wp4833.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4833 OF 2009 Kisanrao Manikrao Khopde, Age-76 years, Occu:Business, R/o-Shop No.13, House No.1466, At-Dhule, Tq-Dhule, Dist-Dhule. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through its Principal Secretary, Excise Department, Mantralaya, Mumbai. 2) The Collector, Dhule, Tq. & Dist-Dhule, 3) The Superintendent of State Excise, Dhule, Tq-Dhule, Dist-Dhule, 4) Shri. Ashok Shravanji Avankar, Age-69 years, Occu:Pensioner, R/o-Ajay Villa, Vaibhav Colony, Mini Bypass Road, Amravati, Dist-Amravati. ...RESPONDENTS. ... Shri. R.N. Dhorde Advocate h/f. Shri. V.R. Dhorde Advocate for Petitioner. Shri. V.B. Ghatge, A.G.P. for Respondent Nos. 1 to 3. Shri. R.T. Nagargoje Advocate for Respondent No.4. ... wp4833.09 2 CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 22ND AUGUST, 2011. PER COURT : 1. Heard learned counsel appearing for the respective parties. 2. The Petitioner challenges a communication dated 26th June,2009 made by the Collector, Dhule under the signature of Superintendent, State Excise Department, Dhule. The Petitioner contends that the application filed by the Petitioner for inclusion of partner in a running business was accepted by the Superintendent by communication dated 1st November, 2007, but before the conditions of acceptance could be implemented and acted upon, the Petitioner decided not to go ahead with the partnership with the proposed partner. The Petitioner, according to the counsel, then filed application addressed to Superintendent, wp4833.09 3 State Excise Department, Dhule, dated 12th March 2008, intimating that the earlier application filed for creating a partnership firm be treated as cancelled. 3. Learned counsel Shri. Dhorde submits that Respondent Nos. 3 and 4 illegally ordered regarding of entry of the name of the proposed partner in the record and consequent thereof, the impugned communication was issued by the Collector to him. 4. By an order dated 27th July, 2009 this Court issued notices to the Respondents. In the mean time ad interim stay in terms of prayer clause (E) to the Petition was granted. Prayer clause (E) reads as under:- "(E) Pending hearing and final disposal of this Writ Petition grant stay to the impugned letter dated 26.06.2009 issued by the Respondent No.3 directing the wp4833.09 4 petitioner to pay an amount of Rs.4,52,520/- towards the licence fees and for that purpose issue necessary orders." 5. The Respondents filed affidavit in reply. The learned A.G.P. Shri. Ghatge submits that under the provisions of Section 137 of the Bombay Prohibition Act, 1949, statutory remedy in the shape of appeal is available to the Petitioner, which has to be exhausted first. 6. The learned counsel for the Petitioner submits that in the light of the peculiar factual back-ground, the statutory remedy could not be efficacious one and this Court is entitled to exercise its writ jurisdiction. 7. We have considered the submissions advanced, perused the documents placed before us. We are of the opinion that the Petitioner could avail of the statutory remedy as permissible in wp4833.09 5 law. 8. In the facts of the case, it could be appropriate that the Petitioner resorts to the statutory remedy, which is efficacious one. The Petitioner is entitled to avail of the statutory remedy under the provisions of the Bombay Prohibition Act, 1949 within two weeks from today. In case the Petitioner avails of such a remedy, the interim relief granted by this Court in terms of prayer clause(E) shall continue for four weeks from today. All issues on merits are kept open. In case the Petitioner resorts to alternate remedy, then the proceedings filed by the Petitioner (appeal/revision/application) shall not be dismissed on the ground of delay. With these observations, the Writ Petition is disposed of. [T.V. NALAWADE, J.] [NARESH H. PATIL, J.] asb/AUG11