( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 621 OF 2002 Smt. Satwantkaur wd/o Chanchalsingh Arora (Sole Proprietress of M/s Maharashtra Wines (FL.II 21) (through her G.P.A. Shri Jagdish s/o Pradhanmal Galani, R/o Kumhar Nagar, Dhule. PETITIONER VERSUS 1. The Collector, Dhule. 2. The Commissioner of State Excise, Old Custom House, Mumbai. 3. The State of Maharashtra RESPONDENTS ..... Mr. N.E. Deshmukh, advocate holding for Mr. S.B. Talekar, advocate for the petitioner. Mr. D.V. Tele, AGP for respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th June, 2009] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns order dated February 22nd, 2001, rendered by the Superintendent, State Excise Department, Dhule, calling ( 2 ) upon the petitioner to deposit transfer fees of Rs. 81,000/- to facilitate transfer of FL-II license in her name. 2. There is no dispute about the fact that deceased Chanchalsingh Arora was sole proprietor of M/s Maharashtra Wines, dealing in business of Indian made foreign liquor. License No. FL-II 21 was granted in his favour for the purpose of carrying such business. He died on 28-10-2000, leaving behind him the petitioner and three (3) children as the legal heirs. By consent of all the legal heirs, the petitioner sought license in her favour. She requested that license standing in name of her husband may be transferred in her name. The petitioner was permitted to carry on business on basis of a license standing in name of one Ramesh Damodhar Sukhwani until the transfer of license was effected in her name. The Excise Superintendent accepted license fees from the petitioner for the year 2000-2001, but renewed license in name of her deceased husband. The petitioner was informed vide letter dated February 22, 2001, that the FL-II 21 license would be transferred in ( 3 ) her name if she will deposit Rs. 81,000/- as privilege fees for effecting such transfer. Consequently, she filed the petition and challenged the order of imposing such fees. 3. Heard learned counsel and learned A.G.P. 4. The material question is whether the privilege fees could be charged for effecting transfer of the license standing in name of the deceased husband of the petitioner in her name as a legal heir. The petitioner contends that the transfer is not by choice, but on account of death of the original license holder and as such, Rule (5) of the Bombay Prohibition (Privilege Fees) Rules, 1954 would not be attracted. 5. A Division Bench of this Court in “State of Maharashtra and another v. Pushpalata w/o N. Rajeev Adyanthaya”, in writ petition No. 352/1993, held that the expression “transfer” as used in Rule 5 contemplates inter vivos. In “Jyoti Partab Lalwani & others v. ( 4 ) Collector of Mumbai and another” 2003 (Supp. 2) Bom.C.R. 594, a Single Bench of this Court held that payment of privilege fees under Rule 5 is applicable only to inter vivos transfers and not otherwise. It has been held that transposition of name of the legal heir of the deceased for unexpired period of the license cannot be burdened with privilege fee under the said Rule. The learned Single Judge duly considered import of Rules 5 and 6 of the Bombay Prohibition (Privileges Fees) Rules, 1954. The same view is expressed by a Division Bench of this Court in “Shankarlal Gukullal Jaiswal v. State of Maharashtra and others” 2007 (1) Bom.C.R. 590. 6. The legal position is well settled in this behalf. The transfer of license in favour of legal heir cannot be treated as a transfer by the license holder in favour of any stranger. The inter vivos transfer does imply transfer by a living person in favour of another living person. In the instant case, the transfer, in fact, is not for any consideration or by act of the parties as such, but it is due to the death ( 5 ) of the license holder. Under these circumstances, Rule 5 would not be attracted. In order to further clarify the legal position, Rule 5 may be quoted as follows. “Rule 5 -- The fee payable by any licensee, for the privilege of having the transfer of his license from one name to another shall be the same as the fee chargeable for the grant or renewal or continuance of the license..” The expression “the privilege of having the transfer of his license” contemplates that the applicant must be the license holder and the living person. It goes without saying that a dead person cannot seek transfer of his license in favour of anyone. In the fact situation of the present case, therefore, the petitioner was not liable to pay the privilege fees which was charged. 7. For the foregoing reasons, the petition is allowed. The impugned order is quashed. The amount of privilege fees, if has been paid by the petitioner, ( 6 ) shall be refunded to her. The Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP621-02