Patna High Court - Orders
Vinay Kumar Chaudhary & Ors vs The State Of Bihar & Ors on 28 July, 2008
Author: Kishore K. Mandal
Bench: Kishore K. Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.7757 of 2008
VINAY KUMAR CHAUDHARY & ORS
Versus
THE STATE OF BIHAR & ORS
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For the Petitioners : Mr. Y.V. Giri, Senior Advocate
Mr. Abhinav Shrivastava, Advocate
For the Respondents : Mr. Purnendu Singh, Junior Counsel
to the Advocate General
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PRESENT
Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal
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Dated, the 28th July, 2008.
It is not in dispute, rather the senior counsel for the petitioners admits, that prior to the present writ petition, the present petitioners filed writ petition being C.W.J.C. No. 4518 of 2006, (Vinay Kumar Choudhary & Ors. vs. The State of Bihar & Ors.). It is also not in dispute that in the said writ petition, the issues related to grant of licence in Forms 13 and 13A issued under Rule 93A of the Bihar Excise Rules. That the said writ petition along with another writ petition being C.W.J.C. No. 4289 of 2006, Prem Nath Singh v. The State of Bihar & Ors., came to be disposed of on 10 th January, 2007 is an admitted position. It is pertinent to note that in that order, the contention of the present petitioners was noticed thus: -
"Coming now to the other writ petition (C.W.J.C. No. 4518 of 2006), that is with regard to grant of licenses to wholesalers and retailers of the produce of the establishment in Forms 13 and 13A -2- under rule 93A of the Bihar Excise Rules, it may be noted here that on 3.8.1988 the State Government amended the Excise Rules and inserted into it rule 93A containing some fresh provisions. The rule was intended to regulate the wholesale and retail sale of Ayurvedic medicines with alcoholic contents and also had a provision for the wholesalers and retailers to obtain licenses on payment of the prescribed licence fee. The newly added provisions of rule 93A were struck down by this Court as ultra vires the Excise Act. The State took the matter in appeal and the Supreme Court reversed the order of this Court, upheld the validity of the provisions of rule 93A and permitted the wholesalers and retailers of Ayurvedic preparations with alcoholic contents to obtain licenses on payment of arrears of license fees @ Rs.3000/- per year for a wholesale license and Rs.1000/- per year for a retail license. This development has given rise to the controversy in CWJC No.4518/2006.
It is submitted on behalf of the petitioners that the license fees for wholesale licenses for the years, 1989-90 to 2004-05 amounting to Rs.3,18,000/- and for retail licenses for the same period amounting to Rs.43,000/- were deposited but the authorities had not issued the licenses to the petitioners in this writ petition adversely affecting their business and the sale of the produce of M/s Upama Chemical Industries."
2. The relevant part of the order dated 10th January, 2007 reads thus: -
"In order to facilitate an early disposal of the mater the petitioner is directed to appear before the Excise Commissioner, along with a copy of this order, within three weeks from today. The Excise Commissioner is directed to pass a final order within three months from the date of the petitioner's first appearance before him. The further running of the unit shall abide by the final order passed by the Excise Commissioner on the issue of renewal of the L-I license. In case the Excise Commissioner allows renewal of the license, he would also give direction for continued running of the manufactory and would also proceed to consider the grant of licenses under Forms 13 and 13A. The entire exercise must be completed within a period not exceeding three -3- months from the date of the petitioner's first appearance before him."
3. Two facts were also not disputed by the senior counsel for the petitioners before us, namely, (one) That at the time the earlier writ petition (being C.W.J.C. No. 4518 of 2006) was filed by the petitioners, the circular dated 30th January, 2006 issued by the Excise Commissioner had already come into existence and (two) that the legality and correctness of the said circular dated 30 th January, 2006 was not put in issue in the earlier writ petition although reliefs in that writ petition related to grant of license in Forms 13 and 13A.
4. The senior counsel for the petitioners sought to contend that since at that time the manufacturing license (L-I) was not in existence, the validity of the circular dated 30th January, 2006 was not challenged. We are unable to accept his submission. If circular dated 30th January, 2006, suffered from any illegality or unconstitutionality, it ought to have been challenged in the earlier writ petition wherein the issues related to the grant of licenses in Form No. 13 and 13A issued under Rule 93A of the Bihar Excise Rules and in another writ petition (C.W.J.C. No. 4289 of 2006), the relief related to the grant of manufacturing license. The challenge to the circular dated 30th January, 2006 is, thus, barred by the principles of constructive resjudicata. The petitioners cannot be permitted to put the legality and correctness of the said circular now. That challenge before the Excise Commissioner was misconceived. No illegality has otherwise been pointed out in the order dated 07.12.2007/04.04.2008. -4-
5. We are, thus, convinced that this writ petition is not fit to be admitted. It is dismissed in limine.
R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-