IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15979 of 2009 1. MANKESHWAR KUMAR RAI SO SHRI GOPAL ROY, R/O RAMPUR, P.O & P.S- RAMPUR, DISTT- BUXAR …………..petitioner Versus 1. THE STATE OF BIHAR THROUGH THE EXCISE COMMISSIONER, BIHAR, PATNA 2. THE COLLECTOR, BUXAR AT BUXAR 3. THE ASSISTANT COMMISSIONER OF EXCISE, BHOJPUR CUM-BUXAR AT ARA ………..respondents ----------- For the petitioner: Mr. Ram Suresh Rai, Sr. advocate Mr.Anil Kumar Roy, advocate For the State: Mr. P. K. Shahi, Advocate General, Bihar Mr. Vikash Kumar, AC to AG --------- 2 25-11-2009 Heard learned counsel for the petitioner and learned counsel for the State. We ourselves noticed that against the order of Member, Board of Revenue dated 14-9-2005 the petitioner has preferred this writ petition after an unusual delay of about four years. However, on going through the merits of the claim, we find that no 3rd party interest has been created and the simple prayer of the petitioner is that licence fee for running a country made liquor shop for the period 8-10-2004 to 31-12-2004 be refunded because during that period his shop was illegally closed and sealed under the orders of Collector, Buxar and subsequently that order was set aside by the appellate authority, the Commissioner, Buxar. The Member, Board of Revenue has taken note of the appellate order in which it is mentioned that petitioner can operate his shop from site provided up-to-date licence fee has been deposited. It has been noted by the Member, Board of Revenue that instead of depositing the licence fee for subsequent period the 2 petitioner claimed for adjusting of licence fee for the earlier period when the shop was closed. According to Member, Board of Revenue this could not be allowed because he had been operating the shop from a site which was not approved by the Collector, Buxar. On this ground he distinguished the case of the petitioner from the case of another person which appears to have been allowed on 2-7-2003 in Board of Revenue case no. 237/2000. While distinguishing the case of petitioner, learned Member, Board of Revenue has committed an error in holding that shop of the petitioner was rightly sealed and closed because of some lacunae. This view could not have been taken because petitioner has succeeded before the appellate authority and had been permitted to operate the shop from the earlier site. In he facts of the case, we are of the view that technicality pointed out by Member, Board of Revenue that petitioner should have first deposited further money by way of up- to-date licence fee before claiming for refund should not stand in the way of the petitioner in getting back the licence fee deposited by him for the period the shop was closed and sealed under the orders of Collector, Buxar which was subsequently set aside by the appellate authority. Hence, the writ petition is allowed to the extent that the concerned authority at Buxar is directed to ascertain the basic fact that petitioner’s licence fee for the period in question has remained deposited or un-refunded and if that be the case then 3 the proportionate licence fee for the period the shop remain closed and sealed under the orders of Collector, Buxar should be refunded to the petitioner as per law at an early date, preferably, within two months from the date of production/communication of a copy of this order. BKS/- (Shiva Kirti Singh, ACJ.) (Shyam Kishore Sharma, J.)