent Nos.1 and 2 completely failed to appreciate this aspect of the matter while holding against the petitioner.
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17. The learned senior counsel for the petitioner has not been able to support the contention that suspension of the CL-III licence of respondent No.5 necessarily meant that application for transfer submitted by him on 28/03/2016 could not be taken into consideration by respondent No.3. The contention raised on behalf of the petitioner was that suspension of CL-III licence meant that there was no such licence of respondent No.5 in existence and since the liquor shop at Rathi Mansion, Bapat Chowk, Amravati had been vacated by respondent No.5, there was no liquor shop or licence in existence for respondent No.5 to have pursued his application for transfer dated 28/03/2016. It has come on record that the CL-III licence of respondent No.5, even after it was suspended and the liquor shop had been vacated by the said respondent, was renewed on the very same address at Rathi Mansion, Bapat Chowk, Amravati. In this regard the learned counsel appearing for respondent No.5 is justified in relying upon the judgment of the Hon’ble Supreme Court in the case of Nandi Infrastructure Corr. Ent. Ltd. And Ors. v. Election Commission of India and Ors. (supra) where a clear distinction has been made between the expression “cancel” and “suspend” and it has been held in that context as follows:-
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“5. It is surprising that by jugglery of words the use of the expression ‘cancel’ in paragraph 2 of the order dated 8/5/2008 has been tried to be justified. If that was the intention, the same should have been conveyed to the State Government after the order of cancellation was passed. The expressions “cancel” and “suspend” are conceptually different. At the same time there could not have been cancellation and suspension. “Cancel” means to destroy the force, effectiveness or validity of an order, a decision, to bring to nothingness. “Suspend” means to debar temporarily a privilege or make temporarily ineffective. To “suspend” is to take a temporary measure while to “cancel” has an element of permanency.”
18. Applying the said position of law to the facts of the present case, it becomes evident that the CL-III licence of respondent No.5 being suspended meant that it became temporarily ineffective, but it was not destroyed or brought to nothingness, as contemplated under the expression “cancel”. The form of CL-III licence under the aforesaid Act and Rules specifically records the address of the shop from which the liquor is to be sold by retail. Therefore, the fact that the shop located at Rathi Mansion, Bapat Chowk, Amravati stood recorded in the CL-III licence of respondent No.5, despite it being under suspension, clearly indicates that it could not be said that the said CL-III licence of respondent No.5 ceased to exist in respect of the said shop. It is not the case of the rival parties that the licence of KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 19/22 respondent No.5 was ‘cancelled’ at any point of time. Hence, it could not be said that the application for transfer submitted by respondent No.5 on 28/03/2016 could not have been considered by respondent No.3, only for the reason that the shop was closed and the stock, registers, etc. had been surrendered on 01/04/2016 to the Authorities. In fact, the ground stated by respondent No.5 seeking transfer was that the shop was in a dilapidated condition and that he intended to shift the same to another shop at a distance of about 20 meters. In such situation, it could not be said that the application for transfer submitted by respondent No.5 could not have been considered by respondent No.3 or that the CL-III licence of respondent No.5 in respect of the shop located at Rathi Mansion, Bapat Chowk, Amravati had ceased to exist.
19. In any case, this was not the ground on which the application of respondent No.5 was rejected by respondent No.3 in the order dated 11/07/2016. The only reason given by respondent No.3 was that since the application for transfer of the petitioner from Navathe Plots, Amravati to the shop at Rathi Mansion, Bapat Chowk, Amravati had been granted, the transfer sought by respondent No.5 could not be allowed in the proposed shop, KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 20/22 because it fell within the prohibited distance of 200 meters under Rule 24(5) of the aforesaid Rules. Respondent No.3 did not reject the application of respondent No.5 on the ground either that the CL-III licence had been suspended or that respondent No.5 had vacated the shop located at Rathi Mansion, Bapat Chowk, Amravati or further that the petitioner had already taken possession of the said shop earlier in possession of respondent No.5.

20. In this context, it becomes clear that the fact that the petitioner had taken possession of the said shop at Rathi Mansion, Bapat Chowk, Amravati and that there was an agreement entered into with the land owners by the petitioner, was irrelevant for consideration of the applications submitted by the petitioner as well as respondent No.5. It is because respondent No.3 wrongly considered both the applications together that the litigation between the parties has continued with various rounds before the Authorities below, as well as this Court. Respondent No.3 ought to have first considered the application of respondent No.5, because it was submitted on 28/03/2016, which was prior to the application dated 07/04/2016 submitted by the petitioner. The KHUNTE::: Uploaded on – 09/04/2019 ::: Downloaded on – 10/04/2019 05:19:21 ::: WP2829.18-Judgment 21/22 other aspects of the matter regarding the pendency of civil suit amongst the owners of the shop located at Rathi Mansion, Bapat Chowk, Amravati and the fact that respondent No.3 granted opportunity to the petitioner to bring certificate regarding authorized construction, become irrelevant to the dispute between the parties.

21. In this backdrop, it becomes clear that respondent Nos.1 and 2 did not commit any error in setting aside the order dated 11/07/2016 passed by respondent No.3 and in holding that the rule of prohibited distance of 200 meters ought to apply to the applications of both the rival parties. In fact, after the application of respondent No.5 being first considered for transfer of the liquor shop, the application of the petitioner could have been considered under the said Act and Rules. Hence, it is found that there is no error committed by respondent Nos.1 and 2 in holding against the petitioner.

22. In view of the above, the writ petition is found to be without any merit and it is dismissed.
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23. Consequently, the interim order dated 22/05/2018 is vacated and the application of respondent No.5 filed before respondent No.3 is directed to be processed in accordance with law.

24. Rule stands discharged. No costs.

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