Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 690 (BOM)

Sanjeeva J. Shetty v. Collector of Pune

2009-06-15

BILAL NAZKI, V.K.TAHILRAMANI

body2009
Judgment : ORAL JUDGMENT: Rule. 2. Learned AGP appearing on behalf of the respondents waives service of Rule. 3. By consent, Rule made returnable and heard forthwith since the controversy is narrow in these cases. 4. This group of petitions raise same question of law and facts and hence they are being disposed of at this stage by common order. Counter affidavits have been filed and we have heard the learned Counsel appearing for the parties. 5. The petitioners are all licence holders under the Bombay Foreign Liquor Rules. We are taking one of the impugned order as sample passed in Writ Petition 3533 of 2009. 6. The petitioner's licence in that case was renewed from January, 2001 to the end of the year 2006. He had paid the licence fees of Rs.3,65,400/-. It appears from the impugned order that the Auditor General, Mumbai, pointed out that he had found in his inspection that the licence fees charged was not adequate and had not been charged in accordance with the rules. There are two sets of rules. One set applies to the Liquor Vendor and another set applies to the restaurants. The petitioners herein are all Restaurants. 7. Rule 24 of the Rules, which is part of Part II of the Bombay Foreign Liquor Rules, applies to the vendor's licence for sale of foreign liquor. Rule 25 deals with grant of vendor's licence and payment of fees. If a vendor is established (1) in a town where population is upto 1 lakh Rs.25,000/has to be paid as fees; (2) in a city with population of 1 lakh and above but below 10 lakhs, has to pay Rs.65,000/-as fees; and (3) in a city with population of 10 lakhs and above has to pay Rs.1,00,000/-as fees. An explanation is attached to Rule 25, which reads as under: "Explanation.- For the purposes of rules 24 and 25, "population" means the population of a town or a city, as the case may be, as ascertained from the latest Census Report, either provisional or final." 8. The case of the petitioners is that the licence was granted in January, 2001 and the latest Census Report available on that day was the Census Report of 1991. The case of the petitioners is that the licence was granted in January, 2001 and the latest Census Report available on that day was the Census Report of 1991. As per the 1991 Census report, the population in the area where the petitioner's restaurant was situated was above 3 lacs but below 10 lakhs and hence fees of Rs.81,000/- have been correctly charged on the basis of the population of 1991. The Auditor General was of the view that the population had to be taken into consideration in accordance with the latest Census Report i.e. the Census Report of 2001. As per the Census Report of 2001 the population in the area where the restaurant of the petitioners is situated was above 10 lacs, hence according to the Auditor General, the petitioners had to pay at the rate of Rs.1,41,000/- per year. It may be stated here that in the Government Gazette dated 30th January, 2001, annexed to the petition as Exhibit "C", the fees for the financial year 2001-2002 were notified. It provides that where the population is of 3 lacs and above but below 10 lacs, the licence fees would be Rs.81,000/-. The petitioner has paid at the rate of Rs.81,000/- per year. The learned Counsel for the petitioners submits that in January, 2001 the Census Report of 2001 was not available. The report was only made public in August, 2001 and in January 2001 the Authority could have not made a guess about the population figures in the 2001 report. The learned AGP appearing for the respondents has drawn our attention that the explanation attached to Rule 25 is only for the purpose of Rules 24 and 25 and will not apply to Rule 45 under which the licences have been granted to the petitioners. He submits that the petitioners have been granted licence neither under Rule 24 nor under Rule 25, but under Rule 45. The learned AGP does not dispute that the Government Gazette dated 20th January, 2001 covers the case of the petitioners. However, his contention is that as per the 2001 census the population being over 10 lacs, the petitioner has to pay licence fees at the rate of Rs.1,41,000/-and not Rs.81,000/-. He submitted that licence fees of Rs.81,000/would be applicable only when the population is below 10 lacs. 9. However, his contention is that as per the 2001 census the population being over 10 lacs, the petitioner has to pay licence fees at the rate of Rs.1,41,000/-and not Rs.81,000/-. He submitted that licence fees of Rs.81,000/would be applicable only when the population is below 10 lacs. 9. Rule 45 falls in Part III of the Bombay Foreign Liquor Rules, which deals with the hotel licence. Rule 45 is similar to Rule 25, but lays down different norms for hotels and restaurants. Hotels have to pay the licence fees in accordance with the capacity of rooms and restaurants have to pay on the basis of the population in a village, a town or a city. Since the petitioners are the restaurants, therefore, in terms of Rule 45 (1B)(f) they have to pay the licence fees in accordance with the population and there cannot be two para meters to ascertain the population while granting licence to vendors or to restaurants. Therefore, in our view the explanation which is laid down in Rule 25 for ascertaining the population at a particular point of time shall also be applicable to the licence holders under Rule 45(1B)(f) of the Bombay Foreign Liquor Rules. 10. For these reasons, we find the order impugned cannot sustain and is accordingly quashed and set aside. 11. Rule in all the aforesaid writ petitions are made absolute, accordingly. 12. All the writ petitions are allowed. 13. No order as to costs.