Harish K. Mangawani v. State of Maharashtra & Ors.

Mr. A. V. Anturkar a/w Mr. S. B. Deshmukh for the petitioner. Mr. Veena Thadani with Mr. Vishal Thadani for R-5. Ms. P. S. Cardozo, AGP. Coram : RANJIT MORE, J. Date : October 21, 2011. P. C. :

Heard learned counsel for the respective parties. In the month of June 2009, FL-III licence was issued to Karmchand, deceased father of the petitioner and respondent no.5. Said Karmchand expired on 2/11/2009. During his lifetime, said Karmchand has executed an agreement in favour of respondent no.5 thereby transferring all the licences except FL-III Licence, pertaining to Jay Shankar Restaurant and Bar. So far as FL-III licence is concerned, said Karmchand had given an application in the month of August 2009, to the Assistant Commissioner of Police to transfer the same in favour of respondent no.5.

The petitioner and respondent no.5 are the step brothers. After the demise of said Karmchand, there arose disputes -: 2 :- wp-8540/11 between the step brothers. Respondent no.5 filed civil suit being RCS No.231 of 2009. In the said suit, he filed application for interim injunction. After hearing both the sides, interim inunction is granted by the trial Court in favour of respondent no.5, thereby restraining the petitioner from entering into Jay Shankar restaurant and dispossessing the respondent no.5. The petitioner’s appeal against this order is also dismissed.

Rule-46A of the Bombay Foreign Liquor Rules, 1953 [for short “the said Rules”] authorises the Collector to transfer the FL- III licence from one person to another person. The father of the petitioner and respondent no.5 has already made an application -: 3 :- wp-8540/11 in the month of July 2009 to the Collector for transferring the said FL-III licence in favour of respondent no.5. Mr. Anturkar, learned counsel for the petitioner submitted that the petitioner disputes the signature of his father on the said application. Respondent no.5 has also made an application to the Collector to transfer FL- III licence in his name. This application for transfer will have to be decided by the Collector after hearing respondent no.5 as well as the petitioner.

Mr. Anturkar, learned counsel for the petitioner submitted that Rule 46-A of the Bombay Foreign Liquor Rules, 1953 is prospective in operation and it cannot be applied retrospectively. Mrs. Thadani, learned counsel appearing on behalf of respondent no.5, on the contrary, submitted that Rule-46A is procedural in nature and therefore always becomes operative retrospectively. She submitted that even the impugned order passed by the Minister is subsequent to the amendment under which rule 46A is inserted in the said Rules. I am of the opinion that issue regarding applicability of provisions of rule 46A will have to be decided by the Collector himself.

Respondent no.5 alleges that his father has executed an -: 4 :- wp-8540/11 agreement thereby transferring Jay Shankar Restaurant and Bar in his favour. It is also alleged that all the licences except FL-III licence, are transferred in his name. Unfortunately, it is contended that before the completion of transfer proceedings of FL-III licence, Karmchand died. The civil Court has also injuncted the petitioner from disturbing 5th respondent’s possession in the premises, namely, Jay Shankar Bar and Restaurant. Respondent no.5 has also deposited the licence fees and renewal fees with the Collector in respect of said FL-III licence. However, Mr. Anturkar submitted that in the absence of valid transfer of licence in his favour, respondent no.5 cannot run the business on the basis of said FL-III licence.

In the facts and circumstances of the case, the petition is disposed of by passing following order. -:

O R D E R :- (i) The Collector is directed to decide the application made by Karmchand for transfer of FL-III licence in favour of 5th respondent alongwith the application made by 5th respondent on 22/7/2009, as expeditiously as possible and in any case within the period of four weeks from the date of receipt of a -: 5 :- wp-8540/11 copy of this order. (ii) The impugned order passed by the Minister shall be subject to the final outcome of the proceedings before the Collector. (iii) In the event, the order of the Collector is adverse to the interest of 5th respondent, same shall not be given effect for the period of two weeks from the date of communication thereof to respondent no.5.

(RANJIT MORE, J.)