Shri Jainath Pal vs Chief Officer, Mormugao Municipal Council and Others

S.B. Deshmukh, J.—We have heard learned Senior Advocate Shri S. G. Dessai who appears for the Petitioner. Shri Padiyar, learned Counsel appears for Respondent No. 1. Shri A. Kakodkar, learned Addl. Government Advocate who appears for Respondent Nos. 2 to 4 and Shri Bhise, learned Advocate who appears for Respondent Nos. 5 and 6.

The Petitioner has approached this Court with the following prayers:

(A) For a writ of certiorari or a writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction, under Article 226 of the Constitution of India, quashing and setting aside the impugned orders, Exhs. P-1 and P-2 to petition and impugned decision, Exh. P-3 to petition, after calling for the records of the case and examining them for propriety, legality and correctness;

(B) For a writ of mandamus or a writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India, commanding Ld. Excise Commissioner to issue forthwith Excise Licence to Petitioner to conduct retail sale of Indian Made Foreign Liquor and Country Liquor at Shop No. 6 in Sai Raj Complex, Baina, Vasco-da-Gama, Goa, u/s 15 of Excise Duty Act;

(C ) Pending hearing and final disposal of the petition, this Hon''ble Court be pleased to command Ld. Excise Commissioner to provisionally issue Excise Licence to Petitioner to carry on retail sale of Indian Made Foreign Liquor and Country Liquor at Shop No. 6 in Sai Raj Complex, Baina, Vasco-da-Gama, Goa;

(D) For ex-parte ad interim relief in terms of prayer clause (c) above.

(E) For any other reliefs deemed appropriate in the nature and circumstances of the case.

This Petition was filed by the Petitioner on 29th August, 2006. On 11th September, 2006 this Court after hearing the learned Senior Counsel for the Petitioner issued notice before admission, returnable within two weeks. The matter was adjourned from time to time. On 13th October, 2008, this Court after hearing learned Counsel appearing for the parties directed the Registry to list the matter for final hearing on 20th November, 2008. Misc. Civil Application No. 507 of 2008 filed by the Petitioner/Applicant for fixing peremptory date of hearing was disposed of. Thereafter, the matter was adjourned from time to time.

Today, learned Counsel appearing for the Respondent Nos. 5 and 6 presented compilation of some of the communications which are marked ''X'' Colly for identification. The photo copy of the same has been served to the learned Counsel appearing for the respective parties. This compilation contains some of the communications dated 1st September, 2009 addressed by the Respondent No. 5, Chairman of Sairaj Complex Co-operative Housing Society Ltd. This communication was addressed to the Chief Officer, Mormugao Municipal Council i.e. Respondent No. 1. By this communication, judgment of the Hon''ble Supreme Court reported in (2006) INSC 381, has been referred to.

Learned Senior Advocate Shri Dessai makes available a photo copy of the judgment of the learned Civil Judge Junior Division, Vasco-daGama, Goa, in Regular Civil Suit No. 88/05/D delivered on 15th November, 2007. The judgment states that the Plaintiff''s suit has been decreed. The letter dated 6th October, 2005 is declared as null and void and not binding on the Plaintiff. In the said suit, the Defendant Nos. 1 and 2, their agents, servants have been restrained from causing any impediment or obstruction of whatsoever nature to the customers of the Plaintiff in entering shop No. 6 in Sairaj Complex, Baina, Vasco-da-Gama, Goa.

The learned Senior Counsel appearing for the Petitioner took us through the order passed by the authority impugned in this Writ Petition. First one is the Annexure P-1 ( page 16 ). This order appears to have been passed by the Chief Secretary of the State of Goa ( Appellate Authority ) in Appeal No. 2/2006 wherein the Petitioner was the Appellant before the Appellate Tribunal and the Commissioner of Excise was the Respondent. The Appellate Authority, observed that the present case was a unique case wherein licence has been cancelled for withdrawal of NOC by the Municipality and this is the first case of its kind. It has been further observed that the licence was granted in July, 2005 based on NOC issued by the Municipality and subsequently the NOC was withdrawn in November, 2005. The Appellant authority has considered the order passed by the authority of the Excise Department. It appears from the order passed by the Appellate authority that some residents have complained of nuisance of the bar in the residential complex. Filing of the Writ Petition earlier and disposal thereof by this Court on 30th January, 2006 is also noticed by the authority concerned. The Appellate Tribunal however observed that the Appellant prima facie has a right to a licence. The Appellate authority further observed that the Appellant ( Petitioner ) should look for another suitable place. If the new premises meet the guidelines issued, the Excise Commissioner may issue a licence in his favour. As we have noticed in foregoing paras Exhibit P-1 is impugned in this Writ Petition. The learned Counsel for the parties took us through another order at Exhibit P-2 (page 17) passed by the learned Commissioner of Excise. Para 5 of the order records that the licence holder ( present Petitioner ), was holding NOC from the Municipality concerned. The said NOC has been withdrawn by the Municipality without following the procedure or without giving opportunity of personal hearing to the Petitioner. It is also observed by the learned Commissioner of Excise that withdrawal of NOC by the Municipality can be challenged by the present Petitioner before the appropriate forum. According to the Commissioner of Excise, he has nothing to do with that aspect of the matter. In para 6, it has been observed that the grant of licence was based on the NOC issued by the Municipality concerned. Since the said NOC has been issued by the Municipal Council, the authority fit it appropriate to cancel the licence granted to the Petitioner in the said premises. This authority has passed an order of cancellation of licence bearing No. FCL 680 for retail sale of IMFL & CL for consumption in premises bearing shop No. 6 of Sairaj Complex H. No. 7/338/A(5), situated at Church Road Baina, Vasco-da-Gama of Mormugao Taluka. This order was even noticed by the Commissioner of Excise while passing order on 20th February, 2006.

Shri Dessai, learned Senior Counsel who appears for the Petitioner presented the copy of the judgment of Civil Judge Junior Division, Vasco-Da-Gama, Goa., in Regular Civil Suit No. 88/05/D. It is marked letter ''X'' for identification. The photo copy of the same has been served to the learned Counsel for the Respondents. Learned Addl. Government Advocate for the Respondent Nos. 2 to 4 states that it would be appropriate for the Petitioner to move an application for proper amendment of the Writ Petition.

We have considered the submissions of the learned Counsel present before the Court. We have recorded all the relevant dates from the date of filing of the Writ Petition. We have also noticed that interim relief was not granted by this Court and the matter was listed for final hearing. In our opinion filing of the suit by the present Petitioner/Plaintiff in Civil Court on 15th October, 2005 is a subsequent events occurred after filing of the present Writ Petition. We have noticed that the cause of action for filing the suit by the Petitioner/Plaintiff was for issuance of the letter by the Municipal Council dated 6th October, 2005. The Civil Court after hearing the present Petitioner and the Municipal Council - Respondent No. 1 who was Defendant No. 3 in that suit has granted declaration. Considering these dates, in our opinion asking the Petitioner to move a formal application for amendment is just a matter of some facility which may consume some time since we have taken on record the photo copy of the judgment of the Civil Court and we have heard learned Counsel appearing for the Municipal Council and in our opinion based on this judgment without asking the Petitioner to file an application for amendment, this Petition can be disposed of.

There are two distinct issues, grant of NOC by the Municipal Council under the provisions of the Goa Excise Duty Act, 1964 and grant of licence under the Goa Excise Duty Act by the authority concerned. In the case on hand, the authorities have observed that NOC which was granted initially in favour of the Petitioner by the Municipal Council has been subsequently withdrawn/revoked, which led authority under the Goa Excise Duty Act to cancel the licence granted in favour of the Petitioner based on initial grant of NOC by the Municipal Council. In this view of the matter, taking into account, the fact that Civil Court after hearing the Counsel for parties decreed the suit filed by the present Petitioner and granted declaration in favour of the Petitioner in relation to the letter/communication revoking or withdrawing the NOC granted to the Petitioner pertaining to the premises in question. In this view of the matter, we are inclined to allow this Petition partly by quashing and setting aside the order passed by the Appellate authority under the provisions of the Goa Excise Duty Act and remitting the matter back to the Commissioner of Excise to hear the Petitioner and pass an appropriate order. The Counsel appearing for the Respondent Nos. 5 to 6 makes a request that he should be heard by the Commissioner of Excise. In our opinion, the Respondent Nos. 5 and 6 after advised so may file an application before the Commissioner of Excise. The Commissioner of Excise in that case hear the Petitioner and pass an appropriate order. The Commissioner of Excise shall decide the matter in accordance with the provisions of law. We have not expressed any opinion in respect of merits of the case. The Commissioner of Excise shall without being influenced by the order of Tribunal, decide the matter on merits.

Rule made absolute in the above terms. No costs.

Authentic copy of this order is permitted to the parties on their request and as per usual procedure.