1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.2859 of 2008 (Vicky s/o Kundan Mulchandani v. The State of Maharashtra and others) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri S.G. Jagtap, Advocate for Petitioner. Shri S.J. Jichkar, AGP for Respondent Nos.1 to 4. Shri R.D. Bhuibhar, Advocate for Respondent No.5. CORAM : D.D. Sinha and Prasanna B. Varale, JJ. DATE : 18th September, 2008 Heard the learned counsel for the parties. The writ petition is directed against the impugned order dated 12-6-2008 passed by the State Government, whereby permission is granted to transfer FL-2 and CLFLTOD-3 licence of M/s. Tanwani Wine Shop from Gondia to Nagpur. The learned counsel for the petitioner has contended that the impugned order is passed by the State Government under Rule 25(4)(C) of Bombay Foreign Liquor Rules, 1953, whereby permission to shift the liquor licence is granted to respondent No.5. It is contended that the sale-deed executed between the owner of the Wine Shop and the builder shows that the premises in question are required to be used by the owner of the Wine Shop not for the purpose 2 of sale of liquor, beer or any other beverages. It is contended that by virtue of this condition mentioned in the sale-deed, respondent No.5 is not authorized to sell the liquor, beer or any other beverages in the shop block. The learned counsel for the petitioner further contended that the permission, which is granted, is without considering this condition in the sale-deed executed between respondent No.5 and M/s. Piyush Builders and Developers. It is further contended by the learned counsel for the petitioner that there is a lease-deed executed between M/s. Piyush Builders and Developers and the Nagpur Improvement Trust, wherein it is mentioned that the land on which the building is constructed is meant for residential purpose only. It is contended that said condition mentioned in the lease-deed is also ignored by the authorities concerned while granting permission for shifting of FL-2 and CLFLTOD-3 licence. The learned AGP for respondent Nos.1 to 4, on the other hand, submitted that the impugned order is just and proper. It is specifically stated on affidavit that though the order of transfer is communicated by the Desk Officer, however the same is issued by the State Government, however it is communicated by the Desk Officer, and, therefore, the contention canvassed by the the learned counsel for the petitioner that the order is not passed by the State Government, is wholly incorrect. The AGP contended that so far as Government Notifications dated 20-4-2005 and 31-3-2006 are concerned, the following 3 conditions are required to be considered by the State Government before granting permission to shift the shop, which are as follows : “a) Considering the sale of liquor of past five years, the sale of liquor of any two years of last four years shall be less than the sale of first year of this block of five years; or considering the sale of liquor of past five years, the sale of liquor of any three years shall be less than the annual average sale of the liquor for the same five years. Provided that, the licensed shop holds valid licence during the said period. b) That there is no inconvenience of drinking of liquor to the people residing in that area. c) That the Grampanchayat in whose area licensed shop is proposed to be shifted, has given no objection by passing a resolution of the Gramsabha, and if the shop is proposed to be shifted to any area other than Grampanchayat area; no objection of the Municipal Council concerned has been obtained. d) That the proposed premises are free from distance restriction as provided under Sub-Rule s(2) and (3) 4 above. e) That the construction of the premises in which shop is proposed to be shifted is an authorized construction and a certificate of the competent local authority is submitted.” It is contended by the learned AGP that the State Government, after taking into consideration of all these factors, has found that the proposal for shifting submitted by respondent No.5 does fulfill the conditions and, therefore, permission to shift the Wine Shop is granted by the State Government by issuing the impugned order. It is further contended that since the location of shop is within the limits of Municipal Corporation, no objection certificate is not necessary. We have considered the rival contentions canvassed by the learned counsel for the petitioner as well as the learned AGP for respondent Nos.1 to 4. In the backdrop of the above-referred facts, there is no reason for us to disbelieve the affidavit filed by the respondent-State, wherein it is specifically and categorically stated that the order is passed by the State Government and only communicated by the Desk Officer. Similarly, so far as the conditions mentioned in the above-referred notifications are concerned, it appears that the proposal of respondent No.5 does fulfill those conditions and hence the order impugned cannot be said to be bad in law on this count. Similarly, the building in which the shop block is 5 located, is neither illegal, nor unauthorized construction and as per the requirement under the rules, the permission can be granted to shift the Wine Shop in such place. It is no doubt true that the petitioner has submitted objection for shifting of the Wine Shop, to the Commissioner of State Excise on the various grounds, one of them was that in the sale-deed executed between respondent No.5 and M/s. Piyush Builders and Developers, there is a clause, which stipulates that respondent No.5 shall not sell liquor, beer and other beverages from the shop block in question. So far as this condition is concerned, in our view, the same is not relevant for the Department while granting permission to shifting and it is open for the Builder to act accordingly, if he so desires and if is permissible in law. In the circumstances, no case is made out for showing indulgence. The writ petition is, therefore, dismissed. The learned counsel for the petitioner prays that the present order be stayed for two weeks. Since our observations are based on rules as well statements made in the affidavit filed by the State, the prayer for staying the effect and operation of this order is rejected. JUDGE JUDGE Lanjewar