Surendra Singh Sumai Singh v. The Collector of Mumbai

Mrs. Veena Thadani for the Petitioner. Mr. Milind More, AGP for the Respondents. CORAM : S.J. KATHAWALLA, J. DATE : 9th July, 2010. P.C.

Heard learned Advocates appearing for the Petitioner as well as for the Respondents.

Rule, returnable forthwith. By consent of the parties, taken up for final hearing. The petitioner herein had ear; ier filed a writ petition before this Court being No. 1252 of 1995 interalia for the following reliefs: (a) for declaration of this Hon’ble Court declaring that the policy of the State Government allowing revalidation of licences by confidential Circulars dated 9th July, 1981, 5th May, 1983, 2nd February, 1984 and 7th May, 1984 and subsequent withdrawal of the same by confidential Circular 2 dated 16th July, 1989 and fixing of an arbitrary cut-off date of 17th February, 1989 is illegal and violative of the provisions of Section 139 of the Bombay Prohibition Act, 1949. (b) for a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, Order and/or direction under article 226 of the Constitution of India directing the State Government to permit revalidation of licences by proper instructions issued under section 139(n) and duly published under section 139(2) of the Bombay Prohibition Act; (c) that this Hon’ble Court be pleased to grant a Writ of Certiorari or a Writ in the nature of Certiorari or any other Writ, Direction or Order of this Hon’ble Court under Article 226 of the Constitution of India, calling for the records and proceedings of the impugned Orders dated 29th August, 1990 and 30th November, 1993 and after examining the same, quash and set aside the same.”

By an order of this Court dated 1st September, 2004 this court inter alia passed the following order in Writ Petition No. 1252 of 1995: “12. Needless to say that the observations made herein relating to the illegality of the orders passed by the respondent-authorities on the applications for validation filed by the petitioners in both the petitions based on the circulars and instructions which were not published in accordance with the provision of law required under Section 139(2) would entitle the petitioners to seek reconsideration of those applications afresh by the respondent-authorities in accordance with the provisions of law and without adhering to the cut-off date prescribed under the circulars which 3 cannot be binding upon the petitioners for the reasons stated above. Such circulars cannot be henceforth binding upon others unless they are published accordance with the provisions of law required under Section 139(2) of the said Act. However, it is made clear that the direction for reconsideration of the petitioners’ applications in the case in hand is being given in the peculiar set of facts of this case and the action on the part of the respondent- authorities rejecting their application for revalidation. The authorities are expected to consider the applications of the petitioners within a period of twelve weeks from today.

The petitions accordingly succeed. The impugned orders are therefore quashed and set aside. The respondents to consider the applications filed by the petitioners for revalidation of their licences in accordance with the provisions of law, ignoring the said circulars and the provisions relating to the cut-off date prescribed under the said circulars. The rule in both the petitions is made absolute in above terms with no order as to costs.

The respondents shall also consider whether the subsequent circular dated 19th September,2007 would be applicable to the case of the petitioner, since the respondents were expected to dispose of the application of the petitioner as per the directions of this Court within a period of 12 weeks from 1st September, 2004 and the said circular is issued by the Government three years thereafter .

Rule is therefore made absolute in the above terms with no order as to costs.

( S.J. KATHAWALLA, J. )