Writ Petition No. 391 of 1993

23rd February, 1993

Respondent Counsel: L. V. Kapse, .

JUDGMENT

JUDGMENT :-This petition deserves to be disposed of finally at the stage of admission. The learned counsel on both sides are heard on this footing.

2. Smt. Meena Narayan Idnani and her husband Mr. Narayan J. Idnani were joint holders of Licence FL II No. 233 for retail sale of foreign liquor. The said joint licence holders used to carry on business in partnership in the name and style of 'M/s. J. Vikram Sales (India)' at Shop No. 4 Laxmi Ratan Building, L. H. Road (W), Mahim. The said joint licence was initially granted in the year 1975. Sometime in the year 1986, one of the joint licence-holders, i.e. the said Mr. Narayan, J. Idnani died. The petitioner, widow made an application to first respondent informing him of death of her husband and seeking amendment of the licence by deleting the name of the deceased therefrom. The application was granted by the authority on payment of amendment fee of Rs. 10/-. The said licence was in favour of petitioner alone from 1st April, 1989. At that time, the Commissioner of Prohibition and Excise used to take the view and rightly so that an application for deleting the name of the deceased from the joint licence did not amount to application for transfer of licence from one name to another and the transfer fee of Rs. 20,000/- was not payable by the surviving licensee while seeking deletion of name of the deceased from the licence. The petitioner has annexed a copy of order dated 1st June, 1988 passed by the Commissioner in the case of M/s. Ruby Wines as Exhibit 'J' to the petition.

3. By order dated 30th August, 1989, the Collector of Bombay demanded a sum of Rs. 30,000/- from the petitioner as transfer fee in respect of the said licence stating therein in substance that the name of her husband was deleted from the licence on payment of Rs. 10/- on the footing that the transfer fee would have to be paid by the petitioner if the Collector was directed by the Government to recover such fee from the petitioner. By order dated 15th January, 1993, the Commissioner dismissed the petitioner's appeal against the said order in view of the change in instructions of the Government in this behalf. The Commissioner held that the action of the authorities in demanding the said amount from the petitioner-widow was harsh but it could not be helped.

4. By this petition filed under Article 226 of Constitution of India, the petitioner has impugned the order of Collector bearing No. FLR-1188/B-1 dated 30-8-1989 demanding a sum of Rs. 30,000/- from the petitioner and the Appellate order of the Commissioner

dated 15-1-1993.

5. Rule 5 of Bombay Prohibition (Privilege Fee) Rules reads as under :

"5. Fees for transfer of a licence from one name to another - The fee payable by any licensee, for the privilege of having the transfer of his licence from one name to another shall be the sam as the fee chargeable for the grant or renewal of continuance of the licence."The question to be asked is as to whether the application for the deletion of name of deceased licence-holder from the joint licence on death of one of the licence-holders can ever amount to application for transfer of a licence from one name to another. The answer is firmly in negative. By making such an application, the surviving licensee does not seek transfer of licence from one name to another. In such a situation Rule 5 can have no application whatsoever. The view taken by the Government of Maharashtra and respondents Nos. 1 and 2 is opposed to plain language of Rule 5 and common sense. The view taken by former Commissioner of Excise and Prohibition in case of 'M/s. Ruby Wines' is totally correct. It seems that in view of erroneous audit note, the respondents have started demanding sum of Rs. 20,000/- to Rs. 30,000/- from the surviving joint licence-holder on death of one of the licence-holder without authority of law. The impugned action is opposed to rule of law and the conduct of respondents in recovering or attempting to recover such large amounts from the innocent citizens is blameworthy. The impugned orders suffer from error of law apparent on face of record and are unjust. Merely because the business is now run by a sole proprietoress, it does not follow that the petitioner sought transfer of licence from one name to another by seeking the deletion of name of the deceased from the joint licence.

6. In the result, the petition is allowed in terms of prayers (a) and (b). It is not necessary to grant prayer (c) of the petition. The respondents are directed to pay a sum of Rs. 300/- to the petitioner towards the cost of the petition.

Petition Allowed