JUDGMENT : (Sujit Narayan Prasad, J.) I.A. No.5794 of 2022 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 02 days in preferring this Letters Patent Appeal. 2. Heard the parties. 3. Having regard to the averments made in the application and submissions made on behalf of the appellant, we are of the view that the appellant was prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 02 days in preferring the appeal is hereby condoned. 4. I.A. No. 5794 of 2022 stands allowed. L.P.A. No.172 of 2022 5. The instant intra-court appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 03.03.2022 passed by learned Single Judge of this Court in W.P.(C) No.972 of 2020 whereby and whereunder the claim of the writ petitioner for refund/adjustment of certain amount which was deposited against the license fee for the financial year 2017-18 and 2018-19 which was rejected by the Assistant Commissioner, Excise, Ranchi has been refused to be interfered with by dismissing the writ petition on the ground of disputed question of fact that bar and restaurant of the petitioner is not within 500 meters from the National Highway as also the grant of license in excise matter is not a fundamental right. 6. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The Petitioner is carrying on the trade of Bar and Restaurant for last many years and his license is renewed every year for which he receives notice in advance asking him to deposit License fee for the Licensing year within a specific period. 7. It is the case of the petitioner that due to the judgment passed by the Hon'ble Supreme Court, the sale of liquor within 500 mtr. from the National and State Highways has been prohibited and as per the respondents, the petitioner's restaurant/bar came within the ambit of 500 mtr. and as such they withheld the license of the Petitioner's Bar. 8. Pursuant to the said order of the Hon'ble Apex Court the petitioner shifted his Bar & Restaurant i.e. Mehta Bar & Restaurant from Road Side of N.H. to distance of 500 mtr. and as such they withheld the license of the Petitioner's Bar. 8. Pursuant to the said order of the Hon'ble Apex Court the petitioner shifted his Bar & Restaurant i.e. Mehta Bar & Restaurant from Road Side of N.H. to distance of 500 mtr. from N.H. and made a representation to Additional Commissioner, Excise dated 08.11.2017 and requested to renew his Bar License. 9. After submission of the representation dated 08.11.2017 the petitioner came to know that respondents are making some enquiry and suddenly when he visited the office of the respondents, he was asked orally by the Additional Commissioner excise to deposit Rs.12.00 Lakhs and accordingly petitioner deposited Rs.12.00 Lakh under protest because for the year 2016-17, License fee was too high and more so the petitioner's restaurant -cum-bar in question falls in Panchayat area and as such license Fee of Rs. 12.00 Lakhs is not justified. Again for the year 2017-18, the Petitioner was again asked to deposit the same amount and on 31st March 2018 he was compelled to deposit again Rs.12.00 Lakhs which was also deposited by the petitioner under protest. 10. Thereafter, the Deputy Commissioner vide his order contained in Memo No. 450(ii) dated 19.02.2018 granted permission to open Bar on the applied area situated in Village Ulatu of Ormanjhi Block, Ranchi and also in the map attached thereto shows the proposed place of Bar & restaurant situated in Plot No. 806 in Gagari Panchayat, Village Ulatu under Block ormanjhi, Ranchi and the same is also apparent from the certificate issued by Rita Devi, Deputy Mukhiya, Gagari Gram Panchayat that Plot No. 806 under Khata No. 139 falls within Panchayat boundary of Gagari Gram Panchayat, that goes to prove that the land of proposed Bar & Restaurant is within Panchayat area and the license fee for Bar and restaurant in Panchayat Area is Rs.8.00 lakhs only. 11. It is the further case of the petitioner that the License for the financial year 2017-18 has been issued by the Respondent on 27.03.2018 i.e. for only four days ending on 31.03.2018 in place of whole year and the amount received by the Respondents should be returned to the petitioner or should be adjusted in the license fee for the forthcoming financial year 2018-19 and also in future. 12. 12. The Petitioner further applied for issuance of License for running Bar & Restaurant for Financial Year 2018-19 and he was asked to deposit Rs. 12.00 Lakh against license fee by the Respondents and once again the same has been deposited under protest by the Petitioner to the effect that the license fee of Rs. 12.0 Lakh is applicable for Urban area and for Panchayat area the license fee is Rs.8.00 lakh and the petitioner is wrongly charged excess Rs. 4.0 Lakh, which should be returned to the petitioner. 13. The case of the petitioner is that a total sum of Rs. 16 Lakhs (ie. Rs. 12 Lakhs deposited for License Fee for Financial year 2017-18 and Rs. 4.0 Lakhs extra charged against license fee of Financial Year 2018-19) extra has been taken by the respondent authority. 14. Being aggrieved by the orders of Respondent No. 5 to deposit Bar/Restaurant Licence Fee as per rate for Urban area instead of as per rate of bar/restaurant licence fee for Panchayati Area, the petitioner preferred a writ petition before this Hon'ble Court, registered as W.P.(C) 4680 of 2018 and after hearing both the parties Hon'ble Court disposed of the case vide Order dated 24.09.2018 and given the liberty to the Petitioner to file a fresh representation before the respondents and directed the respondents to provide due opportunity of hearing to the petitioner/his representative and take appropriate decision by passing a reasoned order within a period of eight weeks from the date of receipt of the said representation. 15. In compliance of the order of the Hon'ble High Court, the petitioner submitted a fresh representation before Respondent No. 5 dated 12.12.2018 along with copy of the order of the High Court and Respondent No. 5 Deputy Commissioner Excise without giving any opportunity of hearing, has passed the order vide Memo No. 173 dated 03.02.2019 by which he rejected the representation of the petitioner and denied to refund the amount on the ground that petitioner's Bar/Restaurant is on the State Highway and as per Jharkhand Gazette No. 125 dated 21.03.2014 therefore the license fee has been charged as per the said Gazette notification. 16. 16. Being aggrieved with the aforesaid order dated 03.02.2019, the writ petitioner again filed writ petition being W.P.(C) No.972 of 2020 for quashing and setting aside the same as also for a direction to refund the excess amount paid by the writ petitioner as license fee to the respondents. 17. Learned Single Judge, after hearing the parties, has rejected the writ petition vide order dated 03.03.2022 which has been challenged in this intra-court appeal. 18. It appears from the factual aspect that the license was granted in favour of the writ petitioner for Bar and Restaurant situated near the national highway No.33, which since was situated at a distance of 500 meters from national highway within Gagari Panchayat which comes under the village and, as such, in view of the judgment rendered by Hon'ble Apex Court in the case of State of Tamil Nadu and Others v. K. Balu and Another reported in (2017) 2 SCC 281 , the writ petitioner was prohibited from carrying out the business. 19. It is the fact that in view of the aforesaid judgment passed by Hon'ble Apex Court, the State Government has suspended the license, however, the writ petitioner, subsequent to the suspension of license, has shifted his liquor shop beyond 500 meters from national highway and accordingly made representation before the competent authority for revocation of the suspension of the license since the liquor shop has now been shifted which was beyond 500 meters away from the national highway and, as such, there is no violation of order passed by Hon'ble Apex Court in the case of State of Tamil Nadu and Others v. K. Balu and Another (Supra). 20. It is the further fact that after the said representation, the competent authority has acted upon the same and issued fresh license and accordingly, the writ petitioner has again started carrying out his business. But, in the meanwhile, the period of the said license has come to an end and, as such, refund/remission for the period of suspension of the license has been claimed by the writ petitioner. 21. But, in the meanwhile, the period of the said license has come to an end and, as such, refund/remission for the period of suspension of the license has been claimed by the writ petitioner. 21. The further fact, as would appear from the material available on record that while dealing with the representation of the writ petitioner, the Government although had agreed to issue fresh license but subject to the condition that fresh license fee is to be deposited and in pursuance thereto, fresh license fee was deposited by the writ petitioner and since it was at the verge of the closure of the license year and, as such, the writ petitioner carried out the business of only 04 days before coming to the end of the financial year, i.e., 2017-18. 22. The writ petitioner, in the aforesaid background, has sought for adjustment of the license fee in future license as also the reduction in the license fee and the refund for the loss sustained by him during the aforesaid period. 23. The grievance having not been redressed, the writ petitioner filed writ petition being W.P.(C) No.4680 of 2018 seeking for a direction upon the respondent to return Rs.12 lakhs which was deposited by the petitioner towards the bar license fee for the financial year 2017-18 for only four days till the end of the financial year, i.e., 31.03.2018 pursuance to the verbal order of the Assistant Excise Commissioner, Ranchi. 24. The learned Single Judge has disposed of the writ petition with a liberty to the writ petitioner to make representation before the Assistant Commissioner, Excise who in turn was directed to take decision. 25. The Assistant Commissioner, Excise, has taken decision on 03.02.2019 whereby and whereunder the claim of the writ petitioner has been rejected. 26. Being aggrieved with the aforesaid order, writ petition being W.P.(C) No.972 of 2020 has been filed which has been dismissed by the learned Single Judge on two grounds, i.e., the issue of shifting of the shop beyond 500 meters from national highway is a disputed question of fact and further, grant of license in excise matter is not a fundamental right. 27. The writ petitioner, being aggrieved with the order passed in W.P.(C) No.972 of 2020, has filed the present appeal. 28. 27. The writ petitioner, being aggrieved with the order passed in W.P.(C) No.972 of 2020, has filed the present appeal. 28. The grounds have been taken that the learned Single Judge although has dismissed the writ petition on the ground that the shifting of the shop and again carrying out the business said to be in a shop which was beyond 500 meters from the national highway is a disputed question of fact but the learned Single Judge ought to have granted liberty to the writ petitioner to approach the competent authority for adjudication of his claim. 29. But, instead of doing so, the writ petition has been dismissed depriving the writ petitioner from availing remedy before the alternative forum as per the provision of Bihar Excise Act, 1915, now the Jharkhand Excise (Amendment) Act, 2015. 30. The further ground has been taken that the learned Single Judge had deviated from the prayer which was not therein by making an observation regarding the issue of grant of license which has been said to be not a fundamental right but according to the learned counsel for the appellant, the issue of grant of license was not the subject matter of the writ petition and that part of the observation/finding which led the learned Single Judge to dismiss the writ petition is contrary to the record and, hence, the impugned order needs to be interfered with. 31. Mr. Manish Kumar, learned Sr. S.C.-II appearing for the State of Jharkhand, has not disputed the fact that the learned Single Judge has come to conclusion of not exercising the power conferred to this Court under Article 226 of the Constitution of India by coming to a finding that it is a disputed question of fact then what has been argued on behalf of the appellant that the chapter ought to have been opened by granting liberty to the writ petitioner to approach before the forum as created under the statute so that the grievance of the writ petitioner can be raised and adjudicated by the alternative forum as per the statutory command. 32. Mr. Rajesh Kumar, learned counsel appearing for the writ petitioner-appellant, upon this, has submitted that such liberty may be granted so that the writ petitioner may approach before the alternative forum as per the provision made in the Excise Act by filing application before the competent authority. 33. 32. Mr. Rajesh Kumar, learned counsel appearing for the writ petitioner-appellant, upon this, has submitted that such liberty may be granted so that the writ petitioner may approach before the alternative forum as per the provision made in the Excise Act by filing application before the competent authority. 33. We have heard learned counsel for the parties and perused the finding recorded by the learned Single Judge in the impugned order. 34. Since the learned counsel for the appellant has also argued by accepting the view taken by the learned Single Judge that the question as to whether the shop is within 500 meters from the National Highway or beyond 500 meters from the National Highway is a question on fact finding, hence, the same is to be dealt with by the competent authority as per the power conferred under the Act. 35. Therefore, this Court, considering the aforesaid fact having not been objected by learned State counsel regarding the alternative forum available under the Act, is of the view that the part of the order by which the learned Single Judge has dismissed the writ petition needs to be interfered with. 36. The further observation which led the learned Single Judge to dismiss the writ petition by treating the writ petition for grant of license, we are of the view, after going through the material available on record that the case was not of grant of license. 37. The aforesaid fact has also been admitted by the learned State counsel. Therefore, this Court is of the view that the part of the observation/reason referred in the impugned order to the effect that the grant of license in excise matter is not a fundamental right also needs to be interfered with. 38. Accordingly, part of the order passed by the learned Single Judge so far as it relates to the grant of license in excise matter is not a fundamental right is hereby quashed and set aside. 39. 38. Accordingly, part of the order passed by the learned Single Judge so far as it relates to the grant of license in excise matter is not a fundamental right is hereby quashed and set aside. 39. Further, the shop was within 500 meters or not since is disputed question of fact, hence, the writ petition has been dismissed but, we are of the view, based upon the submission made hereinabove, that instead of dismissing the writ petition, the learned Single Judge ought to have disposed of the writ petition by granting liberty to the writ petitioner to approach before the competent authority as per the forum made available under the statutory provision. The reason is that if the writ petition has been dismissed then question would be that how the grievance of the writ petitioner will be dealt with for coming to a logical end. 40. Therefore, this Court is of the view that the order of dismissal of the writ petition requires interference. 41. Accordingly, the order of dismissal of the writ petition is hereby quashed and set aside by granting liberty to the writ petitioner to approach before the forum available under the Act so as to bring all the issues before the competent authority for its adjudication in accordance with law. 42. If such application will be filed, the competent authority will decide the issue preferably within the period of three months from the date of receipt of copy of this order. 43. Needless to say that while taking such decision, the concerned competent authority will provide an opportunity of hearing to the revenue authorities also along with the writ petitioner/appellant. 44. Accordingly, the instant appeal stands disposed of. 45. It is made clear that we have not gone into the merit of the issue. The competent authority is to decide the issue strictly on the basis of the factual aspect which will be placed before it.