1 wp3540/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3540 OF 2011 Nandkishore s/o Ganeshlal Jaiswal, Age 60 years, Occupation Business, Resident of Gahtnandra, Taluka Sillod, District Aurangabad Petitioner V E R S U S 1 The State of Maharashtra, Through the Secretary, State Excise Department, Government of Maharashtra, Mantralaya, Mumbai – 32 Respondents 2 The Collector, Aurangabad 3 The Superintendent, State Excise Department, Aurangabad Shri Ramesh R. Mantri, Advocate for the petitioner Smt. R.K. Ladda, AGP for the respondents-State CORAM : A.V. NIRGUDE, J. DATED : 12th August, 2011 ORAL JUDGMENT : 1. Heard. 2. Rule. Rule made returnable forthwith. By consent of both the parties, writ petition is taken up for final hearing and heard finally. 3. This writ petition under Articles 226, 227 of Constitution of India is filed for challenging the order dated 26th April, 2011, passed by the Superintendent of State Excise, Aurangabad, in Case No. CLR 112009/11362 refusing to transfer CL-3 licence in favour of the petitioner after the death of the licence holder Smt. Parwatibai Ganeshlal Jaiswal. The petitioner is her son and he had with consent of the other legal representatives of the deceased licence holder, made an application for 2 wp3540/11 transfer of the licence in his favour. After this application is received, the learned Superintendent called for police report, and police, it seems, recorded their objection on the ground that the petitioner was involved in five cases under Indian Penal Code earlier. The learned Superintendent without giving an opportunity of hearing to the petitioner, rejected his application, only because there was an adverse report of the police. 4. The learned Advocate for the petitioner sought setting aside of this impugned order and remanding the case back to the competent authority. The learned AGP contended that there is no need to remand the case back, because, she said, the order is appeallable under Section 137 of the Bombay Prohibition Act. However, I am not inclined to accept her contention, because, if the petitioner is given liberty to file an appeal, he will loose one forum and would not be able to put forward his case on merits. Even otherwise, this order suffers from non-obedience of natural justice. 5. In addition to this, the learned Advocate for the petitioner also expressed his doubt as to whether the learned Superintendent of State Excise is empowered to decide his application in view of Section 28 of the Maharashtra Country Liquor Rules, 1973. Rule 28 reads as under : “28. Transfer of licence – The Collector may permit the transfer of a licence from one name to another or admit or delete thename of any partner after the licence is granted.” In view of this, it is only the Collector who would permit the transfer of licence. Rule 28 is applicable to the facts of this case. The writ petition succeeds. Rule is made absolute. ORDER 1. The impugned order is set aside. 2. The case is remanded back to the Collector, Aurangabad. 3 wp3540/11 3. The Collector, Aurangabad is directed to decide the application of the petitioner for transfer of country liquor licence after giving sufficient opportunity of hearing to him as per law. 4. The Collector, Aurangabad is directed to decide the application as early as possible within two months from the date of receipt of this order. 5. The parties shall appear before the Collector, Aurangabad, on 5th September, 2011. ( A.V. NIRGUDE, J. ) SRM/wp/3540/11/12/8/11