6-wp-10237-10.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10237 OF 2010 Smt. Sharda R.Adyanthaya ..Petitioner Vs. State of Maharashtra and Ors. ..Respondents Shri. D.B.Sawant advocate for petitioner Shri. S.N.Bhosle AGP for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 20th JULY, 2011. P.C.: 1. Heard both sides. The petitioner challenges an order passed by the appellate authority viz. the Minister for Home, State of Maharashtra seeking to confirm an order dated 20th October, 2009. 2. The petitioner has closed down the establishment but it is stated that the amount of Rs.7,64,775/- is not paid which sum is due and payable as the fees for issuance of the performance licence. Even if the establishment is closed down and the performance licence has come to an end, yet, this amount reflects as arrears and it is stated that the same can be recovered by the authorities under the Bombay Police Act, 1951. 3. When this petition was placed for admission, I enquired 1 6-wp-10237-10.doc from the A.G.P. as to how authorities under the Bombay Police Act, 1951 can recover the licence fees or the arrears thereof and whether they possess any such powers of recovery under the Bombay Police Act, 1951. 4. The learned A.G.P. took time to seek instructions and thereafter has filed an additional affidavit of the Senior Inspector of Police in which a reference is made to Section 33 of the Bombay Police Act, 1951 and the Rules for licensing and controlling places of public amusement (other than Cinemas) and for performances for public Amusement including Melas, Tamashas etc., 1960 and particularly Rules 208, 209 and 211. It is contended that once these rules prescribe the fees which have to be paid in terms of Chapter XVII, Rule 211, then implicit and inherent in that is the power to recover the said fees. Reliance is placed upon a Circular No.1 of 2005 dated 20th July, 2005 issued by the Joint Commissioner of Police (Administration). 5. A perusal of Section 33 of the Bombay Police Act, 1951 would reveal that the same empowers the making of rules for regulation of traffic and for preservation of order and public peace etc. There is no dispute that such rules can be framed in terms of the powers conferred by the Act and such rules may also provide and prescribe payment of fees 2 6-wp-10237-10.doc for the licence. However, if the licence fees remain unpaid or are due and payable but not paid, then, the power to recover the same must be conferred by the Rules and the Rules or the Enactment must state that fees can be recovered as arrears of land revenue. My attention has not been invited to any of the provisions either in the said Act or Rules empowering the recovery of the fees in the present case. Reliance placed on Rules 211 and 215 of the Amusement Rules, is misplaced because Rule 211 is only giving power to prescribe the fees. The argument that the fees can be prescribed and therefore, inherent in the same is the power to recover it, cannot be accepted on the own showing by the respondents because, reliance is placed on the circular. That circular merely impresses upon the authorities that fees have to be recovered expeditiously or else the Government revenue would suffer. The very fact that these Rules make reference to the Maharashtra Land Revenue Code, 1966 would make it clear that if at all the recovery is permissible of the government revenue or the fees the Code should be resorted to and not otherwise. In these circumstances, if the fees in the present case can be recovered as arrears of land revenue in terms of the applicable provisions of the Maharashtra Land Revenue Code, 1966 then the respondents can resort to such 3 6-wp-10237-10.doc provisions of the Code and move the appropriate authorities therein so as to enable them to recover the said fees. However, the licensing authority and the Minister for Home had clearly overlooked this point and erroneously assumed jurisdiction, power and authority in the police authorities to recover the licensing fees, allegedly due and payable and outstanding. So far as the recovery is concerned, the police authorities do not possess any such power. In such circumstances the recovery at the instance of the police authorities was clearly impermissible. The impugned orders are therefore, quashed and set aside on this ground alone but with clarification that it would be open for the respondents to move the Collector of the Bombay/Bombay Suburban District within whose jurisdiction the establishment is located and request the said Collector/ appropriate authority under the Maharashtra Land Revenue Code, 1966 to effect the recovery of these fees and thereafter such Authority may proceed to recover it in accordance with law. All contentions of both sides in that behalf are kept open. Petition is disposed of in these terms. [ S.C. DHARMADHIKARI, J. ] 4