IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13482 of 2010 SANJAY SINHA son of Yugal Kishore Prasad, resident of Neem Tola, P.S. Nawadah, District Nawadah … … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary, Department of Excise,Bihar, Patna 2. The Excise Commissioner,Bihar, Patna 3. The Member,Board of Revenue,Bihar, Patna 4. The Collelctor, Nawadah 5. The superintendent of Excise, Nawadah … … Respondents For the petitioner: Shri Satyabir Bharti,Adv. For the State: Shri Prabhu Narayan Sharma, A.C. to A.G. ----------- 4. 4.2.2011 The petitioner before us in the present writ petition was a licensee for running twenty two retail liquor shops in the district of Nawadah on account of the same being settled to him on monthly licence fee of Rs. 3,77,400.00 for the period ranging from 4.8.2006 to 31.3.2007. The Policy of settlement of liquor shops was as per the instructions contained in Annexure-1 to the present writ petition which required, inter alia, that the payment of licence fee shall be realized on monthly basis for each month of twelve months of a year, the manner of realisation being set down in paragraph 14 of that particular policy decision contained in Annexure-1. All on a sudden, the State Government decided to review the settlement policy as also the fixity of licence fee along with its realisation. Accordingly, another instruction regarding the existing shops for the same financial year was issued which is contained in Annexure-7 as per which the existing licenses which had been issued on payment of monthly 2 fees were to be extended for further period of three months on the same monthly licence fee with 10 per cent thereof to be paid in one lump sum and in that case the vendor had to get 5 per cent of the Minimum Guaranteed Quota( MGQ for short). The notification contained in memo no. 1376 dated 14.3.2007 to the above effect having been issued, the petitioner applied for permission to deposit the monthly fees of his shops by a letter addressed to the Collector, Nawadah which is dated 26.3.2007 and is Annexue-8 to the present petition. What we find from the relevant orders and Annexures is that the licence of the petitioner was cancelled on 22.1.2007 on account of non-lifting of the MGQ of liquor which caused, in the opinion of the Commissioner, Excise, Patna, a loss of revenue. For, the licence of the petitioner having been suspended, the Collector, Nawadah was not inclined to grant extension of three months as per the direction contained in Annexure-7 to the shops run by the present petitioner. In turn, he referred the matter to the Commissioner of Excise, Patna seeking guidance on the proposal placed by the petitioner. The Commissioner, Excise, by his order contained in Annexure-9 directed the Collector, Nawadah, that in case the petitioner had paid the amount equivalent to the loss of revenue as also the sales tax with VAT admissible on the amount, the petitioner’s licence could be revived and period of three months was to be added up to those licences beyond the expiry period of 31st 3 March, 2007. Accordingly, the Collector, Nawadah, issued an order. It appears that the petitioner challenged this order of the Collector before the Commissioner, Excise in case No.2 of 2007 and that order appears upheld by the Commissioner, Excise, and the plea of the petitioner was rejected which prompted the petitioner to prefer a revision petition before the Member, Board of Revenue, Bihar, in case no. 16 of 2007. An order was passed by the Member, Board of Revenue on 4.5.2007 who set aside the order passed by the Commissioner, Excise on 12.4.2007. It is pertinent to quote the relevant part of the order passed by the Member, Board of Revenue which appears at page 10 of the order and runs as under: “The entire analysis of the decision making in this case indicates that decision was taken at the district level in a hurry. This is indicated by the fact that the Superintendent of Excise issued notice to the petitioner to lift the entire shortfall MGQ on 31.01.2007.The Collector cancelled the licence on 22.1.2007. Thus, the petitioner was deprived of the time which was given to him by the Superintendent of Excise. A fresh settlement was made by the Collector on 31.1.2007 which was set aside by the Excise Commissioner on 24.2.2007. When the order of the Excise Commissioner was communicated to the Collector for implementation, the Collector instead of implementing the order sought guidelines from the Excise Commissioner for implementation of the order. The direction was issued by the Excise Commissioner for withdrawal of the fresh settlement and restoration of the licence. Ultimately, the Collector issued fresh licence and restored the licence including unsealing of the shops. The permits were granted by the collector on 26.2.2007 which were issued on 29.3.2007. The petitioner took necessary action for purchase of the liquor. After 31srt March, 2007, no order was given by the Collector for extension of the licence in the case of 4 the petitioner. The petitioner filed a case before the Excise Commissioner for extension of time to lift the MGQ and direct the Colellctor to extend the licence. The Commissioner could pass the order on 12.4.2007 by which he directs that if the petitioner deposited the duty and Vat on the shortfall of the MGQ, his licence can be extended from 1.4.2007 to 30.6.2007. The petitioner was not able to run the shops before 31st March, 2007 on account of the problems arising out of frequent time limits given for lifting the liquor and cancellation of the licence by the Collector and ultimately non-renewal of the licence from 1.4. 2007. Since the petitioner was not able to sell the liquor due to various restrictions and cancellation of the licence it was not possible for him to deposit the total amount of duty and VAT on the shortfall of the MGQ. Through the letter of the Excise Commissioner dt. 14th March, 2007 a directive was given to all the Collectors for extending the period of licence in the financial year 2007-08 but the same was not done in this case. From the above facts it is clear that order passed by the Excise Commissioner on 12.4.2007 is not proper and is set aside. The petitioner’s licence should be extended up to 30.6.2007 in accordance with the directions given in letter no. 4/SI- 113/2006( part-I)-1 1376 dt. 14.3.2007 and he should be allowed to sell the liquor so that the necessary revenue accrues to the State government.” Thus the Member, Board of Revenue observed that cancellation of the licence of the petitioner was illegal and, as such, it could be revived. Accordingly, a direction was issued in the light of the decision of the government contained in letter no. 1376 dated 14.3.2007 (Annexure-7)to extend the licences of the petitioner for a further period of three moths. The Commissioner, Excise, thus, was extending the licence of the petitioner which was issued for the Financial Year 2006-7 to him by three more months for carrying on business. 5 It appears that the petitioner deposited the amount which was required to be deposited by him in the light of the order of the Board of Revenue quoted above under protest. He was again filing a petition for remission of the licence fee under Section 39 of the Bihar Excise Act. That petition appears disposed of by the Member, Board of Revenue on 20.7.2007 which order appears challenged before this Court in C.W.J.C. No. 5658 of 2008.While disposing of that writ petition the Division Bench of this Court was observing that while passing the order in exercise of powers conferred by law, the Member, Board of Revenue committed jurisdictional error and, as such, remanded the matter for re-hearing and decision. Accordingly, the petition under Section 39 of the Bihar Excise Act was re- heard by the Member, Board of Revenue in revision no. 2o of 2007 and an order was passed on 4.9.2009 who rejected the plea of the petitioner for remission of the licence fee which was required to be deposited by him for the period prior to the passing of the order dated 4.5.2007 by the Member, Board of Revenue. In other words, what the petitioner was asking for from the Member, Board of Revenue was that before 4.5.2007 he was without any licence and was not carrying on the trade due to sealing of his shops and, as such, he could not be asked to pay licence fee at the revised and enhanced rate as per direction contained in Annexure-7. The plea of the petitioner was rejected by the Member, Board of Revenue by his order dated 4.9.2009 6 The petitioner challenges that order passed by the Board of Revenue in the present writ petition. We have heard Shri Satyabir Bharti, learned counsel appearing on behalf of the petitioner and Shri Prabhu Narayan Sharma, Asstt. Counsel to Advocate General on behalf of the State. We were taken through all the connected documents and orders passed by the Member, Board of Revenue. From perusal of the materials placed before us, we find that on account of non-lifting and sale of the liquor which was fixed as MGQ to the petitioner, his licence was cancelled on 22.1.2007 and the same was revived in the light of order dated 4.5.2007 by which order the period of licence of petitioner was extended by three moths. As per the order contained in Annexure-7, the Collector, Nawadah was referring the matter to the Commissioner, Excise seeking guidance after the petitioner filed Annexure-8 before him so as to be permitted to deposit the requisite licence fee as per the guidelines contained in Annexure-7. The Collector was requiring the petitioner to pay the loss of revenue and thereafter the licence could be revived and extended for a period of three months. The petitioner was challenging the order of the Collector as regards suspension of the licence and it appears that the matter was properly gone into by the Member, Board of Revenue who was hearing case No. 16 of 2007. We have already quoted the relevant part of the order of 7 the Member, Board of Revenue and that indicates the circumstances and the orders which were created or passed against the petitioner, compelling the petitioner not to lift the MGQ of liquor as also due probably to the illegal cancellation of his licence. This was the reason that the Member, Board of Revenue was directing revival of the lience and its extension by 30.6.2007. This order, as we have noted in this order, was passed on 4.5.2007. Thus prior to 4.5.2007 and after 22.1.2007(the date on which petitioner’s licence was cancelled) the petitioner had no business and it is also admitted from some of the annexures that seals were put on the shops by the Collector which could be removed only after a proper order was passed and that appears indicated also from the order, (Annexure-13) passed by the Collector, Nawadah on 11.5.2007. After an order was passed for reopening of the shops the Collector was removing the seals on 26.3.2007 and the order reviving the lience was issued on 29.3.2007 and only two days were left to the petitioner for carrying on the business in financial year 2006-2007. We find that on account of the sealing of the premises, the petitioner, even after receiving the licence, was not in a position to bring the consignment of liquor from the godown to his warehouse for storage and sale. Thus, we find that from 22.1.2007 to 26.3.2007 the petitioner did not have any licence. The petitioner’s liceence was revived by the order of the Member, Board of Revenue passed on 4.5.2007. On 11.5. 2007 the 8 petitioner obtained the licence and thereafter he deposited the fees, the copies of the challans have been placed at pages 58 and 59 of the present brief. Thus, we do not have any hesitation in holding that from 22.1.2007 till the 11th of May, 2007 the petitioner was duly precluded by circumstances beyond his control to carry on his business and so he could not take benefit of extension of the period of his licence. There is no reason forthcoming to explain the above In fact, the reasons which have been recorded by the Member, Board of Revenue in his order dated 4.5.2007 indicate as if the Collector was creating circumstances against the petitioner in running his business. In this background of the circumstances, as we find from the record, we cannot uphold the order of the Excise Commissioner that the petitioner could be asked to pay up 10 per cent of the licence fee with the fixed fee as per direction contained in Annexure-7 to the present writ petition. The view we have taken appears supported by a Division Bench decision of this Court in Baleshwar Prasad Vs. The State of Bihar and Ors. reported in 2011 (1) P.L.J.R. 121. In that case for a particular period the business of the petitioner of that case remained closed on account of the shop being reconstructed so that it could be shifted to newly constructed place. The petitioner in that case duly informed the Collector about the closure of the shop and, as such, non-carrying on of the business. The Collector, in spite of the information of the above facts, had 9 cancelled the licence of the petitioner in that case but still the petitioner had paid the licence fees. It was held by the Division Bench that the petitioner was precluded from paying the fees on account of the circumstances indicated above and, as such, it was not justified on the part of the Collector to saddle the petitioner with the liability of paying the fee. We find the circumstances almost similar with the petitioner and, as such, we direct that the petitioner must not be asked to pay up the licence fee at the enhanced rate as per direction contained in Annexure-7 prior to the date of revival of his licence. In the result, we allow the petition in the terms indicated above. We direct that if the petitioner had paid any amount in excess of what we have directed, it must be refunded to him as expeditiously as possible. Kanth ( T. Meena Kumari, J.) ( Dharnidhar Jha, J.)