*1* wp.8291.10.912.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8291 OF 2010 Geeta P. Sapre. ..Petitioner ­Versus­ State of Maharashtra and others. ..Respondents .......... Mr.D.B.Sawant, for the Petitioner. Ms.P.S.Cardozo, AGP, for the Respondent Nos.1 to 3/State. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 21st June, 2011. P.C.: 1 Heard both sides. 2 Rule. 3 The Respondents waive service. By consent, rule made returnable forthwith. 4 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioner challenges the decision of the Minister of Excise, Government of Maharashtra dated 21.03.2009 in a revision application. 5 By the order under challenge, the Revisional Authority has held that Rule­5 of the Bombay Prohibition (Privilege Fees) Rules, 1954 as amended by notification dated 18.06.2004 whereby in case of death of original licencee, no fee shall be charged for transfer of the licence in the name of heir and legal representative of the deceased, is not applicable in this case. The said rule came into force from 18.06.2004. The Petitioner paid an amount of Rs.91,000/­ on 01.12.2003. In these circumstances, upon the death of the original licencee, for insertion and entering the *2* wp.8291.10.912.sxw Petitioner’s name therein, the charge or transfer fees already paid is not liable to be refunded. It is this decision, which is challenged in this petition. 6 Reliance is placed on the wording of the notification and the decisions of this Court. The very objection that the licence has to be amended by entering the names of heirs and legal representatives of the deceased­licencee and for that the fee has to be paid, is considered by this Court in several Writ Petitions and the copies of orders have been annexed at Exhibit­K onwards to this petition. 7 In Writ Petition No.2974/2006 (Rameshwar Laxmandas Agarwal v/s State of Maharashtra & others) which was decided on 06.12.2006, the learned Single Judge considered identical objection raised on behalf of the State. In paragraph No.6 of the judgment, this is what is held:­ “6. The revisional authority has held that the government notification dated 18th June, 2004 will not govern the case of the Petitioner on the ground that the matter is of the year 2003. The approach of the authority is ex­facie erroneous. The case which related to the Petitioner had not attained finality and there is no reason why the Petitioner should not be given the benefit of the notification dated 18th June, 2004. Even otherwise de­ hors the said notification the case of the Petitioner was squarely governed by the decision in Sylvia Leo Carvalho’s case. In the circumstances, the Petitioner is entitled to succeed. The demand made by the authorities on the Petitioner in the sum of Rs.88,550/­ is patently unlawful. Rule is made absolute in terms of prayer clause (a). However, in the facts and circumstances of the case, there shall be no order as to costs.” 8 In my view, once the State has failed to point out anything to the contrary and the legal position reflected in the orders of this Court passed from time to time is very much clear, then, the objection needs to *3* wp.8291.10.912.sxw be overruled in this case also. If the amount is paid on 01.12.2003 and the notification is dated 18.06.2004, but there is nothing in the notification which says that the benefit will not be available to such persons who have paid the amount prior to the date of notification, the Writ Petition must succeed. Rule is, therefore, made absolute and the orders passed by the Collector, Ratnagiri and the Commissioner of Excise and that of the Revisional Authority which are impugned in this petition, are quashed and set aside. Rule is made absolute in terms of prayer clause (a). The amount be refunded to the Petitioner within a period of eight weeks from today. (S.C. Dharmadhikari, J)