IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5658 of 2008 SANJAY SINHA Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Satyabir Bharti, Advocate For the respondents : Mr. Vikas Kumar, J.C. to Advocate General ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 4th August, 2008. We heard the counsel for the parties. Rule is issued and disposed of finally at this stage. 2. In our considered view, the matter requires re- consideration by the Member, Board of Revenue, Bihar as the consideration of the application made by the petitioner seeking remission of licence fees and consequential refund of the same for the period from 1st April, 2007 to 10th May, 2007 is not in accord with section 39 of the Bihar Excise Act, 1915. 3. Bereft of unnecessary details, the fact of the matter is that by an order dated 4th May, 2007 passed by the Member, Board of Revenue, Bihar, the petitioner was held entitled to extension of licence for the period 1st April, 2007 to 30th June, 2007 in accordance with the directions given in letter no. 1376 dated 14th March, 2007 and the petitioner was allowed to sell the liquor for the period up to 30th - 2 - June, 2007. Consequently on 10th May, 2007, the petitioner was informed that his licence was being extended for the period from 1st April, 2007 to 30th June, 2007 and he was asked to deposit the advance licence fee in the sum of Rs.12,45,420/-. On 11th May, 2007, the petitioner sent a communication to the Excise Superintendent informing that he cannot be called upon to deposit the licence fee for the period from 1st April, 2007 to 10th May, 2007 as the licence is being renewed for the period from 11th May, 2007. However, he deposited the amount of Rs. 12,45,420 as required under communication dated 10th May, 2007. The petitioner’s licence got extended and he started selling liquor pursuant to the extension of licence. On 14th May, 2007, he made an application under section 39 of Bihar Excise Act, 1915 with the Member, Board of Revenue praying for remission of licence fee for the period from 1st April, 2007 to 10th May, 2007 and, consequently, seeking refund of the amount of Rs.5,49,056/-. The said application came to be rejected by the Member, Board of Revenue by the following order – “Having gone through the submissions made by the petitioner and comments of the Collector, Nawadah it is clear that the extension of licence from 1.4.2007 to 30.6.2007 was to be done only if the payment for the entire period of three months has been made. Therefore, there was no option for the petitioner but to pay the entire amount of the licence fee in one lump-sum. Apparently there has been no ambiguity in realization of the licence fee for this period. It is also to be pointed out that refund of the licnece fee has first to be agitated in the court of Collector, Nawadah. If the petitioner is not satisfied with the action of Collector, Nawadah, the petitioner should have agitated this matter in the court of Excise Commissioner but the petitioner has not gone this court for getting remedy. It is not proper for this court to intervene in the matter at this - 3 - stage when the two lower courts have been approached. In view of the above, the instant application is rejected.” 4. It would, thus, be seen that principal reason for not considering the application for remission of licence fees of the petitioner on merit was that the petitioner did not approach District Magistrate and the Excise Commissioner at the first instance. 5. We are afraid, the power conferred upon the Board under section 39 of the Bihar Excise Act, 1915 is an independent power and not dependent upon the aggrieved person first approaching the District Magistrate and the Excise Commissioner. Section 39 of the Bihar Excise Act, 1915 reads thus: “ Power of Board to reduce fees.- The Board may, if it thinks fit, at any time during the period for which any licence has been granted, order a reduction of the amount of fees payable in respect thereof during the unexpired portion of the grant.” 6. The Member, Board of Revenue, Bihar, thus, failed to exercise the power conferred by law and thereby committed jurisdictional error. As to whether a case for remission of licence fee on facts is made out is altogether a different issue but for that the Board of Revenue ought to have considered the matter on merit which it never did. 7. An application was made by the petitioner seeking review of the order dated 20th July, 2007 but review application also came to be rejected on 19th February, 2008. The review application has been considered thus: - 4 - “ The reasons for the refund have been indicated in the above paras. After going through the arguments placed in the preceding paragraphs it is clear that no new points have been raised by the petitioner and no sound reason has been given for refund of the licence fee for the period 1.4.2007 to 10.5.2007. Therefore, there is no ground for acceding to the prayer of the petitioner for remission/refund of the licence fee for the period 1.4.2007 to 10.5.2007 amounting to Rs.5,49,056.00.” 8. It is seen from the aforesaid consideration that the application for remission of the licence fee has not been considered in right perspective. 9. Although we refrain from expressing any opinion on the merit of the petitioner’s application for remission of licence fee and consequential refund, but we have no hesitation in observing that matter needs fresh consideration by the Member, Board of Revenue in accordance with law. 10. We, consequently, set aside the orders dated 20th July, 2007 and 19th February, 2008 and remit the matter back to the Board of Revenue for re-consideration of the petitioner’s application for remission of licence fee and refund under section 39 of Bihar Excise Act, 1915 in accordance with law. No order as to costs. . R. M. Lodha, CJ Kishore K. Mandal, J. Anil/