Bombay High Court
Sylvia Leo Carvgalho vs The Collector Of Mumbai & Another on 20 January, 2000
Equivalent citations: 2000(3)BOMCR158, (2000)2BOMLR9, 2000(2)MHLJ781, 2000 A I H C 1867, (2000) 2 MAH LJ 781, (2000) 1 ALLMR 4 (BOM), 2000 BOM LR 2 9, (2000) 3 BOM CR 158
Author: R.M. Lodha
Bench: R.M. Lodha
ORDER R.M. Lodha, J.
1. Rule. Returnable forthwith. Mr. R.M. Sawant, Government Pleader waives service for respondents.
2. By consent, rule is heard forthwith.
3. Brief facts as set out by the petitioner in the writ petition are: One Leo J. Carvalho was the licensee and carrying on business of running the country liquor bar in the name and style of M/s. Leo's Bar at Achanak Niwas, Opp. Darpan Cinema, A.K. Road, Andheri (East), Mumbai. The said Leo J. Carvalho expired on 1-6-99 leaving behind the petitioner and her minor son as his only legal heirs. On the death of Leo J. Carvalho, the petitioner made an application for transfer, of the licence for country liquor bar viz. Licence No. CL III 50 in her name since the licensee (her husband) had died. The said application made by the petitioner to the Collector of Bombay on 4-6-99 for transfer of the licence in her name is still pending. The petitioner was allowed to carry on the business on the strength of the licence granted to her husband till such time her name was added in the licence. On 17-12-99, the petitioner received a letter from the first respondent calling upon her to pay a sum of Rs. 97,000/- as privilege fee for transferring the licence to her name from the name of her late husband. It is the case of the petitioner that she has been told categorically by the office of the first respondent that if she did not pay the privilege fee as demanded in the letter dated 17-12-99 she would be stopped from running the said Bar. In the backdrop of these facts, the petitioner seeks to challenge the demand made by the first respondent in the sum of Rs. 97,000/- for transferring the licence to her name from the name after the death of her husband.
4. The learned Counsel appearing for the petitioner submits that the demand made by the first respondent calling upon the petitioner to deposit a sum of Rs. 97,000/- towards privilege fee is totally illegal, wholly unjustified and contrary to the provisions of the Maharashtra Country Liquor Rule's, 1973 and the Bombay Prohibition (Privileges Fees) Rules, 1954.
5. It is not disputed that Leo J. Carvalho was the original licensee of licence No. CL III 50 for running the country liquor bar. The said Leo J. Carvalho expired on 1-6-99. The petitioner as his widow made an application on 4-6-99 for transfer of the licence viz. licence No. CL HI 50 in the name of the petitioner and that on 17-12-99 by its communication, the respondent No. 1 called upon the petitioner to pay privilege fee in the sum of Rs. 97,000/- in the Government treasury and submit the original challan for further action in the matter. The demand of Rs. 97,000/- from the petitioner as privilege fee is being claimed under Rule 5 of the Bombay Prohibition (Privileges Fees) Rules, 1954. The said Rule of 1954 has been framed by the State Government in exercise of its powers conferred by Clause (u) of sub-section (2) of section 143 of Bombay Prohibition Act, 1949. Rule 5 reads thus.
"Fees for transfer of a licence from one name to another.---The fee payable by any licensee for the privilege of having the transfer of his licence from one name to another shall be the same as (the fee chargeable for the grant or renewal or continuance of the licence)."
6. A perusal of the said rule would show that the fee for transfer of a licence from one name to the other is payable by any licensee for the privilege of having the transfer of his licence from one name to the other and it is same as chargeable for the grant of a licence or renewal of the licence or continuance of the licence. Obviously, the said rule applies the voluntary transfer of the licence from one person to the other and cannot be made applicable to the transposition of the name of the legal representative or the heir of the deceased licensee. When the original licensee or one of the joint licensee dies and in his or her place, the legal representative or heir prays for insertion of his or her name in place of deceased licensee, such transposition of name or insertion of name in the licence on the death of the deceased licensee, this cannot be said to be a transfer of licence strictly speaking and, therefore, would not be covered under Rule 5 of the Bombay Prohibition (Privilege Fees) Rules, 1954. Rule 5 cannot be extended nor can be applied to a case where the licensee has expired and in his place his heir or legal representative is to be transposed.
7. It would be pertinent to note that Clause 17 of the licence Form CL III provides thus.
"17. The licensee, his heirs, legal representatives or assignees shall have no claim whatsoever to the continuance or renewal of this licence, after the expiry of the period for which it is granted. It shall be entirely within the discretion of the Collector to permit or not the assignee or the licensee, in case of sale or transfer or the heir or legal representative of the licensee, in case of death to have the benefit of the licence for the unexpired portion of the term for which it is granted."
8. The said clause in the licence would show that though the heir or legal representative has no claim whatsoever to the continuance or renewal of licence after the expiry of the period for which it was granted to the licensee in case of death of licensee, such heir or legal representative may have the benefit of the licence for the unexpired portion of the term for which it is granted. Such prayer of continuance of licence for unexpired period by legal heir upon death of licensee cannot be burdened with privilege fee under Rule 5 aforequoted.
9. In the present case, the licensee Leo J. Carvalho expired on 1-6-99 and the licence CL III 50 in the name of the deceased is for the period upto 31st March, 2000. Upon the death of the licensee, the application was made by the petitioner who is his wife and there is no dispute that the first respondent decided in his discretion permitting the petitioner to run the country liquor bar for which licence was given to Leo J. Carvalho. Therefore, for the unexpired period of licence, the demand of privilege fee in the sum of Rs. 97,000/- by the first respondent cannot be justified and apparently is contrary to Clause 17 of the licence CL III. The transposition of name of petitioner in place of deceased licensee Leo J. Carvalho is not 'transfer' as contemplated under Rule 5 of the Bombay Prohibition (Privilege Pees) Rules, 1954 and therefore, the demand of privilege fee from the petitioner to the tune of Rs. 97,000/- is ex-facie illegal.
10. Before I close, I may observe that the view I have taken finds support from the unreported decision of Division Bench in Appeal No. 198 of 1993 in Writ Petition No. 352 of 1993, State of Maharashtra and others v. Smt. Pushpalata, decided on 17-2-1994. The Division Bench while considering Rule 5 in almost identical facts observed thus.
"Shri Sawant, learned Counsel appearing on behalf of the State Government, submitted that the view taken by the learned Single Judge that Rule 5 is not attracted is not correct. It is not possible to accede to the submission. Rule 5 of the Bombay Prohibition (Privileges Fees) Rules, 1954 reads as under:-
"The fee payable by any licensee, for the privilege of having the transfer of his licence from one name to another shall be the same as the fee chargeable for the grant of renewal or continuance of the licence."
Shri Sawant urged that the privilege of deletion of the name of joint holder on the death amounts to a transfer of licence from one name to another and, therefore, the demand of fee chargeable for the grant of a fresh licence was sustainable. It is impossible to accede to the submission. The plain reading of the rule makes it clear that the expression 'transfer' contemplates transfer inter vivos i.e. from one living person to another living person. When licence is standing in the names of joint holders and one of the joint holders dies, then by no stretch of imagination it can be suggested that the interest of the joint holder stands transferred to another holder. The learned Single Judge was perfectly right in concluding that Rule 5 has no application to the facts of the case and the recovery of Rs. 20,000/- from the respondent was without any authority."
11. The similar question arose before this Court in another Writ Petition No. 2510 of 1994. Kamala M. Poojary v. The Collector of Bombay & another, and the learned Single Judge of this Court in his judgment given on 15th June, 1999 observe thus-
"3. I have heard Mrs. Thadhani for the petitioner and Mr. Belosey, learned Assistant Government Pleader for the respondents. The short question which falls for consideration is whether Rule 5 is attracted in the facts of the present case. Rule 5 reads as follows:
"The fee payable by any licensee, for the privilege of having the transfer of his licence from one name to another shall be the same as the fee chargeable for the grant of renewal or continuance of the licence."
4. In the case of State of Maharashtra & another v Smt. Pushpalata (supra), the Division Bench has held that the expression 'transfer' in Rule 5 contemplates, transfer inter vivos i.e., from one living person to another living person. Indeed the language of the rule clearly suggests that the rule was attracted only in cases of voluntary transfer and in such an event privilege fee is payable by the licensee on account of the transfer. In the instant case, there is no voluntary transfer. The licence originally stood in the name of the late husband of the petitioner. After his death, the licence was continued in the name of the deceased till the end of March, 1994. Thereafter, the application made by the petitioner for transfer was accepted and licence was issued in the name of M/s. Hotel Durga Lunch Home. Thus, in the instant ease there is no transfer inter vivos. Therefore, the State cannot claim privilege fee under Rule 5 of the Rules. It is not disputed before me that at the time of grant of licence in the name of M/s. Hotel Durga Lunch Home, the petitioner has paid the yearly licence fee in accordance with the rules. Under the circumstances the demand for privilege fee under Rule 5 is clearly unjustified."
11. I, therefore, have no hesitation in holding that demand of Rs. 97,000/- by the respondent No. 1 from the petitioner as privilege fee for transposing her name in the licence in place of her late husband is unjustified, illegal and does not have any legal sanction.
12. Accordingly, the writ petition is allowed. The demand of first respondent vide letter dated 17-12-99 (Exhibit B-1) is quashed and set aside. The first respondent is directed to proceed in accordance with law. No costs.
The parties may be provided ordinary copy of this order duly authenticated by Court Associate on payment of usual copying charges.
13. Petition allowed.