^^- HIGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR n/RIT PETITIONffO. 2178 OF 2003 PETITIONER RE5PONDENT5 - Versus- 1. 2. 3. Smt. Shakuntala, Wife of Munnalal Jaiswal, Resident of Parsuram Ward Bhatapara, District Raipyr (C.6.). State of Chhattisgarh, Through the Secretary, bepartment ofExcise, b.K. Bhawan, Raipur (C.6.). The Collector, Kaipur (C.&). The District Excise Officer, Raipur (C.G.). ORDER ON^^August, 2003. Sd/- LC.Bhadoo Judge ^.ta-athKtW" ^^r^L':.^;H^~^ \\ ;-'^ HI©H^COuRTOF JU&ICnTvRE CHHATTIS6flRH : BIL/<SPUR WRITPETITIONNO. 2178 OF 2003 PfclITIONER RESPQNDENTS - Versus 1 3. Smt. Shakuntala, Wife of Munnslal Jaisw'al, Resident of Parsuram Ward Bhatapara, &!Strict Rciipur (C.(3.). Stats of Chhattisgarh, Through the Secretory, bepartment of Excise, D.K. Bhawan, Raipur (C.&). Tns Coliector, Raipur (C.6.). Ths District Excise Officer, Raiour (C.6.\ Present:- Shri B.K. Rawat, counsei for the petitioner. Shri Saijcy K. Agrawal, beputy Advocats 6er\era.\ for the State/respondents. ORDER (Passed on/^A> August. 2003) By Jystjce L. C. Bh^doo 1. Tne petitioner who is a ho+ei bar iicence hoider by this petition filed under Article 226 of the Constitution of India calls jnto question the order of the Co!!ector, Raipur, piissed on 22-6-2003 cancellin9 the licence FL-3 held by the petitioner at Parsuram Ward, Bhatapar'a. ^s 2. The petitioner's petition is that The petitioner has been granted licence No. 35 under FL-3 for the yesr 2003-04 according to the Foreign Liquor Ruies, 1996 on payment of iicence fee of Rs. 2,50,000/- ot Parsuram Ward, Bhatapara, within the municipal limit for the period from 30 April 2003 to 31st Mareh 2004. Copy of the !icsnce is Annexure-P/1. There was a dispute betiween the two groups of ladies of the localities for the reason thot both the qroups crrs diyided into two po!iticcil parties. One qroup of; ^--SSpF^- @ 2 the !udies were taking siynatures of the !auies of the locality a9ainst runninq of the Beer bar Licence of the petitioner. The other gr-oups were c!so tsksng ss^riGturss in fiivoijr' of the pstitjonsr*. 3. On 22-6-2003 the raeiT.cr'andun'. svas subrp.itted by some of the ladies to the Coiiector requestjng for canceiiatidn of the iicence of the petitioner in respect of FL-3 licenee. On r'ece'iving the eomplaint, the Collectoi" has passed the fina! oi-der on the same date i.e., 22-6-2003 cancelling the iicence of the petitioner without issuance of any showi cause notice to the pstitjonsr or without affordiR9 any opportunity of hearing as contempiated under sub-Saction 1-A of Section 31 of Chhattisgarh Excise Act. 1915. 4. The order of +he Collector passed on the application hos been obtained by the petitioner from the office of the Excise Officer, Raipur, In pursuance of the ordar of the Collector on the same day the entire stock of the petitioner hss bsen seized by the Excise Department, Bhatopara which is also fiied herewith as Annexure-P/4. 5. Tne order of the Coliector and the seizure of the stock is patently illegal and without jur-isdiction being violative of Article 14 and 19 (I)(g5 of the c-0n37iTuTi0n 07 J.iiuiu. 6. As the order csncelllng the licence of the petitioner has been passed without affordinq an opportunity of hearing which is violative of principles of nffr+yrQf iystice and <uch sction of fhe; res&ondents is anienable issuance of suitabie writ under jArticle 226 of the Constitution of India. It is, therefore, proiyed that this Hon'ble Court inay kindly be pleased to quosh the order of the Collector, Raipur doted 22-6-2003 cancelling the iicence FL-3 held by the petitioner. 7. fteturn has been filed on behaif of the respondents statin9 that on 22-6-200.3 the Co!!ector, Raipur under the instructions of the 5tate ffovernment ofganized a 'Somadhan Shivir" cf Bhatapara. The Sover-nment in.this behalf has issued instructions, a copy of which is filed herewith as Annsxur-e-R/1, by svhich the Coilectors have beeninstructed todisfiose of the complaint/applications on the spot. On that day buomen of th^ are< I]. IE made serious comp!aint in the cump wherein They demanded thot The licence granted to the petitioner should be cancelled. It is respectfully submitted thst 90%. ivomen of the area also "".ade the demand on 19-5- 2003 and on 30-5-2003. The main ground of the objeetion uuas that the plgce for which the licence wos granted was near a temple and that it was situuted in u residentiu! area. Immediateiy, an inspection of the spot was made and it was found that the hotel was situated ina residential areo and thers i"as a temp's nssrby. It is s!so "sspsctfully submitted that the ruies of generai application provide for location of the shops cnd licenced pr'emises- The place was an obiec+ionable one in accordance with the said rules. It was also observed in the "Soroudhan Shivir" that if no action is taken on the complaint there was a strong likelihood of breach of peace and tfGnQuiiitv of ths orss 'sctdsRG to 'sw Gnd ordsr situation.. 3. Xt mav bs bosntsd out thct ths concsilotiGn is not on out and out canceliation. An option has been given to the petitioner to apply for any other place os would be evident from the docunient Annexure-P/3. It 'is subrriitted thst the petitioner has an alternative remedy to challenge the order in an appeal which is provided under the rules for'mulated under Section 62 of the ChhctttiSQQrh Exciss Act. 1915. The. oeneral licence conditions have been formuiated under the powers conferred by the Section 62 of the Act, 1915. In condition No.5 the Collector (the Licencing Authority) is authorized to tronsfer the shop from one local area To another and also can order for ciosure of the shop. The petitioner hss preferred this peti+ion inyoking extraordinary jurisdiction of this Hon'bie Court under Articie 22&/227 of the Constitution of India, therefore, the petition be dismissed. 9. I have heard Shri B.K. Rawat, counsel for the petitioner and Shri Sanjsy K. Agraws!, Deputy Advocate Senera! for the State / respondent. 10. I* is not dlsputed thot The Coilecl-o" before cancelling the petittoner's hcer.ee had neither issued any notice requiring her to expiain about the comp!aints of the women of the locality nor did the Collector gme her- an opportunity in any other" manner to meet tns allegations. As such, the order of the cancellation of the licence is viotative of the principles of, natura! justice and the same 'is inva!id and void. The power of the Licencing Authority is under 5ection 31 of the Act to cancel and suspend ths hcsnce i3nd ths function of ths Licsncing Authority granting and canceilin9 the iicence is a qucsi judiciai function as has been held by the ,. Madhya Pradesh High Court in<UR 1969 MA&HyA PRA&ESH 176. The iicencing authority (Coilector) i3 uuthorized to ccncel the licence either under 5ection 31 of the Excise Act, 1915 or under Rule 23 of the "ChhcittiSQcr'h Exciss 5®++!srR&nt o'f Licsncss for Retaii Sale of Country/'Foreign Liquor Ruies, 2002" on the grounds mentioned in these pt-ovisions of law and sub-section l-A of Section 31 of the Excise Act and Sub-rUtS 2 O) th£Ruieo 23 prescribss thed "Before cancellir^ the licence, issue show-cause notice to the iicencee und afford him u reasonobie opporhinity of being heard . 11. AdF?iittsd!v. sn this cass no GOportunity hcs bssn Qiven to the Detitioner herein before canceiiin9 her iicence. 12. Tne iearnea counsei for the respondents submitted that in this case the licence of the petitioner has not been completely cancelled, but an option has been gwen to the petitioner thct if she ir-ants then she is entitled to . shift her> shop. 13. A perusal of the Annexure-P/3 shows that The licence has been cancelled snd the option has been yve" to ths petitionar that if the petitioner wants then s'ne can appiy for another piace, therefore, the liecnca has been cancelled without affording an opportunity to the petitioner and as has been he!d by the Division Bench o-f M.P. High Court in AIR 1969 KAbWA PRAOESH 176 in the case of Sukhlal Sen Vs. Collector. Distr'ict ScitytG ond othsrs that^- " .......o duty has been imposed upen the outhority the. duty to oct judiciaily. It is neeessarily follows that the autherity ntUst •foiio'n the requii'einents of noturaf justice and must give on opporhinity to the lice'nsee to meet the oiiegations of breoches of tenns ond eonditions of the licence repor'ted agoinst him before cnncelirg the licence. / - r.H?r"' Zn thot Cuse. uisO without uiforuing the opportunity to ths petitioner the licence was cancelled.and the Court held that;- c- "since the opporhjnity wos not given to the petitioner it hos to be he!d that the cunceiiution of the licence was invalid and yoid." Thsr-efore, in this cass a!so ths 'icanee has basn csncelled without affording on opportunity to the petitioner, as such the order cancelling the licence Annexure- P/3. da+ed 22-6-2003 'ie invaljd and vojcl. 14. As far as the question of alternative remedy available to the petitioner is concsmsd thut ths pstitionsr ouyht to huv€ fiied an app&al befors ths Commissioner which was ayailable to her under the Rules framed under ^sction 62 o'f +he .Act. Qn this &G!n+ !?! ths sctme decision the Pradesh Hi9n Court heid that;- ila .the arguments advanced by the iearned Sovemment ji^lu^g+g thet t^s Dsti^onsr shou'd "ot be reiief, as he did not avail of the alternative remedy of goir^ up in Gppeci* Qgsinst the order o'f ^ie Collector. The existence of on alternative remedy is not always a bar for issuance of a writ of certiorari. It is no doubt true thot ths High Court may refuse ts exeresse its jurisdiction under Article 226, if the petitioner did not avail of altemative reffiedjes, but the ruie requirirg the exhaustion of altemative remedies before the writ will be issued is not a ruie of iaw but is a ruie of policy, eonvenience and ^|jsc!^ti<??i. Ths Hish Court wsH rscdHy issue a writ of certiorcri in a case where there has been a denial of iiuiuiaui juaiivii^ and uitimaTely the Court heid ThaT:- since the prii'ieipies of nGtura! Justics wsrs tiot followed thot being o fundamentnl defeet and it wouid not be a sound exercise of discretion to refuse to interfere simpiy on the ground +IIQ+ ths sctstiOFSsr cou!<I hcys oons uo w QDDcof. 15. In The present csse aiso the principles of natural justice has been vioiated, therefore, there is no fprce in the argument of the learned &sDL!ty .Adyocctts €r£nel<ci!that ths Dstitionsr ouoht to havs availeid thc aiternatiye remedy of appeai. / , .>.: 1 _...„__.,./" 16. In the resu!t, the petition of the petitioner is allowed. The impugned order of the Coilector, Annexure-P/3 dated 22-6-2003 is quashed. 17. Cost is made easy. Sd/- LC.Bhadoo Judge