IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9294 of 2008 BIRENDRA KUMAR Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Satyabir Bharti For the Respondents 1to 5: Mr. Vikas Kumar, J.C. to A.G. ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 14th August, 2008. Vide order dated 24th July, 2007 contained in memo dated 25th July, 2007, the settlement of Nagar Nigam retail shop no.24 and the license of Dumari Damodarpur Composite shop no. 83 was cancelled by the Collector, Muzaffarpur on 24th July, 2007. The Collector ordered that the security money and the license fee deposited by the petitioner against the composite shop no. 83 be forfeited. The petitioner preferred an appeal against the order of the Collector before the Excise Commissioner. The Excise Commissioner disposed of the appeal on 8/10-10-2007 by the following order: “Taking all the facts and circumstances of the case into account, especially, the recommendation of Collector, Muzaffarpur to allow the appellant’s request for settlement of both the shops with the appellant, and further in view of the fact that a large number of shops are still remaining unsettled and the interest of revenue collection is suffering, the order passed vide memo no. 783 dated 24-7-07 of Superintendent Excise, Muzaffarpur is set aside. Collector, Muzaffarpur is directed to consider the petition submitted by the appellant before the Collector on 27-07-2007 in terms of - 2 - the recommendation of the Collector made to Excise Commissioner. After completion of due formalities by the petitioner, the Collector may restore the license of composite shop no. 83 without forfeiting the reserved fee and advance license fee in respect of that shop. As far as foreign liquor shop no. 83 is concerned, its license should be granted to the appellant after deposit of security deposit and advance license fee etc., chargeable with effect from 01-07-07.” 2. The Excise Commissioner, thus, observed restoration of license of composite shop no. 83 by the Collector without forfeiture of the reserved fee and advance license fee in respect of the shop. In so far as foreign liquor shop no. 83 was concerned, the Excise Commissioner directed that the license should be granted to the petitioner after deposit of security deposit and advance license fee chargeable with effect from 1st July, 2007. 3. Pursuant to the order dated 8/10.10.2007, the Excise Superintendent, Muzaffarpur insisted for payment of license fee from 1st July, 2007 until the date of restoration of license. The petitioner, however, was not desirous to pay license fee for the entire period from 1st July, 2007 until restoration but showed his inclination to deposit the license fee for the period from 1st July, 2007 to 24th July, 2007, i.e. upto the date of cancellation. The request of the petitioner was not accepted. Thus, the license did not get restored as was observed in the order dated 8/10.10.2007 passed by the Excise Commissioner. The petitioner approached the Excise Commissioner again by making a miscellaneous application. The said miscellaneous application came to be disposed of on 8th December, 2007. Paragraph 7 thereof reads thus: “ Collector, Muzaffarpur is, therefore, directed to restore the license of composite liquor shop no. 83 and foreign - 3 - liquor Muzaffarpur Nagar Nigam shop no. 24 in favour of the appellant after giving him the last opportunity to deposit the license fee of composite liquor shop no. 83 and security money, advance license fee and license fee of foreign liquor Muzaffarpur Nagar Nigam shop no. 24 w.e.f. 01.07.2007 to the date of restoration of license within 15 days of issuance of this order failing which the shops shall not be resettled with the appellant and will rather be resettled in accordance with the rules.” 4. Aggrieved by the orders of the Excise Commissioner passed on 8/10.10.2007 and 8th December, 2007, the petitioner filed revision before the Member, Board of Revenue which came to be dismissed on 20th May, 2008 and, hence, the present writ petition. 5. The submission of the counsel for the petitioner is limited to the extent of return of security deposit in relation to shop no. 83. The counsel would submit that since the cancellation of the license by the Collector was not legal and it has been found to be so by the Excise Commissioner in the order dated 8/10.10.2007, the petitioner is entitled to the refund of the security deposit. 6. Having bestowed the thoughtful consideration, we are not persuaded to accept the submission of the counsel for the petitioner. It is true that the order of the Collector dated 24th July, 2007, canceling the license of composite shop no. 83 and forfeiting the security money was substantially altered by the Excise Commissioner by his order dated 8/10.10.2007. The Excise Commissioner, although observed that after completion of due formalities by the petitioner, the Collector may restore the license of composite shop no. 83 without forfeiting the reserved fee and advance license fee in respect of that shop but with regard to foreign liquor - 4 - shop no. 83, it was observed that the license be granted to the petitioner after depositing the security deposit and advance license fee chargeable from 1st July, 2007. In pursuance thereof the Excise Superintendent, Muzaffarpur demanded deposit by way of security deposit and advance license fee chargeable from 1st July, 2007. However, the petitioner was not prepared to do so as by that time substantial time had expired. Consequently, as a matter of fact, he did not avail of the benefit given by the Excise Commissioner in the order dated 8/10.10.2007. Obviously, there was commercial reasons for not taking benefit of the order dated 8/10.10.2007. Since, the petitioner did not avail of the license and rather failed to comply with the directives issued by the Excise Commissioner in the order dated 8/10.10.2007, the forfeiture of the security deposit cannot be said to be bad in law. It would have been prudent on the part of the petitioner to have complied with the directives given by the Excise Commissioner in the order dated 9/10.10.2007 by depositing the security deposit and advance license fee chargeable from 1st July, 2007 and then sought for remission of license fee for the period from 24th July, 2007 until restoration of license but that was not done. In the background of these facts, we are satisfied that the petitioner is not entitled to any relief. 7. The writ petition is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-