CIVIL WRIT JURISDICTION CASE No.7022 OF 1994 ---- In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- BINOD KUMAR SON OF LATE DEOBRAT PRASAD, RESIDENT OF NAWADA, P.S. NAWADA, DISTRICT BHOJPUR AND EX-LICENSEE OF RETAIL SALE OF INDIA MADE FOREIGN LIQUOR AT THATHERI BAZAR, BUXAR IN THE DISTRICT OF BUXAR. --- PETITIONER. Versus 1. The State of Bihar through the Secretary to the Government of Bihar, Department of Excise & Probition, Vikas Bhawan, Patna. 2. The Member, Board of Revenue, Bihar, Main Secretariat, Patna. 3. The Commissioner of Excise, Bihar, Vikas Bhawan, Patna. 4. The Collector, Buxar. 5. The Superintendent of Excise, Buxar. --- Respondents. For The Petitioner : Mr. G.P.Bimal and Mr. Gatyabir Bharti, Advocates. For The State : Mr. Anil Kumar Verma, A.C. to S.C. 3. P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ------ S.K.Katriar,J : This writ petition is directed against the order dated 11.07.1994 ( Annexure-1 ), passed by the learned Excise Commissioner, Government of Bihar, Patna, whereby the petitioner’s application for refund of the licence fee for opening a retail sale of India made Foreign Liquor at Thatheri Bazar, Serial No. 21, Buxar, has been rejected. 2. Learned counsel for the petitioner presses I.A. No. 615 of 1996, wherein prayer is made to quash Excise Certificate Case No. 14 of 1992-93, then pending before the learned District 2 Certificate Officer, Bhojpur, Ara, whereby certificate proceedings have been initiated against the petitioner for realization of the loss caused to the State Government on account of the petitioner’s refusal or failure to open the aforesaid shop at Thatheri Bazar. The petitioner, therefore, seeks amendment of pleadings and prays that he may be permitted to challenge the validity, and continuance of certificate proceeding. In his submission the proposed amendment of pleadings is within the frame of the writ petition, and is almost in the nature of consequential relief. Learned counsel for the respondents has no objection to the same. In that view of the matter, the petitioner is permitted to challenge the validity of Excise Certificate Case No. 14 of 1992-93. I.A. no. 615 of 1996. 4. A brief statement of facts essential for disposal of the writ petition may be indicated. The then Collector of the undivided district of Bhojpur at Ara had issued a tender notice for grant of licence to open retail shop for sale of India- made Foreign Liquor at Thatheri Bazar and Namak Gola, both within the Sub-Division of Buxar. The petitioner was granted licence to open the shop at Thatheri Bazar ( Sl. No. 21 ), for the period of 1991-92, and one Yugal Kishore Rai was granted licence to open the shop at Namak Gola ( Sl. No. 22). The petitioner promptly deposited a sum of Rs.97,200/- as advance licence fee for six months, and a sum of Rs.4400/- as security money, totalling Rs. 1,01,600/- ( Rs. One lac, one thousand and six hundred ), with the learned Collector of 3 the district. Before the petitioner could set up the shop, Yugal Kishore Rai was allowed to shift his shop to Thatheri Bazar, Buxar. The petitioner, therefore, did not start the shop and instead challenged the same by preferring an appropriate application before the learned Excise Commissioner. The same was disposed of by order dated 08.10.1991 (Annexure-3 ), whereby he held that the learned Collector had allowed the shop of Yugal Kishore Rai to be shifted from Namak Gola to Thatheri Bazar, which was in violation of the prescribed procedure. He, however, concluded as follows:- “ Para-5 : Shifting is no solution as it benefits one licencee at the expense of another. If Thatheri Bazar merits another shop, the Collector should so propose and on approval by the Excise Commissioner, settle that vend through auction-cum-tender. Shifting bye-passes this procedure, denies other aspirants a chance to compete and deprives Government of possible additional revenue. As a result, the Collector, Bhojpur is directed to ensure that the Namak Gola shop is not run in a locality other than that for which the sale notification was issued. Para-6: As far as the petitioner is concerned, if he has failed to open his shop as per the terms of the sale notification and caused any loss of revenue to Government, he should be proceeded against accordingly.” 5. Aggrieved by the observation made in paragraph-5 of the order, Yugal Kishore Rai preferred C.W.J.C. No. 7527 of 1991 ( Yugal Kishore Rai vs. State of Bihar & Ors.). A Division Bench of this Court disposed of the writ petition on 14.02.1992, with the 4 following observations: “ Prima facie, we are of the opinion that the case of respondent no.6 appears to be genuine. We are informed that the appropriate authority competent to order for refund of the amount deposited by respondent no.6 , if so advised, may file an application before the Member, Board of Revenue, stating all the facts and annexing a copy of this order with a prayer for refund of the amount deposited by him for the shop at Thatheri Bazar area leased out to him for the year 1991-92 and if such an application is filed, Member, Board of Revenue shall pass an appropriate order in accordance with law.” 6. As directed by the High Court, the petitioner moved the Board of Revenue, which disposed of stating that the petitioner would be well-advised to move the learned Excise Commissioner. The petitioner, therefore, moved the Excise Commissioner, which has been rejected by the impugned order. The Excise Commissioner rejected the same by the impugned order, inter-alia, on the ground that, if the petitioner did not want to operate after Yugal Kishore Rai was allowed to operate at the same place, he should have taken the steps to surrender the licence under rule 44 of the Bihar Excise Rules. In that view of the matter, the State Government initiated the aforesaid certificate proceedings for realization of the losses caused to the State Government. Hence this writ petition. 7. We have perused the material on records and considered the submissions of the learned counsel for the parties. 5 We would like to base our decision on the basis of the observations made by the learned Excise Commissioner in his order dated 08.10.1991, paragraph-5 of which has already been reproduced. This has to be read with the observation of the Division Bench of this Court in paragraph-8 of the order dated 14.02.1992, which has also been reproduced hereinabove. It is thus evident that the learned Collector of the District of Bhojpur had taken the decision to allow Yugal Kishore Rai to operate the shop at Thatheri Bazar, Buxar, which was impermissible in law. If the learned Collector felt inclined to grant requisite permission to Yugal Kishore Rai, to operate at Thatheri Bazar , he should have obtained prior approval of the learned Excise Commissioner, followed by a tender notice, failing which it became illegal exercise of power and has caused prejudice to the petitioner. The learned Collector passed unreasonable and unjust order allowing Yugal Kishore Rai to operate the shop at Thatheri Bazar, in a situation where he had been granted licence to operate at Namak Gola as per the established procedure. We are, therefore, convinced that the petitioner is entitled to refund a sum of Rs. 1,01,600/- ( Rs. One lac one thousand and six hundred) with interest. The learned Excise Commissioner in his order dated 08.10.1991 ( Annexure-3) has rightly come to the conclusion that “ shifting is no solution as it benefits one licensee at the expense of another.” The petitioner was surely prejudiced. After he reached this conclusion, the sum of Rs. 1,01,600/- had to be refunded with interest. Once we hold 6 that the money has to be refunded it follows as a matter of corollary that the petitioner is not liable for the losses, if any, to the State Government. On the contrary, the petitioner was deprived of his business on account of the ultra vires decision of the State Government and he is entitled to compensation. Therefore, initiation and continuance of the certificate proceeding is bad in law. 8. In the result, this writ petition is allowed. The learned Collector of the District of Ara at Bhojpur, is directed to refund the sum of Rs. 1,01,600/- with interest @ 11% from the date of deposit till the date of refund. The learned Collector is directed to ensure refund within a period of six months. We also quash Excise Certificate Case No. 14 of 1992-93, pending in the court of learned District Officer, Bhojpur at Ara. Birendra Prasad Verms,J : I agree. PATNA HIGH COURT Dated 16th August, 2010 BTiwary/ N.A.F.R. ( S. K. Katriar, J ) ( Birendra Prasad Verma, J)