IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.2680 of 2011 ====================================================== Jhaman Bhagat, S/o Late Ram Ashish Bhagat, R/o Village-Kutubpur, Saidpur, P.S.-Biddupur, District-Vaishali. .... .... Petitioner Versus 1. The State of Bihar 2. Commissioner, Department of Excise, Government of Bihar, Patna. 3. District Magistrate, Vaishali at Hajipur. 4. Superintendent of Excise, Vaishali at Hajipur. ……. Respondent 1st Set. 5. Raj Kumar, S/o Sri Ganga Rai, R/o Village-Sonpur Paharichak, P.S.- Sonpur, District-Saran. ….. Respondent 2nd set/Respondents ====================================================== Appearance : For the Petitioner : Mr. Ajay Kumar Thakur with Mr. Dudh Nath Singh, Advocates. For the Respondents : Mr. Vikas Kumar, A.C. to Advocate General. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 5. 16.05.2011 With the consent of the learned Advocates, the petition is heard and decided today. The petitioner, a licensee of a liquor shop has filed this petition under Article 226 of the Constitution to challenge the order dated 15th July 2010 made by the District Collector, Vaishali sought to be implemented under order dated 24th January 2011. Under the licence for a composite liquor shop for the year 2010-11, the petitioner established a shop within Amer Gram Panchayat. The petitioner was given notice on 10th April 2010 to shift his shop to objection free site. As the petitioner failed to give an objection free site, under the impugned order Patna High Court CWJC No.2680 of 2011 (5) dt.16-05-2011 2 dated 15th July 2010, the breach of condition of licence was compounded as envisaged by Section 68 of the Bihar Excise Act, 1915. The petitioner was called upon to pay a composition fee of Rs. 75,000/-. In the mean time, the petitioner approached this court under Article 226 of the Constitution in C.W.J.C. No. 6732 of 2010 for a direction to the respondent no. 5 one Raj Kumar, the licensee of another shop, to move his shop from the vicinity of the shop of the petitioner. The said petition was disposed of by us on 27th August 2010 with liberty to the petitioner to prefer appeal before the Commissioner of Excise. Pursuant to the said direction, the petitioner approached the Commissioner of Excise in Case No. 31 of 2010 to challenge the order of the District Collector. The said appeal was decided by the Commissioner of Excise on 15th December 2010. The Commissioner of Excise upheld the finding of the District Collector that the shop of the respondent no. 5 was not objectionable and it was the petitioner whose shop was objectionable. In view of the said finding the Excise Commissioner directed “if the appellant provides objection free site, the District Collector is hereby directed to expedite the approval of the same as per rules. If, however the appellant fails to offer any such site the District Collector shall be free to initiate appropriate action in the matter which may include recovery of lost revenue as well as termination of the license as per rules. With such observation, this appeal is hereby disposed off”. Since the aforesaid direction the District Collector has revived the order dated 15th July 2010. Under impugned Patna High Court CWJC No.2680 of 2011 (5) dt.16-05-2011 3 communication dated 24th January 2011, the site offered by the petitioner has been accepted as objection free on condition that the petitioner deposits composition fee of Rs. 75,000/-. Feeling aggrieved the petitioner has preferred the present petition. Learned Advocate Mr. Vikas Kumar has appeared for the respondents. He has contested the petition. He has strenuously urged that the subject matter of dispute before this court in C.W.J.C. No. 6732 of 2010 and before the Commissioner of Excise in Case No. 31 of 2010 were entirely different. The objection was against the site of the shop of the respondent no. 5; that objection having been rejected; the District Collector was entitled to recover the composition fee imposed on 15th July 2010. The said order dated 15th July 2010 was never under challenge before the Commissioner of Excise. He has also submitted that pursuant to the order dated 24th January 2011 the petitioner requested for time for payment of composition fee (Annexure-E to the counter affidavit). Having thus submitted to the order imposing composition fee, the petitioner cannot be permitted to challenge the same. We are unable to agree with Mr. Vikas Kumar. What the petitioner challenged was the location of the shop of the respondent no. 5. According to him, it was the respondent no. 5, who was at a wrong place, ought to have been moved away from the petitioner’s shop. That objection was not accepted by the Commissioner of Excise. However, as reproduced hereinabove the Commissioner of Excise allowed time to the petitioner to offer another objection free site. It was only in case of his failure to offer another objection free site; the Patna High Court CWJC No.2680 of 2011 (5) dt.16-05-2011 4 District Collector was allowed to initiate appropriate action in the matter. Instead, though the petitioner did offer an objection free site which is accepted by the District Collector, he has proceeded to implement the order dated 15th July 2010. According to us, in view of the direction issued by the Commissioner of Excise in Case No. 31 of 2010 the earlier order dated 15th July 2010 was of no consequence. The District Collector could not have revived the earlier order dated 15th July 2010 and charged composition fee from the petitioner. The petitioner’s application for grant of time to deposit the composition fee cannot be treated as an act to submit to the order dated 15th July 2010. For the aforesaid reasons, the petition is allowed. The impugned communication dated 24th January 2011 insofar as it calls upon the petitioner to pay composition fee of Rs. 75,000/- is quashed and set aside. The parties will bear their own cost. Sujit (R.M. Doshit, CJ.) (Jyoti Saran, J.)