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B.P. Dharmadhikari, J.—On 24.06.2010, after hearing respective Counsel this Court noted that Writ Petition No. 4839 of 2009 is connected with the subject matter involved in Writ Petition No. 4474 of 2008, and that Writ Petition was already admitted for final hearing. Accordingly, Writ Petition No. 4839/2009 was also directed to be listed for final hearing along with Writ Petition No. 4474/2008. Petitioner and respondents in both the matters are same and CLIII license issued to petitioner under the provisions of Bombay Prohibition Act, 1949 forms the subject matter of both the Writ Petitions.
In Writ Petition No. 4474/2008, prayer of petitioner is to quash and set aside the order dated 08.08.2008, whereby he was called upon to clear the arrears of license charges amounting to Rs. 5,25,000/. The petitioner also seeks quashing and setting aside of communication dated 18.03.2008 informing him that he has to clear those arrears for the years 2000 to 2004. The reminder issued on 30.05.2008 therefore is also questioned. The petition came to be admitted for final hearing on 23.01.2009 and coercive recovery has been stayed.
In Writ Petition No. 4839/2009 the petitioner has challenged order dated 27.07.2009, whereby his application for shifting dated 15.07.2009 was filed as his license was found to have lapsed. Along with this communication he has also sought a direction to respondents to permit transfer for his CLIII license No. 99 from Pardi Naka, Nagpur to Shyam Nagar, Mouza Somalwada, Nagpur after necessary payment, according to the Privilege Fee Rules framed under the Bombay Prohibition Act, 1949. Petitioner had applied for shifting of his license to Juna Pardi Naka, Bhandara Road, Nagpur on 07.11.2002 and that application was allowed in January, 2004. In response to this permission, the petitioner started his CLIII shop at said address in May, 2004.
The petitioner holds a license issued under the aforesaid Act in form CLIII. He started his country liquor shop at Tulsibagh Road, Shukrawari, Nagpur and then he was directed to shift that shop to some other location. Accordingly he shifted the shop to Kukdey Layout. According to the petitioner that shop got burnt in arson, and hence in the year 2004 he approached the authorities seeking permission to transfer the same to Juna Pardi Naka, Bhandara Road, Nagpur. The permission was granted and business was commenced in shop block No. 3 and 4 in structure of Mahesh Cooperative Housing Society. The shop was owned by one Sanjay Jaiswal who let it out to petitioner. The site was approved and shop was started on 23.03.2005 therein & continued at that location for about three months. Thus according to the petitioner his shop got burnt in July, 1999. The said shop was required to be closed down because of the complaint made and orders u/s 142 of the Prohibition Act. The petitioner un-successfully challenged those orders in Writ Petition No. 3822/2005. In the light of the liberty given under orders dated 02.07.2005, canceling permission to open CLIII shop in shop block No. 3 and 4 above, the petitioner submitted a proposal for new site on 15.07.2009. By order dated 27.07.2009 petitioner was informed that his CLIII license had already lapsed.
In the meanwhile, according to him on 27.01.2004 he was directed to pay Rs. 8,43,160/ towards license renewal charges for four years i.e. 200001, 200102, 200203 and 200304. He states that petitioner then approached the Divisional Deputy Commissioner of State Excise at Nagpur and by order dated 07.02.2005, the Superintendent of State Excise was directed to take appropriate steps on renewal application, submitted by the petitioner. Petitioner states that on 31.03.2005 he had paid license charges of Rs. 1,95,000/ and his license was renewed for the year 200506. Thus, arrears as demanded vide communication dated 27.01.2004 were waived and it can be inferred from this renewal and the orders passed by the Divisional Deputy Commissioner. The subsequent demands for recovery of that amount are therefore, unjustified and unsustainable.
When the orders were passed canceling the permission to open CLIII license on 02.07.2005, the business was ongoing & he was given liberty to relocate that shop. Petitioner could get alternative site and hence sought permission to shift on 15.07.2009. It is argued that said permission could not have been rejected by stating that the license of petitioner had already lapsed. Petitioner contends that lapsing of license is concept unknown in Prohibition Act and when recovery of alleged arrears is stayed by this Court in Writ Petition No. 4474/2008, there could not have been any such lapsing of license.
In this background, I have heard Shri R.C. Madkholkar, learned Counsel for petitioner and Mrs. B.H. Dangre, learned Additional Government Pleader for respondents, in both the matters.
After pointing out the facts as stated above, Shri Madkholkar, learned Counsel has contended that the shop of petitioner started at Kukdey Layout got burnt in 1999 and the petitioner was then required to apply for duplicate copy of license and other documents. The same were accordingly supplied to him. He has relied upon an unreported judgment of Division Bench of this Court (at Bombay) in Messrs Samarth Co.operative Consumers Central Stores Ltd. v. State of Maharashtra and Ors. in Writ Petition No. 4796/2003 decided 01.10.2003, to urge that when the petitioner did not use the license and could not carry any business till he was permitted to open the shop again in Shop block No. 3 and 4 of Mahesh Cooperative Society, the demand for arrears from 2000 to 2004 is illegal and unsustainable. He has contended that the said judgment in case of Messrs Samarth Co.operative (supra) holds that when business was not carried, the petitioner cannot be asked to pay license fee. He also relies upon the judgment of learned Single Judge dated 06.11.2006 in Writ Petition No. 5016/2007 Shri Manohar Gangaram Barbate v. State of Maharashtra and Anr. following the above judgment, for the said purpose. The learned Counsel states that the department itself has been following this policy and he invites attention to the order passed by the Hon''ble Minister for State Excise, in proceedings u/s 138 in Case No. FLR1308/RA22/SE2 in the matter of M/s. Gokul Refreshment FLIII/233 Shivdi, Mumbai - 15. According to him in view of this consistent and settled position, the license of petitioner was renewed in the year 200506 by respondents here and petitioner was required to pay amount of Rs. 1,95,000/ at that time. In view of this renewal the alleged demand of arrears from 2000 to 2004 was waived and withdrawn by the department. He points out that on 27.05.2004 , he was permitted to shift the license to shop Nos. 3 and 4 of Mahesh Cooperative Society and he was directed to pay transfer fee of Rs. 17,700/ at that time, which he has accordingly paid. The said orders therefore, cannot be reviewed and the waiver allowed in favour of petitioner after following consistent judgments of this Court & departmental policy, cannot be allowed to be withdrawn. His contention is, there is no power to review under the Prohibition Act, and hence all subsequent orders calling upon the petitioner to pay arrears of license fee for period of four years are without jurisdiction. He is placing reliance upon the Division Bench judgment of this Court reported at Pramilabai Prabhakar Bulbule Vs. State of Maharashtra and Others, . in support of this contention.
He further points out that after shop was permitted to re open in 2005 in view of renewal of license in 200506, shop was closed down because of orders dated 02.07.2005 and its closure was for no fault on the part of the petitioner. The petitioner could not get alternate site till 15.07.2009 and he therefore, applied for shifting of shop to new site on 15.07.2009. Refusal of permission to shift to new site by the impugned order dated 27.07.2009 on the ground that his license has lapsed is therefore, unsustainable. The learned Counsel has invited attention to the provisions of Maharashtra Country Liquor Rules, 1973 particularly Rule 24(2A) and (3) for this purpose. He pleads that the petitioner has paid & department has also accepted renewal charges of Rs. 25/ every year even when the petitioner had no site and hence, his license is already renewed upto 31/3/2011. It has not & can not lapse. He further points out that though there is mention of this order that the petitioner can file an appeal u/s 137[2] of the Prohibition Act within 90 days, during the pendency of Writ Petition No. 4474/2008 his application dated 15.07.2009 could not have been rejected, behind his back. He asserts that no order of rejection passed by the Collector is communicated to the petitioner, and the impugned communication dated 27.07.2009 is under the signature of Superintendent of State Excise. It also mentions that same is as per the note sheet order of Collector dated 24.07.2009. He has also invited attention to that note sheet to urge that, that note put by the Excise Department has been mechanically signed by the Collector and full facts of the case of petitioner were not before him at that time. He relies upon the judgment of Hon''ble Apex court reported at Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , particularly paragraph Nos. 8 and 9 to urge that such noting cannot be viewed as orders passed in quasi judicial capacity and there is no question of filing any appeal in the matter. He has also relied upon the Division Bench judgment of this Court reported at 2009 (5) All MR 635 Abhishek Vidya Nand Singh v. Hindustan Petroleum Corporation Ltd. to point out the effect of violation of principles of natural justice in such circumstances. He argues that here the question of prejudice or no prejudice, is not at all relevant in such circumstances. Judgments of Hon''ble Apex Court reported at Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, . and reported at National Thermal Power Corporation Ltd. Vs. Mahesh Dutta and Others, , are also relied upon by him to urge that availability of alternate remedy as alleged in such situation cannot be the reason for this Court to refuse to exercise its jurisdiction.
Lastly, the judgment of learned Single Judge of this Court reported at 2009 [5] Mh.L.J. 538 Om Traders v. State of Maharashtra and Ors. is relied upon by him to urge that there the question of payment of Privilege Fees for transfer of licensed shop from one place to another has been gone into in the light of the Privilege Fee Rules, 1954. He states that those Rules are found to be applicable even to cases of transfer of CLIII shop, like that of present petitioner. He has invited attention to the fact that the amendment to these Rules effected on 04.06.2009 was not pointed out to this Court and as per that amendment in cases of present nature where shop is required to be transferred from one locality to another, for no fault on the part of the licensee or on account of calamities like fire or law and order situation, no privilege fee can be charged. He relies upon the amended Rule 4 and proviso added thereto, particularly proviso (A) and proviso (C). According to him the words "alike" used at the end of the proviso (A) cover the cases of calamities or where transfer is for reasons beyond the control of petitioner. He, therefore, states that in present matter direction to transfer the shop of present petitioner to Shyam Nagar, Mouza Somalwada, needs to be issued in the light of this amended provisions satisfying that no transfer fee can be charged from the petitioner.
He has also relied upon the judgment of Hon''ble Apex Court reported at Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , to point out the meaning of waiver and contends that here the Divisional Deputy Director of State Excise has after due application of mind ordered the renewal and hence the contention that there was no waiver, is misconceived. He also relies upon the judgment of Hon''ble Apex Court reported at 2010 [1] All MR 911 Shanti Sports Clum and Anr. v. Union of India and Anr., to urge that noting contained in file are not orders and cannot be enforced. His contention is, Collector i.e. the Competent Authority has not passed any orders as expected by law about alleged expiry of license of petitioner.
Mrs. Dangre, Learned Additional Government Pleader has contended that the license is only an authorization which automatically expires at the end of the year unless renewed in prescribed manner. According to her, there is no scope for continuing payment of application fee without license fee as both are distinct in nature. She points out that the petitioner has every year paid only application fee of Rs. 25/ which is covered under Rule 24[2A] of the Country Liquor Rules and he has not paid renewal fees as required by Rule 24[3] thereof. She has further contended that the story of fire in 1999 in shop at Kukdey Layout is introduced by way of amendment in Writ Petition No. 4474/2008 and the arson was never intimated to the respondents by the petitioner. According to her, there was never any such fire and petitioner of his own kept the shop closed from 1999 till 200405. She points out that all arrears including the arrears of license fee from 1996 till 2000 were paid by the petitioner in the year 1999 2000 and same practice ought to have been followed by him even while obtaining renewal for the year 200506. According to her there is no waiver and there is also no renewal in 200506. She invites attention to facts that on 27.01.2004 itself arrears of license fee of four years were demanded from the petitioner and that demand was then repeated in future. The demand letters issued in the year 2008 are in furtherance thereof. The learned Counsel has invited attention to the acknowledgment dated 31.03.2005 on which the petitioner has placed reliance to urge that there was renewal in 200506 to show that there was no such renewal and the mention in acknowledgment is very specific. The temporary renewal thereby is for period from 01.04.2005 to 30.04.2005 i.e. only for a period of 30 days. The renewal was temporary in view of the facts in dispute in the matter. Various documents on record are pressed into service for this purpose. The demand for arrears on 27.01.2004 itself was of Rs. 8,43,160/ and in March, 2008 demand made was of Rs. 5,25,000/ excluding interest. The communication dated 18.03.2008 is relied upon to show that the petitioner was warned that in case the arrears were not cleared, action to recover it in accordance with the provisions of the Maharashtra Land Revenue Code, would be taken. The learned Addl. Govt. Pleader points out that the said communication also informed petitioner that the alleged waiver of renewal charges for four years, cannot flow from the unilateral act of recovery of license fee for the year 200405. Attention is also invited therein to orders dated 02.07.2004 in Writ Petition No. 1180/2004 where in similar circumstances the licensee was directed to pay arrears. Various judgments on the point of no liability to pay license fee for period during which business was closed are stated to be not applicable in present facts and the subsequent judgment of Division Bench reported at 2005 (3) All MR 810Chunilal R. Gandhi v. The Collector of Mumbai and Ors., is being pressed into service to urge that, that judgment has correctly appreciated the legal position in this respect. Learned Addl. Government Pleader contends that there is no review undertaken by any authority in the matter and the provisions of Prohibition Act read with Maharashtra Country Liquor Rules are being rightly implemented.
Mrs. Dangre, learned Addl. Govt. Pleader points out that the alleged fire in his establishment in the year 1999 at Kukdey Layout is the integral part of the story of petitioner, and as that fact itself is disputed, the same cannot be gone into in writ jurisdiction. The alternate remedy in statute is the right forum to undertake that exercise. The learned Counsel therefore states that even on this count the Writ Petition is liable to be dismissed.
Perusal of impugned communications in Writ Petition No. 4474/2008 reveals that on 18.03.2008 the petitioner was served with a demand letter. That demand letter is on subject of shifting of CLIII license and with reference to his application dated 05.03.2004. The opening words therein show that CLIII shop of petitioner was closed by the petitioner because of strong protest and serious agitation by the people. The shop remained closed for a period of four years i.e. from 200001 to 200304 for want of accommodation i.e. site. Because of this grievance made in his application, he had sought waiver of license fee of four years. The office of the State Excise did not obtain proper orders from any competent authority and did not bring these facts to their notice. The office of its own recovered license fee for the year 2004-05 ignoring the past arrears and permitted the petitioner to use his CLIII license. This communication mentions that all this was wrong and illegal. As the license of petitioner was to be renewed, its continuity was required to be maintained and hence it was obligatory for the petitioner to pay arrears of license fee. This communication dated 18.03.2008 in this background points out the orders of High Court dated 02.07.2004 in Writ Petition No. 1180/2004 to highlight that in similar situation, High Court directed licensee to pay renewal charges even for closed period. The petitioner was therefore directed to pay arrears amounting to Rs. 5,25,000/ for a period of four years from 200001 to 200304. If the defence of petitioner about waiver is to be accepted then he had no cause to assail the demand dated 27/1/2004 till he was communicated alleged illegalities in it. The argument of Adv. Dangre that challenge in petition is stale has therefore to fail.
Perusal of communication dated 27.01.2004 sent by the Superintendent of State Excise to petitioner shows that for same period total amount of Rs. 8,43,160/ was demanded from him towards arrears of license fee, and interest upon it. The petitioner has in his Writ Petition No. 4839/2009 accepted the receipt of this communication dated 27.01.2004 and he has annexed the same as AnnexureB therewith.
The facts also show that thereafter the petitioner was permitted to start his CLIII shop in premises of Mahesh Cooperative Society and permission therefore was granted on 26.05.2004. Petitioner has relied upon a communication dated 07.02.2005 which is sent by the Divisional Deputy Commissioner for State Excise at Nagpur to the Superintendent of State Excise. This communication dated 07.02.2005 mentions that CLIII license of petitioner was temporarily renewed on 20.05.2004 by acknowledgment till 31.03.2005. It also mentions that petitioner has paid transfer fee and also Privilege Fees. Obviously this was for year 2004-2005. On 03.01.2005 area of proposed shop Mahesh Cooperative Society was slightly reduced and on 04.01.2005 petitioner was informed to produce the original document executed by the said Society in favour of the shop owner. The communication mentions that it was not necessary to take action as per letter dated 04.01.2005 and shop should be permitted to function as per letter dated 03.01.2005. The Superintendent of State Excise was permitted to effect necessary changes in CLIII license of petitioner and to return it to petitioner forthwith. Reply in confirmation of action taken accordingly was also immediately sought from that authority.
Acknowledgment dated 31.03.2005 produced by the petitioner as AnnexureX with Writ Petition No. 4474/2008 speaks of renewal application dated 31.03.2005 submitted by the petitioner. It gives license No. 99/200405 and renewal sought for was for year 200506. As pointed out by learned Additional Govt. Pleader this acknowledgment is by office of Collector, State Excise and it is also dated 31.03.2005. It mentions that amount of Rs. 25/ towards application were paid on 29.03.2005 and license fees of Rs. 1,95,000/ was paid on 31.03.2005. The renewal for the year 200506 is stated to be temporary i.e. for period from 01.04.2005 to 30.04.2005. It therefore, appears that the license of petitioner having No. 99/200405 was already renewed upto 31.03.2005 and thereafter it was temporarily renewed for a period upto 30.04.2005.
The question in this background is whether, there was any waiver of renewal charges for the period from 2000 to 2004. The communication dated 07.02.2005 issued by the Divisional Deputy Commissioner, does not speak of this period or any arrears. There is nothing in it to show that the amount in arrears was noticed and agreed to be waived by the competent Authority. The order of temporary renewal [as contended] in the shape of acknowledgment dated 31.03.2005 also does not make any reference to any such exercise of waiver. The communication dated 18.03.2005 at AnnexureIV (Page 24 in Writ Petition No. 4474/2008), mentions that there was no order in relation to these arrears by any competent Authority. The communication blames the office of State Excise for accepting license fee only for one year of 2004 05 unilaterally and also state that it was done illegally. Judgment of Hon. Apex Court in M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others,(supra), clearly lays down that waiver has to be of a known right. Waiver means abandonment of a right and it may be either expressed or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. In case of Government, waiver will have to be demonstrated by a conscious act with full knowledge of its consequences and by an authority competent to bind Government.
Whether there is really any such order of waiver , or then facts as contained in communication dated 18.03.2008 are correct or not, is the issue which arises for decision at this stage. The unreported judgment of the Division Bench at Bombay dated 01.10.2003 in Writ Petition No. 4796/2003 shows that there when petitioner had not carried on business from 1st April, 1978 till 31.03.2003 the Division Bench has found that licensee cannot be asked to pay license fee for that period. In Writ Petition No. 6356/2006 Manohar R. Rewale v. State of Maharashtra and Ors. the demand of license fee for closed period has been set aside by the learned Single Judge of this Court on 06.11.2006. The learned Single Judge rejected the Review Petition No. 22/2007 filed by the State Government on 23.03.2007. In Writ Petition No. 5016/2007 (at Nagpur) the learned Single Judge of this Court on 20.10.2008 noted that the challenge was to demand of license fee for period of 7 years from 200102 to 200708 with interest. The license was found not canceled for any fault on the part of the petitioner and hence the learned Single Judge noticed that the department could not have directed such licensee to pay license fee for period of 7 years along with interest. Finding reached is license was in existence for a period of 7 years. The learned Single Judge has noticed the unreported judgment in case of Messrs Samarth Cooperative (supra), and other Division Bench judgment in case of Chunilal R. Gandhi v. The Collector of Mumbai and Ors. (supra), where Messrs Samarth Cooperative Consumers Central Stores (supra) has been explained and distinguished. The learned Single Judge in this judgment dated 20.10.2008 found that case before this Court in Writ Petition No. 5016/2007 was neither of non renewal nor of merely shifting of shop from one place to another. Shri Madkholkar, learned Counsel as also Mrs. Dangre, learned Addl. Govt. Pleader have attempted to show how the judgment of Division Bench in case of Chunilal R. Gandhi v. The Collector of Mumbai and Ors. (supra) is in favour of their respective clients.
Perusal of the judgment in case of Chunilal R. Gandhi v. The Collector of Mumbai and Ors. (supra), reveals that the petitioner there was holding a liquor license and his complaint was in 200203 license fee for FLII license was increased 4 times and he found it un economical to carry on business. He closed that business on 01.04.2002. On 22.09.2002 he applied for shifting license to Thane District and he kept on pursuing that application. Thereafter, he sought shifting to Mangaon in Raigadh District and he was informed that his application was under consideration of Hon''ble Minister. His business remained closed for over two years on account of delay on the part of Government in allowing his application for shifting. He received a letter dated 25.03.2004 asking him to pay license fee for the year 2002 03 and 200304 along with interest. He approached the Department with judgment delivered in Writ Petition No. 4796/2003 (supra) and then the matter came up before the Division Bench of this Court. While considering the earlier judgment in case of Messrs Samarth Cooperative (supra), the Division Bench noticed that it was because of voluntary surrender of license and though the order was passed on 01.03.2001 to renew it, it was not served on that petitioner till 12.05.2003. The Division Bench noticed that thus during that period the petitioner had no license, and hence there was no question of calling upon him to pay any license fee. The Division Bench has then perused the relevant Rules and noted that as per the petitioners'' own admission, his license expired on 31.03.2002 and he sought transfer of license, thereafter. The observations in paragraph No. 9 show that judgment in case of Messrs Samarth Cooperative (supra), was confined to its own facts and in facts before it, the said judgment was held not applicable. In paragraph No. 10 the Division Bench found that license once expired can only be renewed if, permissible. If the licensee wanted to avoid renewal, he has to apply for fresh grant. If he wants transfer of license it presupposes, existence thereof, and such existence presupposes its renewal. The provisions of Section 49 of the Prohibition Act are noticed by the said Division Bench to conclude that the petitioner before it has to pay license fee and therefore, action of respondent in calling upon petitioner to pay it was upheld.
The petitioner before this Court has come up with contention that he has already paid renewal fees for license and demand of license fee or arrears thereof is irrelevant because license was never used. Perusal of Rule 24[2A] of the Country Liquor Rules show that it requires a person desiring to renew license to apply for renewal 30 days before the date of its expiry. Such application is to be accompanied by chalan evidencing payment of fee of Rs. 25/. This provision therefore only speaks of moving an application for renewal and fees for moving such application. It does not envisage renewal of license at all. The renewal is taken care of by next subrule i.e. Rule 24[3]. It states that every license granted can be renewed by the Collector for a period of not exceeding one year at a time on payment of fees as per scale mentioned in that subrule. I am not concerned with part of said subrule dealing with breach of any of the terms and conditions of the license. Thus power to renew & renewal fees are dealt with subrule [3] and same do not form part of subrule 2A. Making of an application for renewal and actual renewal of license are thus two distinct facets envisaged by the legislature in these Rules. Application fees of Rs. 25/ and license renewal fees as per scale are two independent factors dealt with in mutually exclusively provisions. Hence, payment of application fee only by the petitioner does not tantamount to renewal of license under subrule [3]. The renewal fees contemplated under subrule [3] must be paid in advance to secure such renewal and unless and until the same are paid, there cannot be any renewal. Contention that license of petitioner is already renewed till 31/3/2011 is thus erroneous. The Division Bench judgment in case of Chunilal R. Gandhi (supra) clearly shows that when license is sought to be transferred or renewed, the renewal fees as contemplated by Rule 24[3] for all past years are also required to be paid. The learned Single Judge of this Court at Nagpur in Writ Petition No. 5016/2007 has already noticed the distinction in the matter as laid down by the two Division Benches of this Court. Here unless and until a finding is recorded that the petitioner needs to be blamed or not to be blamed for not shifting his liquor shop from Kukdey Layout to any other area within reasonable time, the law as settled cannot be applied.
According to present petitioner, there was fire in his shop at Kukdey Layout in 1999 and it was set by some antisocial elements. Respondents are denying any such fire. But then in original petition also very briefly fact of fire fins mention. He has furnished only photocopies of photographs later on and respondents seem to be disputing everything. Petitioner was then permitted to shift his shop in 2004 to shop block No. 3 and 4 of Mahesh Cooperative Society. At that time, his license was renewed for the year 200405 and thereafter upon payment of full license fee of Rs. 1,95,000/ for period of 30 days from 01.04.2005 to 30.04.2005. His shop was then again closed down because of orders of Collector dated 02.07.2005 during 2005-06 for which he had paid full renewal charges. His challenge to said order of Collector was rejected by me on 28.02.2006 in Writ Petition No. 3822/2005. Orders of Collector dated 02.07.2005 assured him consideration of his proposal to relocate his shop. That proposal was submitted by him on 15.07.2009. Rejection of that proposal by communication dated 27.07.2009 on the ground that license had already lapsed forms subject matter of Writ Petition No. 4839/2009. Thus disputed question whether there was any fire in CLIII shop of petitioner in 1999 at Kukdey Layout, requires adjudication. Similarly, the situation in which petitioner could not seek transfer of that shop before 2004 also require verification. The petitioner who has a CLIII license deliberately kept it unused or was forced to keep it so, is the issue which begs answer. In what position petitioner paid license fees for the period from 1996 till 2000 for four years in one stroke or has habit of not operating the license as alleged by the learned Additional Government Pleader, is also a disputed question. All these disputed questions cannot be looked into for the first time by me in writ jurisdiction.
In the background of these facts and orders passed by the Courts in relation to the period when such license shop was closed or license was not used, the argument of alleged waiver also needs to be looked into. The petitioner has also pointed out an order passed by the Hon''ble Minister in the matter of M/s. Gokul Refreshment on same lines. There the Hon''ble Minister has directed not to charge any license renewal fee for period from 01.04.2005 till 31.03.2008. The acceptance of renewal charges from 200405 and 200506 from petitioner is not in dispute. In these circumstances, whether application for relocation of shop moved by the petitioner on 15.07.2009 could have been rejected by giving a reason i.e. his license had lapsed is also the question. It is more than apparent that the questions could not have been decided by the Collector without hearing the petitioner. The communication dated 27.07.2009 impugned in Writ Petition No. 4839/2009 does not show that the petitioner was heard. It only intimates him the availability of remedy of appeal in the matter. The perusal of note on which impugned orders are stated to be passed by the Collector, does not consider whether there was any fire or agitation by the antisocial elements in the year 1999 forcing the petitioner to close his shop, or then whether petitioner of his own kept his license un-utilized for disputed period of four years from 01.04.2000 till 31.03.2004 voluntarily. In absence of this material before Collector, the Collector could not have demanded arrears after 2/7/2005 and during pendency of Writ Petition No. 4474/2008, taken any decision declaring the license as lapsed on 24.07.2009. It is also apparent that such decision in the present facts could not have been reached without hearing the petitioner. Had petitioner been heard, there would have been proper evaluation of facts and application of law to it by the Collector. The objection about alternate remedy, thereafter could have held some water.
Though learned Additional Govt. Pleader for State Government has urged that because of availability of alternate remedy, this Court should not interfere in the matter. I find that Writ Petition No. 4474/2008 is already admitted for final hearing and Writ Petition No. 839/2009 is nothing but an extension of challenge in that Writ Petition. The necessary facts in the matter are not looked into by the Collector while passing the impugned orders. Even if it was to he held that the office of the State Excise Department acted either illegally or unilaterally in granting renewal in 200405 or then temporarily in 20052006, an opportunity of hearing to petitioner was essential. In this situation, the objection of alternative remedy is misconceived. The learned Counsel for petitioner has already relied upon two judgments of Hon''ble Apex Court and in present circumstances, as I find that there is failure of principles of natural justice, I am not inclined to accept the bar of alternative remedy.
Whether office notes or endorsements in file are enforceable as orders or the communication dated 27.07.2009 impugned in Writ Petition No. 4839/2009 can be construed as order, are the questions which need not be gone into here for same reasons. In view of these findings, I do not wish to refer in detail the two judgments of Hon''ble Apex Court in Shanti Sports Club and Anr. (supra) and Commissioner of Police v. Gordhandas (supra) or then the Division Bench judgment of this Court in case of Abhishek Vidya Nand Singh (supra).
The arguments of absence of power of review also needs to be briefly considered here. As already noticed above, while referring to the communication dated 07.02.2005 of Divisional Deputy Commissioner and other communications or orders, this Court has noticed that thee is no express reference to arrears for the period from 01.04.2000 till 31.03.2004. The question whether there is any such order or jurisdiction to order such waiver, is again a matter of fact. The same can be gone into by the competent Authority while hearing the petitioner in the matter. The absence of power to review in such Authority is concluded by judgment in case of Pramilabai Prabhakar Bulbule v. State of Maharashtra and Ors. (supra) and authorities are bound to apply it after facts crystallize. This aspect therefore, need not be dealt with in more details at this stage.
The judgment of learned Single Judge in case of Om Traders v. State of Maharashtra and Ors. (supra) was pressed into service only to show that the amendment as effected on 04.06.2009 to provisions of Privilege Rules was not noticed there and petitioner cannot be called upon to pay any transfer fee. The judgment is dated 12.06.2009 and it is apparent that the amendment which had come into force just a week before the judgment was delivered, has not been pointed out to this Court in the matter. But again, whether petitioner has to pay the fees for transfer or not, depends on the facts to be ascertained by the competent Authority.
The learned Additional Government Pleader has pointed out that on 19.09.2007 while considering the aspect of restoring the license lying unutilized/closed license, the Government has found that renewal of such license done earlier was not proper or legal and evolved a policy that if the licenses were not renewed by 31st March, the same should not be renewed until further orders of State Government. Basic dispute here is for period prior to 31/3/2004. The facts in present matter show that in 200405 petitioner was operating his license and it was also renewed for the year 200506. It was valid till 30/4/2005 but actually was closed down on 2/7/2005 because of the orders of Collector u/s 142 of the Prohibition Act. There is assurance to consider the shifting to other area in it. Hence, the said policy decision cannot affect the entitlement of petitioner unless and until it is found that he needs to be blamed for not obtaining further renewal of his CLIII license. Moreover, said Government circular dated 19.09.2007 was to operate till further orders. Therefore, what are subsequent orders and what is the policy decision finally taken by the State Government in the matter has not been brought on record.
In view of the discussion above, it is apparent that communications dated 08.08.2008 or 18.02.2008 and 30.05.2005 at AnnexureVI and AnnexureIV in Writ Petition No. 4474/2008 cannot be sustained. The same are accordingly quashed and set aside.
Similarly, the communication dated 27.07.2009 at AnnexureA of Writ Petition No. 4839/2009 is also quashed and set aside. However, as on today no directions can be issued to the respondents to permit petitioner to transfer his CLIII license shop to Shyam Nagar, Mouza Somalwada, Nagpur. The respondents shall issue appropriate show cause notice to petitioner about recovery of alleged arrears and about alleged lapse of his CLIII license within a period of three weeks from today. Petitioner shall file his reply to the same within a period of two weeks thereafter. After the reply is filed by the petitioner, the competent authority shall decide the issues arising in the matter in accordance with the law, after giving petitioner an opportunity of hearing.
Writ Petition No. 4474/2008 is accordingly allowed. Writ Petition No. 4839/2009 is partly allowed. However, in the circumstances of the case, there shall be no order as to costs in both the matters. Rule is made absolute in the aforesaid terms in both the Writ Petitions.